EXHIBIT 10.1
CONSULTING AGREEMENT
AGREEMENT (the "Agreement") is made and entered into as of June 22,
2009, by and between China Wi-Max Communications, Inc., a Nevada corporation
(the "Company"), and Stanton E. Ross ("Ross") and Global Equity Funding, LLC, a
Nevada limited liability company ("Global"). Ross and Global are collectively
referred to as the "Consultant."
R E C I T A L S :
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WHEREAS, the Company desires to obtain Consultant's services as set forth
in this Agreement; and
WHEREAS, Consultant desires to provide such services to the Company for a
fee that will compensate Consultant for time spent for services rendered and
costs advanced by Consultant as contemplated in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and conditions hereinafter set forth, the parties agree as follows:
1. Retention of Consultant. The Company hereby engages and retains
Consultant and Consultant hereby agrees to use Consultant's best efforts to
render to the Company the consulting services for a period of commencing on the
date of this Agreement and terminating on June 21, 2010, provided that the
Company may terminate this Agreement, in its sole discretion, at any time after
December 21, 2009.
2. Consultant's Services. Consultant shall provide the following services
under this Agreement:
2.1 Introduce the Company to financing sources, whether directly or
through third parties (all of whom are referred to as "Financing Sources"), who
have the ability to provide financing to the Company in cash, securities,
assets, credit enhancement or otherwise (collectively referred to as a
"Financing Transaction"). Consultant will periodically provide written notices
to the Company of the Financing Sources it introduces to the Company;
2.2 Identify and introduce firms to the Company to provide investor
relations, including R.J. Falkner & Co., Inc.;
2.3 Introduce the Company to members of the broker-dealer and financial
community;
2.4 Facilitate conferences between the Company and members of the
business and financial community upon the request of the Company; and
2.5 Review and analyze the market for the Company's securities.
3. Payment for Services.
3.1 The Company shall pay Consultant for the services to be rendered
under this Agreement a fee equal to five percent (5.0%) of the amount of any
Financing Transaction completed by or through a Financing Source up to a maximum
of $5,000,000. A Financing Transaction includes amounts the Company receives
from or through any third party who was introduced to the Company by another
Financing Source of Consultant. The Company shall pay the foregoing amounts on
the closing date of any Financing Transaction that occurs by or through a
Financing Source during the term of this Agreement or that occurs within
eighteen (18) full calendar months from the termination of this Agreement.
3.2 The Company shall also issue Consultant options exercisable to pur-
chase 1,000,000 shares of its Common Stock (each an "Option," collectively, the
"Options") at a price of $0.50 per share. The exercise price of the Options will
be reduced to the lowest price at which the Company sells any of its equity
securities, or agrees to sell any of its equity securities through an option,
warrant or convertible security, during the term of the Options. Each Option
will have a term of three years from the date of grant. Each Option shall be
deemed to have a value of $.0001. The Options shall be in a form acceptable to
the parties, shall be fully transferrable by Ross and Global and shall include
the terms set forth below.
3.3 The Options shall vest as follows: (i) 450,000 Options shall vest
and be exercisable upon execution of this Agreement and (ii) 550,000 Options
shall vest and be exercisable upon the Company's closing one or more Financing
Transactions totaling at least $1,000,000.
3.4 The Options may be exercised in whole or in part from time to time
by delivering written notice, via facsimile, with original by next day delivery,
along with full payment of the exercise price for any exercise, to the Company.
Consultant may pay the exercise price in cash or by cashless exercise. In the
case of a cashless exercise, Consultant will surrender the Options to be
exercised to the Company together with a notice of cashless exercise, in which
event the Company will issue to Consultant the number of shares of Common Stock
underlying the Options to be exercised less the number of shares of Common Stock
required to pay the aggregate exercise price of the Options to be exercised.
3.5 For purposes of Rule 144 ("Rule 144") promulgated under the Securi-
ties Act of 1933, as amended, the Common Stock issued in any cashless exercise
transaction shall be deemed to have been acquired by Consultant, and the holding
period for such Common Stock shall be deemed to have been commenced, on the
issue date of the Options.
