SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KOALA INTERNATIONAL WIRELESS INC.
-------------------------------------
(Exact Name of Registrant as Specified in its Charter)
NEVADA 76-0616468
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(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
34 COUPLES GALLERY
BALLANTRAE, ONTARIO, CANADA L4A IM6
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(Address of Principal Executive Offices) (Zip Code)
CONSULTING AGREEMENTS
---------------------
(Full Title of the Plan)
(name, address and telephone number of agent for service)
Terry Clarke (with copies to)
President James Vandeberg, Esq.
Koala International Wireless Inc. James L. Vandeberg.
34 Couples Gallery 1000 Second Avenue, Suite 1710
Ballantrae, Ontario, Canada L4A IM6 Seattle, Washington 98104
(905) 642-4715 (206) 973-1895
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of securities to be Amount to be offering price per aggregate offering Amount of
registered registered (2) share price registration fee
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Common Stock
par value $0.001 4,000,000 $ .15(1) 600,000 (1) $ 136.80
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(1) Estimated pursuant to Rules 457(h) and 457(c), solely for the purpose
of computing the amount of the registration fee, based on the average
of the bid and asked price of the Common Stock on July 11, 2003 as
reported on the OTC Bulletin Board.
(2) This registration statement also covers additional shares of common
stock which become issuable under the attached Consulting Agreements
with respect to the securities registered hereunder by reason of a
reorganization, recapitalization, stock split, stock dividend,
combination of shares, merger or consolidation, or the sale,
conveyance or other transfer by Koala International Wireless Inc. of
all or substantially all of its property or other similar transaction
effected without receipt of consideration which results in an increase
in the number of outstanding shares of Koala International Wireless
Inc. stock.
PART I
INFORMATION REQUIRED IN THE SECTION 10 (A) PROSPECTUS
Item 1. Plan Information.*
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Item 2. Registrant Information and Employee Plan Annual Information.*
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* Information required by Items 1 and 2 of Part I to be contained in the
Section 10(a) Prospectus is omitted from the Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as amended, and
the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed by Koala International Wireless Inc. (the
"Registrant") with the Securities and Exchange Commission (the
"Commission") are incorporated herein by reference:
a. The Registrant's registration statement on Form 10-SB filed with the
Commission on March 22, 2001;
b. All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the effective date of its Form 10-SB; and
c. The description of the Registrant's Common Stock contained in the
Registrant's registration statement on Form 10-SB filed under the
Exchange Act on March 22, 2001, including any amendment or report
filed for the purpose of updating such description.
All documents filed with the Commission by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered herein have been sold
or which deregisters all securities then remaining unsold, are deemed to be
incorporated by reference in this Registration Statement and to be a part
thereof from the date of filing of such documents.
Any statement contained herein or in a document, all or a portion of which
is incorporated or deemed to be incorporated by reference shall be deemed
to be modified or superseded for purposes of this Registration Statement to
the extent that a statement contained in any subsequently filed document
modifies or supersedes such first statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
---------------------------
Not applicable.
Item 5. Interest of Named Experts and Counsel.
------------------------------------------
None.
Item 6. Indemnification of Directors and Officers.
---------------------------------------------
As authorized by Section 78.751 of the Nevada General Corporation Law, the
Registrant may indemnify its officers and directors against expenses
incurred by such persons in connection with any threatened, pending or
completed action, suit or proceedings, whether civil, criminal,
administrative or investigative, involving such persons in their capacities
as officers and directors, so long as such persons acted in good faith and
in a manner which they reasonably believed to be in the Registrant's best
interests. If the legal proceeding, however, is by or in the Registrant's
right, the director or officer may not be indemnified in respect of any
claim, issue or matter as to which he is adjudged to be liable for
negligence or misconduct in the performance of his duty to the Registrant
unless a court determines otherwise.
Under Nevada law, corporations may also purchase and maintain insurance or
make other financial arrangements on behalf of any person who is or was a
director or officer (or is serving at the request of the corporation as a
director or officer of another corporation) for any liability asserted
against such person and any expenses incurred by him in his capacity as a
director or officer. These financial arrangements may include trust funds,
self-insurance programs, guarantees and insurance policies.
The Registrant's articles of incorporation, as amended, provide that its
directors or officers shall not be personally liable to the Registrant or
any of its stockholders for damages resulting from breaches of fiduciary
duty as a director or officer for acts or omissions, except for damages
resulting from acts or omissions which involve intentional misconduct,
fraud, a knowing violation of law, or the payment of dividends in violation
of the Nevada Revised Statutes.
