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Exhibit 10.3
CONSULTING AGREEMENT
This Agreement is made as of this 24 day of __July___________, 1997, by
and between TEL-COM WIRELESS CABLE TV CORPORATION, with offices at 0000 X.X.
000xx Xx., X. Xxxxx Xxxxx, XX 00000 (the "Company") and XXXXXX XXXXXXX XXXXXXX,
INC., with offices at Xxx Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx,
00000 (the "Consultant").
W I T N E S S E T H
WHEREAS, the Company desires to retain the Consultant, and the
Consultant desires to be retained by the Company, pursuant to the terms and
conditions hereinafter set forth;
1. RETENTION: The Company hereby retains the Consultant to
perform non-exclusive consulting services related to corporate finance and other
matters, and the Consultant hereby accepts such retention and shall undertake
reasonable efforts to perform for the Company the duties described herein. In
this regard, subject to paragraph 9 hereof, the Consultant shall devote such
time and attention to the business of the Company, as shall be determined by the
Consultant, subject to the direction of the President of the Company.
(a) The Consultant agrees, to the extent reasonably required
in the conduct of the business of the Company, and at the Company's request, to
place at the disposal of the Company its judgment and experience and to provide
business development services to the Company, including, without limitation, the
following:
(i) To assist in potential financing
requirements;
(ii) To assist in potential mergers and
acquisitions;
(iii) To provide advice on investor
relations and marketing strategies;
(iv) To provide advice with respect to
corporate finance matters including,
without limitation, changes in
capitalization and corporate structure;
and
(v) To assist in strategic development.
(b) At the Consultant's request, the Company will provide "due
diligence" packages to registered representatives of the Consultant and other
brokerage firms.
(c) Nothing in this Agreement shall impose any obligation upon
the Company to consummate any transactions or to enter into any discussions or
negotiations with respect thereto.
2. TERM: The Consultant's retention hereunder shall be for a term
of two (2) years commencing on the date of this Agreement unless sooner
terminated by either party upon thirty (30) days notice to the other party.
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3. COMPENSATION: As full compensation for the consulting services
hereunder, the Company shall grant to the Consultant warrants (the "Warrants")
to purchase an aggregate of 800,000 shares of the Company's common stock
("Common Stock"), as described below:
(a) An aggregate of 500,000 warrants shall be
exercisable for a period of one (1) year
from the date hereof at an exercise price of
$1.00 per share.
(b) An aggregate of 200,000 warrants shall be
exercisable for a period of one (1) year
from the date hereof at an exercise price of
$2.50 per share.
(c) An aggregate of 100,000 warrants shall be
exercisable for a period of three (3) years
from the date hereof at an exercise price of
$2.50 per share.
The Company shall grant to the Consultant demand and "piggy back"
registration rights to include the shares of Common Stock issuable upon exercise
of the Warrants in any registration statement filed by the Company under the
Securities Act of 1933, as amended, except registration statements on Forms S-8
or S-4.
The Warrants shall have anti-dilution provisions for stock dividends,
splits, mergers, sale of substantially all of the Company's assets and for other
unusual events (excluding employee benefit and stock option plans for employees
and advisors of the Company).
4. EXPENSES: The Company agrees to reimburse the Consultant for
reasonable out-of-pocket expenses incurred by the Consultant in connection with
the services rendered hereunder. Any such expenses shall require the prior
written approval of the Company.
5. FEES TO CONSULTANT: The Consultant and/or its affiliates shall
receive a 10% aggregate fee for any funds it is directly responsible for raising
for the Company and a 3% aggregate fee shall be paid for Consultant and/or its
affiliates if Consultant or its affiliates act as a placement agent in a
transaction that leads to a funding consummated by the Company. In the event
that Consultant or its affiliates directly introduces a prospective merger or
acquisition which merger or acquisition is consummated by the Company,
Consultant and/or its assignees shall be entitled to an aggregate fee of 4% of
the purchase price of said merger or acquisition. No fee shall be paid by
Company for any funding, merger or acquisition in the event that the funding
agent or target Company were solicited directly by the Company or in event the
funding agent of target Company solicited the Company without the direct
intervention of the Consultant or its affiliates.
