Exhibit 4.11
CONSULTING AGREEMENT
Agreement made this 23rd day of April 2004 between China Wireless
Communications, Inc. (hereinafter referred to as "Company"), and Xxxxxxx X.
Xxxxxx (hereinafter referred to as "Consultant").
Company desires to engage Consultant to perform certain consulting
services for Company and Consultant desires to perform such services on the
terms and conditions set forth below.
NOW THEREFORE, in consideration of the premises hereof and of the mutual
promises and agreements contained herein, the parties hereto, intending to be
legally bound, do hereby agree as follows:
1. Engagement; Scope of Services.
Company hereby engages Consultant to perform the duties set forth in
this Agreement. The engagement by Company of Consultant under this Agreement is
non-exclusive and shall not limit Company's right to engage other persons
(including but not limited to consultants and analysts) to conduct activities on
behalf of Company. During the term of this Agreement Consultant may not perform
comparable services for any person or entity involved in similar businesses in
which Company (or any of its subsidiaries or affiliates) is engaged.
2. Duties and Responsibilities of Consultant.
2.1. Consistent with Consultant's experience and expertise in
dealing with all areas regarding determination of market value of the fiber
optic network and its facilities in Beijing, China. Consultant shall advise,
make recommendations, define marketing opportunities, prepare appraisal and
valuation analysis, present valuation on capital improvements relating to
current value and/or worth, and appraisal plans devised by Consultant, offer
ideas to promote the products and services of the Company and generally advise
the Company on similarly related matters.
2.2 Consultant's duties hereunder shall include, but not be
limited to, (as such pertains to the Beijing, China market):
2.2.1 Provide value assessment of network;
2.2.2 Prepare and present standard version of the value
assessment documents;
2.2.3 Provide due diligence studies for proposed strategic
alliance partners;
2.2.4 Provide condensed version of valuation document.
2.3. Consultant shall submit and identify to Company all contacts
for possible business relationships; however, Consultant shall inform such
contacts that no obligation is created on the part of Company by virtue of such
submission.
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2.4 Consultant shall devote such time as, in the sole discretion
of the Consultant, to the performance of his duties, is needed to fulfill his
duties under all of the terms and conditions of this Agreement.
2.5. Both parties intend this Agreement to be a personal contract
and Consultant shall not assign or delegate any rights, duties or obligations
arising under this Agreement without the prior written consent of Company, which
consent may be withheld in Company's sole discretion.
3. Representations, Warranties, Covenants, and Agreements of Consultant.
3.1. Representations and Warranties. Consultant hereby represents
and warrants to Company as follows:
(a) Consultant is familiar with all aspects of the
telecommunications markets in Beijing, China. Consultant acknowledges that it is
the policy of Company to comply fully with all applicable laws and regulations
of the United States and all jurisdictions in which it does business, and
Consultant warrants that he will not take any action which would constitute a
violation of any law of any jurisdiction in which he performs services or of the
United States.
(b) The execution and performance of this Agreement by Consultant
will not violate, or result in a default under, any agreement, law, statute,
regulation, or other authoritative rule of any governmental body to which
Consultant is a party or by which Consultant is bound.
(c) There is no restriction upon Company disclosing to any person
or entity (i) that Company has the relationship with Consultant provided for in
this Agreement, (ii) that Consultant is to receive from Company compensation in
connection with the performance of services hereunder, (iii) the amount of that
compensation, or (iv) the terms upon which payment has been or will be made.
(d) This Agreement, when executed, will constitute the valid and
legally binding obligation of Consultant, fully enforceable against him in
accordance with its terms. The execution and performance of this Agreement by
Consultant will not violate any constitutional provisions, statutes, ordinances,
regulations, tax codes, or other laws of the United States or any other Country.
(e) The services of the Consultant to be performed for the Company
as set forth herein (i) are not in connection with the offer or sale of the
Company's securities in a capital raising transaction and (ii) do not directly
or indirectly promote or maintain a market for the Company's securities.
