EXHIBIT 10.9
CONSULTING AGREEMENT
This consulting agreement (this "Agreement") is made this 7th day of March,
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 Xxxxxx Xxxxxxxxx ("XXXXXXXXX"), having a
principal residence at 00000 Xxxxxx Xxxx, Xxxxx Xxxxxx, XX 00000 (collectively
the "Parties" and each individually a "Party").
RECITALS:
XXXXXXXXX is a consulting firm whose principal place of business is located
in18780 Xxxxxx Xxxx, Xxxxx Xxxxxx, XX 00000; and
RWNT desires to retain XXXXXXXXX as a business development 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 XXXXXXXXX and XXXXXXXXX hereby accepts
such engagement upon the terms and conditions set forth in this
Agreement.
A. Duties: XXXXXXXXX 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.
XXXXXXXXX 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
XXXXXXXXX, and XXXXXXXXX agrees to accept from RWNT,
one hundred thousand shares (100,000) 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
XXXXXXXXX under this Agreement shall be paid upon
execution of this Agreement.
D. Expense Reimbursement: RWNT shall reimburse XXXXXXXXX for all
pre-approved expenses incurred. Expenses and materials
reimbursements requests shall be made in writing and submitted
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, XXXXXXXXX, 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 XXXXXXXXX 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 California 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
limitation, reasonable attorney's fees, from the other Party for all
matters, including, but no limited to, appeals.
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V. Injunctive Relief: XXXXXXXXX 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 XXXXXXXXX from such violation may be entered
against XXXXXXXXX in addition to any other relief available to RWNT.
VI. Representations and Warranties: XXXXXXXXX represents, warrants,
covenants and agrees that XXXXXXXXX has a right to enter into this
Agreement; that XXXXXXXXX is not a Party to any agreement or
understanding, whether written or oral, which would prohibit
XXXXXXXXX'x performance of his obligations hereunder; and XXXXXXXXX is
not in possession of any proprietary information belonging to another
Party which XXXXXXXXX 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: XXXXXXXXX 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 XXXXXXXXX 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 XXXXXXXXX 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). XXXXXXXXX also agrees that no
Indemnified Person shall have any liability (whether direct or
indirect, in contract or tort or otherwise) to XXXXXXXXX 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 XXXXXXXXX
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 XXXXXXXXX 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
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reflect not only the relative benefits received by XXXXXXXXX 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 XXXXXXXXX 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
XXXXXXXXX hereinabove set forth shall be in addition to any liability
which XXXXXXXXX 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 XXXXXXXXX, 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.
XII. Choice of Law: This Agreement is made in California, 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 California.
XIII. Venue: The state of California shall be proper venue for any and all
litigation and other proceeds involving this Agreement.
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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.
XVIII. 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.
IN WITNESS WHEREOF, the Parties have signed this Agreement as of the day and
year first above written.
Reality Wireless Networks, Inc.
Date: March 12, 2003 By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, Vice President,
Business Development
Date: March 12, 2003 By: /s/ XXXXXXXXX
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XXXXXXXXX
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