-------------
EXHIBIT 10.98
-------------
CONSULTING AGREEMENT
This Consulting Agreement is made as of the 8th day of November, 2000, by
and between xxXxxx & Associates, Inc., a California corporation
("Consultant"), and USURF America, Inc., a Nevada corporation (the "Company").
WHEREAS, Consultant possesses experience in the field of business
consulting services, promotion and investor relations services to companies
for investors, stock brokerages and the investment community, in general; and
WHEREAS, the Company is a publicly-held company and files periodic reports
pursuant to the requirements of the Securities Exchange Act of 1934, with
its common stock listed on the American Stock Exchange under the symbol
"UAX"; and
WHEREAS, the Company desires to hire Consultant and Consultant is willing
to accept the Company as a client.
NOW THEREFORE, in consideration of the mutual covenants herein contained,
it is agreed:
1. The Company hereby engages Consultant, on a non-exclusive basis, to
render consulting services with respect to business consulting services,
promotion and investor relations services, on behalf of the Company.
Consultant hereby accepts such engagement and agrees to render such
consulting services as are listed on Exhibit "A" attached hereto and
incorporated herein by this reference, throughout the term of this
Agreement. Consultant agrees that it shall be responsible for ordinary,
day-to-day expenses incurred in its performance hereunder. The Company
shall however be responsible for all Postage and Printing expenses, which
shall be reimbursable on a monthly basis, upon receipt by the Company of an
invoice from Consultant in respect thereof. All other expenses, such as
road shows, traveling and accommodation shall be negotiated on a
case-by-case basis.
It is further agreed that Consultant shall have no authority to bind the
Company to any contract or obligation or to transact any business in the
Company's name or on behalf of the Company, in any manner. The parties
intend that Consultant shall perform its services required hereunder as an
independent contractor.
2. The initial term of this Agreement shall commence upon the mutual
execution of this Agreement and shall continue for one year. This
Agreement may be terminated by either party, without cause, after 90 days
from the date of mutual execution hereof.
3. In consideration of the services to be performed by Consultant, the
Company agrees to pay to Consultant the compensation set forth on Exhibit
"B" attached hereto and incorporated herein by this reference.
4. The Company represents and warrants to Consultant that:
A. The Company will cooperate fully and timely with
Consultant to enable Consultant to perform its obligations hereunder.
B. The execution and performance of this Agreement by the
Company has been duly authorized by the Board of Directors of the Company.
C. The performance by the Company of this Agreement will
not violate any applicable court decree, law or regulation, nor will it
violate any provisions of the organizational documents of the Company or any
contractual obligation by which the Company may be bound.
5. Until such time as the same may become publicly known, the
parties agree that any information provided to either of them by the other of a
confidential nature will not be revealed or disclosed to any person or
entity, except in the performance of this Agreement, and upon completion of
Consultant's services and upon the written request of the Company, any
original documentation provided by the Company will be returned to it.
Consultant, including each of its affiliates, will not directly or
indirectly buy or sell the securities of the Company at any time when it or
they are privy to non-public information.
Consultant agrees that he will not disseminate any printed matter
relating to the Company, including, without limitation, press releases,
without prior written approval of the Company's legal counsel.
Consultant acknowledges that, in light of the fact that
Consultant is in a special relationship with the Company due to the entrusting
by the Company to Consultant of non-public, material "inside" information
concerning the Company, the relationship between the Company and Consultant
shall be that of a special relationship.
Consultant agrees that he will comply with all applicable
securities laws, in performing on behalf of the Company hereunder.
6. All notices hereunder shall be in writing and addressed to the
party at the address herein set forth, or at such other address as to which
notice pursuant to this section may be given, and shall be given by personal
delivery, by certified mail (return receipt requested), Express Mail or by
national or international overnight courier. Notices will be deemed given
upon the earlier of actual receipt of three (3) business days after being
mailed or delivered to such courier service.
Notices shall be addressed to Consultant at:
de Jong & Associates, Inc.
Attention: Xxxxxx xx Xxxx
000 Xxxxx Xxxxx Xxxxxxx 000
Xxxxx X
Xxxxxxxxx, Xxxxxxxxxx 00000
and to the Company at:
USURF America, Inc.
Attention: Xxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
with a copy to:
Xxxxxx & Xxxxxx, Attorneys at Law
000 Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxx 00000
7. Miscellaneous.
A. In the event of a dispute between the parties arising
out of this Agreement, both Consultant and the Company agree to submit such
dispute to arbitration before the American Arbitration Association
(the "Association") at its Dallas, Texas, offices, in accordance with the
then-current rules of the Association; the award given by the arbitrators
shall be binding and a judgment can be obtained on any such award in any
court of competent jurisdiction. It is expressly agreed that the
arbitrators, as part of their award, can award attorneys fees to the
prevailing party.
B. This Agreement is not assignable in whole or in any
part, and shall be binding upon the parties, their heirs, representatives,
successors or assigns.
C. This Agreement may be executed in multiple counterparts
which shall be deemed an original. It shall not be necessary that each party
execute each counterpart, or that any one counterpart be executed by more
than one party, if each party executes at least one counterpart.
D. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Texas.
USURF AMERICA, INC.
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
President
de JONG & ASSOCIATES, INC.
