EX-10 INDEPENDENT CONSULTING AGREEMENT
INDEPENDENT CONSULTING AGREEMENT
This Independent Consulting Agreement ("Agreement"), effective
as of the 22nd day of September, 2004 ("Effective Date") is entered
into by and between 5G WIRELESS COMMUNICATIONS, INC., a Nevada
corporation (herein referred to as the "Company") and Ghillie Finaz,
AG (herein referred to as the "Consultant").
RECITALS
WHEREAS, the Company is a publicly-held corporation with its
common stock traded on the Over the Counter Bulletin Board ("OTCBB");
and
WHEREAS, Company desires to engage the services of Consultant to
represent the company as a financial advisory consultant, and to
consult with management concerning related Company matters;
NOW THEREFORE, in consideration of the promises and the mutual
covenants and agreements hereinafter set forth, the parties hereto
covenant and agree as follows:
1. Term of Consultancy. Company hereby agrees to retain the
Consultant to act in a consulting capacity to the Company, and the
Consultant hereby agrees to provide services to the Company
commencing immediately and ending one year from the date of this
Agreement unless otherwise terminated earlier as provided herein.
2. Duties of Consultant. The Consultant agrees that it will
generally provide the following specified consulting services through
its officers and employees during the term specified in Section 1, above.
(a) Consult with and assist the Company in developing and
implementing appropriate plans and means for presenting the Company
and its business plans, strategy and personnel to the financial
community, establishing an image for the Company in the financial
community, and creating the foundation for subsequent financial
public relations efforts;
(b) With the cooperation of the Company, maintain an awareness
during the term of this Agreement of the Company's plans, strategy
and personnel, as they may evolve during such period, and consult
with the Company regarding communicating appropriate information
regarding such plans, strategy and personnel to the financial community;
(c) The Consultant will introduce the Company to investors who
the Consultant reasonably believes to be "accredited investors," as
that term is defined in Rule 501 of Regulation D promulgated under
the Securities Act of 1933, as amended (the "1933 Act"), with whom
the Consultant has a pre-existing substantive relationship (the "Offerees").
(d) At the Company's request, review business plans,
strategies, mission statements budgets, proposed transactions and
other plans for the purpose of advising the Company of the economic
implications thereof; and
(e) Otherwise perform as the Company's consultant with financial
professionals.
3. Allocation of Time and Energies. The Consultant hereby promises
to perform and discharge faithfully the responsibilities which may be
assigned to the Consultant from time to time by the officers and duly
authorized representatives of the Company in connection with the
conduct of its financial and communications activities, so long as
such activities are in compliance with applicable securities laws and
regulations. Consultant and staff shall diligently and thoroughly
provide the consulting services required hereunder. Although no
specific hours-per-day requirement will be required, Consultant and
the Company agree that Consultant will perform the duties set forth
herein above in a diligent and professional manner. The parties
acknowledge and agree that a disproportionately large amount of the
effort to be expended and the costs to be incurred by the Consultant
and the benefits to be received by the Company are expected to occur
within or shortly after the first two months of the effectiveness of
this Agreement. It is explicitly understood that neither the price of
the Company's Common Stock, nor the trading volume of the Company's
common stock hereunder measure Consultant's performance of its
duties. It is also understood that the Company is entering into this
Agreement with Consultant, a corporation and not any individual
member or employee thereof, and, as such, Consultant will not be
deemed to have breached this Agreement if any member, officer or
director of the Consultant leaves the firm or dies or becomes
physically unable to perform any meaningful activities during the
term of the Agreement, provided the Consultant otherwise performs its
obligations under this Agreement.
4. Remuneration.
4.1 For undertaking this engagement, for previous services
rendered, and for other good and valuable consideration, the Company
agrees to issue, or have issued, to the Consultant a "Commencement
Bonus" of $50,000 payable immediately and an additional $50,000
immediately upon the next closing of a funding by the Company of
approximately $1,000,000 in gross proceeds on similar terms as a
funding currently contemplated by the Company which initial funding
shall close at or about the date of this Agreement.