(f) Consultant acknowledges that he is waiving his right to cash
compensation and accepting the remuneration set forth herein in lieu thereof,
and is aware of the risks related thereto.
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(g) Consultant acknowledges that the Consultant has been afforded
the opportunity to ask questions of and receive answers from duly authorized
officers or other representatives of the Company concerning an investment in the
Company, and any additional information which the Consultant has requested.
(h) Consultant's investment in securities is reasonable in
relation to the Consultant's net worth. Consultant has had experience in
investments in restricted and publicly traded securities, and Consultant has had
experience in investments in speculative securities and other investments which
involve the risk of loss of investment. Consultant acknowledges that an
investment in the Company is speculative and involves the risk of loss.
Consultant has the requisite knowledge to assess the relative merits and risks
of this investment without the necessity of relying upon other advisors, and
Consultant can afford the risk of loss of his entire investment in the Company.
Consultant is either (i) a sophisticated investor with such knowledge as is
necessary to make an informed investment decision or (ii) an accredited
investor, as that term is defined in Regulation D promulgated under the
Securities Act of 1933.
(i) Consultant is acquiring the Shares for the Consultant's own
account for long-term investment and not with a view toward resale or
distribution thereof except in accordance with applicable securities laws.
(j) Consultant has consulted with his own attorney regarding this
Agreement and legal matters concerning the Company and with his tax advisor
regarding the tax consequences of acquiring the Shares.
3.2 Covenants and Agreements. Consultant hereby covenants with
Company and agrees as follows:
(a) Consultant shall not make use of any agent or consultant
connection with the performing of any of his duties hereunder without the prior
written approval of an authorized executive officer of Company. Notwithstanding
anything to the contrary in this Agreement, Consultant may delegate
administrative duties (including data processing and other ministerial
functions) to third parties, so long as such third parties are informed of, and
agree to be bound by, the provisions hereof.
(b) Consultant shall not hold himself out, directly or by
implication, as being an employee or contracting agent of Company.
(c) Consultant shall not make any representation, directly or by
implication that the Company has any obligation to any third party with respect
to the payment of any of the payments to be made to Consultant hereunder.
(d) In the performance of this Agreement, neither Consultant nor
any employee or agent of Consultant shall, except as approved in writing in
advance by Company, offer to pay, pay, promise to pay, or authorize the payment
of, any money, or offer to give, give, promise to give, or authorize the giving
of, anything of value, directly or indirectly, to any third person or entity.
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(e) Consultant hereby authorizes Company to disclose to any
governmental authority that properly requests such disclosure or as is required
pursuant to any applicable rule or law, (i) this Agreement, (ii) the amount of
any compensation paid to Consultant hereunder, and the terms and manner of such
payment, and (iii) such other information as may be required by law or
regulation. Consultant agrees to provide to Company in a timely manner, any
information necessary for Company to make such disclosure.
(f) In performance of this Agreement, Consultant shall fully
comply with all applicable laws governing the transactions undertaken, including
without limitation all United States Federal and State securities laws.
(g) Consultant shall inform Company immediately if any
representation, warranty, covenant, or agreement contained herein is no longer
accurate.
(h) The Consultant agrees to the inclusion of this Agreement and
the contents hereof (including but not limited to the name of the Consultant) in
a Form S-8 to be filed by the Company including the Shares.
4. Compensation.
Company shall pay to Consultant, during the term of this Agreement, the
sum of 50,000 shares of common stock @ $0.60 per share as follows: $5,000 upon
signing of authorization, 7,142 shares after 30 days upon execution of this
agreement and the balance at the delivery of the appraisal or up until
Expiration Date (as defined below).
5. Apportionment of Expenses: Right to Audit.
5.1. Consultant shall be reimbursed by the Company for all
reasonable pre-approved expenses incurred by Consultant in the performance of
his duties, as set forth in Paragraph 2.2, above.
5.2. Requests by Consultant for reimbursement of expenses must be
accompanied by an itemization of such expenses.
5.3. All compensation and expense reimbursements are subject to
audit by Company upon request by Company and Consultant agrees to cooperate
fully with Company in the event of such a request.