By: /s/ Xxxxxx xx Xxxx
Xxxxxx xx Xxxx
its authorized
representative
Exhibit "A"
Consulting Agreement
de Jong & Associates, Inc.
SERVICES TO BE PERFORMED BY CONSULTANT
ON BEHALF OF THE COMPANY
The consulting services to be provided by Consultant under the Consulting
Agreement to which this Exhibit "A" is attached include, but shall not be
limited to:
advise the Company and providing assistance in the area of investor
relations, and to bring the Company to the favorable attention of the
investment community, in general.
promote meetings and communications in which the public and securities
industry professionals shall be introduced to the Company, as circumstances
may require.
assist the Company in the development of due diligence packages for
delivery to brokers, investors and analysts, as needed.
assist the Company in the development of a corporate recognition program
that, if requested by the Company, identifies Consultant as the point of
contact for brokers and investors.
coordinate with other outside consultants engaged by the Company during
the term of the Consulting Agreement to which this Exhibit "A" is attached.
assist the Company in identifying and contracting with required
professionals, as needed.
Consultant shall perform these services with the understanding that the
above-referenced services will be performed in various parts of the United
States and that the Company will have the option of making presentations at
any meeting arranged for the Company.
It is understood that there may be times when the Company does not utilize
the services or advice of Consultant. Any such failure of the Company to
use, or seek in writing, Consultant's advice and/or services and/or
assistance, as set forth herein, shall not be deemed to be non-performance
hereunder by Consultant.
Exhibit "B"
Consulting Agreement
de Jong & Associates, Inc.
COMPENSATION TO BE PAID
BY THE COMPANY TO CONSULTANT
As full payment for Consultant's services under the Consulting Agreement
(the "Agreement") to which this Exhibit "B" relates, Consultant shall
receive, upon execution of, the following:
As a commitment fee, 100,000 shares of Company Common Stock, which shares
shall be valued at a price of $.5625 per share, or $56,250, in the
aggregate. In addition, the Company shall deliver to Consultant a warrant
to purchase up to 35,000 shares of Company Common Stock, at an exercise
price of $1.00 per share. Such warrant shall expire on the date that is
three years from the date of its issuance.
If, at any time during the term of the Agreement to which this Exhibit
"B" relates, the bid price of the Company's Common Stock, as reported by
the American Stock Exchange, shall equal or exceed $1.50 per share, the
Company shall immediately deliver to Consultant a warrant to purchase up to
35,000 shares of Company Common Stock, at an exercise price of $1.00 per
share. Such warrant shall expire on the date that is three years from the
date of its issuance.
If, at any time during the term of the Agreement to which this Exhibit
"B" relates, the bid price of the Company's Common Stock, as reported by
the American Stock Exchange, shall equal or exceed $2.00 per share, the
Company shall immediately deliver to Consultant a warrant to purchase up to
35,000 shares of Company Common Stock, at an exercise price of $1.00 per
share. Such warrant shall expire on the date that is three years from the
date of its issuance.
If, at any time during the term of the Agreement to which this Exhibit
"B" relates, the bid price of the Company's Common Stock, as reported by
the American Stock Exchange, shall equal or exceed $2.50 per share, the
Company shall immediately deliver to Consultant a warrant to purchase up to
35,000 shares of Company Common Stock, at an exercise price of $1.00 per
share. Such warrant shall expire on the date that is three years from the
date of its issuance.
As further compensation to Consultant, the Company shall deliver to
Consultant cash in the amount of $15,000 on the dates that are 90 days, 180
days and 270 days following the date of the Agreement to which this Exhibit
"B" relates.
The Company shall cause all 100,000 commitment shares and all of the shares
underlying all of the warrants to be issued to Consultant hereunder to be
registered, at the Company's expense, pursuant to a Registration Statement
on Form S-1 currently pending with the SEC. Consultant shall be named as a
selling shareholder in such Registration Statement.
Consultant represents and warrants to the Company that the shares of the
Company being acquired pursuant to the Agreement are being acquired for its
own account and for investment and not with a view to the public resale or
distribution of such shares and further acknowledges that the shares being
issued have not been registered under the Securities Act or any state
securities law and are "restricted securities", as that term is defined in
Rule 144 promulgated by the SEC, and must be held indefinitely, unless they
are subsequently registered or an exemption from such registration is
available.
Consultant represents and warrants that it has investigated the Company,
its financial condition, business and prospects, and has had the
opportunity to ask questions of, and to receive answers from, the Company
with respect thereto. Consultant acknowledges that it is aware that the
Company currently lacks adequate capital to pursue its full plan of
business, specifically, that the Company currently lacks capital with which
to exploit its proprietary Wireless Internet access technology.
Consultant acknowledges that the share certificate or certificates and the
warrant certificate or certificates of the Company issued to it pursuant to
this Agreement will bear a legend restricting future transfer in the
following , or similar, form:
"THE STOCK REPRESENTED BY THIS CERTIFICATE HAS BEEN ISSUED IN RELIANCE UPON
THE EXEMPTION FROM REGISTRATION AFFORDED BY SECTION 4(6) OF THE SECURITIES
ACT OF 1933, AS AMENDED. THE STOCK MAY NOT BE TRANSFERRED WITHOUT
REGISTRATION, EXCEPT IN A TRANSACTION EXEMPT FROM SUCH REGISTRATION."