4.2 The Company understands and agrees that Consultant has
foregone significant opportunities to accept this engagement and that
the Company derives substantial benefit from the execution of this
Agreement and the ability to announce its relationship with
Consultant. The Commencement Bonus, therefore, constitutes payment
for Consultant's agreement to consult to the Company and is a non-
refundable, non-apportionable, and non-ratable retainer and is not a
prepayment for future services. If the Company decides to terminate
this Agreement, for any reason whatsoever, it is agreed and
understood that Consultant will not be requested or demanded by the
Company to return any of the Commencement Bonus referred to in
paragraph 4.1 hereunder.
4.3 Notwithstanding anything else in this Agreement to the
contrary, Company and Consultant acknowledge and agree that for
purposes of the Company's internal accounting practices, the Company
may desire to allocate all or a portion of the Commencement Bonus to
any number of the services provided by the Consultant to the Company
under this Agreement consistent with United States Generally Accepted
Accounting Practices. Accordingly, Consultant agrees to cooperate
with the Company, and will provide to the Company reasonable support
and documentation in connection with any such allocation process.
5. Indemnification. The Company warrants and represents that all
oral communications, written documents or materials furnished to
Consultant or the public by the Company with respect to financial
affairs, operations, profitability and strategic planning of the
Company are accurate in all material respects and Consultant may rely
upon the accuracy thereof without independent investigation. The
Company will protect, indemnify and hold harmless Consultant against
any claims or litigation including any damages, liability, cost and
reasonable attorney's fees as incurred with respect thereto resulting
from Consultant's communication or dissemination of any said
information, documents or materials excluding any such claims or
litigation resulting from Consultant's communication or dissemination
of information not provided or authorized by the Company.
6. Representations. Consultant represents that, to the best of its
knowledge, it is not required to maintain any licenses and
registrations under federal or any state regulations necessary to
perform the services set forth herein. Consultant acknowledges that,
to the best of its knowledge, the performance of the services set
forth under this Agreement will not violate any rule or provision of
any regulatory agency having jurisdiction over Consultant. Consultant
acknowledges that, to the best of its knowledge, Consultant and its
officers and directors are not the subject of any investigation,
claim, decree or judgment involving any violation of the Securities
and Exchange Commission ("SEC") or securities laws. Consultant
further acknowledges that it is not a securities broker-dealer.
Company acknowledges that, to the best of its knowledge, that it has
not violated any rule or provision of any regulatory agency having
jurisdiction over the Company. Company acknowledges that, to the best
of its knowledge, Company is not the subject of any investigation,
claim, decree or judgment involving any violation of the SEC or
securities laws.
7. Legal Representation. Each of Company and Consultant represents
that they have consulted with independent legal counsel and tax,
financial and business advisors to the extent that they deemed necessary.
8. Status as Independent Contractor. Consultant's engagement
pursuant to this Agreement shall be as independent contractor, and
not as an employee, officer or other agent of the Company. Neither
party to this Agreement shall represent or hold itself out to be the
employer or employee of the other. Consultant further acknowledges
the consideration provided hereinabove is a gross amount of
consideration and that the Company will not withhold from such
consideration any amounts as to income taxes, social security
payments or any other payroll taxes. All such income taxes and other
such payment shall be made or provided for by Consultant and the
Company shall have no responsibility or duties regarding such
matters. Neither the Company nor the Consultant possesses the
authority to bind each other in any agreements without the express
written consent of the entity to be bound.
9. Attorney's Fee. If any legal action or any arbitration or other
proceeding is brought for the enforcement or interpretation of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with or related to this Agreement,
the successful or prevailing party shall be entitled to recover
reasonable attorneys' fees and other costs in connection with that
action or proceeding, in addition to any other relief to which it may
be entitled.
10. Waiver. The waiver by either party of a breach of any provision
of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by such other party.
