EXHIBIT 10.5
CONSULTING AGREEMENT
This consulting agreement (this "Agreement") is made this 28th day of February,
2003, between Reality Wireless Networks, Inc., a bulletin board public company
("RWNT"), having a principal place of business located at 000 X. Xxxxxxxx, Xxxxx
X, Xxxxxxxx, Xxxxxxxxxx 00000, and [Nassau Consultants], having a principal
residence at 00000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000 (collectively the
"Parties" and each individually a "Party").
RECITALS:
NASSAU CONSULTANTS is a consulting firm whose principal place of business is
located in Nassau 000x Xxxxxxxxx Xxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxxxx, X.X.
00000
RWNT desires to retain NASSAU CONSULTANTS as a business development and
marketing consultant.
NOW THEREFORE, in consideration of their mutual promises made herein, and for
other good and valuable consideration, receipt of which is hereby acknowledged
by each Party, the Parties, intending to be legally bound, hereby agree as
follows:
I. Recitals. The Parties agree that the foregoing recitals are true and
correct and are incorporated herein by reference.
II. Engagement. RWNT hereby engages NASSAU CONSULTANTS and NASSAU
CONSULTANTS hereby accepts such engagement upon the terms and
conditions set forth in this Agreement.
A. Duties: NASSAU CONSULTANTS is engaged by RWNT as a business
development and marketing consultant, to represent RWNT and
its business in the United States; to assist RWNT in expanding
its business operations in "business consulting" services and
trade. NASSAU CONSULTANTS will report directly to Xxxx Xxxxxxx
of RWNT. The term of this Agreement begins immediately.
B. Terms: Subject to the terms of this Agreement relating to
termination, this Agreement shall continue in full force and
effect for a term of twelve (12) months from the date hereof,
and may be renewed for successive periods of twelve (12)
months thereafter by the mutual written agreement of the
Parties hereto made at least one (1) month prior to the
expiration of such term.
C. Fee Structure:
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1. Time is of the Essence: Time is of the essence with
respect to the Parties' respective obligations under
this Agreement.
2. Amount of Fee: RWNT hereby agrees to issue to NASSAU
CONSULTANTS, and NASSAU CONSULTANTS agrees to accept
from RWNT, nine hundred thousand (900,000) shares of
common stock of RWNT, which will be registered by
RWNT on a Registration Statement Form S-8 with the
Securities and Exchange Commission.
3. Timing of Payment of Fee: Any and all fees due to
NASSAU CONSULTANTS under this Agreement shall be paid
upon execution of this Agreement.
D. Expense Reimbursement: RWNT shall reimburse NASSAU CONSULTANTS
for all reasonable expenses incurred. Expenses and materials
reimbursements shall be made promptly upon submission of an
expense report to RWNT.
E. Independent Contractors: In all matters relating to this
Agreement and otherwise, the Parties hereto shall be and act
as independent contractors, neither shall be the employee or
agent of the other, and each shall assume any and all
liabilities for its own acts. As a result of his independent
contractor status, NASSAU CONSULTANTS, and not RWNT, shall be
responsible for any and all income taxes and any and all other
employment related taxes or assessments which may be required
of NASSAU CONSULTANTS in his jurisdiction. Neither Party shall
have any authority to create any obligations, express or
implied, on behalf of the other Party and neither Party shall
have any authority to represent the other Party as an employee
or in any capacity other than as herein provided.
III. Termination: This Agreement may be terminated by written notice of
either Party hereto forwarded to the other Party hereto. This Agreement
shall be binding on the Parties hereto for the Term provided herein,
unless terminated as provided herein.
IV. Arbitration: Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, or its interpretation or
effectiveness, and which is not settled between the Parties themselves,
shall be settled by binding arbitration in New York and judgment upon
the award may be entered in any court having jurisdiction thereof.
Nothing, however, contained herein shall limit RWNT's rights to
injunctive relief as set out in Paragraph V of this Agreement. The
prevailing Party in any litigation, arbitration or mediation relating
to collection of fees, or any other matter under this Agreement, shall
be entitled to recover all its costs, if any, including without
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limitation, reasonable attorney's fees, from the other Party for all
matters, including, but no limited to, appeals.
V. Injunctive Relief: NASSAU CONSULTANTS agrees that his violation or
threatened violation of any of the provisions of this Agreement shall
cause immediate and irreparable harm to RWNT and, in such event, an
injunction restraining NASSAU CONSULTANTS from such violation may be
entered against NASSAU CONSULTANTS in addition to any other relief
available to RWNT.
VI. Representations and Warranties: NASSAU CONSULTANTS represents,
warrants, covenants and agrees that NASSAU CONSULTANTS has a right to
enter into this Agreement; that NASSAU CONSULTANTS is not a Party to
any agreement or understanding, whether written or oral, which would
prohibit NASSAU CONSULTANTS's performance of his obligations hereunder;
and NASSAU CONSULTANTS is not in possession of any proprietary
information belonging to another Party which NASSAU CONSULTANTS is
legally prohibited from using. A breach of this Paragraph VI shall be
ground for immediate termination of this Agreement.