3.6 The payments and issuance of the Options under this Paragraph 3,
"Payment for Services," shall be deemed full and complete consideration for the
services to be rendered by Consultant under this Agreement. Ross and Global will
share equally in the payments made and Options issued under this Agreement,
except that the 450,000 Options granted under Paragraph 3.3 will be allocated
250,000 Options to Global and 200,000 Options to Ross.
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3.7 The Company will reimburse Consultant for all direct expenses
incurred by Consultant in performing such services. Consultant shall obtain the
approval of the Company prior to incurring any expenses. Consultant will tender
requests for reimbursement to the Company and the Company will make the
reimbursement to Consultant within ten (10) days after its receipt of written
notification.
4. Consultant's Time Commitment. Consultant shall devote such time as
reasonably requested by the Company for consultation, advice and assistance on
matters described in this Agreement and provides the same in such form as the
Company requests. The Company agrees that Consultant shall not be prevented or
barred from rendering services similar or dissimilar in nature for and on behalf
of any person, firm or corporation other than the Company.
5. Nature of Services and Independent Contractor. The relationship created
under this Agreement is that of Consultant acting as an independent contractor.
The parties acknowledge and agree that Consultant shall have no authority to,
and shall not, bind the Company to any agreement or obligation with any third
party. The parties also acknowledge that Consultant's services consist of
introducing and facilitating the introduction of Financing Sources to the
Company. Consultant will not assist in any negotiations between the Company and
the Financing Sources, communicate the terms of any offers or sales between the
Company and the Financing Sources respecting a possible Financing Transaction,
advise the Company or the Financing Source respecting a Financing Transaction,
effect a Financing Transaction or provide services as a broker/dealer.
Consultant will also not provide legal or accounting services.
6. Nondisclosure of Confidential Information. Consultant shall maintain as
secret and confidential all valuable information heretofore or hereafter
acquired, developed or used by the Company relating to its business, operations,
employees and customers that may give the Company a competitive advantage in its
industry (all such information is hereinafter referred to as "Confidential
Information"). The parties recognize that, by reason of Consultant's duties
under this Agreement, Consultant may acquire Confidential Information.
Consultant recognizes that all such Confidential Information is the property of
the Company. During the term of Consultant's engagement by the Company,
Consultant shall exercise all due and diligent precautions to protect the
integrity of any or all of the Company's documents containing Confidential
Information. In consideration of the Company entering into this Agreement,
Consultant shall not, directly or indirectly, use, publish, disseminate or
otherwise disclose any Confidential Information obtained during Consultant's
engagement by the Company without the prior written consent of the Company. The
parties agree that this Paragraph 6 shall survive the termination of this
Agreement.
7. Communications with Consultant. Consultant will not independently
conduct a due diligence review of the Company and will, to a great extent, be
relying upon information provided by the Company in rendering services under
this Agreement.
8. Exculpation of Liability and Indemnification. All decisions with respect
to consultations or services rendered by Consultant for transactions negotiated
for and presented to the Company by Consultant shall be those of the Company,
and Consultant shall have no liability with respect to such decisions. In
connection with the services Consultant renders under this Agreement, the
Company indemnifies and holds Consultant harmless against any and all losses,
claims, damages and liabilities and the expense, joint and several, to which
Consultant may become subject and will reimburse Consultant for any legal and
other expenses, including attorney's fees and disbursements incurred by
Consultant in connection with investigating, preparing or defending any actions
commenced or threatened or claim whatsoever, whether or not resulting in the
liability, insofar as such are based upon the information the Company has
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supplied to Consultant under this Agreement. In connection with the services
Consultant renders under this Agreement, Consultant indemnifies and holds the
Company harmless against any and all losses, claims, damages and liabilities and
the expense, joint and several, to which Company may become subject and will
reimburse Company for any legal and other expenses, including attorney's fees
and disbursements incurred by the Company in connection with investigating,
preparing or defending any actions commenced or threatened or claim whatsoever,
whether or not resulting in the liability, insofar as such are based upon or in
connection with the services Consultant has rendered under this Agreement.