6. Term and Termination.
6.1. Term. The term of this Agreement (the "Term") shall commence
on the date hereof and expire on the three month anniversary of the date hereof
(the "Expiration Date") subject to the termination provisions set forth herein.
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6.2. Termination Rights.
(a) This Agreement may be terminated at any time without
notice by Company (i) for illegal acts or willful neglect on the part of
Consultant or Consultant's agents or Consultants, (ii) in the event any
representation, warranty, covenant, or agreement of Consultant contained in this
Agreement shall prove to be false, or inaccurate in whole or in part. In the
event this Agreement is terminated pursuant to the previous sentence, all of the
Company's obligations shall immediately cease and no severance pay shall be
payable, nor future payments (if any) due as set forth herein but not yet paid,
by Company to Consultant upon Consultant's termination under the this
subsection, regardless of the reason of such termination. In the event the
Consultant terminates this Agreement without cause the Consultant shall not be
entitled to any payments after such date.
(b) Upon the termination of this Agreement for any reason
whatsoever, all Information (as defined below), documents, records, notebooks,
equipment, price lists, specifications, programs, customer and prospective
customer lists and other materials which refer or relate to any aspect of the
business of the Company which are in the possession of the Consultant including
all copies thereof, shall be promptly returned to the Company.
7. Indemnification.
Consultant shall defend, indemnify and hold harmless Company and its
officers, directors, employees, agents, parent, subsidiaries and other
affiliates, from and against any and all damage, cost, liability, and expense
whatsoever (including attorney's fees and related disbursements) incurred by
reason of (a) any failure by Consultant to perform any covenant or agreement of
Consultant set forth herein, or (b) any breach by Consultant of any
representation, warranty, covenant or agreement contained herein. Company shall
have the right to offset against any fees or commissions due Consultant for any
damage, cost, liability, expense, fee or other disbursement incurred by Company
pursuant to this Section.
8. Independent Status of Consultant.
This Agreement establishes the rights, duties, and obligations of
Company and Consultant, and does not create an employer-employee or agency
relationship between Company, or any entity affiliated with Company, and
Consultant, or any of Consultant's agents. Consultant acknowledges and agrees
that Consultant is an independent contractor to Company and Consultant shall not
act as an agent of Company. As an independent contractor, Consultant shall be
responsible for any social security taxes, insurance, and any other taxes or
fees that are applicable to him and his employees and agents pursuant to the tax
laws of the United States, or any state, thereof or any similar requirements of
any other country.
9. Promotional Materials.
From time to time, Company may furnish Consultant with such promotional
data, materials and technical information as Company deems necessary for
Consultant to have in the performance of her duties hereunder. Consultant shall
use such materials in furtherance of the objectives of this Agreement and shall
not disseminate the same except as set forth in Section 13.
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10. Governing Law.
This Agreement shall be exclusively governed by, and its terms and
conditions shall be exclusively construed and enforced in accordance with the
domestic laws of the State of Colorado of the United States of America excluding
its principle of conflicts of laws and the parties hereto and the parties hereby
irrevocably submit to the exclusive jurisdiction and venue of the courts of the
State of Colorado to resolve any disputes arising hereunder or related hereto.
Consultant hereby consents and agrees that the Courts in the State of Colorado
are the exclusive forum for litigation of any claim by Consultant arising under
this Agreement. Consultant hereby irrevocably waives and relinquishes any right
to bring or cause to be brought a claim in any judicial or administrative forum
located outside of the State of Colorado of the United States of America.
11. Assignment.
Neither this Agreement nor any money due or to become due hereunder may
be assigned, in whole or in part, by Consultant without the prior written
consent of Company, which consent may be withheld in Company sole discretion.
