SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KOALA INTERNATIONAL WIRELESS INC.
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(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
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(Full Title of the Plan)
(name, address and telephone number of agent for service) (with copies to)
Bradley Wilson
Chairman 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
(561)767-7761 (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
- ------------------------- -------------- ------------------ ------------------ ----------------
Common Stock 8,000,000 $ .14(1) 1,120,000 (1) $ 255.36
par value $0.001 $
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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 September 22, 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.
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Not applicable.
Item 5. Interest of Named Experts and Counsel.
------------------------------------------
None.
Item 6. Indemnification of Directors and Officers.
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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.
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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 Patricia Cooke
10.2 Consulting Agreement of Sherry Rice
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 September 22, 2003.
KOALA INTERNATIONAL WIRELESS INC.
/s/Bradley Wilson
-------------------------
By: Bradley Wilson
Its: Chairman
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Bradley Wilson, as his true and lawful
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/ Bradley Wilson
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Bradley Wilson Chairman and Director September 22, 2003
/s/ Derek Pepler
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Derek Pepler Director September 22, 2003
/s/ Miguel Caron
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Miguel Caron Director September 22, 2003
/s/ Christine Cerisse
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Christine Cerisse Director September 22, 2003
/s/ Lorne Catling
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Lorne Catling Director September 22, 2003
EXHIBIT INDEX
Exhibit Number Description
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5.1 Opinion of James L. Vandeberg;
10.1 Consulting Agreement of Patricia Cooke
10.2 Consulting Agreement of Sherry Rice
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]
September 22, 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 September 22, 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 Eight Million
(8,000,000) 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
CONSULTING AGREEMENT
--------------------
This Consulting Agreement (herein the "Agreement") is entered into as of
the 22nd day of September, 2003 by and between KOALA INTERNATIONAL WIRELESS,
INC. (herein "the Company") with its principal place of business at 34 Couples
Gallery, Ballantrae ON L4A 1M6 and PATRICIA COOKE, with her offices located at
1543 Bayview Avenue, Suite 409, Toronto ON M4G 3B5 (herein "the Consultant").
RECITALS
The Consultant, through the expenditure of considerable money, time and
effort, has created and developed, a system for providing consulting services
(the "Services") to private and public companies. The Company desires to obtain
the assistance of the Consultant and on the basis of previous telephone
conversations and meetings between the Company and the Consultant as well as
other discussions, preliminary financial statements, initial reports submitted
by the Company, and the representations that the Company has made to the
Consultant describing the Company and its principals, the present and proposed
business activities of the Company, its operations, financial condition and
capital structure, and various agreements and documents related thereto, the
Consultant is willing to provide such assistance, with respect to the Services.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the sufficiency of which is hereby acknowledged by each of the
parties, the Company and the Consultant hereby agree as follows:
I. ENGAGEMENT
The Company hereby engages and retains the Consultant as Business
Consultant for and on behalf of the Company to perform the Services (as
that term is hereinafter defined) and the Consultant hereby accepts such
appointment on the terms and subject to the conditions hereinafter set
forth and agrees to use their best efforts in providing such Services.
II. INDEPENDENT CONTRACTOR
A The Consultant is and in all respects deemed to be, an independent
contractor in the performance of their duties hereunder, any law of
any jurisdiction to the contrary notwithstanding.
B The Consultant will not, by reason of this Agreement or the
performance of the Services, be or be deemed to be, an employee,
agent, partner, co-venturer or controlling person of the Company, and
the Consultant will have no power to enter into any agreement on
behalf of or otherwise bind the Company.
C The Consultant will not have or be deemed to have, fiduciary
obligations or duties to the Company and will be free to pursue,
conduct and carry on for its own account (or for the account of
others) such activities, employment ventures, businesses and other
pursuits as the Consultant in its sole, absolute and unfettered
discretion may elect. The Consultant is not a registered broker,
dealer or associated person of such, and is not purporting to act in
any capacity requiring registration as a broker, dealer or associated
person.
D Notwithstanding the above, no activity, employment, venture, business
or other pursuit of the Consultant during the term of this Agreement
will conflict with the Consultant' obligations under this Agreement or
be adverse to the Company's interests during the term of this
Agreement.
III. SERVICES
The Consultant agree to provide the following, hereafter collectively referred
to as the "Services":
A. Advise the Company and/or any of its affiliates and associates in its
efforts in developing, marketing, and promoting the products of the
Company.
B. Best Efforts. The Consultant will devote such time and best effort to
the affairs of the Company as is reasonable and adequate to render the
consulting services contemplated by this agreement.