6. CONFIDENTIALITY: In connection with the consulting services
provided by the Consultant to the Company, Company will furnish Consultant with
certain product, financial, marketing, organization, technical and other
information related to the Company (herein collectively referred to as the
"Confidential Information"). Confidential
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Information includes not only written information but also information
transferred orally, visually, electronically or by other means. In consideration
of the Company furnishing Consultant with the Confidential Information, and as a
condition to such disclosure, Consultant agrees as follows, (the "Agreement"):
a) Consultant shall keep all Confidential Information
secret and confidential and shall not disclose it to
anyone except to a limited group of Consultant's
employees and directors, representatives, agents,
advisors and assignees ("Representatives") who are
actually engaged in consulting services referred to
above. Consultant may also disclose it to its outside
professional advisors similarly engaged. Each person
to whom such Confidential Information is disclosed
must be advised of its confidential nature and of the
terms of this Agreement and (unless already bound by
obligations of confidentiality) must agree to abide
by such terms.
(b) Upon any termination of this Agreement or upon notice
from the Company to Consultant (i) Consultant will
either destroy or return to the Company the
Confidential Information that is in tangible form,
including copies that it may have made, and
Consultant will destroy all abstracts, summaries
thereof, or references thereto in its documents, and
certify to the Company in writing that it has done
so, and (ii) neither Consultant nor its
Representatives will use any of the Confidential
Information with respect to, or in furtherance of
Consultant's business, any of their respective
businesses, or in the business of anyone else,
whether or not in competition with the Company, or
for any purpose whatsoever.
(c) Confidential information does not include any
information that was available prior to Consultant's
receipt of such information or thereafter became
publicly available not as a result of a breach by
Consultant of this Agreement. Information shall be
deemed "publicly available" if it becomes a matter of
public knowledge or is contained in materials
available to the public or is obtained from any
source other than the Company (or its directors,
officers, employees, agents, representatives or
advisors), provided that such source has not, to
Consultant's knowledge, entered into a
confidentiality agreement with the Company with
respect to such information or obtained the
information from an entity or person party to a
confidentiality agreement with the Company.
(d) Consultant understands that the Company will attempt
to include in the Confidential Information those
materials that it believes to be reliable and
relevant for the purpose of the Consultant's
services, but Consultant acknowledges that neither
the Company, nor any of its respective directors,
officers, agents, advisors or employees make any
representation or warrant as to the accuracy or
completeness of the Confidential Information and
Consultant agrees that such persons shall have no
liability to Consultant or any of its Representatives
resulting from any use of the Confidential
Information. Consultant understands
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that the Confidential Information is not being
furnished for the use in an offer or sale of
securities of the Company and is not designated to
satisfy the requirements of federal or state
securities laws in connection with any offer or sale
of such securities to Consultant.
(e) In the event that Consultant or anyone to whom
Consultant transmits the Confidential Information
pursuant to this Agreement becomes legally compelled
to disclose any of the Confidential Information,
Consultant will provide the Company with prompt
notice so that the Company may seek a protective
order or other appropriate remedy and/or waive
compliance with the provisions of this agreement. In
the event the Company is unable to obtain such
protective order or other appropriate remedy,
Consultant will furnish only that portion of the
Confidential Information that Consultant advised by a
written opinion of counsel is legally required and
Consultant will exercise its best efforts to obtain a
protective order or other reliable assurances that
confidential treatment will be accorded with the
Confidential Information so disclosed.
(f) Consultant understands and agrees that money damages
would not be a sufficient remedy for any breach of
this Agreement by Consultant or its Representatives,
and that the Company shall be entitled to specific
performance and/or injunctive relief as a remedy for
any such breach of this Agreement and that these
shall be in addition to all other remedies available
at law or in equity. Consultant further agrees that
this Agreement is made for the benefit of the Company
and that no failure or delay by the Company or its
Representatives in exercising any right, power or
privilege under this Agreement shall operate as a
waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further
exercise thereof or the exercise of any right, power
or privilege under this Agreement.
