EXHIBIT 10.13
CONSULTING AGREEMENT
February 13, 2003
Re: Consulting Engagement For Financial Services.
Agreement between CALYPSO WIRELESS, INC. (the "Company") AND MOTORSKILL
VENTURES I, L.P. (the "Consultant")
This consulting agreement is to confirm the terms of engagement of independent
consultant ("Consultant") to Calypso Wireless, Inc. (the "Company"). Consultant
is engaged to assist the Company with financials planning and strategy
proposals, including but not limited to the following functions:
1) Assistance with the preparation and review of financials plans and
strategies.
Term of Engagement
------------------
The term of the engagement shall be from February 13, 2003 through such time
that the project is completed and satisfied by both parties.
Consulting Fee
---------------
The Company will issue ninety thousand (90,000) shares of the Company's common
stock to Consultant (Motorskill Ventures I, L.P.) for services related
financials planning and strategy to be rendered to the Company. All ninety
thousand (90,000) shares will be issued as free-trade stock. The shares will be
forwarded to Consultant as soon as reasonably possible after the date this
agreement is signed.
Confidentiality
---------------
I agree that during the term of this engagement I will not invest, nor promote
the Company's publicly traded shares or participate in any activity that is or
may be competitive with the Company, that might create a conflict of interest
with the Company, or that otherwise might interfere with the business of the
Company, or any affiliate of the Company. I also agree that both during the
engagement and after the engagement terminates I will neither misuse nor
improperly disclose any Confidential Information of the Company that I may have
used, acquired or added to while engaged by the Company. "Confidential
Information" means and includes confidential or proprietary information or trade
secrets that have been developed or used (or will be developed or used) and that
cannot be readily obtained by third parties from outside sources. Confidential
Information includes, by way of example and without limitation, the following:
information regarding assets, investors, customers, employees, contractors, and
the industry not generally known to the public; strategies, methods, books,
records, and documents; technical information concerning products, equipment,
services, and processes; procurement procedures and pricing techniques; the
names of and other information concerning customers, investors, and business
affiliates (such as contact name, service provided, pricing for that customer,
amount of services used, credit and financial data, and/or other information
relating to the Company's relationship with that investor or customer); pricing
strategies and price curves; plans and strategies for expansion or acquisitions;
budgets; investor lists, customers lists; research; weather data; financial and
sales data, trading terms; evaluation, opinions, and interpretations of
information and data; marketing techniques; prospective investors' names,
investors' and customers' names and marks; grids and maps, electronic data
bases; models; specifications; computer programs, internal business records;
contracts benefiting or obligating the Company; bids or proposals submitted to
any third party; technologies and methods; training processes; organizational
structure; salaries of personnel; payment amounts or rates paid to consultants
or other service providers; and other such confidential or proprietary
information. We acknowledge that this confidential information constitutes a
valuable, special, and unique asset used by the Company and its subsidiaries and
affiliates in their business to obtain a competitive advantage over their
competitors. We agree that upon termination of this engagement, we will return
any and all such confidential information and delete such Confidential
Information from any electronic storage devices owned by us (but not computers
and storage devices owned by the Company), such as Palm Pilots and notebook
computers, upon which I may have stored such confidential information. We agree
that breach of these covenants not to disclose Confidential Information shall
cause immediate and irreparable injury to the Company.
Indemnity
---------
Each party shall indemnify, defend and hold harmless the other party from any
and all liability, loss, claims, lawsuits, damages, injury, costs (including
reasonable attorney's fees) or expenses ("Claims") arising out of or incident to
the performance or nonperformance of any act or responsibility under this
agreement by such indemnifying party; provided that, any indemnity required
under this paragraph shall exclude Claims resulting from any consequential,
future or speculative damages. Notwithstanding the foregoing provisions of this
paragraph, the Company shall indemnify, defend and hold harmless Consultant from
any all Claims arising out of or incident to Consultant's actions on behalf of
the Company, including attendance at meetings, negotiation and advice, that
involve the Company's financial and other related matters.
Acceptance
----------
Please indicate your agreement with the terms of this Consulting Agreement by
signing one copy in the space provided below.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chairman & CEO
----------------------------------
Calypso Wireless, Inc.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇, President
---------------------------
Motorskill Ventures I, L.P.
Consultant
CONSULTING AGREEMENT
January 30, 2003
Re: Consulting Engagement For Engineering Services Related to
Cellular Communications.
Agreement between CALYPSO WIRELESS, INC. (the "Company") AND ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ (the "Consultant")
This consulting agreement is to confirm the terms of engagement of independent
consultant ("Consultant") to Calypso Wireless, Inc. (the "Company"). Consultant
is engaged to assist the Company with engineering and software consulting
services, including but not limited to the following functions:
1) Assistance with the preparation of specifications documents and
software code for switching data communications from wireless local
area networks to cellular wide are networks.