C. The Consultant is not responsible for the performance of any services
which may be rendered hereunder without the Company providing the
necessary information in writing prior thereto, nor will the
Consultant include any services that constitute the rendering of any
legal opinions or performance of work that is in the ordinary purview
of the Certified Public Accountant. The Consultant cannot guarantee
results on behalf of the Company, but will pursue all reasonable
avenues available through its network of contacts. At such time as an
interest is expressed by a third party in the Company's needs, the
Consultant will notify the Company and advise it as to the source of
such interest and any terms and conditions of such interest. The
acceptance and consummation of any transaction is subject to
acceptance of the terms and conditions by the Company.
D. The Consultant will advise the Company in developing efficient
marketing and promotional tools for the Company's products and
services.
E. In conjunction with the Services, the Consultant agrees to:
1. Make itself available to the officers of the Company at such
mutually agreed upon place during normal business hours for
reasonable periods of time, subject to reasonable advance notice
and mutually convenient scheduling, for the purpose of advising
the Company in the preparation of such reports, summaries,
corporate and/or corporate profiles and marketing and promotional
packages and/or other material and documentation
("Documentation") as will be necessary, in the opinion of the
Consultant, to properly present the Company to other entities and
individuals that could be of benefit to the Company.
2. Make itself available for telephone conferences with the
principal financial sales and/or operating officer(s) of the
Company during normal business hours.
3. Advise the Company's management in marketing and corporate
development including potential alliances and strategic mergers,
structuring the nature, extent and other parameters of any
private or public offer(s) to be made to prospective alliance
groups or their agents.
4. Advise the Company's management in evaluating proposals and
participating in negotiations with prospective alliance and
marketing groups or their agents.
F. 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.
IV. EXPENSES
Both the Company and the Consultant agree that:
A. Both the Consultant and the Company will be responsible for their own
normal and reasonable out-of-pocket expenses. "Normal and reasonable
out-of-pocket expenses" will include but are not limited to:
accounting, long distance communication, express mail, outside
Consultant, etc., and other costs involved in the execution of this
Agreement.
B. Travel (including: airfare, hotel lodging and meals, transportation,
etc.) will be the responsibility of the Company. The Consultant must
obtain prior written approval for travel from the Company.
V. COMPENSATION
If, at any time during the terms of this Agreement and for a period of eighteen
months following the termination of this agreement, the Company completes any
transactions which includes, but is not limited to: any mergers with or acquires
assets, or any other property, from any of the entities, affiliations or
persons, its employees or former employees, agents, representatives, advisors,
or consultants introduced to the Company by the Consultant, the Company agrees
to issue the Consultant :
4,000,000 shares of common stock of the Company
VI. REPRESENTATIONS, WARRANTIES AND COVENANTS
A. EXECUTION. The Execution, delivery and performance of this Agreement,
---------- in the time and manner herein specified, will not conflict
with, result in a breach of, or constitute a default under any
existing agreement, indenture, or other instrument to which either
entity may be bound or affected.
B. NON-DISCLOSURE AND NON-CIRCUMVENTION. The Company hereby irrevocably
--------------------------------------- agrees not to circumvent,
avoid, bypass, or obviate, directly or indirectly, the intent of this
Agreement, to avoid payment of fees in any transaction with any
corporation, partnership or individual, introduced by the Consultant
to the Company, in connection with any project, any loans or
collateral, or other transaction involving any products, transfers, or
services, or addition, renewal extension, rollover, amendment,
renegotiations, new contracts, parallel contracts/agreements, or third
party assignments thereof. The Company understands and acknowledges
that its obligations under this Non-Disclosure and Non-Circumvention
Agreement are for the benefit of the Consultant and its successors and
assigns, and that the Consultant's failure or delay in exercising any
right, power and privilege hereunder shall not operate as a waiver
thereof, nor shall any single or partial exercise thereof or the
exercise of any other right, power and privilege hereunder operate as
a waiver. The obligations of this Agreement shall remain in effect for
a period of eighteen (18) months following the expiration of the term
of this Agreement.
C. Timely Appraisals. The Company shall keep the Consultant up to date
and appraised of all business market and legal developments related to
the Company and its operations and management.
1. Accordingly, the Company shall provide the Consultant with copies
of all amendments, revisions and changes to its business and
marketing plans, bylaws, articles of incorporation private
placement memoranda, key contracts, employment and consulting
agreements and other operational agreements.
2. The Company shall promptly notify the Consultant of the threat or
filing of any suit, arbitration or administrative action,
injunction, lien, claim or complaint and promptly forward a copy
of all related documentation directly to the Consultant or at the
Consultant' option to the Consultant' counsel.