(g) Consultant's obligations with regard to Confidential
Information shall survive the termination of this
Agreement.
7. INDEMNIFICATION: The Company agrees to indemnify and hold
harmless the Consultant and its affiliates, the respective directors, officers,
partners, agents and employees and each other person, if any, controlling the
Consultant or any of its employees and each other person, if any, controlling
the Consultant or any of its affiliates (collectively the "Consultant Parties"),
from and against all losses, claims, damages, liabilities and expenses incurred
by them (including reasonable attorney's fees and actual disbursements) that
result from the actions taken or omitted to be taken (including any untrue
statements made or any statements omitted to be made) by the Company, its agents
or employees. The Consultant will indemnify and hold harmless the Company and
the directors, officers, agents, and employees of the Company (the "Company
Parties") from and against all losses, claims, damages, liabilities and expenses
that result from bad faith, negligence or unauthorized representations of the
Consultant. Each person or entity seeking indemnification hereunder shall
promptly notify in writing the Company or the Consultant, as applicable, who may
become liable pursuant to this paragraph and shall not pay, settle or
acknowledge liability under any such claim without consent of the party
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liable for such indemnification and shall permit the Company or the Consultant,
as applicable, a reasonable opportunity to cure any underlying situation and/or
to mitigate any actual or potential damages. The scope of this indemnification
between the Consultant and the Company shall be limited to, and pertain only to,
those certain transactions contemplated or entered into pursuant to this
Agreement.
The Company or the Consultant, as applicable, shall have the
opportunity to defend any claim for which it may liable hereunder, provided it
notifies the party claiming the right to indemnification within fifteen (15)
days notice of the claim.
The rights stated pursuant to the preceding two paragraphs shall
be in addition to any rights that the Consultant or the Company or any other
person entitled to indemnification may have under common law or otherwise,
including, without limitation, any right to contribution.
8. STATUS OF CONSULTANT: The Consultant shall be deemed to be an
independent contractor and, except as expressly provided or authorized in this
Agreement, shall have no authority to act for or represent the Company.
9. OTHER ACTIVITIES OF CONSULTANT: The Company recognizes that
the Consultant now renders and may continue to render financial consulting and
other investment banking services to other companies which may or may not
conduct business and activities similar to those of the Company. The Consultant
shall not be required to devote its full time and attention to the performance
of its duties under this Agreement but shall devote only so much of its time and
attention as it deems necessary for such purposes in the reasonable exercise of
its discretion, subject to the direction of the President of the Company.
10. CONTROL: Nothing contained herein shall be deemed to require
the Company to take any action contrary to its Certificate of Incorporation or
By-laws, as each may be amended from time to time, or any applicable statute or
regulation, or to deprive its Board of Directors of their responsibility for any
control of the conduct of the affairs of the Company.
11. NOTICES: Any notices hereunder shall be sent to the Company
and the Consultant at their respective addresses above set forth. Any notice
shall be given by registered or certified mail, postage paid, and shall be
deemed to have been given when deposited in the United States mail. Either party
may designate any other address to which, or manner in which, notice shall be
given, by giving written notice to the other of such change of address in the
manner herein provided.
12. GOVERNING LAW: This Agreement has been made in the State of
New York and shall be constructed and governed in accordance with the laws
thereof without regard to conflict of laws.
13. ENTIRE AGREEMENT: This Agreement contains the entire
agreement between the parties, may not be altered or modified, except in writing
and signed by the party to be charged thereby and supersedes any and all
previous agreements between the parties.
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14. BINDING EFFECTS; ASSIGNMENT: This Agreement shall be binding
upon the parties hereto and their respective heirs, administrators, successors,
and assigns; provided, however, that this Agreement, and the rights and
obligations hereunder, may not be assigned by either party hereto without the
prior written consent of the other party.
15. COUNTERPARTS: This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
XXXXXX XXXXXXX XXXXXXX, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
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TEL-COM WIRELESS CABLE
TV CORPORATION
By: /s/ Xxx Xxxxx
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