Term of Engagement
------------------
The term of the engagement shall be until such time that the project is
completed and satisfied by both parties.
Consulting Fee
--------------
The Company will issue two million (2,000,000) shares of the Company's common
stock to Consultant (▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) for engineering services rendered
starting October 1999 and to be rendered related to cellular communications.
All two million (2,000,000) shares will be issued as free-trade stock. The
shares will be forwarded to Consultant as soon as reasonably possible after the
date this agreement is signed.
Confidentiality
---------------
I agree that during the term of this engagement I will not invest, nor promote
the Company's publicly traded shares or participate in any activity that is or
may be competitive with the Company, that might create a conflict of interest
with the Company, or that otherwise might interfere with the business of the
Company, or any affiliate of the Company. I also agree that both during the
engagement and after the engagement terminates I will neither misuse nor
improperly disclose any Confidential Information of the Company that I may have
used, acquired or added to while engaged by the Company. "Confidential
Information" means and includes confidential or proprietary information or trade
secrets that have been developed or used (or will be developed or used) and that
cannot be readily obtained by third parties from outside sources. Confidential
Information includes, by way of example and without limitation, the following:
information regarding assets, investors, customers, employees, contractors, and
the industry not generally known to the public; strategies, methods, books,
records, and documents; technical information concerning products, equipment,
services, and processes; procurement procedures and pricing techniques; the
names of and other information concerning customers, investors, and business
affiliates (such as contact name, service provided, pricing for that customer,
amount of services used, credit and financial data, and/or other information
relating to the Company's relationship with that investor or customer); pricing
strategies and price curves; plans and strategies for expansion or acquisitions;
budgets; investor lists, customers lists; research; weather data; financial and
sales data, trading terms; evaluation, opinions, and interpretations of
information and data; marketing techniques; prospective investors' names,
investors' and customers' names and marks; grids and maps, electronic data
bases; models; specifications; computer programs, internal business records;
contracts benefiting or obligating the Company; bids or proposals submitted to
any third party; technologies and methods; training processes; organizational
structure; salaries of personnel; payment amounts or rates paid to consultants
or other service providers; and other such confidential or proprietary
information. We acknowledge that this confidential information constitutes a
valuable, special, and unique asset used by the Company and its subsidiaries and
affiliates in their business to obtain a competitive advantage over their
competitors. We agree that upon termination of this engagement, we will return
any and all such confidential information and delete such Confidential
Information from any electronic storage devices owned by us (but not computers
and storage devices owned by the Company), such as Palm Pilots and notebook
computers, upon which I may have stored such confidential information. We agree
that breach of these covenants not to disclose Confidential Information shall
cause immediate and irreparable injury to the Company.
Indemnity
---------
Each party shall indemnify, defend and hold harmless the other party from any
and all liability, loss, claims, lawsuits, damages, injury, costs (including
reasonable attorney's fees) or expenses ("Claims") arising out of or incident to
the performance or nonperformance of any act or responsibility under this
agreement by such indemnifying party; provided that, any indemnity required
under this paragraph shall exclude Claims resulting from any consequential,
future or speculative damages. Notwithstanding the foregoing provisions of this
paragraph, the Company shall indemnify, defend and hold harmless Consultant from
any all Claims arising out of or incident to Consultant's actions on behalf of
the Company, including attendance at meetings, negotiation and advice, that
involve the Company's financial and other related matters.
Acceptance
----------
Please indicate your agreement with the terms of this Consulting Agreement by
signing one copy in the space provided below.
/S/▇▇▇▇▇▇ ▇▇▇▇▇▇▇, CHAIRMAN
---------------------------
CALYPSO WIRELESS, INC.
/S/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------
CONSULTANT
CONSULTING AGREEMENT
January 30, 2003
Re: Consulting Engagement For Engineering Services Related to Cellular
Communications.
Agreement between CALYPSO WIRELESS, INC. (the "Company") AND ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ (the "Consultant")
This consulting agreement is to confirm the terms of engagement of independent
consultant ("Consultant") to Calypso Wireless, Inc. (the "Company"). Consultant
is engaged to assist the Company with engineering and software consulting
services, including but not limited to the following functions:
1) Assistance with the preparation of specifications documents and
software code for voice and/or data communications over cellular
networks.
Term of Engagement
------------------
The term of the engagement shall be until such time that the project is
completed and satisfied by both parties.
Consulting Fee
---------------
The Company will issue two million (2,000,000) shares of the Company's common
stock to Consultant (▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Zumbado) for engineering services rendered
starting September 1999 and to be rendered related to cellular communications.