3. The Company shall also provide directly to the Consultant,
current financial statements, including balance sheets, income
statements, cash flows and all other documents provided or
generated by the Company in the normal course of its business and
requested by the Consultant from time to time.
4. The Consultant shall keep all documents and information
confidential as described in the section below titled,
"CONFIDENTIAL DATA".
D. Corporate Authority. Both the Company and the Consultant have full
legal authority to enter into this Agreement and to perform the same
in the time and manner contemplated.
E. The individuals whose signatures appear below are authorized to sign
this Agreement on behalf of their respective corporations.
F. The Company will cooperate with the Consultant, and will promptly
provide the Consultant with all pertinent materials and requested
information in order for the Consultant to perform its Services
pursuant to this Agreement.
G. When issued, the Shares of the Company's Common Stock shall be duly
and validly issued, fully paid and non-assessable.
H. The Company also agrees to enter into such additional agreements, sign
such additional documents, and provide such additional certifications
and documentation as may be requested by the Consultant, or such other
parties, related to the procurement of marketing and strategic
alliances.
I. Until termination of the engagement, the Company will notify the
Consultant promptly of the occurrence of any event, which might
materially affect the condition (financial or otherwise), or prospects
of the Company.
VII. TERM AND TERMINATION
A. This Agreement shall be effective upon its execution and shall remain
in effect for One (1) year.
B. In no event shall any termination be effective until the expiration of
at least ninety (90) days after the signing of this agreement.
C. After ninety (90) days from the date hereof, the Company shall have
the right to terminate PATRICIA COOKE's engagement hereunder by
furnishing PATRICIA COOKE with a 30-day written notice of such
termination.
D. However, no termination of this Agreement by the Company shall in any
way affect the right of PATRICIA COOKE to receive, as a result of its
services rendered, transactions consummated and introductions made its
fees or securities on any transactions which result in the Company
receiving financing or other benefits hereunder.
VIII. CONFIDENTIAL DATA
A. The Consultant shall not divulge to others, any trade secret or
confidential information, knowledge, or data concerning or pertaining
to the business and affairs of the Company, obtained by the Consultant
as a result of its engagement hereunder, unless authorized, in
writing, by the Company.
B. The Company shall not divulge to others, any trade secret or
confidential information, knowledge, or data concerning or pertaining
to the business and affairs of the Consultant, obtained by the Company
as a result of its engagement hereunder, unless authorized, in
writing, by the Consultant.
C. The Consultant shall not be required, in the performance of its
duties, to divulge to the Company or any officer, director, agent, or
employee of the Company, any secret or confidential information,
knowledge, or data concerning any other person, firm or entity
(including, but not limited to, any such persons, firm or entity which
may be a competitor or potential competitor of the Company), which the
Consultant may have or be able to obtain otherwise than a result of
the relationship established by this Agreement.
IX. OTHER MATERIAL TERMS AND CONDITIONS:
A. INDEMNITY. The Company agrees to indemnify and hold harmless the
Consultant and its affiliates against any legal action arising from
written warranties and representations provided by the Company. Such
indemnification shall include payment of judgments, if any, and costs
of legal representation and court costs, if any.
B. ADDITIONAL INSTRUMENTS. Each of the parties shall, from time to time,
at the request of others, execute, acknowledge and deliver to the
other party any and all further instruments that may be reasonably
required to give full effect and force to the provisions of this
Agreement.
C. ENTIRE AGREEMENT. Each of the parties hereby covenants that this
Agreement is intended to and does contain and embody herein all of the
understandings and Agreements, both written or oral, of the parties
hereby with respect to the subject matter of this Agreement, and that
there exists no oral agreement or understanding expressed or implied
liability, whereby the absolute, final and unconditional character and
nature of this Agreement shall be in any way invalidated, empowered or
affected. There are no representations, warranties or covenants other
than those set forth herein.
D. LAWS OF THE STATE OF NEVADA. This Agreement shall be deemed to be made
in, governed by and interpreted under and construed in all respects in
accordance with the laws of the State of Nevada, irrespective of the
country or place of domicile or residence of either party. In the
event of controversy arising out of the interpretation construction,
performance or breach of this Agreement, the parties hereby agree and
consent to the jurisdiction and venue of the State Courts of Nevada;
or the United States District Court for the District of Nevada.
