As filed with the Securities and Exchange Commission on November __, 2001
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
5G WIRELESS COMMUNICATIONS, INC. (Formerly Tesmark, Inc.)
_______________________________________________________________________________
(Exact name of registrant as specified in its charter)
NEVADA 82-0351882
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Consulting Agreement with
Michael Tan
_______________________________________________________________________________
(Full title of the plan)
Corporate Capital Formation, 2921 N. Tenaya Way, Suite 208, Las Vegas,
NV 89128
(Name and Address of Agent for Service)
(702) 214-8440
(Telephone number including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Amount of Offering Aggregate Amount
Shares to be Price per Offering of Reg
Registered Share Proce Fee
$.001 par value Common 1,500,000 $0.02 $30,000 $7.50
Stock
Totals 1,500,000 $0.02 $30,000 $7.50
________________________________________________________________________
Total No. of pages: 23 Exhibit Index on Page No: 14
Pursuant to Rule 416(c) promulgated under the Securities Act of 1933, as
amended, the Registration Statement also covers an indeterminate amount of
Shares to be offered or sold as a result of any adjustments from stock splits,
stock dividends or similar events.
Based upon the average bid and asked prices of the Company's Common Stock
in over-the-counter trading on November 5, 2001.
PROSPECTUS
5G WIRELESS COMMUNICATIONS, INC.
2921 N. Tenaya Way, Suite 216
Las Vegas, NV 89128
(702) 647-4877
(1,500,000 SHARES OF COMMON STOCK)
This Prospectus relates to the offer and sale by 5G Wireless
Communications, Inc. ("FGWC"), a Nevada corporation ("the Company") of shares of
its $0.001 par value common stock (the "Common Stock) to a certain consultant of
the Company (the "Consultant) pursuant to agreements entered into between the
Company and the Consultant. The Company is registering hereunder and then
issuing upon receipt of adequate consideration therefor to the Consultant
1,500,000 shares of the Common Stock in consideration for services rendered and
to be rendered under the agreements.
The Common Stock is not subject to any restriction on transferability.
Recipients of shares other than persons who are affiliates of the Company within
the meaning of the Securities Act of 1933 (the Act) may sell all or part of the
shares in any way permitted by law including sales in the over-the-counter
market at prices prevailing at the time of such sale. None of the shares
registered hereunder are being sold to anyone who is an affiliate of the
Company. An affiliate is, summarily, any director, executive officer or
controlling shareholder of the Company. The affiliates of the Company may become
subject to Section 16(b) of the Securities Exchange Act of 1934 as amended (the
Exchange Act) which would limit their discretion in transferring the shares
acquired in the Company. If the Consultant who is not now an affiliate becomes
an affiliate of the Company in the future; he would then be subject to Section
I(b) of the Exchange Act (See General Information --- Restrictions on Resale).
The Common Stock is Listed on the OTC bulletin board under the symbol FGWC.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date of this Prospectus is November 5, 2001
This Prospectus is not part of any Registration Statement which was filed
and been effective under the Securities Act of 1933 as amended (the Securities
Act) and does not contain all of the information set forth in the Registration
Statement, certain portions of which have seen offered pursuant to the rules and
regulations promulgated by the U.S. Securities and Exchange Commission (The
Commission) under the Securities Act. The statements in this Prospectus as to
the contents of any contracts or other documents filed as an exhibit to either
the Registration Statement or other filings of the Company with the Commission
are qualified in their entirety by the reference thereto.
A copy of any document or part thereof incorporated by reference in this
Prospectus but not delivered herewith will be furnished without charge upon
written or oral request. Requests should be addressed to: 5G WIRELESS
COMMUNICATIONS, INC.,2921 N. Tenaya Way, Suite 216, Las Vegas, NV 89128,
telephone (702) 647-4877.
The Company is subject to the reporting requirements of the Exchange Act
and in accordance therewith files reports and other information with the
Commission. These reports as well as the proxy statements, information
statements and other information filed by the Company under the Exchange Act may
be reviewed and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street N.C. Washington D.C. 20549. Copies my be obtained
at the prescribed rates. In addition the Common Stock is quoted on the a
automated quotation system maintained by the National Association of Securities
Dealers, Inc. (NASD). Thus copies of these reports, proxy statements,
information statements and other information may also be examined at the offices
of the NASD at 1735 K Street N.C. Washington DC 20549.