All two million (2,000,000) shares will be issued as free-trade stock. The
shares will be forwarded to Consultant as soon as reasonably possible after the
date this agreement is signed.
Confidentiality
---------------
I agree that during the term of this engagement I will not invest, nor promote
the Company's publicly traded shares or participate in any activity that is or
may be competitive with the Company, that might create a conflict of interest
with the Company, or that otherwise might interfere with the business of the
Company, or any affiliate of the Company. I also agree that both during the
engagement and after the engagement terminates I will neither misuse nor
improperly disclose any Confidential Information of the Company that I may have
used, acquired or added to while engaged by the Company. "Confidential
Information" means and includes confidential or proprietary information or trade
secrets that have been developed or used (or will be developed or used) and that
cannot be readily obtained by third parties from outside sources. Confidential
Information includes, by way of example and without limitation, the following:
information regarding assets, investors, customers, employees, contractors, and
the industry not generally known to the public; strategies, methods, books,
records, and documents; technical information concerning products, equipment,
services, and processes; procurement procedures and pricing techniques; the
names of and other information concerning customers, investors, and business
affiliates (such as contact name, service provided, pricing for that customer,
amount of services used, credit and financial data, and/or other information
relating to the Company's relationship with that investor or customer); pricing
strategies and price curves; plans and strategies for expansion or acquisitions;
budgets; investor lists, customers lists; research; weather data; financial and
sales data, trading terms; evaluation, opinions, and interpretations of
information and data; marketing techniques; prospective investors' names,
investors' and customers' names and marks; grids and maps, electronic data
bases; models; specifications; computer programs, internal business records;
contracts benefiting or obligating the Company; bids or proposals submitted to
any third party; technologies and methods; training processes; organizational
structure; salaries of personnel; payment amounts or rates paid to consultants
or other service providers; and other such confidential or proprietary
information. We acknowledge that this confidential information constitutes a
valuable, special, and unique asset used by the Company and its subsidiaries and
affiliates in their business to obtain a competitive advantage over their
competitors. We agree that upon termination of this engagement, we will return
any and all such confidential information and delete such Confidential
Information from any electronic storage devices owned by us (but not computers
and storage devices owned by the Company), such as Palm Pilots and notebook
computers, upon which I may have stored such confidential information. We agree
that breach of these covenants not to disclose Confidential Information shall
cause immediate and irreparable injury to the Company.
Indemnity
---------
Each party shall indemnify, defend and hold harmless the other party from any
and all liability, loss, claims, lawsuits, damages, injury, costs (including
reasonable attorney's fees) or expenses ("Claims") arising out of or incident to
the performance or nonperformance of any act or responsibility under this
agreement by such indemnifying party; provided that, any indemnity required
under this paragraph shall exclude Claims resulting from any consequential,
future or speculative damages. Notwithstanding the foregoing provisions of this
paragraph, the Company shall indemnify, defend and hold harmless Consultant from
any all Claims arising out of or incident to Consultant's actions on behalf of
the Company, including attendance at meetings, negotiation and advice, that
involve the Company's financial and other related matters.
Acceptance
----------
Please indicate your agreement with the terms of this Consulting Agreement by
signing one copy in the space provided below.
/S/▇▇▇▇▇▇ ▇▇▇▇▇▇▇, CHAIRMAN
---------------------------
CALYPSO WIRELESS, INC.
/S/▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ZUMBADO
-------------------------
CONSULTANT
VOICETECH
GLOBAL COMMUNICATIONS WITHOUT DISTANCE
Technology Licensing Agreement
This strategic integration and licensing ("Agreement") made as of this 21th day
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of February 2003, by and between VOICETECH COMMUNICATIONS CORP. USA or
"Licensor," whose principal address is ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇; and CALYPSO WIRELESS INC., or "Licensee" whose principal
address ▇▇▇▇ ▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1. DEFINITIONS AND UNDERSTANDING
"End-User." A customer that has an End User License.
"End User License." A software license agreement containing provisions and/or
agreements and such other restrictions as are set forth in the User Agreement
and the Acceptable Use Policy on Calypso corporate website, as modified by
VoiceTech from time to time, which shall be applicable for the product in its
entirety, and the term of which is one year from the date such End User License
is granted or during which time End User account is in good standing, whether or
not this Agreement remains in effect during its entire period.
"Territory." The territory for which the License is granted is worldwide.
"Reseller Pricing" This license is granted in accordance with VoiceTech global
pricing standards and must be resold within these parameters to maintain the
integrity and intellectual technology value.
"Royalty Participation with Mobile Carriers and ISP" To be defined post
integration when revenue model has been finalized.
