EXHIBIT 10.2
China Wi-Max
DENVER TOWER
1905 Sherman Street
Suite 335
Denver, Colorado 80203
Office: 303-993-8028
: 800-830-1978
Fax : 303-993-8172
: 888-220-8527
www.chinawi-max.com
June 29, 2009
Mr. Eric Hager
23922 Caldwell Ct.
Evergreen, CO 80439
Subject: Consulting Letter Agreement -- Terms of Engagement and Conditions
Dear Eric:
This letter agreement ("Letter Agreement"), effective as of the date hereof,
except for payments which shall begin on July 1, 2009, shall serve as the basis
of an independent contractor consulting relationship between you, Eric Hager,
("Consultant") and China Wi-Max Communications, Inc. ("CWMC"). This Letter
Agreement is for services above and beyond the advice you will be providing as a
CWMC board advisor -- and beyond the development of a joint venture to market
and sell VLAN/VPN services originating in the US to On-net CWMC accessible
buildings in China.
CWMC envisions three primary areas where you may be engaged with the expectation
of compensation as a Consultant, including:
1) Preparing and presenting expert opinion on operations and business
models to investor road shows on a case-by-case basis, as needed and
specifically engaged. This will require you to fully understand CWMC
investor materials on business projections and technical realization
of CWMC's current and future business models.
2) Assisting in network planning and oversight of operations in China for
current and future business plans and/or operations; and
3) Development of detailed strategic positioning of a U.S. based VLAN/VPN
revenue model into current business models, and building CWMC cost and
operational models within China.
CWMC reserves the right to expand or contract the scope of services set forth
above at any time without penalty. All work will be performed to mutually agreed
output. It is possible that over time, and based upon success in the
above-referenced matters, in the sole judgment of CWMC, that CWMC may decide to
hire you as a full or part-time employee fulfilling a similar (or expanded)
role. However, that decision has not yet been made and this Letter Agreement
should not be construed as an "offer" to be employed at CWMC. Neither the making
of this Letter Agreement nor the performance of its provisions shall be
construed to constitute either of the parties as an agent, employee, partner,
joint venturer or legal representative of the other. Each party acknowledges
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that it has no right or authority to obligate or represent the other, nor to
bind the other in any manner whatsoever. Consultant shall at all times be deemed
to be an independent contractor, shall bear all tax consequences associated with
entering into this Letter Agreement, and shall perform its obligations under
this Letter Agreement in his own name and for his own account and risk, and
Consultant shall have no right or authority to assume or create any obligation
or responsibility, whether expressed or implied, on behalf of or in the name of
CWMC without written, or electronic authorization. CWMC agrees to review the
terms of this Letter Agreement at least quarterly upon your request.
As an independent contractor pursuant to this Letter Agreement, CWMC agrees to
the following fee structure:
1) An hourly fee structure of $100 U.S./hour with a cap of $800 per day
(even if you provide services in excess of 8 hours in any single 24
hour period), exclusive of reasonable, agreed to, company-permitted ,
out-of-pocket expenses approved in advance;
2) A minimum retainer of 3 days, $2,400/month, paid electronically by
bank deposit on or about the first of each month, during the term
hereof; and
3) An immediate stock option grant of 25,000 common shares (as generally
made available to similarly situated consultants from time to time, on
then available terms).
Consultant shall submit monthly invoices to CWMC in a mutually acceptable format
with itemization that lists hours billed and a description of the work
performed, as well as any and all such other information mutually agreed by CWMC
and Consultant as they may deem necessary. Copies of associated receipts for all
fees and expenses shall accompany such monthly invoices sent to CWMC. Consultant
shall coordinate the services to be performed with a CWMC-designated employee or
representative, who shall be Consultant's principal contact with regard to any
and all services requested of Consultant, and to whom Consultant should direct
all reports, findings, services, billings and the like, relating to its
provision of Services to CWMC.
The term of this Letter Agreement shall be month-to-month. Either party may
terminate this Letter Agreement at any time without cause upon thirty (30) days
written notice. All notices given under this Letter Agreement shall be in
writing and shall be addressed to the parties at their respective addresses set
forth herein.
If this Letter Agreement is terminated by either party, CWMC shall only be
liable for payment of consulting fees earned as a result of services actually
performed prior to the date of termination. Consultant acknowledges that since
this Letter Agreement is temporary in nature. Consultant is not entitled to any
additional advance notice of termination as may be required, in the absence of
this provision, by any federal or state law.
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During the term of this Letter Agreement and for a period of one (1) year you
agree (i) to not engage in any activity that competes directly with CWMC's
business in China; and (ii) to not solicit for employment or engagement of any
kind any current or former employee, officer or director of CWMC.
You also agree, without CWMC's prior written consent, to not reveal to anyone
who is not a current director, officer, employee of CWMC, any "Confidential
Information". Consultant agrees to use CWMC's Confidential Information (defined
below) he receives or otherwise obtains solely for purposes of benefiting the
business relationship between Consultant and CWMC. Consultant shall maintain and
protect all Confidential Information he receives or otherwise obtains in
confidence.