No person has been authorized to give any information or to make any
representation, other than those contained in this Prospectus, and if given or
made, such other information or representation must not be relied upon as having
been authorized by the Company. This Prospectus does not constitute an offer or
a solicitation by anyone in any state in which such is not authorized or in
which the person making such is not qualified or to any one to whom it is
unlawful to make an offer or solicitation
Neither the delivery of this Prospectus nor any sale made hereunder shall
under any circumstances create any implication that there has not been a change
in the affairs of the Company since the date hereof.
TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN lNFORMATION
GENERAL lNFORMATION
The Company
Purpose
Common Stock
The Consultant
No Restrictions on Transfer
Tax Treatment to the Consultant
Tax Treatment to the Company
Restrictions on Resales
DOCUMENTS INCORPORATED BY REFERENCE & ADDITIONAL INFORMATION
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL
INFORMATION
Legal Opinion and Experts
Indemnification of Officers and Directors
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. lNCORPORATION OF DOCUMENTS BY REFERENCE
ITEM 4. DESCRIPTION OF SECURITIES
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
ITEM 8. EXHIBITS
ITEM 9. UNDERTAKINGS
EXHIBIT INDEX
PART 1
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
GENERAL INFORMATION
The Company
The Company has its principal offices at 2921 N. Tenaya Way, Suite 216, Las
Vegas, NV 89128, telephone (702) 647-4877.
Purposes
The Common Stock will be issued by the Company pursuant to an agreement
entered into between the Consultant and the Company and approved by the Board of
Directors of the Company (the "Board of Directors"). The agreements are intended
to provide a method whereby the Company may be stimulated by the personal
involvement of the Consultant in the Company's business planning and
development, thereby advancing the interests of the Company, and all of its
shareholders. A copy of the agreement has been filed as an exhibit to this
Registration Statement.
Common Stock
The Board has authorized the issuance of up to 1,500,000 shares of the
Common stock to the Consultant upon effectiveness of this registration
Statement.
The Consultant
The Consultant, who is also an Employee of the Company, has agreed to
provide his expertise and advice to the Company on a non-exclusive basis for the
purpose of assisting the Company in its identifying acquisition targets and
structuring mergers and other acquisitions, business development, business
strategy and corporate image.
No Restrictions on Transfer
The Consultant will become the record and beneficial owners of the shares
of Common Stock upon issuance and delivery and are entitled to all of the rights
of ownership, including the right to vote any shares awarded and to receive
ordinary cash dividends on the Common Stock.
Tax Treatment to the Consultant
The Common Stock is not qualified under Section 401(a) of the Internal
Revenue Code. The Consultant, therefore, will be deemed for federal income tax
purposes to recognize ordinary income during the taxable year in which the first
of the following events occurs: (a) the shares become freely transferable, or
(b) the shares cease to be subject to a substantial risk of forfeiture.
Accordingly, the Consultant will receive compensation taxable at ordinary rates
equal to the fair market value of the shares on the date of receipt since there
will be no substantial risk of forfeiture or other restrictions on transfer. If,
however, the Consultant receives shares of common stock pursuant to the
exercises of an option or options at an exercise price below the fair market
value of the shares on the date of exercise, the difference between the exercise
price and the fair market value of the stock on the date of exercise will be
deemed ordinary income for federal income tax purposes. The Consultant is urged
to consult his tax advisor on this matter. Further, if any recipient is an
"affiliate", Section 16(b) of the Exchange Act is applicable and will affect the
issue of taxation.
Tax Treatment to the Company
The amount of income recognized by any recipient hereunder in accordance
with the foregoing discussion will be an expense deductible by the Company for
federal income tax purposes of the taxable year of the Company during which the
recipient recognizes income.
Restrictions of Resales
In the event that an affiliate of the Company acquires shares of Common
Stock hereunder, the affiliate will be subject to Section 16(b) of the Exchange
Act. Further, in the event that any affiliate acquiring shares hereunder has
sold or sells any shares of Common Stock in the six months preceding or
following the receipt of shares hereunder, any so called "profit", as computed
under Section 16(b) of the Exchange Act, would be required to be disgorged from
the recipient to the Company. Services rendered have been recognized as valid
consideration for the "purchase" of shares in connection with the "profit"
computation under Section 16(b) of the exchange Act. The Company has agreed that
for the purpose of any "profit" computation under 16(b) the price paid for the
common stock issued to affiliates is equal to the value of services rendered.