2. LICENSE
Subject to the terms and conditions of this Agreement, VoiceTech hereby grants
to Calypso, and Calypso hereby accepts from VoiceTech, a non-assignable and
non-transferable right and license for three years from the date of execution,
to use the VoiceTech technology and to grant to its customers an End User
License any where within the Territory. This license may be renewed or extended
in accordance to current pricing standard at the discretion of Calypso with
account in good standing. The license herein granted shall apply to all
modifications and improvements to the VoiceTech Technology within the scope of
applicable modules. It is understood that the primary objective of this license
is to modify and integrate VoiceTech technology as a component of the Calypso
ASNAP product offering; further facilitating the inclusion of VoIP. Any and
all modifications made by VoiceTech to its technology and software as a result
of a request or specification submitted by Calypso is to be exclusively licensed
to Calypso.
3. MARKETING
3.1 Distribution. Distribution of VoiceTech technology shall be pursuant
to the terms and conditions of an End User License. Calypso will
provide system hardware and infrastructure pursuant to this agreement
with the appropriate software installation and enterprise
configuration to host the VoiceTech technology.
3.2 Prohibitions. Notwithstanding any other provision in this Agreement,
Calypso shall not, without the express written consent of VoiceTech:
3.2.1. Give or make on behalf of VoiceTech any other warranties,
conditions, guarantees or representations or vary or modify in
any way such warranties, conditions, guarantees or
representations as given or made by VoiceTech, provided that
Calypso may itself give or make such warranties, conditions,
guarantees or representations that are more favorable to
End-Users upon the clear understanding that any additional
liability shall be incurred solely by Calypso and not by
VoiceTech, and Calypso shall indemnify and hold VoiceTech
harmless from any such additional liability during and after
the term of this Agreement, and such favorable terms and
conditions shall terminate upon termination of this Agreement;
3.3 Calypso Compliance with Laws. Calypso shall comply with all applicable
laws, rules and regulations in performance of its duties and
obligations in connection with this Agreement.
3.4 Calypso Representation of VoiceTech. Under no circumstances shall
Calypso misrepresent or mislead the features and functionality of the
VoiceTech Technology, or make any claims detrimental to VoiceTech.
Calypso at all times shall conduct its business in a professional,
legal and ethical manner in accordance with applicable laws.
4. Warranty. VoiceTech hereby represents and warrants that it has the
authority to enter into this agreement and that it has the authority of all
title and intellectual property rights in and to resell and develop
applicable technology and, except for the rights granted herein, no other
person or legal entity has any such rights.
5. INFRINGEMENT OF PATENTS, TRADEMARKS OR COPYRIGHTS AND INTEGRATION
5.1 VoiceTech shall indemnify and hold Calypso harmless from and against
all claims, liabilities, losses and damages, including, but not
limited to, litigation costs, expenses, reasonable attorney fees and
liabilities relating thereto asserted by any legal entity against
Calypso and/or VoiceTech based upon any claim of infringement (or
similar legal theory) of any U.S. or foreign patent, trade secret,
trademark, copyright or other intellectual property interest resulting
from or allegedly related to the manufacture, sale, operation or use
of products, documents or materials produced by VoiceTech. VoiceTech
shall notify Calypso promptly of any matter in respect of which the
foregoing indemnity may apply and of which VoiceTech has knowledge.
VoiceTech shall defend such claims at its own expense and pay the
costs and damages and attorney fees awarded in any such action or
claim. VoiceTech shall have the right to control the defense and
settlement of all such actions or claims. Calypso shall cooperate with
VoiceTech in connection with such settlement or defense.
5.2 Integration Overview.
VoiceTech Responsibilities:
---------------------------
- Provide modified version of the current VoiceTech SIP
client, the new version will be a light client without all
system features except voice. This client will be capable of
sending and receiving SIP calls from the Calypso cellular
phones that utilize the access points.
- Provide modified version of the VoiceServer to allow for a
totally automated call creation process for IP to IP
calling, IP to PSTN calling, or PSTN to IP calling.
- Provide documentation on modified client code
- Provide documentation detailing required information needed
by VoiceServer from ASNAP server to facilitate VoIP call
completion.
- Training on VoiceSYSTEM operation
- Prerequisite Documentation Requirement:
- Documentation on Calypso phone software
- Documentation on ASNAP server
CALYPSO RESPONSIBILITIES:
- Provide documentation on Calypso phone operating system
- Provide documentation for communications methods with ASNAP
server for the VoiceServer
- Provide testing environment with Calypso components for
modified VoiceServer code and modified SIP client to assure
quality assurance
- Provide documentation on signal routing between phone and
access point (how IP's and network changes are handled)
Note: The afore mentioned items with regards to integration overview are
intended to serve only as a base level development starting point and illustrate
key areas where integration issues are known at this time, during the course of
development additional areas will be identified and requirements for both
parties will be modified accordingly.
