As filed with the Securities and Exchange Commission on June 12, 1998.
Registration No. 333-
_____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
________________________
WIRELESS DATA SOLUTIONS, INC.
(Exact Name of Registrant as Specified in its Charter)
___________________
Utah 93-0734888
(State or Other Jurisdiction of (I.R.S. Employer Identification Number)
Incorporation or Organization)
1016 Shores Acres Drive
Leesburg, Florida 34784
(Address of Principal Executive Offices) (Zip Code)
_______________________________
Consulting Agreement
Consulting Agreement
Consulting Agreement
(Full Title of the Plans)
MICHAEL B. McLAUGHLIN
President and Chief Executive Officer
Wireless Data Solutions, Inc.
1016 Shores Acres Drive
Leesburg, Florida 34784
(Name and Address of Agent for Service)
(352) 323-1295
(Telephone Number, Including Area Code, of Agent for Service)
With Copy to:
Holland & Hart LLP
215 South State Street, Suite 500
Salt Lake City, UT 84111-2346
(801) 595-7800
ATTENTION: P. CHRISTIAN ANDERSON, ESQ.
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>_____________________________________________________________________________
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities Be Price Per Offering Registration
to be Registered(1) Registered Share Price Fee
____________________________________________________________________________________
<S> <C> <C> <C> <C>
Consulting Agreement
under which David Wood
has the right to acquire
Common Stock, no par value 200,000 $0.335(2) $ 67,000 $19.77
Consulting Agreement under
which Tana Renze has the
right to acquire
Common Stock, no par value 50,000 $0.335(2) $ 16,750 $ 4.94
Consulting Agreement under
which Eric Wallsten has the
right to acquire
Common Stock, no par value 50,000 $0.335(2) $ 16,750 $ 4.94
______________________________________________
Total 300,000 -- $100,500 $29.65
</TABLE>
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement shall also cover any additional
shares of the Registrant's Common Stock, no par value (the "Common Stock"),
which are issued or become issuable under the Consulting Agreement to prevent
dilution resulting from any stock dividend, stock split, recapitalization or
other similar transaction.
(2) Estimated in accordance with Rule 457(h) under the Securities Act based
on the average of the bid and asked price of the Common Stock on June 9, 1998
as reported on the OTC Bulletin Board.
<PAGE>
PART II
Item 3. Incorporation of Certain Documents by Reference.
------------------------------------------------
The following documents filed by Wireless Data Solutions, Inc. (the
"Registrant") with the Commission are hereby incorporated by reference in this
Registration Statement:
(a) The Registrant's effective registration statement on Form 10-SB, as
amended, filed with the Commission on September 8, 1997 (the "Form 10-SB")
under the Securities Exchange Act of 1934, as amended, which contains audited
financial statements for the fiscal year ended September 30, 1997.
(b) The Registrant's Quarterly Report on Form 10-QSB for the quarter
ended December 31, 1997.
(c) The Registrant's Quarterly Report on Form 10-QSB for the quarter
ended March 31, 1998.
(d) The description of the Registrant's no par value common stock
contained in the Form 10-SB.
(e)All documents filed subsequent hereto pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold.
The consolidated financial statements of the Registrant as of September
30, 1997 and 1996, that are included in the Registrant's registration
statement on Form 10-SB and incorporated by reference in this Registration
Statement, have been audited by James B. Harned, independent auditor, as
stated in his report, which is incorporated herein by reference. Such
financial statements are, and audited financial statements to be included in
subsequently filed documents will be, incorporated herein in reliance upon the
reports of James B. Harned pertaining to such financial statements (to the
extent covered by consents filed with the Securities and Exchange Commission),
and upon the authority of such auditor as an expert in accounting and
auditing.
Item 4. Description of Securities.
--------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
---------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
------------------------------------------
Section 16-10a-902(1) of the Utah Revised Business Corporation Act
authorizes a Utah corporation to indemnify any director against liability
incurred in any proceeding if he or she acted in good faith and in a manner he
or she 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 or her conduct was unlawful.