Shares of common Stock acquired hereunder by persons other than affiliates are
not subject to Section 16(b) of the Exchange Act.
DOCUMENTS INCORPORATED BY REFERENCE AND ADDITIONAL INFORMATION
The Company hereby incorporates by reference (i) its annual report of Form
10-KSB for the year ended December 31, 2000, filed pursuant to Section 13 of the
Exchange Act, (ii) any and all Forms 10-Q (10-QSB) filed under the Securities or
Exchange Act subsequent to any filed form 10-K (or 10-KSB), as well as all other
reports filed under Section 13 of the Exchange Act, and (iii) its annual report,
if any, to shareholders delivered pursuant to Rule 14a-3 of the Exchange Act. In
addition, all further documents filed by the Company pursuant to Section 13, 14,
or 15(d) of the Exchange Act prior to the termination of this offering are
deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing. All documents which when together, constitute
this Prospectus, will be sent or given to participants by the Registrant as
specified by Rule 428(b)(1) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information
A copy of any document or part hereof incorporated by reference in this
Registration Statement but not delivered with this Prospectus or any document
required to be delivered pursuant to Rule 428(b) under the Securities Act will
be furnished without charge upon written or oral request. Requests should be
addressed to: 5G WIRELESS COMMUNICATIONS, INC., 2921 N. Tenaya Way, Suite 216,
Las Vegas, NV 89128, telephone (702) 647-4877.
Legal Opinions and Experts
Warren J. Soloski has rendered an opinion on the validity of the securities
being registered. Mr. Soloski is not an "affiliate" of the Company and does not
have any interest in the registrant.
The financial statements of 5G WIRELESS COMMUNICATIONS, INC., incorporated
by reference in the Company's Annual Report (Form 10-KSB) for the period ended
December 31, 2000, have been audited by RANDY SIMPSON, P.C., Certified Public
Accountant, independent auditors, as set forth in their report incorporated
herein by reference and are incorporated herein in reliance upon such report
given upon the authority of the firm as experts in auditing and accounting.
Indemnification of Officers and Directors
Insofar as indemnification of liabilities arising under the Securities Act
may be permitted to directors, officers, or persons controlling the company, the
company has been informed that in the opinion of the commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Registrant hereby states that (i) all documents set forth in (a) through
(c), below, are incorporated by reference in this registration statement, and
(ii) all documents subsequently filed by registrant pursuant to Section 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this registration
statement and to be a part hereof from the date of filing of such documents.
(a) Registrant's latest Annual Report, whether filed pursuant to Section
13(a) or 15(d) of the Exchange Act;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual report
referred to in (a), above; and
(c) The latest prospectus filed pursuant to Rule 424(b) under the
Securities Act.
Item 4. Description of Securities
No description of the class of securities (i.e., the $.001 par value Common
Stock ) is required under this item because the common Stock is registered under
Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Mr. Soloski, whose firm is rendering the legal opinion for this
registration, will not benefit from the registration of shares under the terms
of the consulting agreement.
Item 6. Indemnification of Directors and Officers
The company's by-laws, in accordance with Nevada Revised Statutes (Section
78.751), provide that to the extent he is otherwise fairly and reasonably
entitled thereto, the Company shall indemnify a Director or Officer, a former
Director or Officer, or a person who acts or acted at the Company's request as a
Director or Officer of a body corporate of which the Corporation is or was a
shareholder or creditor (or a person who undertakes or has undertaken any
liability on behalf of the Company or any such body corporate and his heirs and
legal representatives, against all costs, charges and expenses, including an
amount paid to settle an action or satisfy a judgment, reasonably incurred by
him in respect of any civil, criminal or administrative action or proceeding to
which he is made a party by reason of being or having been a Director or Officer
of the Company or such body corporate, if
(a) he acted honestly and in good faith with a view to the best interests
of the Company; and
(b) in the case of a criminal or administrative action or proceeding that
is enforced by a monetary penalty, he had reasonable grounds for believing that
his conduct was lawful.
The Nevada Revised Statutes (NRS) provide that directors shall not be
personally liable to the Company or its shareholders for monetary damages for
breach of fiduciary duty as a director except for liability (i) for any breach
of the directors' duty of loyalty to the Company or its shareholders, (ii) for
acts or omissions not in good faith or which involved intentional misconduct or
a knowing violation of law, (iii) for authorizing a distribution that is
unlawful under the Nevada Revised Statutes, or (iv) for any transaction from
which the director derived an improper personal benefit. Such provision protects
directors against personal liability for monetary damages for breaches of their
duty of care.