6. PROHIBITIONS:
6.1 Notwithstanding the use of the words, "sell," "sale," "resale," or any
similar term, nothing herein shall be construed to assign or transfer
any intellectual property rights of VoiceTech technology, in which
VoiceTech retains all right, title, and interest subject only to the
rights and license expressly hereby granted. Calypso agrees that it
will not claim any ownership rights in or to VoiceTech technology.
6.2 No Copy. Calypso shall not copy, reverse engineer, disassemble,
decompile, translate, or modify the VoiceTech technology, or grant any
other person or entity the right to do so without written consent from
VoiceTech.
6.3 Trademark use. Calypso shall: reproduce all trademarks, copyrights, or
other means of identification used on or in relation to VoiceTech
technology; use such trademarks in compliance with all relevant laws
and regulations; provide samples, and such other materials that
Interactive uses of such trademarks, and use such trademarks in
compliance with this Agreement. Notwithstanding any other agreement
with VoiceTech, Calypso shall not: alter, remove, or tamper with any
trademarks, copyrights or other means of identification used on or in
relation to web builders; use any of VoiceTech's trademarks, trade
secrets, copyrights, or other intellectual property rights in any way
that might prejudice the distinction, validity or goodwill of
VoiceTech; or acquire any rights and goodwill in the trademarks, trade
secrets, copyrights, and other intellectual property rights.
7. PAYMENT
7.1 Equity Consideration. As a component of this agreement, Calypso will
issue VoiceTech OR assigned 1,000,000 (one million) shares of common
stock upon signature; to be restricted for a period of 1 year (twelve
months) from contract date as consideration for world wide licensing
rights and engineering/programming integration oversight.
7.2 Royalty/Revenue Share. It is understood that upon completed
integration at which time revenue model with mobile carriers has been
finalized that there will be an ongoing royalty due VoiceTech and
Calypso be negotiated. Royalty/Revenue from service fees with be split
50/50 between Voicetech and Calypso.
7.3 Report and Payment. Amounts due as a result of Royalty/Revenue Share
shall be paid to VoiceTech for each month, no later than the 15th day
after the end of the month for which such amounts accrued. Calypso
shall report relevant sales to VoiceTech on a monthly basis with such
payment. The form of such report shall be mutually agreed by VoiceTech
and Calypso. Payment shall be made by wire transfer in accordance with
wiring instructions provided from time to time by VoiceTech.
7.4 Taxes. Calypso shall have sole responsibility for collecting,
reporting, and/or paying all income, sales, excise, property,
value-added tax, and other taxes imposed by any governmental
authority, as they pertain to Calypso' duties, obligations, and
performance hereunder. Without limiting the generality of the
foregoing, Calypso shall be responsible for reporting and paying all
customs, import, and remittance duties or assessments arising from the
import the basic courses into any and all countries.
7.5 Audit. VoiceTech, or any agent authorized by VoiceTech, shall have the
right at all reasonable times, upon seven (7) calendar days prior
written notice, to audit Calypso' relevant books and records in order
to determine whether Calypso is in compliance with the terms of this
Agreement and to verify the amount and accuracy of payments to
VoiceTech made under this Agreement. Calypso agrees to reasonably
cooperate and provide all reasonably necessary documentation to enable
VoiceTech or its agent to conduct such audit. VoiceTech shall bear the
expense of any such audit; provided that if such audit reveals
underpayments to VoiceTech in an amount exceeding 5% of the amount
owed to VoiceTech, then Calypso shall bear the expense of the audit.
This right will survive termination of the Agreement for a period of
one year.
8. LIMITED WARRANTY, DISCLAIMER, AND LIMITATIONS
8.1 VoiceTech will use commercially reasonable efforts to maintain the
currency of the technology and enhancements of VoIP platform and
towards that end shall provide at least annual updates and additions
when appropriate. VoiceTech will also provide reasonable customer
support by providing and updating frequently asked questions section
and email response to Calypso technical support questions beyond a
basic scope in a timely fashion.
8.2 VoiceTech provides VoIP Platform only to the warranties included in
this Agreement. VoiceTech warrants that basic courses are
substantially "bugless" or error free, that its operation is scalable
and its use shall be uninterrupted, that functions contained therein
will meet End-User's reasonable requirements, and that it works with
an industry standard configuration. VoiceTech disclaims any and all
promises, representations, and warranties, except as expressly set
forth in this Agreement. These warranties are in lieu of all other
warranties, express or implied, oral or written, with respect to basic
courses including, without limitation, the implied warranties of
conformance to samples, merchantability and fitness for a particular
purpose.