The Registrant's bylaws provide for the indemnification of officers and
directors to the fullest extent possible under Nevada Law, against expenses
(including attorney's fees), judgments, fines, settlements, and other
amounts actually and reasonably incurred in connection with any proceeding,
arising by reason of the fact that such person is or was an agent of the
Registrant. The Registrant is also granted the power, to the maximum extent
and in the manner permitted by the Nevada Revised Statutes, to indemnify
each of its employees and agents (other than directors and officers)
against expenses (including attorneys' fees), judgments, fines, settlements
and other amounts actually and reasonably incurred in connection with any
proceeding, arising by reason of the fact that such person is or was the
Registrant's agent.
Item 7. Exemption from Registration Claimed.
--------------------------------------
Not applicable.
Item 8. Exhibits.
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The following exhibits included herewith or incorporated herein by
reference are made part of this Registration Statement:
5.1 Opinion of James L. Vandeberg;
10.1 Consulting Agreement of Al-Karim Rahemtulla;
10.2 Consulting Agreement of Shahenool Hirji;
10.3 Consulting Agreement of Farooque Saleemi;
10.4 Consulting Agreement of Zaireen Mehnaas;
10.5 Consulting Agreement of Tom Walsh;
23.3 Consent of James L. Vandeberg (see Exhibit 5.1);
24 Power of Attorney (included on signature page)
Item 9. Undertakings.
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The undersigned 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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To 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, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) To 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, that paragraphs (1)(i) and (1)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) That for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the forgoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the 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, the
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 by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933, the
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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 Toronto, Province of Ontario, on July 11, 2003.
KOALA INTERNATIONAL WIRELESS INC.
/s/ Terry Clarke
-------------------------
By: Terry Clarke
Its: President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Terry Clarke, as his true and lawful
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attorney-in-fact and agent with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments (including post-effective amendments) to this Registration
Statement on Form S-8 of Koala International Wireless Inc., and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, grant unto said attorney-in-fact
and agent, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the foregoing, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates stated.
Signature Title Date
- -------------------------- ------------- ----
/s/ Brad Wilson
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Brad Wilson Chairman and Director July 11, 2003
/s/ Derek Pepler
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Derek Pepler Director July 11, 2003
/s/ Miguel Caron
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Miguel Caron Director July 11, 2003
/s/ Christine Cerisse
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Christine Cerisse Director July 11, 2003
/s/ Lorne Catling
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Lorne Catling Director July 11, 2003
EXHIBIT INDEX
Exhibit Number Description
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5.1 Opinion of James L. Vandeberg;
10.1 Consulting Agreement of Al-Karim Rahemtulla;
10.2 Consulting Agreement of Shahenool Hirji;
10.3 Consulting Agreement of Farooque Saleemi;
10.4 Consulting Agreement of Zaireen Mehnaas;
10.5 Consulting Agreement of Tom Walsh;
23.3 Consent of James L. Vandeberg (see Exhibit 5.1);
24 Power of Attorney (included on signature page)
EXHIBIT 5.1
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[JAMES L. VANDEBERG LETTERHEAD]
July 11, 2003
Koala International Wireless Inc.
34 Couples Gallery
Ballantrae, Ontario, Canada
L4A IM6
Attn: Board of Directors
Re: Registration Statement on Form S-8 of Koala International Wireless Inc.;
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Ladies and Gentlemen:
At your request, I have examined the Registration Statement on Form S-8 (the
"Registration Statement") executed by you on July 11, 2003, and to be filed with
the Securities and Exchange Commission (the "SEC") in connection with the
registration under the Securities Act of 1933, as amended, of Four Million
(4,000,000) shares of your common stock, par value of $0.001 per share (the
"Common Stock"), which will be issuable under the Koala International Wireless
Inc. Consulting Agreements (the "Plan").
As your counsel in connection with the Registration Statement, I have examined
the proceedings taken by you in connection with the adoption of the Plan and the
authorization of the issuance of the shares of Common Stock under the Plan (the
"Plan Shares") and such documents as I have deemed necessary to render this
opinion.
Based upon the foregoing, it is my opinion that the Plan Shares, when issued and
outstanding pursuant to the terms of the Plan, will be validly issued, fully
paid and non-assessable shares of Common Stock.
I hereby consent to the filing of this opinion as an exhibit to the Registration
Statement and to all references to me included in or made a part of the
Registration Statement.
Very truly yours,
JAMES L. VANDEBERG.
/s/ James L. Vandeberg
James L. Vandeberg
EXHIBIT 10.1
INDEPENDENT CONTRACTOR/CONSULTING AGREEMENT
THIS AGREEMENT is made and entered into as of the 11th day of July
2003 by and between Koala International Wireless, Inc. hereinafter referred to
as "Client", with its principal place of business at 34 Couples Gallery,
Ballantrae ON L4A 1M6 and Al-Karim Rahemtulla hereinafter referred to as
"Consultant", with its principal place of Business at Suite 200, 675 West
Hastings Street, Vancouver BC V6B 1N2
RECITALS
A. WHEREAS, Client is a developed 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 the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual agreements
hereinafter set forth, the parties 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. 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/of 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 Company's
prior written consent.