12. Notices.
All notices or other communications required or permitted to be given
hereunder shall be (as elected by the person giving such notice) (a) personally
delivered, (b) transmitted by postage prepaid registered mail (airmail if
international), or (c) transmitted by telex, with postage prepaid mail
information (airmail if international), to the parties as follows:
12.1 If to Company: China Wireless Communications, Inc.
0000 Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Telephone: 000.000.0000
Facsimile: 303.278.0092
12.2 If to Consultant: Xxxxxxx Xxxxxx
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxx, XX 00000
Except as otherwise specified herein, all notices and other
communications shall be deemed to have been given on the date of receipt if
delivered personally, three (3) business days after posting if transmitted by
mail, or the date of transmission with confirmation of successful transmission
if transmitted by telex. Any party hereto may change its address for purposes
hereof by written notice to the other party.
13. Use of Information and Non-Solicitation.
Any information including, but not limited to, data, business
information, technical information, specifications, drawings, sketches, models,
samples, tools, promotional material, computer programs and documentation,
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written, oral or otherwise together with analyses, compilations, comparisons,
studies or other documents prepared by Consultant which contain or reflect such
information (all hereinafter designated "Information") furnish to Consultant
hereunder or in contemplation hereof shall remain Company property or the
property of the Company subsidiary or affiliate which furnished the Information
to Consultant. All copies of such Information in written, graphic or other
tangible form shall be returned to Company or such Company subsidiary or
affiliate upon request. Unless such information was previously known to
Consultant free of any obligation to keep it confidential or has been or is
subsequently made public by Company or a third party without violation of this
Agreement, it shall be kept confidential by Consultant and shall be disclosed
only upon the prior written consent of Company. Any findings, reports,
questionnaires, or other results of this Agreement shall be the exclusive
property of Company including title to copyright in all copyrightable material
and shall be considered a "work made for hire" in accordance with the copyright
statute.
The Consultant hereby agrees that he shall not, during the term of this
Agreement and for a period of one (1) year following such term, directly or
indirectly, take any action which constitutes an interference with or a
disruption of any of the Company's business activities including, without
limitation, the solicitations of the Company's customers, or persons listed on
the personnel lists of the Company. At no time during the term of this Agreement
and for a period of one (1) year following such term shall the Consultant
directly or indirectly, disparage the commercial, business or financial
reputation of the Company.
For purposes of clarification, but not of limitation, the Consultant
hereby acknowledges and agrees that the provisions of subparagraphs above shall
serve as a prohibition against him, during the period referred to therein,
directly or indirectly, hiring, offering to hire, enticing, soliciting or in any
other manner persuading or attempting to persuade any officer, employee, agent,
lessor, lessee, licensor, licensee or customer who has been previously contacted
by either a representative of the Company, including the Consultant to
discontinue or alter his, her or its relationship with the Company.
The parties hereto hereby acknowledge and agree that (i) the Company
would be irreparably injured in the event of a breach by the Consultant of any
of his obligations under this Section, (ii) monetary damages would not be an
adequate remedy for any such breach, and (iii) the Company shall be entitled to
injunctive relief, in addition to any other remedy which it may have, in the
event of any such breach.
14. Miscellaneous.
(a) This Agreement constitutes the entire understanding of the
parties concerning the subject matter hereof, and supersedes all prior
agreements and understandings, whether written, oral or otherwise, between the
parties, and may be altered or amended only in a writing signed by both parties.
Except as otherwise expressly provided herein, no purported waiver by any party
of any breach by the other party of its obligations, representations,
warranties, agreements or covenants hereunder shall be effective unless made in
a writing, and no failure to pursue or elect any remedy with respect to any
default under or breach of any provisions of this Agreement shall be deemed to
be a waiver of any subsequent, similar or different default or breach.
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(b) If any provision contained in this Agreement is hereafter
construed to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants, which shall be given full effect,
without regard to the invalid portions. If any provision contained in this
Agreement is found to be unenforceable by reason of the extent, duration or
scope thereof, or otherwise, then the court making such determination shall have
the right to reduce such extent, duration, scope or other provision and in its
reduced form any such restriction shall thereafter be enforceable as
contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
Consultant
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
China Wireless Communications, Inc.
By: /s/ XXXX XXXXX
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Xxxx Xxxxx, Interim President
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