9. Limitation of Liability. UNDER NO CIRCUMSTANCES, SHALL VOICETECH BE LIABLE
FOR LOSS OF DATA OR RECORDS THAT MAY ARISE IN CONNECTION WITH THE USE OF
VOIP PLATFORM, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL
DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER
PECUNIARY LOSS), REGARDLESS OF WHETHER VOICETECH WAS ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW FOR THE
EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, OR
THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS
OR EXCLUSIONS MAY NOT APPLY TO CALYPSO. NOTWITHSTANDING ANY OF THE
FOREGOING, THE MAXIMUM LIABILITY OF VOICETECH TO CALYPSO UNDER THIS
AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF THE PAYMENTS
ACTUALLY RECEIVED BY VOICETECH FROM CALYPSO FOR VOIP PLATFORM.
10. INDEPENDENT CONTRACTOR. Each party hereto shall be and remain an
independent contractor and nothing herein shall be deemed to constitute the
parties as partners. Further, neither party shall have any authority to
act, or attempt to act, or represent itself, directly or by implication, as
an agent of the other or in any manner assume or create, or attempt to
assume or create, any obligation on behalf of or in the name of the other,
nor shall either be deemed the agent or employee of the other.
11. TERM AND TERMINATION. This Agreement shall be effective as of the date
first set forth above and shall continue in effect for a minimum of three
-----
years so long as Calypso continues selling user licenses for VoIP Platform
-----
or the Agreement is terminated.
11.1 If either party materially defaults on its obligations hereunder and
fails to cure its default, if such default is capable of cure, within
thirty (30) days after having been given notice of such default.
11.2 Immediately at any time that VoiceTech VoIP Platform become obsolete
or unmarketable with reasonable effort and termination payment of
unpaid royalties per 7.1
11.3 Immediately and without any requirement of notice, in the event that
(a) VoiceTech files a petition in bankruptcy; files a petition seeking
any reorganization, arrangement, composition or similar relief under
any law regarding insolvency or relief for debtors; or makes an
assignment for the benefit of creditors; (b) a receiver, trustee or
similar officer is appointed for the business or property of
VoiceTech; (c) any involuntary petition or proceeding under bankruptcy
or insolvency laws is instituted against such party and not stayed,
enjoined, or discharged within 60 days; or (d) VoiceTech adopts a
resolution for, or undertakes to effect a, discontinuance of its
business or dissolution.
11.4 By notifying VoiceTech of its decision at least thirty (30) days prior
to the proposed termination date, in the event that Calypso
discontinues all basic course license distribution and termination
payment of unpaid royalties per 7.1
12. NOTICES All notices required herein to be in writing, will be deemed given:
(i) five (5) working days after having been sent by registered or certified
mail, return receipt requested, postage prepaid; (ii) one (1) working day
after deposit with a commercial overnight carrier, with written
verification of receipt, or (iii) upon personal delivery. All
communications will be sent to the addresses set forth in the preamble to
this Agreement, or to such other address as may be designated by a party by
giving written notice to the other party pursuant to this.
13. GENERAL
13.1 Entire Agreement. The provisions herein constitute the entire
agreement between the parties with respect to the subject matter
hereof and supersede all prior agreements, oral or written, and all
other communications relating to the subject matter hereof, except the
Confidentiality, Non-Disclosure and NON-CIRCUMVENTION Agreement/s or
such other similar agreement/s dated or signed simultaneously with
this Agreement, which governs all confidential and proprietary
information of Calypso and VOICETECH. No amendment or modification of
any provision of this Agreement will be effective unless set forth in
a document that purports to amend this Agreement and is executed by
both parties.
13.2 Waiver. No waiver by either of the parties to this Agreement of any
condition, term or provision hereof shall be valid unless set forth in
an instrument in writing signed on behalf of such party, and no such
waiver shall be deemed a waiver of any preceding or subsequent breach
of the same of any other condition, term or provision of this
Agreement.
13.3 Assignment. Assignment or transfer of this Agreement requires the
prior written consent of the other party, except by merger,
reorganization, consolidation or sale of all or substantially all of
the party's assets; provided that upon notice to the other party,
either party may assign this Agreement to an affiliate of such party.
13.4 Force Majeure. Neither party shall be held liable for failure to
fulfill its obligations hereunder if such failure is due to a natural
calamity, act of government, or other cause beyond the control of such
party.