Confidential Information" means information in its broadest sense, including but
not limited to computer programs, databases, trade secrets, know-how,
inventions, improvements, discoveries, techniques, business and marketing
records, merchandising and marketing techniques, plans and data, strategies, new
products, financial data, budgets, projections, work papers, files, contracts,
and client and supplier information and lists, though, excluding information:
(A) was previously known to Consultant free of any obligation to keep it
confidential;
(B) is disclosed to third parties by the disclosing party without
restriction;
or
(C) is or becomes publicly available by lawful means and by other than
unauthorized disclosure.
(D) is required to be disclosed under applicable law or by a valid
subpoena or other court or governmental order, decree, regulation or
rule; provided, however, that if disclosure is required under this
provision, receiving party shall advise disclosing party of the
requirement to disclose Confidential Information prior to such
disclosure and as soon as reasonably practicable after receiving party
becomes aware of such required disclosure; and further provided that
upon the request of the disclosing party, the receiving party agrees
to cooperate in good faith and at the expense of the disclosing party
in any reasonable and lawful actions which the disclosing party takes
to resist such disclosure, limit the Confidential Information to be
disclosed or limit the extent to which the Confidential Information so
disclosed may be used or made available to third parties.
Consultant agrees that such unauthorized disclosure(s) would result in material
harm to CWMC, and allow CMWC to immediately terminate this Letter Agreement
without notice to Consultant, seek injunctive relief and compensation, including
lost profits and attorneys fees. This provision on Confidential Information
shall survive the termination of the Letter Agreement for a period of five (5)
years from the date of termination. Also, you agree prior to becoming formally
engaged in any other assignment(s) or project(s), whether as an independent
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contractor, employee, owner, etc., that competes directly with CWMC's business
in China, that you receive prior written approval to do so by CWMC.
In the event of termination of this Letter Agreement, you agree to return within
three (3) business days to CWMC, and in an orderly and business like fashion,
any and all materials, documents, and/or work-product developed pursuant to this
arrangement.
This Letter Agreement shall be governed by and construed in accordance with the
laws of the State of Colorado, without regard to the conflict of laws provisions
thereof, and the laws of that state shall govern all of the rights, remedies,
liabilities, powers and duties of the parties under this Letter Agreement and of
any arbitrator or mediator to whom any matter hereunder may be submitted for
resolution by the parties hereto.
Each party shall indemnify and hold harmless the other for its own negligence or
intentional misconduct, including claims for bodily injury, death or damage to
property. Consultant hereby certifies that he does not advocate, support, assist
or engage in, and has not advocated, supported, assisted or engaged in, any
illegal or terrorist activity. Consultant further certifies that he does not
employ, support, assist or otherwise associate with any entities, organizations
or individuals that Consultant knows, or has reason to know, support terrorism,
or that appear on any official terrorist lists published by the U.S. Government,
the United Nations, the European Union, or the Consultant's government.
In conformity with the United States Foreign Corrupt Practices Act ("FCPA"),
Consultant shall not directly or indirectly make an offer, payment, promise to
pay, or authorize payment, or offer a gift, promise to give, or authorize the
giving of anything of value for the purpose of influencing an act or decision of
an official of any government of any country where the products or services of
CWMC are used or the United States Government (including a decision not to act)
or inducing such a person to use his influence to affect any such governmental
act or decision in order to assist Consultant in obtaining, retaining or
directing any such business.
This Letter Agreement is being entered into in reliance upon and in
consideration of the qualifications of Consultant. CWMC specifically contracts
for the professional services of Consultant, and Consultant may not assign or
delegate the performance of services hereunder without the express written
consent of CWMC, which may be withheld by CWMC in its sole discretion.
This Letter Agreement is the entire agreement between the parties on the subject
matter herein and supersedes all prior agreements and understandings, written or
oral. This Letter Agreement may not be amended or modified in any way except in
writing signed by an authorized person of the other party against whom the
amendment, modification or waiver is sought to be enforced. Nothing in this
Letter Agreement shall be construed so as to require the commission of any act
contrary to law, and wherever there is any conflict between any provision of
this Letter Agreement and any applicable and enforceable law, such law shall
prevail, provided, however, that in the event of any such conflict, the
provisions of this Letter Agreement so affected shall be curtailed and limited
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only to the extent necessary to permit compliance with the minimum legal
requirement, and no other provisions of this Letter Agreement shall be affected,
and all such other provisions shall continue in full force and effect. No
provision of this Letter Agreement will be interpreted against any party solely
because the party (or its legal representative) drafted the provision.
Eric, on behalf of China Wi-Max Communications, I welcome you to our team.
Please execute by signing below and returning to me one original of this Letter
Agreement.
Sincerely yours,
- ---------------------------------
Steven T. Berman
President and CEO
China Wi-Max Communications, Inc.
Agreed to and Accepted:
Eric Hager, Consultant
- ---------------------------------
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