Section 16-10a-902(4) prohibits a Utah corporation from indemnifying a
director in a proceeding by or in the right of the corporation in which the
director was adjudged liable to the corporation or in a proceeding in which
the director was adjudged liable on the basis that he or she improperly
received a personal benefit. Otherwise, Section 16-10a-902(5) allows
indemnification for reasonable expenses incurred in connection with a
proceeding by or in the right of the corporation.
Unless limited by the Articles of Incorporation, Section 16-10a-905
authorizes a director to apply for indemnification to the court conducting the
proceeding or another court of competent jurisdiction. Section 16-10a-907(1)
extends this right to officers of a corporation as well.
Unless limited by the Articles of Incorporation, Section 16-10a-903
requires that a corporation indemnify a director who was successful, on the
merits or otherwise, in defending any proceeding to which he or she was a
party against reasonable expense incurred in connection therewith. Section
16-10a-907(1) extends this protection to officers of a corporation as well.
Pursuant to Section 16-10a-904(1), a corporation may advance a director's
expenses incurred in defending any proceeding upon receipt of an undertaking
and a written affirmation of his or her good faith belief that he or she has
met the standard of conduct specified in Section 16-10a-902. Unless limited
by the Articles of Incorporation, Section 16-10a-907(2) extends this
protection to officers, employees, fiduciaries and agents of a corporation as
well.
Regardless of whether a director, officer, employee, fiduciary or agent
has the right to indemnify under the Utah Revised Business Corporation Act,
Section 16-10a-908 allows a corporation to purchase and maintain insurance on
his or her behalf against liability resulting from his or her corporate role.
Article IV of the Company's Articles of Incorporation provides for the
indemnification, to the fullest extent permitted by the Utah Revised Business
Corporation Act or any other applicable law as in effect from time to time, of
any director of the Company for liability to the corporation or to its
shareholders for monetary damages for any action taken, or any failure to take
any action, as a director.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
<PAGE>
Item 8. Exhibits.
--------
Regulation S-K
Exhibit Document
- -------------- ---------------
4.1 Consulting Agreement dated June 9, 1998, between Wireless
Data Solutions, Inc. and David Wood.
4.2 Consulting Agreement dated May 22, 1998, between Wireless
Data Solutions, Inc. and Tana Renze
4.3 Consulting Agreement dated May 27, 1998 between Wireless
Data Solutions, Inc. and Eric Wallsten
4.4* Articles of Incorporation of Gold Genie Worldwide, Inc.,
filed on March 7, 1984
4.5* Certificate of Amendment to the Articles of Incorporation
of Products, Services and Technology Corporation, filed on
June 13, 1988
4.6* Articles of Domestication of Products, Services and
Technology Corporation, filed on June 2, 1997
4.7* Articles of Amendment to the Articles of Incorporation of
Products, Services and Technology Corporation, filed on
June 13, 1997
4.8* Bylaws of Products, Services and Technology Corporation
dated as of June 2, 1997
5 Opinion of Holland & Hart LLP, as to the legality of
securities being registered.
23.1 Consent of James B. Harned, Independent Auditor.
23.2 Consent of Holland & Hart LLP (contained in Exhibit 5).
24 Power of Attorney (included on page 7 of this Registration
Statement).
* Incorporated by reference herein to the Company's Form 10-SB, as amended,
dated as of September 30, 1997.
<PAGE>
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 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.
(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.
(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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this 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.
(c) 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 foregoing provisions, 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 of 1933, 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 Leesburg, State of Florida, on June 12, 1998.
Wireless Data Solutions, Inc.