13.5 Days. Should the date on which any payment or other performance of
either of the parties hereto is due fall on a date that is a Saturday,
Sunday or legal holiday (recognized as such by the Federal Government)
or such other holiday recognized by one of the parties (together,
"Holiday"), then payment or performance shall not be due until the
next day which is not a Saturday, Sunday or Holiday.
13.6 Governing Law. The validity, construction, and performance of this
Agreement shall be governed by the laws of the state of Texas, without
regard to the conflicts of laws principles thereof.
13.7 Consent to Jurisdiction. Both parties consent to the jurisdiction and
proper venue of Houston, Texas, in connection with any action or
lawsuit instituted to enforce any provision of this Agreement.
13.8 Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law, the remaining provisions
of the Agreement will remain in full force and effect.
14. Rights Outside of Agreement. Nothing contained in this Agreement shall be
construed as limiting rights that the parties may enjoy outside the scope
of the licenses granted and the obligations and restrictions set forth or
treated herein.
15. Captions. The captions and headings contained in this Agreement and in the
Exhibits attached hereto are for reference purposes only and are not to be
construed as part of the agreements between the parties.
16. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to constitute an original, but all of which
together shall constitute one and the same instrument.
In Witness Whereof, VoiceTech Communications and Reseller have caused
this Agreement to be signed by their respective duly authorized
officers as of the day and year above written.
AGREED AND ACCEPTED:
Technology Licensee:
Calypso Wireless, Inc.
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chairman
Technology Licensor:
VoiceTech Communications Corp. USA
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Director
February 22, 2003
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Chairman
Calypso Wireless
▇▇▇▇ ▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇▇▇,
We are pleased that Calypso Wireless, Inc. ("Calypso" or the "Company") has
chosen to engage D.E. Wine Investments, Inc ("DEW") as its financial advisor
with respect to investment banking activities . We look forward to working with
you on this engagement, and have set forth below the agreed upon terms of our
engagement.
1. SERVICES
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We agree with the Company that, as requested by the Company, we will seek to
assist the Company to privately or publicly place the Company's debt, equity, or
other securities (each share a "Security" and collectively the "Securities")
with individual, financial and/or strategic investors (a "Financing"). The
placement, if any, would be made on terms you and we would agree on, as
reflected in agreements to be entered into between you and the purchasers. In
the course of our engagement, DEW would work with you to contact potential
investors, solicit interest from such parties, and assist you in negotiating the
terms of the Securities and the investment by the purchasers.
2. FEES AND EXPENSES. For our services hereunder, the Company will pay to DEW
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the following fees, net of any withholding taxes:
(a) a non-refundable retainer fee of 10,000 free-trading shares payable
immediately upon the Company's execution hereof (the "Retainer Fee"):
plus
(b) a fee (the "Financing Fee") consisting off (a) a cash placement fee
(the "Cash Placement Fee") equal to 5% of the Financing Amount and
payable at the closing of the Financing, where "Financing Amount"
shall mean the aggregate gross proceeds of the Debt Securities sold in
the Financing, or in the case of equity financing the fee of 10% of
the first million dollars, 8% of the second million, 6% of the third
million, 4% of the forth million, and 2% of everything thereafter,
plus
(b) a stock placement fee (the "Stock Placement Fee") payable at the
closing of the financing, equal to the following: 30,000 shares for
the first million dollars of financing, 30,000 shares for the second
million, and 10,000 shares for each subsequent million dollars of
financing after the first two million dollars of financing. All shares
issued per this section will be restricted common stock of the
company, non-dilutable, and will not be subject to any future reverse
splits.
Additionally, the company will grant piggy-back registration rights
for all shares issued pursuant to this section for any future public
offering of the company's stock. The cash placement fee and the stock
placement fee will be payable on a prorate basis for any financing
amount which falls between the million dollar breakpoints.
(c) a grant to DEW of a seven-year warrant (the "Warrant") to purchase
common stock of the Company at an exercise price per share (the
"Exercise Price') equal to the price paid per share (on a
converted-to-common basis) for each Security, and also containing such
other terms as are customarily granted to us. The number of shares
purchasable under the Warrant will be equal to 10.0% of the Financing
Amount.
DEW will be entitled to the Financing Fee based on the total gross
proceeds raised in this Financing regardless of the source of funds or
the source of investors.
In addition to the fees payable to DEW hereunder and regardless of
whether any Financing is proposed or consummated, the Company will promptly
reimburse DEW, from time to time upon request, for all reasonable
out-of-pocket expenses (excluding travel and day to day operational
expenses) incurred in performing our services hereunder, including
reasonable fees and expenses of our legal counsel, provided that such
expenses shall not exceed $5,000.00 without prior approval of the Company.
