EXHIBIT 10.1
CONSULTING AGREEMENT
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This Consulting Agreement (herein the "Agreement") is entered into as of
the 4th day of November, 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
4TH DAY OF NOVEMBER, 2003
KOALA INTERNATIONAL WIRELESS, INC.
/S/ BRADLEY WILSON
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BRADLEY WILSON- PRESIDENT
PATRICIA COOKE
/S/ PATRICIA COOKE
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PATRICIA COOKE