The Company may purchase and maintain insurance for the benefit of its
Directors and Officers as such, as the Board of directors may from time to time
determine.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
(a) The following exhibits are filed as part of this S-8 registration
statement pursuant to Item 601 of Regulation S-B and are specifically
incorporated herein by this reference:
Exhibit No. Title
4. Not Applicable
5. Opinion of Warren J. Soloski regarding
the legality of the securities registered.
10. Consulting Agreement with Michael Tan,
15. Not Required
23.1 Consent of Warren J. Soloski, special
counsel to registrant, to the use of his
opinion with respect to the legality of
the securities being registered hereby
and to the references to him in
the Prospectus filed as a part hereof.
23.2 Consent of Randy Simpson, P.C., Certified
Public Accountant
27. Not Required
28. Not Required
29. Not Required
Item 9. Undertakings
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of registrant
pursuant to the foregoing provisions, or otherwise, registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable. If a claim for indemnification against such
liabilities (other than the payment by registrant of expenses incurred or paid
by a director, officer or controlling person of registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered,
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification is against public policy as expressed
in the Act and will be governed by the final adjudication of such issue.
Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to:
(i) include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represents a
fundamental change in the information set forth in the registration statement;
and
(iii) include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
provided, however, paragraphs (i) and (ii) shall not apply if the
information required to be included in a post-effective amendment by those
paragraphs is incorporated by reference from periodic reports filed by the
registrant small business issuer under the Exchange Act.
(2) That, for the purpose of determining any liability under the Securities
Act, each post-effective amendment to the registration statement shall be deemed
to be a new registration statement relating to the securities offered therein
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) To deliver or cause to be delivered with the prospectus, to each person
to whom the prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and furnished
pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim financial information
required to be presented by Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim financial
information.
Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of registrant's annual
report pursuant to Section 13(a) of the Securities Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
Securities at that time shall be deemed to be the initial bona fide offering
thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned thereunto duly
authorized in the City of Las Vegas, Nevada on the 20th day of November, 2001.
5G WIRELESS COMMUNICATIONS, INC.
(Registrant)
By: /s/ Michael Tan
Michael Tan, President
Pursuant to the requirements of the 1933 Act, this registration statement
or amendment has been signed by the following persons in the capacities and on
the dates indicated:
Signatures Title Date
/s/ Michael Tan President November 20, 2001
Michael Tan Director
/s/ Allen Schwabe Secretary/Treasurer November 20, 2001
Allen Schwabe Director
/s/ Richard Lajeunesse Chief Technology Officer November 20, 2001
Richard Lajeunesse
FORM S-8 REGISTRATION STATEMENT
EXHIBIT INDEX
The following Exhibits are filed as part of this registration statement
pursuant to Item 601 of Regulation S-B and are specifically incorporated herein
by this reference:
Exhibit Number
In Registration
Statement Descriptions Numbered Page
_______________________________________________________________________________
5. Opinion of Counsel 15
10. Consulting Agreement with Michael Tan, 17
23.1 Consent of Warren J. Soloski 22
23.2 Consent of Randy Simpson, P.C.,
Certified Public Accountant. 23
Michael Tan
5G WIRELESS COMMUNICATIONS, INC.
2921 N. Tenaya Way, Suite 216.
Las Vegas, NV 89128
Re: Legal Opinion for S-8 Registration Statement
Dear Mr. Tan:
At your request, I have examined the form of Registration Statement which
5G WIRELESS COMMUNICATIONS, INC. (the "Company") is filing with the Securities
and Exchange Commission, on Form S-8 (the "Registration Statement"), in
connection with the registration under the Securities Act of 1933, as amended,
of 1,500,000 shares of your Common Stock (the "Stock") issuable pursuant to
satisfaction of conditions set forth in the agreement with the Consultant to the
Company (the "Consulting Agreement").
In rendering the following opinion, I have examined and relied only upon
the documents, and certificates of officers and directors of the Company as are
specifically described below. In my examination, I have assumed the genuineness
of all signatures, the authenticity, accuracy and completeness of the documents
submitted to me as originals, and the conformity with the original documents of
all documents submitted to me as copies. My examination was limited to the
following documents and no others:
1. Certificate of Incorporation of the Company, as amended to date;
2. Bylaws of the Company, as amended to date;
3. Resolutions adopted by the Board of Directors of the Company authorizing
entry into a consultant agreement;
4. The Registration Statement;
5. The agreements with the entity for the shares being registered in the
Registration Statement.
