As filed with the Securities and Exchange Commission on March 19, 1999
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------------------------
FORM S-8
Registration Statement
Under the Securities Act of 1933
------------------------------------
EAGLE WIRELESS INTERNATIONAL, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
TEXAS 3669 76-0494995
(State or other jurisdiction (Primary Standard (I.R.S. Employer
of incorporation or Industrial Classification Identification Number)
organization) Code Number)
</TABLE>
H. DEAN CUBLEY
910 GEMINI AVENUE EAGLE TELECOM INTERNATIONAL, INC.
HOUSTON, TEXAS 77058-2704 910 GEMINI AVENUE
(281)280-0488 HOUSTON, TEXAS 77058-2704
(Address, and telephone number (281) 280-0488
of principal executive offices) (Name, address and telephone number
of agent for service)
CONSULTING AGREEMENT WITH MEGA HOLDING CORP.
CONSULTING AGREEMENT WITH OTC COMMUNICATIONS CORPORATION
(Full Title of the Plans)
COPIES TO:
RICHARD O. WEED
ARCHER & WEED
4695 MACARTHUR COURT, SUITE 530
NEWPORT BEACH, CALIFORNIA 92660
PHONE (949) 475-9086
FACSIMILE (949) 475-9087
---------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE AMOUNT BEING OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE
- ----------------------------------------- ---------------- ------------------- -------------------- ----------------
- ----------------------------------------- ---------------- ------------------- -------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.001 per share...................... 600,000 $2.453125 $1,471,875 $409
- ----------------------------------------- ---------------- ------------------- -------------------- ----------------
- --------------------------------------------------------------------------------------------------- ----------------
TOTAL $409
====================================================================================================================
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, the
number of shares of the issuer's common stock registered hereunder will be
adjusted in the event of stock splits, stock dividends or similar
transactions.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h), on the basis of the high and low
prices of the common stock as reported by the OTC Electronic Bulletin Board
on March 17, 1999.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the company with the SEC are incorporated
herein by reference:
The company's latest annual report filed pursuant to Section 13(a) or 15(d)
of the Exchange Act of 1934, or, either (1) the company's latest prospectus
filed pursuant to Rule 424(b) under the Securities Act that contains
audited financial statements for the company's latest fiscal year for which
such statements have been filed, or (2) the company's effective
registration statement on Form 10-SB filed under the Exchange Act
containing audited financial statements for the company's latest fiscal
year;
All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document
referred to in (1) above; and
The description of the common stock that is contained in a registration
statement or amendment thereto filed under Section 12 of the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to the registration statement which indicates that
all shares of common stock offered have been sold or which deregisters all
of such shares then remaining unsold, shall be deemed to be incorporated by
reference in the registration statement and to be a part thereof from the
date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article XI of the Articles of Incorporation of the company provides for
indemnification of officers, directors, agents and employees of the company as
follows:
(a) The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order
settlement, conviction or upon a plea of NOLO CONTENDERE or its
equivalent, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner in which he reasonably
believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that his conduct was unlawful.
<PAGE>
(b) The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the Corporation unless
and only to the extent that the District Court or the court in which
such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the District Court or
such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in subsections (a) and
(b) of this Article, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
(d) Any indemnification under subsections (a) and (b) of this Article
(unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper
in the circumstances because he has met the applicable standard of
conduct set forth in subsections (a) and (b) of this Article. Such
determination shall be made (1) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not parties
to such action, suit or proceeding, or (2) if such quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or (3)
by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Corporation as authorized by this Article. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid
upon such terms and conditions, if any, as the Board of Directors
deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this Article shall not
be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office.
(g) The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him
against such liability under this Article.
(h) For purposes of this Article references to "the Corporation" shall
include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had
continued, would have had the power and authority to indemnify its
directors, officers, and employees or agents, so that any person who
is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this Article with respect to
the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had
continued.