3. USE OF INFORMATION; FINANCING MATTERS.
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a. The Company recognizes and confirms that DEW in acting pursuant to
this engagement will be using publicly available information and
information in reports and other materials provided by others,
including, without limitation, information provided by or on behalf of
the Company, and that DEW does not assume responsibility for and may
rely, without independent verification, on the accuracy and
completeness of any such information. The Company agrees to furnish or
cause to be furnished to DEW all necessary or appropriate information
for use in its engagement and hereby represents and warrants that any
information relating to the Company or a Financing that is furnished
to DEW by or on behalf of the Company will be true and correct in all
material respects and not misleading. The Company agrees that any
information or advice rendered by DEW or any of our representatives in
connection with this engagement is for the confidential use of the
Company only in its evaluation of a Financing and the Company will
not, and will not permit any third party to, use it for any other
purpose or disclose or otherwise refer to such advice or information,
or to DEW, in any manner without our prior written consent.
b. Each of the Company and DEW agrees to conduct any offering and sale of
securities in any Financing in accordance with applicable federal and
state securities laws, and neither the Company nor DEW, nor any person
acting on behalf of either of them, will offer or sell any securities
in a Financing by any form of general solicitation, general
advertising, or by any other means that would be deemed a public
offering under applicable law. DEW has no obligation, express or
implied, to purchase or underwrite any Financing or to itself provide
any type of financing to the Company, or to solicit investors outside
the United States. The Company will promptly from time to time take
such action, if the Company desires to pursue a Financing, as DEW may
reasonably request to qualify the Financing as a private placement
under the securities laws of such states as DEW may reasonably
request.
4. CERTAIN ACKNOWLEDGEMENTS. The Company acknowledges that DEW has been
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retained solely by the Company, and not as an advisor to or agent of any other
person, and that the Company's engagement of DEW is as an independent contractor
and not in any other capacity including as a fiduciary. DEW may, to the extent
it deems appropriate, render the services hereunder through one or more of its
affiliates. Neither this engagement, nor the delivery of any advice in
connection with this engagement, is intended to confer rights upon any persons
not a party hereto (including security holders, employees or creditors of the
Company) as against DEW or our affiliates or their respective directors,
officers, agents and employees. DEW may, at our own expense, place
announcements or advertisements in financial newspapers and journals describing
our services hereunder.
5. AGREEMENT TO ARBITRATE. The Company and DEW hereby agree that all
----------------------------
controversies which may arise between us concerning any transaction or the
construction, performance, or breach of this or any other agreement between us,
whether entered into prior, on or subsequent to the date hereof, shall be
determined by arbitration. Any arbitration shall be conducted pursuant to the
Federal Arbitration Act before the National Association of Securities Dealers,
Inc.
6. TERMINATION OF ENGAGEMENT. DEW's engagement will commence on the date
-------------------------------
hereof and will continue until the earlier of the consummation of a Financing or
6 months after the date hereof, unless extended by mutual written consent or
earlier terminated as provided below. Either the Company or DEW may terminate
this agreement at any time, with or without cause, by giving not less than 90
days written notice to the other party; provided, however, that no such
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termination will affect the matters set out in this section or sections 2, 3, 4,
5, or 7. It is expressly agreed that following the expiration or termination of
this agreement, DEW will continue to be entitled to receive fees as described
above that have accrued prior to such expiration or termination but are unpaid,
as well as reimbursement for expenses as contemplated above.
It is also expressly agreed that, if during a period of 12 months following
termination of this Agreement, the Company sells any securities of the same or a
similar class as the Securities through a private placement to purchasers which
(x) were contacted by us in our capacity as placement agent hereunder or (y)
were contacted by the Company (or its affiliates or representatives) during the
term hereof, you will pay us a fee equal to the fee which would have been
payable to us pursuant to Section 2 if the placement had occurred during the
term of this agreement.
7. MISCELLANEOUS. This agreement is governed by the laws of the State of
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Texas, without regard to conflicts of law principles, and will be binding upon
and inure to the benefit of the Company and DEW and their respective successors
and assigns. The Company and DEW agree to waive trial by jury in any action,
proceeding or counterclaim brought by or on behalf of either party with respect
to any matter whatsoever relating to or arising out of any actual or proposed
transaction or the engagement of or performance by DEW hereunder. This
agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original, but all of which shall constitute one and the same
agreement.
We are delighted to accept this engagement and look forward to working with you
on this matter. Please confirm that the foregoing is in accordance with your
understanding of our agreement by signing and returning to us a copy of this
letter.
Very truly yours,
D.E. Wine Investments, Inc.
/s/ Duncan E. Wine
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Duncan E. Wine, President
Accepted and agreed to as of the date set forth above:
Calypso Wireless Inc.
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chairman & CEO
