CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement (the "Agreement") is entered this 26th
day of October, 2004 by and between individual's Pablo Oliva, ("Consultant"),
and FTS Wireless (OTCBB: FLIP) ("Client"), a Nevada corporation, with reference
to the following:
RECITALS
A. The Client desires to be assured of the association and services of the
Consultants in order to avail itself of the Consultants experience, skills,
abilities, knowledge, and background to facilitate long range strategic
planning, and to advise the Client in business and/or financial matters and is
therefore willing to engage the Consultants upon the terms and conditions set
forth herein.
B. The Consultants agree to be engaged and retained by the Client and upon
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. ENGAGEMENT. Client hereby engages Consultants on a non-exclusive basis,
and Consultants hereby accepts the engagement to become a financial Consultants
to the Client and to render such advice, consultation, information, and services
to the Directors and/or Officers of the Client regarding general financial and
business matters including, but not limited to:
A. Strategic alliances, provision of advice on potential mergers and
acquisitions;
B. Corporate planning, strategy and negotiations with potential strategic
business partners and/or other general business consulting needs as
expressed by Client;
C. Business development and business advertising & marketing;
D. E-Consulting providing business solutions;
E. Periodic reporting as to developments concerning the general financial
markets and wireless industry which may be relevant or of interest or
concern to the Client or the Client's business.
Notwithstanding anything contained herein to the contrary, it is clearly
understood and agreed to by the parties hereto that the aforementioned services
to be provided by Consultants shall not involve any capital raising efforts or
promotion of the Client's securities. It shall be expressly understood that
Consultants shall have no power to bind Client to any contract or obligation or
to transact any business in Client's name or on behalf of Client in any manner
and Client is not obligated to accept any recommendations or close any
transactions submitted by Consultants.
2. TERM. The term ("Term") of this Agreement shall commence on the date
hereof and continue for one year (12 months). The Agreement may be extended upon
agreement by both parties, unless or until the Agreement is terminated. Either
party may cancel this Agreement upon five days written notice in the event
either party violates any material provision of this Agreement and fails to cure
such violation within thirty (30) days of written notification of such violation
from the other party. Such cancellation shall not excuse the breach or
non-performance by the other party or relieve the breaching party of its
obligation incurred prior to the date of cancellation. (see item 10 "Notices").
Either party may cancel this agreement on thirty (30) days notice, for any
reason whatsoever. Cancellation under this provision will entitle Consultants to
the securities that have vested by that point in time, plus 30 days, as this
notification period will be credit towards the service time.
3. DUE DILIGENCE. The Client shall supply and deliver to the Consultants
all information relating to the Client Company's business as may be reasonably
requested by the Consultants to enable the Consultants to make an assessment of
the Company and its business prospects and provide the Consulting Services.
4. COMPENSATION AND FEES. As consideration for Consultants entering into
this Agreement, Client and Consultants shall agree to the following:
(a) Client shall issue certificates representing an aggregate
of five hundred thirty thousand (530,000) shares of common stock (the "Shares").
These shares are to be registered under S-8. All 530,000 shares should be
registerable immediately by Consultants for one year of service.
(b) The Shares, when issued to Consultants, will be duly
authorized, validly issued and outstanding, fully paid and nonassessable and
will not be subject to any liens or encumbrances. Securities shall be issued to
Consultants in accordance with a mutually acceptable plan of issuance as to
relieve securities or Consultants from restrictions upon transferability of
shares in compliance with applicable registration provisions or exemptions.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Client represents,
warrants and covenants to the Consultants as follows:
A. The Client has the full authority, right, power and legal capacity to
enter into this Agreement and to consummate the transactions which are provided
for herein. The execution of this Agreement by the Client and its delivery to
the Consultants, and the consummation by it of the transactions which are
contemplated herein have been duly approved and authorized by all necessary
action by the Client's Board of Directors and no further authorization shall be
necessary on the part of the Client for the performance and consummation by the
Client of the transactions which are contemplated by this Agreement.