(i) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
<PAGE>
The foregoing discussion of the company's Articles of Incorporation, and of the
Texas Business Corporation Act is not intended to be exhaustive and is qualified
in its entirety by such Articles of Incorporation and statutes, respectively.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this registration
statement:
EXHIBIT NO. IDENTIFICATION OF EXHIBIT
4.2(2) Common Stock Specimen
5.1(1) Opinion Regarding Legality
10.1(1) Mega Holding Corp. Consulting Agreement
10.2(1) OTC Communications Corp. Consulting Agreement
23.1(1) Consent of Counsel
23.2(1) Consent of McManus & Company, independent public accountants
- --------------------
(1) Filed herewith.
(2) Filed as an exhibit to the company's registration statement on Form SB-2,
File No. 333-20011, which was filed with the SEC on January 17, 1997.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
i. To include any prospectus required by Section 10(a)(3) of
the Securities Act;
ii. To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the SEC
pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the
effective registration statement; and
iii.To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (ii) do
not apply if the registration statement is on Form S-3 or
Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the SEC by
the registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
<PAGE>
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(a) The undersigned registrant hereby undertakes that, for
purposes of determining liability under the Securities
Act, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial BONA FIDE offering
thereof.
(b) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
provisions described in Item 6 above, or otherwise, the
registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on the 11th day of March,
1999.
EAGLE WIRELESS INTERNATIONAL, INC.
By: /s/ H. DEAN CUBLEY
H. DEAN CUBLEY, Chief Executive Officer
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated:
SIGNATURE TITLE DATE
/s/ H. DEAN CUBLEY President, Chief Executive Officer March 11, 1999
H. Dean Cubley
/s/ RICHARD ROYALL Chief Financial Officer (Principal March 17, 1999
Richard Royall Financial and Accounting Officer)
/s/ CHRISTOPHER W. FUTER Director, Executive Vice-President March 11, 1999
Christopher W. Futer and Chief Operating Officer
/s/ A.L. CLIFFORD Director March 12, 1999
A.L. Clifford
EXHIBIT 5.1
ARCHER & WEED
Special Project Counsel
4695 MacArthur Court, Suite 530, Newport Beach, California 92660
Telephone (949) 475-9086 Facsimile (949) 475-9087
Email:[email protected]
Writer's Direct Number (949) 475-7730
March 10,1999
Board of Directors
Eagle Wireless International
910 Gemini Avenue
Houston, TX 77058-2704
RE: Form S-8 Registration Statement
Dear Members of the Board:
As special project counsel to Eagle Wireless International, a Texas corporation
(the "Company"), in connection with that certain Form S-8 registration statement
dated March 10, 1999, I have been asked to provide an opinion of counsel as to
the legality of the securities being registered, indicating whether they will,
when sold, be legally issued, fully paid and non-assessable.
In rendering this opinion, I have assumed, without independently verifying such
assumptions, and this opinion is based and conditioned upon the following: (I)
the genuineness of the signatures on and the enforceability of all instruments,
documents and agreements examined by me and the authenticity of all documents
furnished for my examination as originals and the conformity to the original
documents of all documents furnished to me as copies; (II) where an executed
document has been resented to me for my review, that such document has been duly
executed on or as of the date stated and that execution and delivery was duly
authorized on the part of the parties thereto; (III) each of the foregoing
certificates, instruments and documents being duly authorized, executed and
delivered by or on behalf of all the respective parties thereto, and such
instruments and documents being legal, valid binding obligations of such
parties; (IV) the truth and accuracy of representations and statements made in
the documents received from the State of Texas; and (V) the Company will be
operated in accordance with the terms of its charter documents and the laws of
the State of Texas and the terms of the instruments or documents referred to
above.
Based upon the foregoing, I am of the opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Texas, the
jurisdiction of its incorporation.
<PAGE>
2. The terms and provisions of the common stock conform to the description
thereof contained in the registration statement, and the form of the
stock certificates used to evidence the common stock are in good and
proper form and no stockholder is entitled to preemptive rights to
subscribe for or purchase any of the common stock.
3. The issuance and the sale of the shares of common stock has been duly
and validly authorized and the securities will, when sold, be duly
legally issued, fully paid and non-assessable shares of common stock of
the Company.