11. Notices. All notices, requests, and other communications
hereunder shall be deemed to be duly given if sent by U.S. mail,
postage prepaid, addressed to the other party at the address as set
forth herein below:
To the Company:
5G Wireless Communications, Inc.
4136 Del Rey Avenue
Marina Del Rey, CA 90292
Attn: Jerry Dix, Chairman/Chief Executive Officer
Fax: (310) 823-0981
With a copy by telecopier only to:
Ryan S. Hong, Esq.
Richardson & Patel LLP
10900 Wilshire Blvd., Suite 500
Los Angeles, California 90024
Fax: (310) 208-1154
To the Consultant:
Ghillie Finaz AG
c/o Wayne Coleson
LONGVIEW EQUITY FUND, LP
600 Montgomery Street, 44th Floor
San Francisco, CA 94111
Fax: (415) 981-5302
It is understood that either party may change the address to which
notices for it shall be addressed by providing notice of such change
to the other party in the manner set forth in this paragraph.
12. Choice of Law, Jurisdiction and Venue. This Agreement shall be
governed by, construed and enforced in accordance with the laws of
the State of New York. The parties agree that New York, New York will
be the venue of any dispute and will have jurisdiction over all parties.
13. Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the alleged breach thereof, or
relating to Consultant's activities or remuneration under this
Agreement, shall be settled by binding arbitration in New York, New
York, in accordance with the applicable rules of the American
Arbitration Association, Commercial Dispute Resolution Procedures,
and judgment on the award rendered by the arbitrator(s) shall be
binding on the parties and may be entered in any court having jurisdiction.
14. Complete Agreement. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof. This
Agreement and its terms may not be changed orally but only by an
agreement in writing signed by the party against whom enforcement of
any waiver, change, modification, extension or discharge is sought.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
AGREED TO:
Company:
5G WIRELESS COMMUNICATIONS, INC.
By: /s/ Jerry Dix
Name: Jerry Dix
Title: Chief Executive Officer
Consultant:
Ghillie Finaz, AG
By: /s/ Ghillie Fanaz
Ghillie Fanaz
EX-10 INDEPENDENT CONSULTING AGREEMENT
INDEPENDENT CONSULTING AGREEMENT
This Independent Consulting Agreement ("Agreement"), effective
as of the 22nd day of September, 2004 ("Effective Date") is entered
into by and between 5G WIRELESS COMMUNICATIONS, INC., a Nevada
corporation (herein referred to as the "Company") and Ghillie Finaz,
AG (herein referred to as the "Consultant").
RECITALS
WHEREAS, the Company is a publicly-held corporation with its
common stock traded on the Over the Counter Bulletin Board ("OTCBB");
and
WHEREAS, Company desires to engage the services of Consultant to
represent the company as a financial advisory consultant, and to
consult with management concerning related Company matters;
NOW THEREFORE, in consideration of the promises and the mutual
covenants and agreements hereinafter set forth, the parties hereto
covenant and agree as follows:
1. Term of Consultancy. Company hereby agrees to retain the
Consultant to act in a consulting capacity to the Company, and the
Consultant hereby agrees to provide services to the Company
commencing immediately and ending one year from the date of this
Agreement unless otherwise terminated earlier as provided herein.
2. Duties of Consultant. The Consultant agrees that it will
generally provide the following specified consulting services through
its officers and employees during the term specified in Section 1, above.
(a) Consult with and assist the Company in developing and
implementing appropriate plans and means for presenting the Company
and its business plans, strategy and personnel to the financial
community, establishing an image for the Company in the financial
community, and creating the foundation for subsequent financial
public relations efforts;
(b) With the cooperation of the Company, maintain an awareness
during the term of this Agreement of the Company's plans, strategy
and personnel, as they may evolve during such period, and consult
with the Company regarding communicating appropriate information
regarding such plans, strategy and personnel to the financial community;
(c) The Consultant will introduce the Company to investors who
the Consultant reasonably believes to be "accredited investors," as
that term is defined in Rule 501 of Regulation D promulgated under
the Securities Act of 1933, as amended (the "1933 Act"), with whom
the Consultant has a pre-existing substantive relationship (the "Offerees").