VII. Indemnification and Hold Harmless Clause: NASSAU CONSULTANTS agrees to
indemnify and hold RWNT and its affiliates, control persons, directors,
officers, employees and agents (each an "Indemnified Person") harmless
from and against all losses, claims, damages, liabilities, costs or
expenses, including those resulting from any threatened or pending
investigation, action, proceeding or dispute whether or not RWNT or any
such other Indemnified Person is a party to such investigation, action,
proceeding or dispute, arising out of RWNT's entering into or
performing services under this Agreement, or arising out of any matter
referred to in this Agreement. This indemnity shall also include RWNT's
and/or any such other Indemnified Person's reasonable attorneys' and
accountants' fees and out-of-pocket expenses incurred in, and the cost
of RWNT's personnel whose time is spent in connection with, such
investigations, actions, proceedings or disputes which fees, expenses
and costs shall be periodically reimbursed to RWNT and/or to any such
other Indemnified Person by NASSAU CONSULTANTS as they are incurred;
provided, however, that the indemnity herein set forth shall not apply
to an Indemnified Person where a court of competent jurisdiction has
made a final determination that such Indemnified Person acted in a
grossly negligent manner or engaged in willful misconduct in the
performance of the services hereunder which gave rise to the loss,
claim, damage, liability, cost or expense sought to be recovered
hereunder (but pending any such final determination the indemnification
and reimbursement provisions hereinabove set forth shall apply and
NASSAU CONSULTANTS shall perform its obligations hereunder to reimburse
RWNT and/or each such other Indemnified Person periodically for its,
his or their fees, expenses and costs as they are incurred). NASSAU
CONSULTANTS also agrees that no Indemnified Person shall have any
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liability (whether direct or indirect, in contract or tort or
otherwise) to NASSAU CONSULTANTS for or in connection with any act or
omission to act as a result of its engagement under this Agreement
except for any such liability for losses, claims, damages, liabilities
or expenses incurred by NASSAU CONSULTANTS that is found in a final
determination by a court of competent jurisdiction to have resulted
from such Indemnified Person's gross negligence or willful misconduct.
If for any reason, the foregoing indemnification is unavailable to RWNT
or any such other Indemnified Person or insufficient to hold it
harmless, then NASSAU CONSULTANTS shall contribute to the amount paid
or payable by RWNT or any such other Indemnified Person as a result of
such loss, claim, damage or liability in such proportion as is
appropriate to reflect not only the relative benefits received by
NASSAU CONSULTANTS and its shareholders on the one hand and RWNT or any
such other Indemnified Person on the other hand, but also the relative
fault of NASSAU CONSULTANTS and RWNT or any such other Indemnified
Person, as well as any relevant equitable considerations; provided that
in no event will the aggregate contribution by RWNT and any such other
Indemnified Person hereunder exceed the amount of fees actually
received by RWNT pursuant to this Agreement. The reimbursement,
indemnity and contribution obligations of NASSAU CONSULTANTS
hereinabove set forth shall be in addition to any liability which
NASSAU CONSULTANTS may otherwise have and these obligations and the
other provisions hereinabove set forth shall be binding upon and inure
to the benefit of any successors, assigns, heirs and personal
representatives of NASSAU CONSULTANTS, RWNT and any other Indemnified
Person.
The terms and conditions hereinabove set forth shall survive the
termination and expiration of this Agreement and shall continue
indefinitely thereafter.
VIII. Notice: Any notice given or required to be given under this Agreement
shall be in writing and service thereof shall be sufficient if sent be
hand or by telex or telegram, facsimile transmission or other similar
means of communication if confirmed by mail, or by certified mail,
return-receipt requested, with postage prepaid, directly to the
Parties' respective addresses herein above set forth. Each Party may,
from time to time, by like written notice, designate a different
address to which notice should thereafter be sent.
IX. Survival: The covenants contained in this Agreement shall survive the
termination of this Agreement, for whatever reason, and shall be
binding on the Parties.
X. Binding Effect: The terms of the Agreement shall be binding upon the
respective Parties hereto, their heirs, their owners, co-owners,
partners, associates, employers, affiliates, subsidiaries, parent
companies, nominees, representatives, employees, agents, consultants
and successors and assigns.
XI. Assignment: This Agreement and the rights and obligations hereunder may
not be assigned or delegated by either Party without the prior consent
of the other Party.
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XII. Choice of Law: This Agreement is made in New York, and all questions
related to the execution, construction, validity, interpretation and
performance of this Agreement and to all other issues or claims arising
hereunder, shall be governed and controlled by the laws of New York.
XIII. Venue: The state of New York shall be proper venue for any and all
litigation and other proceeds involving this Agreement.
XIV. Counterparts: This Agreement may be signed in more than one
counterpart, in which case each counterpart shall constitute an
original of this Agreement.
XV. Severability: In the event that any term, covenant, or condition of
this Agreement or the application thereof to any Party or circumstances
shall, to any extent, be invalid or unenforceable, the remainder of
this Agreement, or the application of such term, covenant or condition
to Parties or circumstances other than those as to which it is held
invalid or non enforceable, shall not be affected thereby; and each
term, covenant, or condition of this Agreement shall be valid and shall
be enforced to the fullest extent permitted by law.
XVI. Modification: No amendment, modification, or waiver of this Agreement
or any provision hereof shall be valid unless in writing duly signed by
the Parties hereto, which writing specifically refers to this Agreement
and states that it is an amendment, modification, or waiver.
XVII. Entire Agreement: This Agreement represents the entire agreement
between the Parties to this Agreement concerning its subject matter,
and any and all prior representations and agreements with respect to
such subject matter, if any, are merged herein and are superseded by
this Agreement.
XVII. Construction: Paragraph headings are for convenience only and are not
intended to expand or restrict the scope or substance of the provisions
of this Agreement. Whenever used herein, the singular shall include the
plural, the plural shall include the singular, and pronouns shall be
read as masculine, feminine, or neuter as the context requires.
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IN WITNESS WHEREOF, the Parties have signed this Agreement as of the day and
year first above written.
Reality Wireless Networks, Inc.
Date: February 28, 2003 By: /s/ Xxxx Xxxxxxx
--------------------
Xxxx Xxxxxxx, Vice President,
Business Development
Date: February 28, 2003 By: /s/ Nassau International Consultants Inc
-----------------------
Nassau International Consultants Inc
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