3. Consideration. Client and Consultant agree that Consultant receive from the
Client an initial payment of Eight Hundred Thousand (800,000) 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 one year (1) year
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 from 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
is any way a result from services rendered by the Consultant pursuant to or
in any connections with the 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 and 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 representation:
a. Consultant has no prior or existing legally binding obligation 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
law and regulation;
e. Consultant understands that, as a result of its services, it may come
to possess material non-public information about the Company, and that
is has implemented internal control procedures designed to reasonably
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
or the Company by any of its suppliers of 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
secrets 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 it 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 the
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 any 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 waiver. 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 representative.
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: 34 Couples Gallery, Ballantrae ON L4A 1M6
Consultant: Suite 200, 675 West Hastings Street, Vancouver BC V6B 1N2
Or at such other locations 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 of provision hereof is deemed unlawful or invalid
for nay 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 Nevada, without giving effect to conflict 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. Acknowledgement Concerning Counsel. Each party acknowledges that if had the
opportunity to employ separate and independent counsel of its own choosing
in connections 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 executed this Agreement as of
the date first written above.
BY: /s/Terry Clarke The "Client"
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KOALA INTERNATIONAL WIRELESS INC.
BY: /s/Al-Karim Rahemtulla The "Consultant"
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AL-KARIM RAHEMTULLA
EXHIBIT 10.2
INDEPENDENT CONTRACTOR/CONSULTING AGREEMENT
THIS AGREEMENT is made and entered into as of the 11th day of July
2003 by and between Koala International Wireless, Inc. hereinafter referred to
as "Client", with its principal place of business at 34 Couples Gallery,
Ballantrae ON L4A 1M6 and Shahenool Hirji hereinafter referred to as
"Consultant", with its principal place of Business at 1865 Rufus Drive, North
Vancouver BC V7J 3L8
RECITALS
A. WHEREAS, Client is a developed 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 the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual agreements
hereinafter set forth, the parties 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. 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/of 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 Company's
prior written consent.
3. Consideration. Client and Consultant agree that Consultant receive from the
Client an initial payment of Eight Hundred Thousand (800,000) 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 one year (1) year
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 from 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
is any way a result from services rendered by the Consultant pursuant to or
in any connections with the 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 and 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 representation:
a. Consultant has no prior or existing legally binding obligation 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
law and regulation;
e. Consultant understands that, as a result of its services, it may come
to possess material non-public information about the Company, and that
is has implemented internal control procedures designed to reasonably
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
or the Company by any of its suppliers of 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
secrets 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 it 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 the
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 any 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 waiver. 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 representative.
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: 34 Couples Gallery, Ballantrae ON L4A 1M6
Consultant: 1865 Rufus Drive, North Vancouver BC V7J 3L8
Or at such other locations 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 of provision hereof is deemed unlawful or invalid
for nay 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 Nevada, without giving effect to conflict 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. Acknowledgement Concerning Counsel. Each party acknowledges that if had the
opportunity to employ separate and independent counsel of its own choosing
in connections 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 executed this Agreement as of
the date first written above.
BY: /s/Terry Clarke The "Client"
----------------
KOALA INTERNATIONAL WIRELESS INC.
BY: /s/ Shahenool Hirji The "Consultant"
---------------------
SHAHENOOL HIRJI
EXHIBIT 10.3
INDEPENDENT CONTRACTOR/CONSULTING AGREEMENT
THIS AGREEMENT is made and entered into as of the 11th day of July
2003 by and between Koala International Wireless, Inc. hereinafter referred to
as "Client", with its principal place of business at 34 Couples Gallery,
Ballantrae ON L4A 1M6 and Farooque Saleemi, hereinafter referred to as
"Consultant", with its principal place of Business at 2 Gore Way, Chilliwack,
BC, Canada.
RECITALS
A. WHEREAS, Client is a developed 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 the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual agreements
hereinafter set forth, the parties 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. 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/of 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 Company's
prior written consent.
3. Consideration. Client and Consultant agree that Consultant receive from the
Client an initial payment of Eight Hundred Thousand (800,000) 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 one year (1) year
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 from 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
is any way a result from services rendered by the Consultant pursuant to or
in any connections with the 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 and 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 representation:
a. Consultant has no prior or existing legally binding obligation 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
law and regulation;
e. Consultant understands that, as a result of its services, it may come
to possess material non-public information about the Company, and that
is has implemented internal control procedures designed to reasonably
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
or the Company by any of its suppliers of 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
secrets 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 it 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 the
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 any 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 waiver. 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 representative.