/s/ Michael B. McLaughlin
------------------------------
Michael B. McLaughlin
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL PERSONS by these presents that each person whose signature to
this Registration Statement appears below hereby constitutes and appoints
Michael B. McLaughlin and Patrick Makovec, and each of them, as his true and
lawful attorney-in-fact and agent, with full power of substitution, to sign on
his behalf individually and in the capacity stated below, and to perform any
acts necessary to be done in order to file all amendments and post-effective
amendments to this Registration Statement, and any and all instruments or
documents filed as part of or in connection with this Registration Statement
or the amendments thereto and each of the undersigned does hereby ratify and
confirm all that such attorney-in-fact and agent, or his substitutes, shall do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed below by the following persons in the
capacities indicated on June 12, 1998:
Signature Title
- ------------------------- --------------
/s/ Michael B. McLaughlin President and Chief Executive Officer
- -------------------------- (Principal Executive Officer) and Director
Michael B. McLaughlin
/s/Patrick Makovec Chief Financial Officer and Director
- ------------------- (Principal Financial and Accounting
Patrick Makovec Officer)
/s/Brian Blankenburg Director
- ----------------------
Brian Blankenburg
<PAGE>
Wireless Data Solutions
EXHIBIT INDEX
Regulation S-K
Exhibit Document
- -------------- ---------------
4.1 Consulting Agreement dated June 9, 1998, between Wireless
Data Solutions, Inc. and David Wood.
4.2 Consulting Agreement dated May 22, 1998, between Wireless
Data Solutions, Inc. and Tana Renze
4.3 Consulting Agreement dated May 27, 1998 between Wireless
Data Solutions, Inc. and Eric Wallsten
4.4* Articles of Incorporation of Gold Genie Worldwide, Inc.,
filed on March 7, 1984
4.5* Certificate of Amendment to the Articles of Incorporation
of Products, Services and Technology Corporation, filed on
June 13, 1988
4.6* Articles of Domestication of Products, Services and
Technology Corporation, filed on June 2, 1997
4.7* Articles of Amendment to the Articles of Incorporation of
Products, Services and Technology Corporation, filed on
June 13, 1997
4.8* Bylaws of Products, Services and Technology Corporation
dated as of June 2, 1997
5 Opinion of Holland & Hart LLP, as to the legality of
securities being registered.
23.1 Consent of James B. Harned, Independent Auditor.
23.2 Consent of Holland & Hart LLP (contained in Exhibit 5).
24 Power of Attorney (included on page 7 of this Registration
Statement).
* Incorporated by reference herein to the Company's Form 10-SB, as amended,
dated as of September 30, 1997.
Exhibit 4.1
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made this 9th day of June,
1998, by and among Wireless Data Solutions, Inc., a Florida Corporation, and
its successors and assigns, whose principle place of business is located at
1016 Shore Acres Drive, Leesburg, Florida 34784 (the "Company") and David A.
Wood, Jr. (the "Consultant") whose principle place of business is 2100 Rexford
Road, Suite 422, Charlotte, North Carolina 28211. This Agreement shall be
considered executed upon the signing of both parties (the "Company" and the
"Consultant").
AGREEMENT
1. Consultant Services. The Company acknowledges the employment of
Consultant and the Consultant hereby acknowledges acceptance of such
employment, and will perform the services listed in Paragraph #2. These
services performed by the Consultant hereunder will be personally rendered by
the Consultant except those persons normally employed or contracted by the
Consultant in rendering these services.
2. Services to be Performed. Development, implementation and maintenance
of investor relations and market awareness program, through the following
methods, without limitation: direct mail information, national financial
publications, mass e-mail program, financial internet publications, radio and
television programs, newsletter publications, press releases, interface with
stockbrokers and market makers, and assist in preparation of Company
information materials.
3. Compensation. In consideration of the services performed by the
Consultant hereunder, shares of the Company's common stock shall be issued to
the Consultant according to the following schedule:
Name of Consultant Number of shares
------------------ -----------------
David A. Wood, Jr. 200,000 6 months
4. Expenses. The Company shall be responsible for printing of business
plans, travel, and out-of-pocket expenses incurred by the Company, and any
budget expenses with prior approval from Company not usually performed by
Consultant. The Consultant will be responsible for expenses incurred as
described under Item #2, "Services to be Performed," and as stated in the
Consultant Agreement between the two parties dated 4/20/98 under Item #4
regarding SEC forms.
5. Period of Performance. The period of performance under this Agreement
shall be for a term of six (6) months from the date hereto. The compensation
for the Consultant will be reevaluated for the last six (6) months of this
Agreement.
6. Contractual Agreement. In performing the services under this
Agreement, the Consultant shall operate as, have status of, an independent
contractor.