I am admitted to practice in the State of California and the State of Texas. I
am not admitted to practice in any jurisdictions other than California and
Texas, in which the Company may own property or transact business. My opinions
herein are with respect to federal law only and, to the extent my opinions are
derived from the laws of other jurisdictions, are based upon an examination of
all relevant authorities and the documents referenced herein and are believed to
be correct. I have not directly obtained legal opinions as to such matters from
attorneys licensed in such other jurisdictions. No opinion is expressed upon any
conflict of la issues. My opinions are qualified to the extent that enforcement
of rights and remedies are subject to bankruptcy, insolvency, fraudulent
conveyance, moratorium, and other laws of general application or equitable
principles affecting the rights and remedies of creditors and security holders
and to the extent that the availability of the remedy of specific performance or
of injunctive relief is subject to the discretion of the court before which any
proceeding may be brought.
This opinion is limited to matters existing as of this date and no
responsibility is assumed to advise you of changes (factual or legal) which may
hereafter occur, whether deemed material or not.
I furnish this opinion to you as special counsel for the Company and it is
solely for your benefit. This opinion is not to be used, circulated, quoted or
otherwise referred to in whole or in part for any other purpose, except as set
forth in my consent.
Very truly yours,
/s/ Richard O. Weed
Richard O. Weed
EXHIBIT 10.1
AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into this 27th
day of January, 1998, by and between MEGA HOLDING CORP., 278A New Dorp Lane,
Staten Island, New York 10306 ("Mega"), and EAGLE WIRELESS INTERNATIONAL, INC.,
910 Gemini Avenue, Houston, Texas 77058 (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 obligation, 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.
<PAGE>
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 its officers, directors and/or consultants.
The Warrants shall be comprised of seven classes with the
following exercise prices and exercise period:
<TABLE>
<CAPTION>
SHARES UNDERLYING *EXERCISE AVERAGE **STOCK
CLASS EXERCISE PRICE WARRANTS PERIOD (YEARS) STOCK PRICE DAYS TRADED
<S> <C> <C> <C> <C> <C>
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
o D $ 5.00 200,000 3 $10.00 31
o E $ 7.00 200,000 3 $12.00 31
o F $ 9.00 200,000 5 $14.00 31
o G $11.00 200,000 5 $16.00 31
</TABLE>
- -----------------
* 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.
- ----------------
o Issued within 10 business days of the initiation of this Agreement.
o 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.
<PAGE>
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 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 of organization;
<PAGE>
b. Mega has all the requisite corporate power and
authority to enter into this Agreement and to render
the Services contemplated hereby;
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 of 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:
278A New Dorp Lane
Staten Island, New York 10306
Notices shall be addressed to the Company at:
910 Gemini Avenue
Houston, Texas 77058
<PAGE>
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.
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.
<PAGE>
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.
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: // THOMAS ABATE //
Thomas Abate, President
EAGLE WIRELESS INTERNATIONAL, INC.
By: // H. DEAN CUBLEY //
H. Dean Cubley, Chief Executive Officer
EXHIBIT 10.2
OTC COMMUNICATIONS CORP. CONSULTING AGREEMENT
AGREEMENT made as of the 16th day of July, 1998 by and between Eagle
Wireless International, maintaining its principal offices at 910 Gemini Ave.,
Houston, Texas 77058 (hereinafter referred to as "Client") and OTC
Communications Corp., a Commonwealth of Massachusetts corporation maintaining
its principal offices at 1040 Great Plain Ave., Needham, Maine 02192
(hereinafter referred to as the "Company").
WITNESSETH:
WHEREAS, Company is engaged in the business of providing and rendering
public relations and communications services and has knowledge, expertise and
personnel to render the requisite services to Client; and
WHEREAS, Client is desirous of retaining Company for the purpose of
obtaining public relations and corporate communications services so as to
better, more fully and more effectively deal and communicate with its
shareholders and the investment banking community.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, it is agreed as follows:
I. Engagement of Company. Client herewith engages Company and Company
agrees to render to Client public relations, communications, advisory and
consulting services.
