EXHIBIT 10.4
AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into this 27th day
of January, 1998, by and between MEGA HOLDING CORP., 000X Xxx Xxxx Xxxx, Xxxxxx
Xxxxxx, Xxx Xxxx 00000 ("Mega"), and EAGLE WIRELESS INTERNATIONAL, INC., 000
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000 (the "Company"). The parties to this
Agreement are hereinafter referred to as the "Parties" and a party to this
Agreement as a "Party."
WHEREAS, Mega provides business and financial consulting services (the
"Services"); and
WHEREAS, the Company is publicly held with its common stock ("Shares of
Common Stock") trading under the symbol "EGLW" on the OTC Bulletin Board, and
WHEREAS, the Company desires to retain Mega's services; and
WHEREAS, Mega is willing accept the Company as a client.
NOW THEREFORE, in consideration of the premises and covenants set forth
herein, it is hereby agreed:
1. ENGAGEMENT
The Company hereby engages Mega to provide the Company with Mega's
business and financial consulting services, including but not limited to,
advising and consulting with the Company on strategic opportunities, mergers and
acquisitions.
2. TERM
The services to be rendered under this Agreement shall commence upon
execution of this Agreement and shall continue for a period of three (3) years
unless terminated earlier by mutual agreement. Upon termination neither Party
shall have any continuing duty or obligations, whether financial or otherwise,
to the other party except that the obligations contained in paragraph 8 below
shall survive the termination of this Agreement.
3. COMPENSATION AND EXPENSES
In consideration of the services to be performed by Mega and any and
all expenses incurred by Mega in rendering the services, the Company will within
five business days of execution of this Agreement provide to Mega certificates
representing five hundred thousand (500,000). At a later date and as appropriate
the Company will provide to Mega certificates representing eight hundred
thousand (800,000) non-redeemable warrants as further described in Section 4.
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4. WARRANTS
Each Warrant shall give the holder thereof the right to purchase one
share of the Company's common stock. Each Warrant certificate will be legended
to restrict transfer in the absence of a registration statement filed with the
Securities and Exchange Commission ("Commission") or an exemption therefrom. It
is understood, however, that Mega intends to transfer some of the Warrants on
one occasion only to is officers, directors and/or consultants.
The Warrants shall be comprised of seven classes with the following
exercise prices and exercise period:
SHARES *EXERCISE AVERAGE **STOCK
EXERCISE UNDERLYING PERIOD STOCK DAYS
CLASS PRICE WARRANTS (YEARS) PRICE TRADED
o A $1.50 150,000 1 $ 4.00 61
o B $2.00 150,000 1 $ 5.50 61
o C $3.00 200,000 2 $ 7.50 61
X D $5.00 200,000 3 $10.00 31
X E $7.00 200,000 3 $12.00 31
X F $9.00 200,000 5 $14.00 31
X G $11.00 200,000 5 $16.00 31
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* From date of effective registration of the underlying shares of Common
Stock
** In order for warrants to be exercisable, average stock price must be
achieved for consecutive days traded as noted above.
*** All warrants shall be cashless.
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o Issued within 10 business days of the initiation of this Agreement.
X Issued within 10 business days of the attainment of the conditions for
exercise of the Class C Warrants (i.e. Average stock price of $7.50 for 62
consecutive trading days).
Each Warrant not exercised during the term of its exercise shall
become void and all rights thereunder shall cease. The exercise price and the
number of shares of Common Stock are subject to adjustment in the event of any
split or reverse split of the
Company's common stock.
The Company shall, as soon as practicable after the date of this
Agreement, file a registration statement (the "Registration Statement") with the
Commission relating to all the shares of Common Stock underlying the Warrants
and shall use its best efforts to cause the Registration Statement to become
effective on or before one hundred twenty (120) days after the date of this
Agreement. In the event the Registration Statement is not so declared effective
or does not include all the shares of Common Stock underlying the Warrants, a
Warrantholder (which may be Mega or
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a distributee or transferee of Mega) shall have right to required by notice in
writing that the Company register all or any part of the shares of Common Stock
underlying the Warrants held by such Warrantholder (a "Demand Registration");
and the Company shall thereupon effect such registration in accordance herewith
(which may include adding such shares to an existing shelf registration).