7. Limitation on Nature of Services. The services to be performed by the
Consultant and paid for by issuance of share of common stock of the Company
shall not be for services related to any "capital raising" transaction.
8. Securities Laws. Consultant represents to the Company that he is not a
member of the National Association of Securities Dealers, Inc., but is
nevertheless knowledgeable about federal and state securities laws.
Consultant further represents and warrants that he will not violate any
applicable securities law in rendering the services pursuant to this Agreement
and will hold the Company harmless with respect to any breach of the
representation. The Company and the Consultant shall fully comply with any
and all federal and state securities laws, rules and regulations.
9. Company Information and Indemnification. The Consultant acknowledges
that in the course of performance of services under this agreement, he will
have access to confidential information concerning the Company, its business
and operations. The Consultant agrees not to disclose confidential
information to third parties or use any confidential information for any
purpose other than the performance of this Agreement. The Consultant must at
all times rely on the accuracy and completeness of information supplied by the
Company, its officers, directors, agents, and employees. Therefore the
Company agrees to indemnify, hold harmless, and defend the Consultant under
this Agreement at the Company's expense, in any proceeding or suit which may
arise out of and/or due to the inaccuracy or incompleteness of such material
supplied by the Company to the Consultant. Consultant agrees to indemnify,
hold harmless, and defend the Company in any proceeding or suit, which may
arise out of Consultant's misrepresentation of information or material
supplied by the Company.
10. Corporate Status. The Company acknowledges that it is a duly
organized Corporation, validly existing and in good standing under the laws of
the State of Utah.
11. Sophisticated Investors. The Consultant represents and warrants that
by reason of income, net assets, education background and business acumen, he
has the experience and knowledge to evaluate the risks and merits attendant to
an investment in shares of common stock in the Company, either singly or
through the aid and assistance of a professional, and is fully capable of
bearing the economic risk of loss of his/her total investment in the Company.
The Consultant further represents and warrants that he is familiar with the
provisions of S-8 issued stock and will comply with all applicable law in the
sale of the shares received as compensation under this Agreement.
12. Further Assurances. At any time, and from time to time, after the
execution hereof, each party will execute such additional instruments and take
such action as may be reasonably requested by the other party to carry out the
intent and purpose of this Agreement.
13. Entire Agreement. This agreement constitutes the entire Agreement
between Wireless Data Solutions, Inc. ("the Company") and David A. Wood, Jr.
(the "Consultant").
COMPANY: Wireless Data Solutions, Inc.
By: /s/ Michael McLaughlin DATE: 6/9/98
---------------------- -------------------
TITLE: CEO
-----------------------
CONSULTANT: David A. Wood, Jr.
By: /s/ David A. Wood, Jr. DATE: 6/9/98
----------------------- ---------------------
David A. Wood, Jr.
Exhibit 4.2
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made this 22nd day of
May, 1998, by and between Wireless Data Solutions, Inc., a Utah corporation,
and its successors and assigns, whose principal place of business is located
at 1016 Shore Acres Drive, Leesburg, Florida 34748 (the "Company") and Tana
Renze, an individual with an address of 3704 The Strand #3, Manhattan Beach,
CA 90266(the "Consultant").
RECITALS
WHEREAS, the Company desires to engage the Consultant to provide services
at the request of and subject to the satisfaction of the Company; and
WHEREAS, the Company and the Consultant intend that this Agreement shall
be a "written compensation agreement" as defined in Rule 405 of the Securities
and Exchange Commission (the "SEC") pursuant to which the Company may issue
"freely tradeable" shares of its common stock as payment for services rendered
pursuant to the S-8 Registration Statement to be filed with the SEC by the
Company.
NOW THEREFORE, in the consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
1. Consultant Services. The Company hereby engages the Consultant
and the Consultant hereby accepts such engagement and agrees to perform the
services requested by management of the Company, to the Company's satisfaction
during the term hereof. Subject to the terms and condition of this Agreement,
any and all services performed by the Consultant shall be performed in
accordance with the requests of the management of the Company. The services
performed by Consultant shall be personally rendered by the Consultant, except
that those persons normally employed by the Consultant in rendering services
to others shall be allowed to perform functions ancillary to the Consultant's
services to be performed hereunder.