A. The consulting services to be provided by the Company shall include,
but are not limited to, the development, implementation and maintenance of an
ongoing program to increase the investment community's awareness of Client's
activities and to stimulate the investment community's interest in Client.
Client acknowledges that Company's ability to relate information regarding
Client's activities is directly related to the information provided by Client to
the Company.
B. Client acknowledges that Company will devote such time as is
reasonably necessary to perform the services for Client, having due regard for
Company's commitments and obligations to other businesses for which it performs
consulting services.
II. Compensation and Expense Reimbursement.
A. Client will pay the Company, as compensation for the services
provided for in this Agreement and as reimbursement for expenses incurred by
Company on Client's behalf, in the manner set forth in Schedule A annexed to
this Agreement which Schedule is incorporated herein by reference.
<PAGE>
B. In addition to the compensation and expense reimbursement referred
to in Section II(A) above, Company shall be entitled to receive from Client a
"Transaction Fee," as a result of any Transaction (as described below) between
Client and any other company, entity, person, group or persons or other party
which is introduced to, or put in contact with, Client by Company, or by which
Client has been introduced to, or has been put in contact with, by Company. A
"Transaction" shall mean merger, sale of stock, sale of assets, consolidation or
other similar transaction or series or combination of transactions whereby
Client or such other party transfer to the other, or both transfer to a third
entity or person, stock, assets, or any interest in its business in exchange for
stock, assets, securities, cash or other valuable property or rights, or wherein
they make a contribution of capital or services to a joint venture, commonly
owned enterprise or business opportunity with the other for purposes of future
business operations and opportunities. To be a Transaction covered by this
section, the transaction must occur during the term of this Agreement or the one
year period following the expiration of this Agreement.
The calculation of a Transaction Fee shall be based upon the total
value of the consideration, securities, property, business, assets or other
value given, paid, transferred or contributed by, or to, the Client and shall
equal 5% of the dollar value of the Transaction. Such fee shall be paid by
certified funds at the closing of the Transaction. Funds are defined as cash or
securities. Client may elect to include the cost of the transaction fee as part
of a transaction's closing costs and reserves the right to have a party other
than the Client to pay the transaction fee to the Company.
Term and Termination. This Agreement shall be for a period of one year
commencing July 16, 1998 and terminating July 15, 1999. If the Client does not
cancel the contract during the term, the contract will be automatically extended
for an additional year. Either party hereto shall have the right to terminate
this Agreement anytime upon 30 days prior written notice to the other party.
Treatment of Confidential Information. Company shall not disclose,
without the consent of Client, any financial and business information concerning
the business, affairs, plans and programs of Client which are delivered by
Client to Company in connection with Company's services hereunder, provided such
information is plainly and prominently marked in writing by Client as being
confidential (the "Confidential Information"). The Company will not be bound by
the foregoing limitation in the event (i) the Confidential Information is
otherwise disseminated and becomes public information or (ii) the Company is
required to disclose the Confidential Informational pursuant to a subpoena or
other judicial order.
Representation by Company of other clients. Client acknowledges and
consents to Company rendering public relations, consulting and/or communications
services to other clients of the Company engaged in the same or similar business
as that of Client.
<PAGE>
Indemnification by Client as to Information Provided to Company. Client
acknowledges that Company, in the performance of its duties, will be required to
rely upon the accuracy and completeness of information supplied to it by
Client's officers, directors, agents and/or employees. Client agrees to
indemnify, hold harmless and defend Company, its officers, agents and/or
employees from any proceeding or suit which arises out of or is due to the
inaccuracy or incompleteness of any material or information supplied by the
Client's President, CFO and Director of Investor Relations to Company.
Independent Contractor. It is expressly agreed that Company is acting
as an independent contractor in performing its services hereunder. Client shall
carry no workers compensation insurance or any health or accident insurance on
Company or consultant's employees. Client shall not pay any contributions to
social security, unemployment insurance, Federal or state withholding taxes nor
provide any other contributions or benefits which might be customary in an
employer-employee relationship.