I have not undertaken, nor do I intend to undertake, any independent
investigation beyond such documents and records, or to verify the adequacy or
accuracy of such documents and records. Based upon the foregoing, it is my
opinion that: (i) the Stock to be issued under the agreements, subject to
effectiveness of the Registration Statement and compliance with applicable blue
sky laws, and execution of the Consulting Agreement in accordance with the
contracts as contemplated, when issued, will be duly and validly authorized,
fully paid and non-assessable; and (ii) no consent, approval, order or
authorization of any regulatory board, agency, or instrumentality having
jurisdiction over the Company or its properties (other than registration under
the Act or qualification under state securities or Blue Sky laws or clearance
from the NASD) is required for the valid authorization, issuance and delivery of
the Stock, or, if required, it has been obtained and is in full force and
effect.
I express no opinion as to compliance with the securities or "blue sky"
laws of any state in which the stock delivered upon fulfillment of the
agreements is proposed to be offered and sold or as to the effect, if any, which
non-compliance with such laws might have on the validity of issuance of the
stock.
I consent to the filing of this opinion as an exhibit to any filing made
with the Securities and Exchange Commission or under any state or other
jurisdiction's securities act for the purposes of registering, qualifying or
establishing eligibility for an exemption from registration or qualification of
the stock issued as described in the Registration Statement in connection with
the offering described therein. Other than as provided in the preceding
sentence, this opinion (i) is addressed solely to you, (ii) may not be relied
upon by any other party, (iii) covers only matters of federal law and nothing in
this opinion shall be deemed to imply any opinion related to the laws of any
other jurisdiction, (iv) may not be quoted or reproduced or delivered by you to
any other person, and (v) may not be relied upon for any other purpose
whatsoever. Nothing in this opinion shall be deemed to relate to or constitute
an opinion concerning any matters not specifically set forth above.
By giving you this opinion and consent, I do not admit that I am an expert
with respect to any part of the Registration Statement within the meaning of the
term "expert" as used in Section 11 of the Securities Act of 1993, as amended,
or the Rules and Regulations of the Securities and Exchange Commission
promulgated thereunder.
The information set forth herein is as of the date of this letter. I
disclaim any undertaking to advise you of changes which may be brought to my
attention after the effective date of the Registration Statement.
Very truly yours,
/s/ Warren J. Soloski
Warren J. Soloski
INDEPENDENT CONTRACTOR/CONSULTING AGREEMENT
THE AGREEMENT is made and entered into as of this 1st day of November, 2001
by and between 5G WIRELESS COMMUNICATIONS, INC., hereinafter referred to as
"Client", with its principal place of business at 2921 N. Tenaya Way, Suite 216,
Las Vegas, NV 89128, and Michael Tan, with his place of business at 990 Highland
Drive, Suite 106, Solana Beach, CA 92075, hereinafter referred to as
"Consultant".
RECITALS
A. WHEREAS, Client is a development stage company; and
B. WHEREAS, the Consultant is generally knowledgeable in the areas of
identifying acquisition targets consistent with the business operations of the
Company and possesses experience in merger structure, corporate image
advertising, business development and business strategy; and
C. WHEREAS, the Company wishes to engage the Consultant on a nonexclusive
basis as an independent contractor to utilize Consultant's general acquisition
experience and specific merger structure experience for this type of Company,
corporate image advertising, and business development and strategy expertise;
and
D. WHEREAS, the Consultant is willing to be so retained on the terms and
conditions as set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual agreements
hereinafter set forth, the parties hereto agree as follows:
1. Engagement. The Company hereby retains and engages Consultant to perform
the following consulting services (the "Consulting Services");
1.1 Duties of Consultant. In addition to his duties as President of the
Company, the Consultant will provide such services and advice to the Company so
as to assist the Company in identifying acquisition targets for the Company and
advise the Company in structuring mergers or other acquisitions. Without
limiting the generality of the foregoing, Consultant will also assist the
Company in developing, studying and evaluating acquisition proposals, prepare
reports and studies thereon when advisable, and assist in negotiations and
discussions pertaining thereof. Nothing contained herein constitutes a
commitment on the part of the Consultant to find an acquisition target for the
Company or, if such target is found, that any transaction will be completed.