B. The business and operations of the Client have been and are being
conducted in all material respects in accordance with all applicable laws, rules
and regulations of all authorities which affect the Client or its properties,
assets, businesses or prospects. The performance of this Agreement shall not
result in any breach of, or constitute a default under, or result in the
imposition of any lien or encumbrance upon any property of the Client or cause
an acceleration under any arrangement, agreement or other instrument to which
the Client is a party or by which any of its assets are bound. The Client has
performed in all respects all of its obligations which are, as of the date of
this Agreement, required to be performed by it pursuant to the terms of any such
agreement, contract or commitment.
6. EXCLUSIVITY; PERFORMANCE; CONFIDENTIALITY. The services of Consultants
hereunder shall not be exclusive, and Consultants and its agents may perform
similar or different services for other persons or entities whether or not they
are competitors of Client. The Consultants agrees that it will, at all times,
faithfully and in a professional manner perform all of the duties that may be
reasonably required of the Consultants pursuant to the terms of this Agreement.
Consultants shall be required to expend only such time as is necessary to
service Client in a commercially reasonable manner. The Consultants does not
guarantee that its efforts will have any impact upon the Company's business or
that there will be any specific result or improvement from the Consultants'
efforts. Consultants acknowledges and agrees that confidential and valuable
information proprietary to Client and obtained during its engagement by the
Client, shall not be, directly or indirectly, disclosed without the prior
express written consent of the Client, unless and until such information is
otherwise known to the public generally or is not otherwise secret and
confidential.
7. INDEPENDENT CONTRACTOR. In its performance hereunder, Consultants and
its agents shall be an independent contractor. Consultants shall complete the
services required hereunder according to his own means and methods of work,
shall be in the exclusive charge and control of Consultants and which shall not
be subject to the control or supervision of Client, except as to the results of
the work. Client acknowledges that nothing in this Agreement shall be construed
to require Consultants to provide services to Client at any specific time, or in
any specific place or manner. Payments to Consultants hereunder shall not be
subject to withholding taxes or other employment taxes as required with respect
to compensation paid to an employee.
8. ARBITRATION AND FEES. Any controversy or claim arising out of or
relating to this Agreement, or breach thereof, may be resolved by mutual
agreement; or if not, shall be settled in accordance with the Arbitration rules
of the American Arbitration Association in Irvine, California. Any decision
issued therefrom shall be binding upon the parties and shall be enforceable as a
judgment in any court of competent jurisdiction. The prevailing party in such
arbitration or other proceeding shall be entitled, in addition to such other
relief as many be granted, to a reasonable sum as and for attorney's fees in
such arbitration or other proceeding which may be determined by the arbitrator
or other officer in such proceeding. If collection is required for any payment
not made when due, the creditor shall collect statutory interest and the cost of
collection, including attorney's fees whether or not court action is required
for enforcement.
9. NOTICES. Any notice or other communication required or permitted
hereunder must be in writing and sent by either (i) certified mail, postage
prepaid, return receipt requested and First Class mail, (ii) overnight delivery
with confirmation of delivery, or (iii) facsimile transmission with an original
mailed by first class mail, postage prepaid, addressed as follows:
If to the Client: FTS Wireless
CEO, Scott Gallagher
If to Consultants: Pablo Oliva
13764 E Valley Blvd
City of Industry, CA 91746
or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If mailing is impossible due to an absence of
postal service, and other methods of sending notice are not otherwise available,
notice shall be hand-delivered to the aforesaid addresses. Each notice or
communication shall be deemed to have been given as of the date so mailed or
delivered, as the case may be; provided, however, that any notice sent by
facsimile shall be deemed to have been given as of the date sent by facsimile if
a copy of such notice is also mailed by first class mail on the date sent by
facsimile; if the date of mailing is not the same as the date of sending by
facsimile, then the date of mailing by first class mail shall be deemed to be
the date upon which notice given.
10. MISCELLANEOUS. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision and no
waiver shall constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver. No supplement, modification,
or amendment of this Agreement shall be binding unless executed in writing by
all parties. This Agreement constitutes the entire agreement between the parties
and supersedes any prior agreements or negotiations. There are no third party
beneficiaries of this Agreement.
11. COUNTERPARTS. This Agreement may be executed simultaneously in one 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 entered into this Agreement on the
date first written above.
"Client" FTS Wireless
Signature: /s/ Scott Gallagher
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Scott Gallagher, CEO
"Consultant"
Signature: /s/ Pablo Olivia
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Pablo Oliva