Non-Assignment. This Agreement shall not be assigned by either party
without the written consent of the other party.
Notices. Any notice to be given by either party to the other hereunder
shall be sufficient if in writing and sent by registered or certified mail,
return receipt requested, addressed to such party at the address specified on
the first page of this Agreement or such other address as either party may have
given to the other in writing.
Entire Agreement. The within agreement contains the entire agreement
and understanding between the parties and supersedes all prior negotiations,
agreements and discussions concerning the subject matter hereof.
Modification and Waiver. This Agreement may not be altered or modified
except by writing signed by each of the respective parties hereof. No breach or
violation of this Agreement shall be waived except in writing executed by the
party granting such waiver.
Ownership of leads obtained by Company. All leads provided to the
Client will become the property of the Client to utilize as Client sees fit.
Client has right to access the names, addresses and telephone numbers of those
leads that are sent information on the Client.
Law to Govern; Forum for Disputes. Any controversy or claim arising out
of or relating to this contract or its breach shall be settled by arbitration
administered by the American Arbitration Association, Massachusetts office, in
accordance with its Commercial Arbitration Rules as amended and judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
OTC Communications Corp.
By: //s// GEOFFREY EITEN
Geoffrey Eiten, President
Eagle Wireless International
By: //s// H. DEAN CUBLEY
H. Dean Cubley, Authorized Agent
SCHEDULE A-1 Payment for services and reimbursement of expenses.
SCHEDULE A-2 Grant of options in advance of services rendered and reimbursement
of expenses.
<PAGE>
SCHEDULE A-1
PAYMENT FOR SERVICES
AND REIMBURSEMENT OF EXPENSES
A. For the services to be rendered and performed by Company during the
term of the Agreement, Client shall pay to Company the sum of $5,000 per month,
payable on the first day of each month. The Client may adjust the level of
service after a minimum period of six months.
B. Client shall also reimburse Company for all reasonable and necessary
out-of-pocket expenses incurred in the performance of its duties for Client upon
presentation of statements setting forth in reasonable detail the amount of such
expenses. Company shall not incur any expense for any single item in excess of
$250 either verbally or written except upon the prior approval of the Client.
Company agrees that any travel, entertainment or other expense which it may
incur and which may be referable to more than one of its clients (including
Client) will be prorated among the clients for whom such expense has been
incurred.
OTC Communications Corp.
By: //s// GEOFFREY EITEN
Geoffrey Eiten, President
Eagle Wireless International
By: //s// H. DEAN CUBLEY
H. Dean Cubley, Authorized Agent
<PAGE>
SCHEDULE A-2
GRANT OF OPTIONS TO OTC COMMUNICATIONS CORP. IN ADVANCE OF SERVICES RENDERED*
A. Grant of Options and Option Exercise Price. As compensation for the
services to be rendered by Company hereunder, Client herewith issues and grants
to Company stock options (the "Options) to purchase an aggregate of 100,000
shares of Client's Common Stock at an exercise price of $1.00 per share. The
Options are exercisable upon and subject to the terms and conditions contained
herein. The Options are exercisable during the period commencing on the date
hereof and ending three years subsequent to the termination date of this
Agreement. Options are to be issued at market price day agreement is executed.
B. Manner of Exercise. Exercise of any of the Options by Company shall
be by written notice to Client accompanied by Company's certified or bank check
for the purchase price of the shares being purchased. Upon receipt of such
notice and payment, Client shall promptly cause to be issued, without transfer
or issue tax to the option holder or other person entitled to exercise the
option, the number of shares for which the Option has been exercised, registered
in the name of Company. Such shares, when issued, shall be fully paid and
non-assessable.