Consultant will assist the Company in creating its corporate image advertising,
business development and business strategy. This Agreement is not a contract for
listing services, and nothing in this Agreement will require the Consultant to
negotiate on behalf of the Company with corporations that are involved with
listings or making a market in corporate securities in the OTC markets.
2. Duties Expressly Excluded. This Agreement expressly excludes the
Consultant from providing any and all capital formation and/or public relation
services to the Company inclusive of but not limited to (i) direct or indirect
promotion of the Company's securities; (ii) assistance in making of a market in
the Company's securities; and (iii) assistance in obtaining debt and/or equity
financing. The Consultant shall not have the power of authority to bind the
Company to any transaction without the Companys prior written consent.
3. Consideration. Client and Consultant agree that Consultant receive from
the Client a fee One Million Five Hundred Thousand, (1,500,000) shares of
Clients common stock, in advance, as consideration for the services rendered or
to be rendered pursuant to this Agreement.
4. Term. This Agreement shall be effective for a term of twelve (12) months
starting from the date first written above unless sooner terminated upon mutual
written agreement of the parties hereto.
5. Expenses. Consultant shall bear his out-of-pocket costs and expenses
incident to performing the Consulting Services, without a right of reimbursement
form the Company unless such expenses are pre-approved by the Company.
6. Consultant's Liability. In the absence of gross negligence or willful
misconduct on the part of the Consultant or the Consultant's breach of any terms
of this Agreement, the Consultant shall not be liable to the Company or to any
officer, director, employee, stockholder or creditor of the Company, for any act
or omission in the course of or in connection with the rendering or providing of
services hereunder. Except in those cases where the gross negligence or willful
misconduct of the Consultant or the breach by the Consultant of any terms of
this Agreement is alleged and proven, the Company agrees to defend, indemnify,
and hold the Consultant harmless from and against any and all reasonable costs,
expenses and liability (including reasonable attorney's fees paid in the defense
of the Consultant) which may in any way result from services rendered by the
Consultant pursuant to or in any connection with this Agreement. This
indemnification expressly excludes any and all damages as a result of any
actions or statements, on behalf of the Company, made by the Consultant without
the prior approval or authorization of the Company.
7. Company's Liability. The Consultant agrees to defend, indemnify, and
hold the Company harmless from an against any and all reasonable costs, expenses
and liability (including reasonable attorney's fees paid in defense of the
Company) which may in any way result pursuant to its gross negligence or willful
misconduct or in any connection with any actions taken or statements made, on
behalf of the Company, without the prior approval or authorization of the
Company or which are otherwise in violation of applicable law.
8. Representations. The Consultant makes the following representations: a.
Consultant has no prior or existing legally binding obligations that are in
conflict with its entering into this Agreement;
b. Consultant shall not offer or make payment of any consideration to
brokers, dealers, or others for purposes of inducing the purchase, making of a
market or recommendation for the purchase of the Company's securities;
c. Consultant is not currently the subject of an investigation or inquiry
by the Securities and Exchange Commission, the NASD, or any state securities
commission;
d. Consultant's activities and operations fully comply with now and will
comply with in the future all applicable state and federal securities laws and
regulations;
e. Consultant understands that, as a result of its services, it may come to
possess material non-public information about the Company, and that it has
implemented internal control procedures designed to reasonably to insure that it
and none of its employees, agents, Consultant or affiliates, trade in the
securities of client companies while in possession of material non-public
information;
f. During the Term of this Agreement and for a period of two years
thereafter, the Consultant shall treat as the Company's confidential trade
secrets all date, information, ideas, knowledge and papers pertaining to the
affairs of the Company. Without limiting the generality of the foregoing, such
trade secrets shall include: the identity of the Company's customers, suppliers
and prospective customers and suppliers; the identity of the Company's creditors
and other sources of financing; the Company's estimating and costing procedures
and the cost and gross prices charged by the Company for its products; the
prices or other consideration charged to or required of the Company by any of
its suppliers or potential suppliers; the Company's sales and promotional
policies; and all information relating to entertainment programs or properties
being produced or otherwise developed by the Company. The Consultant shall not
reveal said trade secretes to others except in the proper exercise of its duties
for the Company, or use their knowledge thereof in any way that would be
detrimental to the interest of the Company, unless compelled to disclose such
information by judicial or administrative process; provided, however, that the
divulging of information shall not be a breach of this Agreement to the extent
that such information was (i) previously known by the party to which it is
divulged, (ii) already in the public domain, all through no fault of the
Consultant, or (iii) required to be disclosed by Consultant pursuant to judicial
or governmental order. The Consultant shall also treat all information
pertaining to the affairs of the Company's suppliers and customers and
prospective customers and suppliers as confidential trade secrets of such
customers and suppliers and prospective customers and suppliers, and:
g. Consultant agrees to notify the Company immediately if, at any time, any
of the representations and warranties made by the Consultant herein are no
longer true and correct or if a breach of any of the representations and
warranties made by the Consultant herein occurs,
9. The Company makes the following representations:
a. The Company is not currently the subject of an investigation or inquiry
by the Securities and Exchange Commission, the NASD, or any state securities
commission;
b. The Company is in good standing in its state of incorporation;
c. The Company and its senior management are not aware of any materially
adverse events not previously disclosed in the Company's annual and quarterly
reports with the Securities and Exchange Commission.
10. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the Company and the Consultant and supersedes any and all
negotiations, prior discussions and preliminary and prior agreements and
understandings related to the primary subject matter hereof. This Agreement
shall not be modified except by written instrument duly executed by each of the
parties hereto.
11. Waiver. No waiver of nay of the provisions of this Agreement shall be
deemed, or shall constitute a waiver of any other provisions, nor shall any
waiver constitute a continuing wavier. No waiver shall be binding unless
executed in writing by the party making the waiver.
12. Assignment and Binding Effect. This Agreement and the rights hereunder
may not be assigned by the parties (except by operation of law or merger) and
shall be binding upon and inure to the benefit of the parties and their
respective successors, assigns and legal representatives.
13. Notices. Any notice or other communication between the parties hereto
shall be sufficiently given if sent by certified or registered mail, postage
prepaid, or faxed and confirmed at the following locations:
Company:
5G WIRELESS COMMUNICATIONS, INC.
2921 N. Tenaya Way, Suite 216
Las Vegas, NV 89128
Attn: Michael Tan
Consultant:
Michael Tan
Unit
05-03
20 Balmoral
Crest
Singapore
Attn: Michael Tan
or at such other location as the addressee may have specified in a notice
duly given to the sender as provided herein. Such notice or other communication
shall be deemed to be given on the date of receipt.
14. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is deemed unlawful or invalid for any
reason whatsoever, such unlawfulness or invalidity shall not affect the validity
of this Agreement.
15. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Nevada, without giving effect to
conflicts of laws.
16. Headings. The headings of this Agreement are inserted solely for the
convenience of reference and are not part of, and are not intended to govern,
limit or aid in the construction of any term or provision hereof.
17. Further Acts. Each party agrees to perform any further acts and execute
and deliver any further documents that may be reasonably necessary to carry out
the provisions and intent of this Agreement.
18. Acknowledgment Concerning Counsel. Each party acknowledges that it had
the opportunity to employ separate and independent counsel of its own choosing
in connection with this Agreement.
19. Independent Contractor Status. There is no relationship, partnership,
agency, employment, franchise or joint venture between the parties. The parties
have no authority to bind the other or incur any obligations on their behalf.
20. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly execute this Agreement as
of the date first written above.
5G WIRELESS COMMUNICATIONS, INC.
BY:_____________________________________
Michael Tan its President
Michael Tan
BY:_______________________________
MichaelTan
WARREN J. SOLOSKI Letterhead
CONSENT OF COUNSEL
I consent to the filing of this opinion as an exhibit to any filing made
with the Securities and Exchange Commission or under any state or other
jurisdiction's securities act for the purposes of registering, qualifying or
establishing eligibility for an exemption from registration or qualification of
the stock issued as described in the Registration Statement in connection with
the offering described therein.
/s/ Warren J. Soloski
Warren J. Soloski
Special Counsel to 5G WIRELESS COMMUNICATIONS, INC.
RANDY SIMPSON P, PC
CERTIFIED PUBLIC ACCOUNTANT Letterhead
CONSENT OF INDEPENDENT AUDITORS
We consent to the use in this Registration Statement of 5G WIRELESS
COMMUNICATIONS, INC. on Form S-8 for my report relating
to the financial statements of 5G WIRELESS COMMUNICATIONS, INC. dated.
December 31, 2000.
/s/ P.C. Certified Public Accountant