2. Compensation. In consideration of services performed by the
Consultant hereunder, the Company shall pay not more than an aggregate of
50,000 shares of the Company's no part value common stock (the "Shares") to
the Consultant. The Shares shall be issued incrementally as and if services
are rendered by the Consultant (in amounts as determined by the Company in its
discretion) over a period beginning on the date hereof and ending 60 days
after the date hereof.
3. Delivery of Shares. Subject to the filing and effectiveness of
the S-8, as provided for and defined in Paragraph 4 of this Agreement, and any
applicable state securities filings covering the Shares, and also subject to
Paragraph 5 of this Agreement, one or more certificates representing the
Shares shall be delivered to the Consultant by the Company in such increments
as the Company shall choose in its sole discretion.
4. Preparation of Securities Registration Forms; Payment of Fees.
The parties understand and agree that the issuance of the Shares shall occur
after the filing with the Securities and Exchange Commission (the "SEC") and
effectiveness of all required Registration Statements and other necessary
securities documents, including without limitation, a Form S-8 Registration
Statement to be filled under the Securities Exchange Act of 1934, as amended
(the "S-8"). Upon execution of this Agreement, the Company shall take such
actions as are reasonably necessary to effect the preparation and filing of
the S-8, including the engagement of the services of a competent professional
or professionals.
5. Additional Compensation. The company shall not be obligated to
pay any additional compensation to the Consultant in connection herewith.
6. Expenses. The Company shall initially pay for all ordinary and
necessary out-of-pocket expenses incurred by Consultant on behalf of the
Company prior to delivery of the Shares to the Consultant pursuant to
Paragraph 3 hereof, in connection with the services performed or to be
performed by the Consultant hereunder. The Consultant shall furnish such
receipts or other evidence of payment of such expenses as may be reasonably
requested by the Company to substantiate the same. Following delivery of the
Shares pursuant to Paragraph 3 hereof, the Consultant shall reimburse the
Company for all amounts initially paid by the Company for such ordinary and
necessary out-of-pocket expenses incurred by the Consultant on behalf of the
Company pursuant to this paragraph.
7. Limitation of Nature of Services. None of the services performed
or to be performed by the Consultant and paid for by the issuance of the
Shares are or shall be services related to any "capital raising" transaction.
8. Confidential Information. The Consultant acknowledges that in
the course of performance of services under this Agreement, it has had or will
have access to and has acquired or will acquire Confidential Information (as
hereinafter described) concerning the Company, its business and operations.
The Consultant that he/she will not disclose any Confidential Information to
third parties or use any Confidential Information for any purpose other than
the performance of this Agreement except as disclosure may be necessary or
appropriate in the course of performing this Agreement. For purposes of this
Agreement, the term "Confidential Information" shall include all information
relating to the business of the Company and all processes, services and other
activities engaged in by the Company during the term of this Agreement;
provided, however, that the term "Confidential Information" shall not include
any information which at the time of disclosure to the Consultant is in the
public domain, or which subsequently becomes a part of the public domain by
publication or otherwise through no fault of the Consultant, or which is
subsequently disclosed to the Consultant or its employees by a third party not
in violation of any rights or obligations owed by such third party to the
Company.
9. Indemnification. Each party to this Agreement (hereinafter an
"Indemnifying Party") hereby agrees to indemnify the other party to this
Agreement (hereinafter an "Indemnified Party") for and hold the indemnified
Party harmless against the following: (a) any and all loss, liability or
damage resulting from any breach or nonfullment of any agreement or obligation
of the Indemnifying Party under this Agreement; and (b) any and all actions,
suits, proceedings, damages, assessments, judgments, settlements, costs and
expenses, including reasonable attorneys' fees, incurred by the Indemnifying
Party as a result of the failure or refusal of the Indemnifying Party to
defend any claim incident to or otherwise honor the foregoing provisions after
having been given notice of and an opportunity to do so.