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Mega, with each such
representation and warranty being deemed to be material, that:
a. The Company is a corporation duly organized, validly
existing and in good
standing under the laws of its jurisdiction of
organization;
b. The Company has all requisite power and authority to enter
into this Agreement and to perform its obligations hereunder;
c. The execution and performance of this Agreement by the Company
has been duly authorized by the Board of Directors of the
Company in accordance with applicable law, and to the extent
required, by the requisite number of shareholders;
d. 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; and
e. The Company shall at all times reserve and keep available a
number of authorized shares of Common Stock sufficient to
permit the exercise in full of all outstanding Warrants and
will cause to be available a sufficient number of certificates
therefor.
6. REPRESENTATIONS AND WARRANTIES OF MEGA
Mega represents and warrants to the Company each such representation
and warranty being deemed to be material that:
a. Mega is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction or
organization;
b. Mega has all the requisite corporate power and authority to
enter into this Agreement and to render the services
contemplated hereby;
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c. The execution and delivery of this Agreement and the services
to be performed hereunder have been duly authorized by all
necessary corporate action on the part of Mega; and
d. The performance by Mega of this Agreement will not violate any
applicable court decree, law or regulation, nor will it
violate any contractual obligation by which Mega may be bound.
7. DISCLAIMER BY MEGA
Mega makes no guarantees that its services will result in (a) the
acquisition of a business or interest in a business; (b) the enhancement of the
Company's product line, manufacturing or the marketing or its products; or (c)
the investment or loan of money to the Company.
8. CONFIDENTIALITY
Until such time as the same may become publicly known, Mega will not
reveal or disclose any confidential information to any person or entity, except
in the performance of this Agreement, and upon termination of this Agreement,
Mega shall return to the Company all materials and original documents provided
to it by the Company. Mega will require Confidentiality Agreements from its own
employees and from contractors Mega reasonably believes will come into contact
with confidential material.
9. NOTICES
All notices hereunder shall be in writing and addressed to the Party
at the address set forth herein, or at such other address as to which notice
pursuant to this paragraph may be given, and may be given by personal delivery,
by certified mail, express mail, national overnight courier, or by facsimile.
Notices shall be deemed given upon the earlier of actual receipt or two (2)
business days after being mailed or delivered to such courier service.
Notices shall be addressed to Mega at:
000X Xxx Xxxx Xxxx
Xxxxxx Xxxxxx, Xxx Xxxx 00000
Notices shall be addressed to the Company at:
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Any notices to be given hereunder will be effective if executed by and sent by
the attorneys for the party giving such notice, and in connection therewith the
Parties and their respective counsel agree that in giving such notice such
counsel may communicate directly in writing with such Party receiving the notice
to the extent necessary to give such notice.
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10. SEVERABILITY
If one or more of the provisions of this Agreement shall be held
invalid, illegal, or unenforceable in any respect, such provision, to the extent
held invalid, illegal or unenforceable, and provided that such provision is not
essential to the transaction provided for by this Agreement, shall not affect
any other provision contained herein, and this Agreement shall be construed as
if such provision had never been contained herein.
11. ARBITRATION
Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by arbitration in accordance
with the commercial arbitration rules of the American Arbitration Association,
and judgment upon the award rendered by arbitrator(s) shall be final and
judgment upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof. The arbitration will be held in the city of
the Party not requesting arbitration.
12. MISCELLANEOUS
a. GOVERNING LAW: This Agreement shall be governed by and
interpreted under the laws of the State of New York.
b. MULTIPLE COUNTERPARTS: This Agreement may be executed in
multiple counterparts, each of which shall be deemed an
original.
c. TELEFAX COPIES: You and the Company agree that a telefax copy
of this Agreement may be signed by each signatory party at
different places and at different times. All duly executed
facsimile documents shall be considered original documents and
shall constitute binding and enforceable instruments.
d. ENTIRE AGREEMENT: This Agreement constitutes the final,
exclusive and complete understanding of the Parties with
respect to the subject matter hereof and supersedes any and
all prior agreements, understandings and discussions with
respect thereto. Any modifications of this Agreement must in
writing and signed by both parties.
e. CAPTIONS: The captions of this Agreement are for convenience
only and shall not be considered a part of or affect the
construction or interpretation of any provision of this
Agreement.
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IN WITNESS WHEREOF, the Parties hereto, intending to be legally
bound, have executed or caused the execution of this Agreement as of the date
first above written above.
MEGA HOLDING CORP.
By: /s/ XXXXXX ABSIC
Xxxxxx Absic, President
EAGLE WIRELESS INTERNATIONAL, INC.
By: /s/ H. XXXX XXXXXX
H. Xxxx Xxxxxx, Chief Executive Officer
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