EX-10.23
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is to be effective as of the
20th 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
MONBARR Holdings ("Consultant"), a Pure Business Trust, with offices
at 14781 Pomerado Road, Suite 206, Poway, California 92064.
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 Consultant. Company hereby appoints Consultant
and Consultant hereby agrees to render services to Company as a
management consultant and advisor.
2. Duties. Consultant shall provide the Company with the service
of introduction to business contacts brokerage firms and consult with
Company concerning assets loans, bridge financing, merger or
acquisition targets, equity lines of credit, private placement
services, other financial services as needed, and IR or PR services as
required. Company understands and acknowledges that Consultant is not
a broker dealer.
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.
(1) Stocks & Cash - The Company agrees to compensate Consultant
with a total of 10% of any and all funding including the bridge
loan and equity line. The 10% will be paid as follows: 5% in
Company restricted common stock at the fixed market price on the
day of the signing of the definitive agreement with "Piggy Back"
registration rights, and 5% in cash that is due and payable out
of escrow via wire transfer with each transfer of funds to the
Company. The Company will issue restricted common shares of 5G
Wireless Communications, Inc. stock to Consultant upon first
funding. The Shares shall have "Piggy Back" registration rights.
If the funding entity introduced by Consultant elects to receive
stocks for any of the resources it contributes or make available
to the Company, the stocks issued to Consultant shall be at
parity in every sense with the stocks issued to the funding entity.
(2) Residual -The Company shall also pay Consultant in perpetuity
in cash the amount equivalent to two percent (2) percent of gross
Company revenues on a quarterly basis that are booked and paid
for during the quarter. This shall be payable to the Consultant
on the 15th day of the month following the quarter that the
business was generated and paid for.
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: MONBARR Holdings
14781 Pomerado Road, Suite 206
Poway, California 92064.
Attn: Ramon Barrientos - Trustee
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/ Jerry Dix
Jerry Dix, President
MONBARR Holdings
By : /s/ Ramon Barrientos
Ramon Barrientos, Trustee