(d) At the Company's request, review business plans,
strategies, mission statements budgets, proposed transactions and
other plans for the purpose of advising the Company of the economic
implications thereof; and
(e) Otherwise perform as the Company's consultant with financial
professionals.
3. Allocation of Time and Energies. The Consultant hereby promises
to perform and discharge faithfully the responsibilities which may be
assigned to the Consultant from time to time by the officers and duly
authorized representatives of the Company in connection with the
conduct of its financial and communications activities, so long as
such activities are in compliance with applicable securities laws and
regulations. Consultant and staff shall diligently and thoroughly
provide the consulting services required hereunder. Although no
specific hours-per-day requirement will be required, Consultant and
the Company agree that Consultant will perform the duties set forth
herein above in a diligent and professional manner. The parties
acknowledge and agree that a disproportionately large amount of the
effort to be expended and the costs to be incurred by the Consultant
and the benefits to be received by the Company are expected to occur
within or shortly after the first two months of the effectiveness of
this Agreement. It is explicitly understood that neither the price of
the Company's Common Stock, nor the trading volume of the Company's
common stock hereunder measure Consultant's performance of its
duties. It is also understood that the Company is entering into this
Agreement with Consultant, a corporation and not any individual
member or employee thereof, and, as such, Consultant will not be
deemed to have breached this Agreement if any member, officer or
director of the Consultant leaves the firm or dies or becomes
physically unable to perform any meaningful activities during the
term of the Agreement, provided the Consultant otherwise performs its
obligations under this Agreement.
4. Remuneration.
4.1 For undertaking this engagement, for previous services
rendered, and for other good and valuable consideration, the Company
agrees to issue, or have issued, to the Consultant a "Commencement
Bonus" of $50,000 payable immediately and an additional $50,000
immediately upon the next closing of a funding by the Company of
approximately $1,000,000 in gross proceeds on similar terms as a
funding currently contemplated by the Company which initial funding
shall close at or about the date of this Agreement.
4.2 The Company understands and agrees that Consultant has
foregone significant opportunities to accept this engagement and that
the Company derives substantial benefit from the execution of this
Agreement and the ability to announce its relationship with
Consultant. The Commencement Bonus, therefore, constitutes payment
for Consultant's agreement to consult to the Company and is a non-
refundable, non-apportionable, and non-ratable retainer and is not a
prepayment for future services. If the Company decides to terminate
this Agreement, for any reason whatsoever, it is agreed and
understood that Consultant will not be requested or demanded by the
Company to return any of the Commencement Bonus referred to in
paragraph 4.1 hereunder.
4.3 Notwithstanding anything else in this Agreement to the
contrary, Company and Consultant acknowledge and agree that for
purposes of the Company's internal accounting practices, the Company
may desire to allocate all or a portion of the Commencement Bonus to
any number of the services provided by the Consultant to the Company
under this Agreement consistent with United States Generally Accepted
Accounting Practices. Accordingly, Consultant agrees to cooperate
with the Company, and will provide to the Company reasonable support
and documentation in connection with any such allocation process.
5. Indemnification. The Company warrants and represents that all
oral communications, written documents or materials furnished to
Consultant or the public by the Company with respect to financial
affairs, operations, profitability and strategic planning of the
Company are accurate in all material respects and Consultant may rely
upon the accuracy thereof without independent investigation. The
Company will protect, indemnify and hold harmless Consultant against
any claims or litigation including any damages, liability, cost and
reasonable attorney's fees as incurred with respect thereto resulting
from Consultant's communication or dissemination of any said
information, documents or materials excluding any such claims or
litigation resulting from Consultant's communication or dissemination
of information not provided or authorized by the Company.