If any claim or liability shall be asserted against an Indemnified
Party which would give rise to a claim by the Indemnified Party against an
Indemnifying Party for indemnification under the provisions of this
Paragraph 9, the Indemnified Party shall promptly notify the Indemnifying
Party in writing of the same and, subject to the prior approval of the
Indemnified Party, which approval shall not be unreasonably withheld, the
Indemnifying Party shall be entitled at its own expense to compromise or
defend any such claim. The Indemnifying Party shall keep the Indemnified
Party informed of developments with respect to such claim, demand or
litigation without the prior written consent of the Indemnifying Party, in
breach of which the Indemnified Party shall have no right to indemnification
under this Agreement in respect of such compromise or settlement.
10. Term; Expiration. The "Effective Date" of this Agreement is the
date of execution hereof. This agreement shall remain in effect until
expiration as hereinafter provided. This Agreement shall expire on the date
that is six (6) months after the Effective Date. Notwithstanding the
foregoing, expiration of this Agreement pursuant to this Paragraph shall not
alter or excuse the parties' obligations under Paragraphs 3, 4, or 9 of this
Agreement.
11. Independent Contractors. The Company and the Consultant agrees
that the Consultant is an independent contractor for all services performed
and to be performed under the terms and conditions of the Agreement and shall
not be deemed to be the Company's agent for any purpose whatsoever and are not
granted any right or authority under this Agreement to assume or create any
obligation or liability, whether express or implied, absolute or contingent,
on the Company's behalf, or to bind the Company's in any manner. The
Consultant shall be liable for any FICA taxes, withholding or other similar
taxes or charges arising from the issuance of any Shares of the Company's
common stock to the Consultant or any other compensation received hereunder,
and the Consultant shall indemnify and hold harmless the Company therefrom, it
is understood by the parties in determining the amount of compensation for
services rendered by the Consultant hereunder.
12. Representation and Warranties of Consultants. The Consultant
individually represents and warrants to, and covenants with, the Company as
follows:
13. Personal Nature of Services. The services performed by the
Consultant have been personally rendered by the Consultant, and no one acting
for or on behalf of the Consultant.
13.1 Sophisticated Investors. The Consultant represents and
warrants that by reason of income, net assets, education background and
business acumen, he has the experience and knowledge to evaluate the risks and
merits attendant to an investment in the Shares, either singly or through the
aid and assistance of a competent professional, and is fully capable of
bearing the economic risk of loss of his/her total investment in the Company.
13.2 Limitation on Service. None of the services rendered or
to be rendered by the Consultants and paid for by the issuance of the Shares
shall be services related to any "capital raising" transaction.
13.3 Valid Obligation; No Conflicts. Execution of this
Agreement and performance of services hereunder by the Consultant constitutes
a valid and binding obligation of the Consultant and his performance hereunder
will not violate any other agreement to which such Consultant is a party.
14. Miscellaneous Provisions.
14.1 Notices. All notices or other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be considered as properly given or made if hand delivered, mailed from within
the United States by certified or registered mail, or sent by prepaid telegram
to the applicable addresses appearing in the preamble to this Agreement, or to
such other addresses as a party may have designated by like notice forwarded
to the other parties hereto. All notices, except notices of change of
address, shall be deemed given when mailed or hand delivered and notice of
change of address shall be deemed given when received.
14.2 Further Assurances. At any time, and from time to time,
after the execution hereof, each party will execute such additional
instruments and take such action as may be reasonably requested by the other
party to carry out the intent and purposes of this Agreement.
14.3 Binding Agreement; Nonassignability. Each of the
provisions and agreements herein contained shall be binding upon and inure to
the benefits of the personal representatives, heirs, devises, successors and
permitted assigns of the respective parties hereto; assigned, without the
express written consent of the Company.
14.4 Entire Agreement. This Agreement, and the other documents
referenced herein, constitute the entire understanding of the parties hereto
with respect to the subject matter hereof and supersedes and cancels any prior
agreement, representation or communication, whether oral or written, between
the parties relating to the transactions contemplated herein or subject matter
hereof. No amendment, modification or alteration of the terms hereof and duly
approved and executed by each of the parties hereto.