C. Option Shares. Company acknowledges that any shares which it may
acquire from Client pursuant to the exercise of the Options provided for herein
will not have been registered pursuant to the Securities Act of 1933, as amended
(the "Securities Act"), and therefore may not be sold or transferred by Company
except in the event that such shares are the subject of a registration statement
or any future sale or transfer is, in the opinion of counsel for Client, exempt
from such registration provisions. Company acknowledges that any shares which it
may acquire pursuant to the exercise of the Options will be for its own account
and for investment purposes only and not with a view to the resale or
redistribution of same. Company further consents that the following legend be
placed upon all certificates for shares of Common Stock which may be issued to
Company upon the exercise of the Options.
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION
IS NOT REQUIRED."
Company further consents that no stop transfer instructions being placed against
all certificates may not be issued to it upon the exercise of the Options.
<PAGE>
D. Adjustments in Option Shares.
(i) In the event that Client shall at any time sub-divide its
outstanding shares of Common Stock into a greater number of shares, the Option
purchase price in effect prior to such sub-division shall be proportionately
reduced and the number of shares of Common Stock purchasable shall be
proportionately increased. In case the outstanding shares of Common Stock of
Client shall be combined into a smaller number of shares, the Option purchase
price in effect immediately prior to such combination shall be proportionately
increased and the number of shares of Common Stock purchasable shall be
proportionately reduced.
(ii) In case of any reclassification or change of outstanding shares of
Common Stock issuable upon exercise of this Option (other than change in par
value, or from par value to no par value, or from no par value to par value, or
as a result or a subdivision or combination), or in case of any consolidation or
merger of the Client with or into another corporation (other than a merger in
which the Client is the continuing corporation and which does not result in any
reclassification or change of outstanding shares of Common Stock, other than a
change in number of the shares issuable upon exercise of the Option) or in case
of any sale or conveyance to another corporation of the property of the Client
as an entirety or substantially as an entirety, the Holder of this Option shall
have the right thereafter to exercise this Option into the kind and amount of
shares of stock and other securities and property receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a holder
of the number of shares of Common Stock of the Client for which the Option might
have been exercised immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. The above provisions shall similarly
apply to successive reclassifications and changes of shares of Common Stock and
to successive consolidations, mergers, sales or conveyances.
OTC Communications Corp.
By: //s// GEOFFREY EITEN
Geoffrey Eiten, President
Eagle Wireless International
By: //s// H. DEAN CUBLEY
H. Dean Cubley, Authorized Agent
*In addition to the compensation mentioned in Schedule A-1, OTC
Communications will receive the options in Schedule A-2. Fifty percent (50%) of
any profits OTC receives through the exercising of options will be credited to
the client's account while this contract is in force. However, the amount of
options exercised will be replaced by the client with the same number of
options, at an exercise price equal to the current market price of the stock at
the time of exercise. The replacement options will have a term of three years.
Should this agreement be terminated by Client, all outstanding options and any
credit balance held by the company shall remain an asset of the Company.
EXHIBIT 23.1
ARCHER & WEED
Special Project Counsel
4695 MacArthur Court, Suite 530, Newport Beach, California 92660
Telephone (949) 475-9086 Facsimile (949) 475-9087
Email: [email protected]
Writer's Direct Number
(949) 475-7730
March 10,1999
Board of Directors
Eagle Wireless International
910 Gemini Avenue
Houston, TX 77058-2704
RE: Consent to Use of Opinion in Form S-8 Registration Statement
Dear Members of the Board:
I hereby consent to the use of my opinion as an exhibit to the Form S-8
registration statement being filed by Eagle Wireless International.
Sincerely yours,
/s/ Richard O. Weed
Richard O. Weed
EXHIBIT 23.2
McManus & Co., P.C., Certified Public Accountants
188 Speedwell Avenue, Morris Plains, NJ 07950
Tel: 973-285-0012 Fax: 973-285-0939
E-mail: [email protected]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
On this seventeenth day of March 1999, we consent to the inclusion in this S-8
Registration Statement of our report dated November 30, 1998 on our audit of the
financial statements of Eagle Wireless International, Inc. We also consent to
the reference to our firm under the caption "Experts".
McManus & Co., P.C.
Certified Public Accountants
Morris Plains, New Jersey