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: 34 Couples Gallery, Ballantrae ON L4A 1M6
Consultant: 2 Gore Way, Chilliwack, BC, Canada.
Or at such other locations 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 of provision hereof is deemed unlawful or invalid
for nay 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 Nevada, without giving effect to conflict 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. Acknowledgement Concerning Counsel. Each party acknowledges that if had the
opportunity to employ separate and independent counsel of its own choosing
in connections 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 executed this Agreement as of
the date first written above.
BY: /s/Terry Clarke The "Client"
----------------
KOALA INTERNATIONAL WIRELESS INC.
BY: /s/ Farooque Saleemi The "Consultant"
----------------------
FAROOQUE SALEEMI
EXHIBIT 10.4
INDEPENDENT CONTRACTOR/CONSULTING AGREEMENT
THIS AGREEMENT is made and entered into as of the 11th day of July 2003 by
and between Koala International Wireless, Inc. hereinafter referred to as
"Client", with its principal place of business at 34 Couples Gallery,
Ballantrae, ON, L4A 1M6, and Zaireen Mehnaas hereinafter referred to as
"Consultant", with its principal place of Business at 8094 138 Street,
Vancouver, BC, V3A 8P9.
RECITALS
A. WHEREAS, Client is a developed 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 the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual agreements
hereinafter set forth, the parties 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. 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/of 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 Company's
prior written consent.
3. Consideration. Client and Consultant agree that Consultant receive from the
Client an initial payment of Eight Hundred Thousand (800,000) 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 one year (1) year
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 from 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
is any way a result from services rendered by the Consultant pursuant to or
in any connections with the 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 and 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 representation:
a. Consultant has no prior or existing legally binding obligation 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
law and regulation;
e. Consultant understands that, as a result of its services, it may come
to possess material non-public information about the Company, and that
is has implemented internal control procedures designed to reasonably
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
or the Company by any of its suppliers of 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
secrets 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 it 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 the
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 any 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 waiver. 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 representative.
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: 34 Couples Gallery, Ballantrae ON L4A 1M6
Consultant: 8094 138 Street, Vancouver, BC, V3A 8P9
Or at such other locations 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 of provision hereof is deemed unlawful or invalid
for nay 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 Nevada, without giving effect to conflict 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. Acknowledgement Concerning Counsel. Each party acknowledges that if had the
opportunity to employ separate and independent counsel of its own choosing
in connections 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 executed this Agreement as of
the date first written above.
BY: /s/Terry Clarke The "Client"
----------------
KOALA INTERNATIONAL WIRELESS INC.
BY: /s/ Zaireen Mehnaas The "Consultant"
-------------------
Zaireen Mehnaas
EXHIBIT 10.5
INDEPENDENT CONTRACTOR/CONSULTING AGREEMENT
THIS AGREEMENT is made and entered into as of the 11th day of July 2003 by
and between Koala International Wireless, Inc. hereinafter referred to as
"Client", with its principal place of business at 34 Couples Gallery,
Ballantrae, ON, L4A 1M6, and Tom Walsh hereinafter referred to as "Consultant",
with its principal place of Business at 5905 212th Place S.W., Mt. Lake Terrace,
WA, 98043.
RECITALS
A. WHEREAS, Client is a developed 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 the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual agreements
hereinafter set forth, the parties 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. 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/of 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 Company's
prior written consent.
3. Consideration. Client and Consultant agree that Consultant receive from the
Client an initial payment of Eight Hundred Thousand (800,000) 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 one year (1) year
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 from 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
is any way a result from services rendered by the Consultant pursuant to or
in any connections with the 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 and 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 representation:
a. Consultant has no prior or existing legally binding obligation 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
law and regulation;
e. Consultant understands that, as a result of its services, it may come
to possess material non-public information about the Company, and that
is has implemented internal control procedures designed to reasonably
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
or the Company by any of its suppliers of 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
secrets 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 it 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 the
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 any 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 waiver. 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 representative.
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: 34 Couples Gallery, Ballantrae ON L4A 1M6
Consultant: 5905 212th Place S.W., Mt. Lake Terrace WA. 98043.
Or at such other locations 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 of provision hereof is deemed unlawful or invalid
for nay 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 Nevada, without giving effect to conflict 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. Acknowledgement Concerning Counsel. Each party acknowledges that if had the
opportunity to employ separate and independent counsel of its own choosing
in connections 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 executed this Agreement as of
the date first written above.
BY: /s/Terry Clarke The "Client"
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KOALA INTERNATIONAL WIRELESS INC.
BY: /s/Tom Walsh The "Consultant"
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TOM WALSH