EX-10.21
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is to be effective as of the
1st day of May, 2002, by and between 5G Wireless Communications, Inc.
("Company"), a Nevada corporation, having its California office
located at 4136 Del Rey Avenue, Marina Del Rey, California 90292, and
VMarketing Ltd. ("Consultant"), a Delaware corporation, having its
office located at 50 Andrew Lane, New Rochelle, N.Y. 10804
For the purposes of this Agreement, either of the above shall be
referred to as a "Party" and collectively as the "Parties".
The Parties hereby agree as follows:
1. Appointment of Vmarketing Ltd. Company hereby appoints
Consultant and Consultant hereby agrees to render services to Company
as a management consultant, financial consultant, and general advisor.
2. Duties. Consultant shall provide the Company with the service
of business development in the NY area. Investigation of potential
acquisition and merger partners as well as strategic business alliance
to allow the company to expand its business.
The consultant confirms that this agreement is not in any way to be
construed as an agreement to raise capital or to provide IR services.
The services to be provided by Consultant will not be in connection
with the offer or sale of securities in a capital-raising transaction,
and will not directly or indirectly promote or maintain a market for
Client's securities.
A. Term. The term ("Term") of this Consulting Agreement shall
be for a period of 12 months commencing on the date hereof and
shall continue on a month-to-month basis until terminated by
Company or Consultant with a notice of thirty (30) days.
B. Compensation. WHEREAS the company agrees to compensate the
consultant with 2,400,000 common shares. The stock will be free
upon the registration on an SB-2 registration or piggybacked to
the next available registration.
3. Confidentiality. Consultant will not disclose (unless required by
law) to any other person, firm or corporation, nor use for its own
benefit, during or after the Term of this consulting Agreement, any
trade secrets or other information designated as confidential by
Company which is acquired by Consultant in the course of performing
services hereunder. Any financial advice rendered by Consultant
pursuant to this Consulting Agreement may not be disclosed in any
manner without the prior written approval of Company.
Company, its agents or assigns hereby agree expressly that they
directly or indirectly, for itself, or through its representatives,
agents, employees or affiliates will not pursue a transaction with any
introduced party acknowledged by the Company or an Agent of
Consultant, financing or collateral sources, restructures, registered
or non-registered stock transactions, or security structures,
independent of Consultant, unless Company has a written commitment
prior to the introduction.
4. Indemnification. Company, its agents or assigns hereby agree to
indemnify and hold Consultant harmless from and against all losses,
claims, damages, liabilities, costs or expenses (including reasonable
attorney's fees, collectively the "Liabilities"), joint and several,
arising from the performance of this Consulting Agreement, whether or
not Consultant is party to such dispute. This indemnity shall not
apply, however, and Consultant shall indemnify and hold company, its
affiliates, indemnity shall not apply, however, and Consultant shall
indemnify and hold Company, its affiliates, control persons, officers,
employees and agents harmless from and against all liabilities, where
a court of competent jurisdiction has made a final determination that
Consultant engaged in gross recklessness and willful misconduct in the
performance of its services hereunder, which have rise to the loss,
claim, damage, liability, cost or expense sought to be recovered
hereunder (but pending any such final determinations, the
indemnification and reimbursement provision of this Consulting
Agreement shall apply and Company shall perform its obligation
hereunder to reimburse Consultant for its expenses).
5. Independent Contractor. Consultant and Company hereby
acknowledges that Consultant is an independent contractor. Consultant
shall not hold itself out, as, nor shall it take any action from which
others might infer that it is an agent of or a joint venture of Company.
6. Expense Allowance. Company shall reimburse Consultant for all pre-
approved business related expenses incurred by Consultant during the
course of his consulting on behalf of the Company.
7. Severance Allowance. Notwithstanding any provision of this
agreement, if, during the initial term of this agreement or any
extension thereof, the Company terminates this agreement without cause
or materially breaches this agreement, the Company shall pay
Consultant, without setoff, the balance owing under this agreement
("Severance Allowance") upon termination.
8. Termination for Cause. The Company reserves the right to terminate
this agreement, if Consultant willfully breaches or habitually
neglects his consulting duties which he is asked to perform under the
terms or this agreement, or commits such acts of dishonesty, fraud,
misrepresentation or other acts of moral turpitude as would prevent
the effective performance of his consulting.
a. In the event of termination for cause then any balance
due under this agreement, other than documented company expenses
advanced by consultant, shall become null and void.
b. Termination by Consultant: Consultant may terminate his
obligations under this agreement by giving the Company at least
thirty (30) day's notice in advance. In the event the consultant
terminates this agreement then any balance due under this
agreement, other than documented company expenses advanced by
consultant, shall become null and void.
c. Mediation: Any controversy between the parties
involving the construction or application of any terms,
provisions, or conditions of this agreement, shall on the written
request of either party served on the other, be submitted to
mediation before a neutral third party. The parties shall share
the cost of mediation jointly.
9. Partial Invalidity. If any part of this agreement shall be
determined by a court or mediator to be invalid, the remainder hereof
shall be construed as if the invalid portion has been omitted.
10. Waiver. No waiver of any of the provisions of this agreement
shall be deemed or shall constitute a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the
party making the waiver,
11. Law Governing Agreement. This agreement shall be governed by and
construed in accordance with the laws of the State of New York.
12. Miscellaneous. This Consulting Agreement sets forth the entire
understanding of the Parties relating to the subject matter hereof and
supercedes and cancels any prior communications, understandings and
agreements between the Parties. This Consulting Agreement is non-
exclusive and cannot be modified or changed, nor can any of its
provisions be waived, except by written agreement signed by all
Parties. This consulting agreement shall be governed by the laws of
the State of California, county of Los Angeles without reference to
the conflict of law principles thereof. In the event of any dispute
as to the Terms of this Consulting Agreement, the prevailing Party in
any litigation shall be entitled to reasonable attorney's fees.
13. Notices. Any notice required or permitted hereunder shall be
given in writing (unless otherwise specified herein) and shall be
deemed effectively given upon personal delivery or seven business days
after deposit in the United States Postal Service, by (a) advance copy
by fax, (b) mailing by express courier or registered or certified mail
with postage and fees prepaid, addressed to each of the other Parties
thereunto entitled at the following addresses, or at such other
addresses as a Party may designate by ten days advance written to each
of the other Parties hereto:
Company: 5G Wireless Communications, Inc.
4136 Del Rey Avenue
Marina Del Rey, California 90292
Attn: Jerry Dix - President
Consultant: VMarketing Ltd.
50 Andrew Lane
New Rochelle, N.Y., 10804
Attn: Adam Mayblum - President
14. Fees. All fees in this agreement are separate and distinct from
all other fees or commissions charged for any deal made by way of this
introduction. Method of fee, whether in stock, cash or in
combination, will be determined prior to any closing. The fee to be
paid is based on total proceeds, thereby authorizing said fee to be
disbursed by lender directly to Gazelle Group, Inc. or its legal
designee by electronic funds transfer at closing, to be paid in full
and without deductions.
15. Entire Agreement. This agreement supersedes any and all other
agreements, either written or oral, between the parties hereto with
respect to the services of the Consultant to the Company as it relates
to sales and marketing and in no way supersede any other agreements
that consultant may have with company pertaining to other matters. All
parties to this agreement must sign any modifications to this
agreement.
5G Wireless Communications, Inc.
By : /s/ Don Boudewyn
Don Boudewyn, Assistant Secretary
VMarketing Ltd.
By : /s/ Adam Mayblum
Adam Mayblum, President