6. Representations. Consultant represents that, to the best of its
knowledge, it is not required to maintain any licenses and
registrations under federal or any state regulations necessary to
perform the services set forth herein. Consultant acknowledges that,
to the best of its knowledge, the performance of the services set
forth under this Agreement will not violate any rule or provision of
any regulatory agency having jurisdiction over Consultant. Consultant
acknowledges that, to the best of its knowledge, Consultant and its
officers and directors are not the subject of any investigation,
claim, decree or judgment involving any violation of the Securities
and Exchange Commission ("SEC") or securities laws. Consultant
further acknowledges that it is not a securities broker-dealer.
Company acknowledges that, to the best of its knowledge, that it has
not violated any rule or provision of any regulatory agency having
jurisdiction over the Company. Company acknowledges that, to the best
of its knowledge, Company is not the subject of any investigation,
claim, decree or judgment involving any violation of the SEC or
securities laws.
7. Legal Representation. Each of Company and Consultant represents
that they have consulted with independent legal counsel and tax,
financial and business advisors to the extent that they deemed necessary.
8. Status as Independent Contractor. Consultant's engagement
pursuant to this Agreement shall be as independent contractor, and
not as an employee, officer or other agent of the Company. Neither
party to this Agreement shall represent or hold itself out to be the
employer or employee of the other. Consultant further acknowledges
the consideration provided hereinabove is a gross amount of
consideration and that the Company will not withhold from such
consideration any amounts as to income taxes, social security
payments or any other payroll taxes. All such income taxes and other
such payment shall be made or provided for by Consultant and the
Company shall have no responsibility or duties regarding such
matters. Neither the Company nor the Consultant possesses the
authority to bind each other in any agreements without the express
written consent of the entity to be bound.
9. Attorney's Fee. If any legal action or any arbitration or other
proceeding is brought for the enforcement or interpretation of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with or related to this Agreement,
the successful or prevailing party shall be entitled to recover
reasonable attorneys' fees and other costs in connection with that
action or proceeding, in addition to any other relief to which it may
be entitled.
10. Waiver. The waiver by either party of a breach of any provision
of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by such other party.
11. Notices. All notices, requests, and other communications
hereunder shall be deemed to be duly given if sent by U.S. mail,
postage prepaid, addressed to the other party at the address as set
forth herein below:
To the Company:
5G Wireless Communications, Inc.
4136 Del Rey Avenue
Marina Del Rey, CA 90292
Attn: Jerry Dix, Chairman/Chief Executive Officer
Fax: (310) 823-0981
With a copy by telecopier only to:
Ryan S. Hong, Esq.
Richardson & Patel LLP
10900 Wilshire Blvd., Suite 500
Los Angeles, California 90024
Fax: (310) 208-1154
To the Consultant:
Ghillie Finaz AG
c/o Wayne Coleson
LONGVIEW EQUITY FUND, LP
600 Montgomery Street, 44th Floor
San Francisco, CA 94111
Fax: (415) 981-5302
It is understood that either party may change the address to which
notices for it shall be addressed by providing notice of such change
to the other party in the manner set forth in this paragraph.
12. Choice of Law, Jurisdiction and Venue. This Agreement shall be
governed by, construed and enforced in accordance with the laws of
the State of New York. The parties agree that New York, New York will
be the venue of any dispute and will have jurisdiction over all parties.
13. Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the alleged breach thereof, or
relating to Consultant's activities or remuneration under this
Agreement, shall be settled by binding arbitration in New York, New
York, in accordance with the applicable rules of the American
Arbitration Association, Commercial Dispute Resolution Procedures,
and judgment on the award rendered by the arbitrator(s) shall be
binding on the parties and may be entered in any court having jurisdiction.
14. Complete Agreement. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof. This
Agreement and its terms may not be changed orally but only by an
agreement in writing signed by the party against whom enforcement of
any waiver, change, modification, extension or discharge is sought.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
AGREED TO:
Company:
5G WIRELESS COMMUNICATIONS, INC.
By: /s/ Jerry Dix
Name: Jerry Dix
Title: Chief Executive Officer
Consultant:
Ghillie Finaz, AG
By: /s/ Ghillie Fanaz
Ghillie Fanaz