14.5 Severability. Every provision of this Agreement is
intended to be severable. If any term or provision hereof is illegal or
invalid for any reason whatever, such illegality or invalidity shall not
affect the validity of the remainder of the Agreement.
14.6 Headings. The headings of this Agreement are inserted
for convenience and identification only, and are in no way intended to
describe, interpret, define or limit the scope, extent or intend hereof.
14.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
14.8 Governing Law. This Agreement, and the application or
interpretation hereof, shall be governed exclusively by its terms and by the
laws of the State of Utah. Venue for any action hereunder shall be the State
of Florida.
14.9 Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or a breach hereof, shall be settled by
arbitration, in accordance with the rules of the American Arbitration
Association, and the parties hereto agree to submit any such claim or
controversy to a competent arbitration body for resolution.
14.10 Legal Fees and Costs. If any action is initiated by any
party to this Agreement against another, arising out of or relating to the
alleged performance or nonperformance of any right or obligation established
herein, or any dispute concerning the same, any and all fees, costs and
expenses reasonably incurred by each successful party or his assigns, or its
legal counsel in investigation, preparing for, prosecuting, defending against,
or providing evidence, producing documents or taking any other action in
respect of, such action shall be the joint and several obligation of and shall
be paid or reimbursed by the unsuccessful party.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement the day and year first written above.
WIRELESS DATA SOLUTIONS, INC.
By: /s/ Mike McLaughlin
---------------------------
Mike McLaughlin, President
/s/ Tana Renze
--------------------------
Tana Renze, Consultant
Amendment
- ----------
1. Services commencing May 18, 1998
2. Paragraph 2 "Compensations"
In consideration for services performed [eligible] 30 days described
as "Market research" the Company shall pay the value of $10,000 in stock, at
the value as of the date of this Agreement, which equals 25,000 shares.
Exhibit 4.3
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made this 27th day of May,
1998, by and between Wireless Data Solutions, Inc., a Utah corporation, and
its successors and assigns, whose principal place of business is located at
1016 Shore Acres Drive, Leesburg, Florida 34748 (the "Company") and Eric
Wallsten, an individual with an address of Loma Bonita 130, Lomas De Vista -
Hermosa, Mexico City (the "Consultant").
RECITALS
WHEREAS, the Company desires to engage the Consultant to provide services
at the request of and subject to the satisfaction of the Company; and
WHEREAS, the Company and the Consultant intend that this Agreement shall
be a "written compensation agreement" as defined in Rule 405 of the Securities
and Exchange Commission (the "SEC") pursuant to which the Company may issue
"freely tradeable" shares of its common stock as payment for services rendered
pursuant to the S-8 Registration Statement to be filed with the SEC by the
Company.
NOW THEREFORE, in the consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
1. Consultant Services. The Company hereby engages the Consultant
and the Consultant hereby accepts such engagement and agrees to perform the
services requested by management of the Company, to the Company's satisfaction
during the term hereof. Subject to the terms and condition of this Agreement,
any and all services performed by the Consultant shall be performed in
accordance with the requests of the management of the Company. The services
performed by Consultant shall be personally rendered by the Consultant, except
that those persons normally employed by the Consultant in rendering services
to others shall be allowed to perform functions ancillary to the Consultant's
services to be performed hereunder.
2. Compensation. In consideration of services performed by the
Consultant hereunder, the Company shall pay not more than an aggregate of
50,000 shares of the Company's no par value common stock (the "Shares") to the
Consultant. The Shares shall be issued incrementally as and if services are
rendered by the Consultant (in amounts as determined by the Company in its
discretion) over a period beginning on the date hereof and ending 60 days
after the date hereof.
3. Delivery of Shares. Subject to the filing and effectiveness of
the S-8, as provided for and defined in Paragraph 4 of this Agreement, and any
applicable state securities filings covering the Shares, and also subject to
Paragraph 5 of this Agreement, one or more certificates representing the
Shares shall be delivered to the Consultant by the Company in such increments
as the Company shall choose in its sole discretion.