9. Piggyback Registration. If at any time during the period the Options are
outstanding the Company determines to file a registration statement with the
Securities and Exchange Commission in the United States relating to an offering
for its own account or the account of others under the Securities Act of 1933,
as amended, of any of its equity securities, then the Company shall send to
Consultant a written notice of such offering. If within fifteen (15) days after
receipt of such notice, Consultant shall so request in writing, the Company will
include in such registration statement any or all of the shares of Common Stock
issuable on exercise of the Options that Consultant requested to be registered.
The Company shall not, however, be required to register any such shares of
Common Stock that are eligible for resale pursuant to Rule 144 promulgated under
the Securities Act. Consultant will, upon written request of any third party
which also has registration rights, reduce the number of its shares to be
registered under the registration in the proportion that the shares of
Consultant and such third party bear to each other.
10. Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter hereof, and
supersedes all prior agreements, arrangements and understandings, written or
oral, relating to the subject matter hereof. No representation, promise, or
inducement has been made by any party that is not embodied in this Agreement,
and no party shall be bound by or liable for any alleged representation, promise
or inducement not so set forth. If any provision of this Agreement shall be
declared void or against public policy, such provision shall be deemed severed
from this Agreement and the remaining provisions shall remain in full force and
effect and unmodified.
11. Assignment. The Consultant may not assign or transfer this Agreement
without written authorization from the Company, which consent shall not be
unreasonably withheld. The Company may assign its rights, together with its
obligations, hereunder in connection with any sale, transfer or other
disposition of all or substantially all of its business or assets. In such
event, the rights and obligations of the Company under this Agreement shall be
binding on its successors or assigns, whether by merger, consolidation or
acquisition of all or substantially all of the business or assets.
12. Amendment. This Agreement may be amended, modified, superseded,
canceled, renewed or extended and the terms or covenants hereof may be waived
only by a written instrument executed by all of the parties hereto who are
thereby affected, or in the case of a waiver, by the party waiving compliance.
No waiver by either party of the breach of any term or covenant contained in
this Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be, or construed as, a further or continuing waiver of any
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such breach, or a waiver of the breach of any other term or covenant contained
in this Agreement.
13. Notices. All notices, consents, requests, demands and offers required
or permitted to be given under this Agreement will be in writing and will be
considered properly given or made when personally delivered to the party
entitled thereto, or when mailed by certified United States mail, postage
prepaid, return receipt requested, addressed to the addresses appearing in this
Agreement. A party may change his address by giving notice to the other party to
this Agreement.
14. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, but all of which, taken
together, shall constitute one agreement. It shall not be required that any
single counterpart hereof be signed by the parties, so long as each party signs
any counterpart of this Agreement.
15. Governing Law. This Agreement shall be governed in all respects and for
all purposes by the laws of the State of Missouri and the Courts of such State
shall have exclusive jurisdiction to enforce any order or award obtained in
arbitration.
16. Arbitration. Any controversy, claim, or dispute between the parties,
directly or indirectly, concerning this Agreement or the breach hereof, or the
subject matter hereof, including questions concerning the scope and
applicability of this arbitration clause, shall be finally settled by
arbitration in Missouri pursuant to the rules then applying of the American
Arbitration Association.
17. Attorneys' Fees. In case of any action or proceeding to compel
compliance with, or for a breach of, any of the terms and conditions of this
Agreement, the prevailing party shall be entitled to recover from the losing
party all costs of such action or proceeding, including, but not limited to,
reasonable attorneys' fees.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement to be
effective as of the day and year first above written.
China Wi-Max Communications, Inc.
By
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Steven T. Berman
Its President and Chief Executive Officer
Address: Denver Tower
1905 Sherman Street, Suite 335
Denver, CO 80203
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Stanton E. Ross
Address: ______________________________________
______________________________________
______________________________________
Global Equity Funding, LLC
By
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Michael Burstein
Its Manager
Address: ______________________________________
______________________________________
______________________________________
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