E. ASSIGNMENTS. The benefits of the Agreement shall inure to the
respective successors and assigns of the parties hereto and of the
indemnified parties hereunder and their successors and assigns and
representatives, and the obligations and liabilities assumed in this
Agreement by the parties hereto shall be binding upon their respective
successors and assigns; provided that the rights and obligations of
the Company under this Agreement may not be assigned or delegated
without prior consent of the Consultant, and any such purported
assignment shall be null and void. Notwithstanding the foregoing, the
Consultant may not assign or delegate its obligations and rights under
this Agreement without consent of the Company, in the Company's sole
discretion.
F. ORIGINALS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed an original
and constitute one and the same agreement. Facsimile copies with
signatures shall be given the same legal effect as an original.
G. ADDRESSES OF PARTIES. Each party shall, at all times, keep the other
informed of its principal place of business if different from that
stated herein, and shall promptly notify the other of any change,
giving the address of the new place of business or residence.
H. NOTICES. All notices that are required to be or may be sent pursuant
to the provision of this Agreement shall be sent by certified mail,
return receipt requested, or by overnight package delivery service to
each of the parties at the address appearing herein, and shall count
from the date of mailing or the validated air bill.
I. MODIFICATION AND WAIVER. A modification or waiver of any of the
provisions of this Agreement shall be effective only if made in
writing and executed with the same formality as this Agreement. The
failure of any party to insist upon strict performance of any of the
provisions of this Agreement shall not be construed as a waiver of any
subsequent default of the same or similar nature or of any other
nature.
J. INJUNCTIVE RELIEF. Solely by virtue of their respective execution of
this Agreement and in consideration for the mutual covenants of each
other, the Company and the Consultant hereby agree, consent and
acknowledge that, in the event of the failure by the Company to pay
the consideration to the Consultant or in the event of a breach of any
other material term, the Consultant will be without adequate
remedy-at-law and shall therefore, be entitled to immediately redress
any material breach of this Agreement by temporary or permanent
injunctive or mandatory relief obtained in an action or proceeding
instituted in the State Courts of the State of Nevada or the United
States District Court for the District of Nevada without the necessity
of proving damages and without prejudice to any other remedies which
the Consultant may have at law or in equity. For the purposes of this
Agreement, the Company hereby agrees and consents that upon a material
breach of this Agreement (as determined by a Court of Competent
Jurisdiction) as aforesaid, in addition to any other legal and/or
equitable remedies the Consultant may present a conformed copy of this
Agreement to the aforesaid courts and shall thereby be able to motion
the court obtain a permanent injunction enforcing this Agreement or
barring enjoining or otherwise prohibiting the Company from
circumventing the express written intent of the parties as enumerated
in this Agreement.
K. ATTORNEYS' FEES. If any arbitration, litigation, action, suit, or
other proceeding is instituted to remedy, prevent or obtain relief
from a breach of this Agreement, in relation to a breach of this
Agreement or pertaining to a declaration of rights under this
Agreement, the prevailing party will recover all such party's
attorneys' fees incurred in each and every such action, suit or other
proceeding, including any and all appeals or petitions there from. As
used in this Agreement, attorneys' fees will be deemed to be the full
and actual cost of any legal services actually performed in connection
with the matters involved, including those related to any appeal or
the enforcement of any judgment calculated on the basis of the usual
fee charged by attorneys performing such services.
L. PUBLIC NOTICES. Any public notice, press release or any type of
dissemination of information regarding the Closing of any transaction
covered in this agreement shall include a statement to the effect that
"PATRICIA COOKE, Inc." acted as a consultant in the matter referenced.
IN WITNESS WHEREOF THE PARTIES HAVE DULY EXECUTED THIS CONSULTING AGREEMENT THIS
22ND DAY OF SEPTEMBER, 2003
KOALA INTERNATIONAL WIRELESS, INC.
/S/ BRADLEY WILSON
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BRADLEY WILSON- CHAIRMAN
PATRICIA COOKE
/S/ PATRICIA COOKE
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PATRICIA COOKE
EXHIBIT 10.2
CONSULTING AGREEMENT
--------------------
THIS AGREEMENT is made and entered into as of the 22nd day of
September, 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 Sherry Rice hereinafter referred to as
"Consultant", with its principal place of Business at 6722 Jog Palm Drive,
Boynton Beach , Florida 33437.
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 Production and
process support; 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 FOUR MILLION (4,000,000) 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:
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;
The Company is in good standing in its state of incorporation;
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, Ontario L4A 1M6
Consultant: 6722 Jog Palm Drive, Boynton Beach, Florida 33437
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/ Bradley Wilson The "Client"
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KOALA INTERNATIONAL WIRELESS INC.
BY: /s/ Sherry Rice The "Consultant
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Sherry Rice