4. Preparation of Securities Registration Forms; Payment of Fees.
The parties understand and agree that the issuance of the Shares shall occur
after the filing with the Securities and Exchange Commission (the "SEC") and
effectiveness of all required Registration Statements and other necessary
securities documents, including without limitation, a Form S-8 Registration
Statement to be filled under the Securities Exchange Act of 1934, as amended
(the "S-8"). Upon execution of this Agreement, the Company shall take such
actions as are reasonably necessary to effect the preparation and filing of
the S-8, including the engagement of the services of a competent professional
or professionals.
5. Additional Compensation. The company shall not be obligated to
pay any additional compensation to the Consultant in connection herewith.
6. Expenses. The Company shall initially pay for all ordinary and
necessary out-of-pocket expenses incurred by Consultant on behalf of the
Company prior to delivery of the Shares to the Consultant pursuant to
Paragraph 3 hereof, in connection with the services performed or to be
performed by the Consultant hereunder. The Consultant shall furnish such
receipts or other evidence of payment of such expenses as may be reasonably
requested by the Company to substantiate the same. Following delivery of the
Shares pursuant to Paragraph 3 hereof, the Consultant shall reimburse the
Company for all amounts initially paid by the Company for such ordinary and
necessary out-of-pocket expenses incurred by the Consultant on behalf of the
Company pursuant to this paragraph.
7. Limitation of Nature of Services. None of the services performed
or to be performed by the Consultant and paid for by the issuance of the
Shares are or shall be services related to any "capital raising" transaction.
8. Confidential Information. The Consultant acknowledges that in
the course of performance of services under this Agreement, it has had or will
have access to and has acquired or will acquire Confidential Information (as
hereinafter described) concerning the Company, its business and operations.
The Consultant that he/she will not disclose any Confidential Information to
third parties or use any Confidential Information for any purpose other than
the performance of this Agreement except as disclosure may be necessary or
appropriate in the course of performing this Agreement. For purposes of this
Agreement, the term "Confidential Information" shall include all information
relating to the business of the Company and all processes, services and other
activities engaged in by the Company during the term of this Agreement;
provided, however, that the term "Confidential Information" shall not include
any information which at the time of disclosure to the Consultant is in the
public domain, or which subsequently becomes a part of the public domain by
publication or otherwise through no fault of the Consultant, or which is
subsequently disclosed to the Consultant or its employees by a third party not
in violation of any rights or obligations owed by such third party to the
Company.
9. Indemnification. Each party to this Agreement (hereinafter an
"Indemnifying Party") hereby agrees to indemnify the other party to this
Agreement (hereinafter an "Indemnified Party") for and hold the indemnified
Party harmless against the following: (a) any and all loss, liability or
damage resulting from any breach or nonfullment of any agreement or obligation
of the Indemnifying Party under this Agreement; and (b) any and all actions,
suits, proceedings, damages, assessments, judgments, settlements, costs and
expenses, including reasonable attorneys' fees, incurred by the Indemnifying
Party as a result of the failure or refusal of the Indemnifying Party to
defend any claim incident to or otherwise honor the foregoing provisions after
having been given notice of and an opportunity to do so.
If any claim or liability shall be asserted against an Indemnified Party
which would give rise to a claim by the Indemnified Party against an
Indemnifying Party for indemnification under the provisions of this
Paragraph 9, the Indemnified Party shall promptly notify the Indemnifying
Party in writing of the same and, subject to the prior approval of the
Indemnified Party, which approval shall not be unreasonably withheld, the
Indemnifying Party shall be entitled at its own expense to compromise or
defend any such claim. The Indemnifying Party shall keep the Indemnified
Party informed of developments with respect to such claim, demand or
litigation without the prior written consent of the Indemnifying Party, in
breach of which the Indemnified Party shall have no right to indemnification
under this Agreement in respect of such compromise or settlement.
10. Term; Expiration. The "Effective Date" of this Agreement is the
date of execution hereof. This agreement shall remain in effect until
expiration as hereinafter provided. This Agreement shall expire on the date
that is six (6) months after the Effective Date. Notwithstanding the
foregoing, expiration of this Agreement pursuant to this Paragraph shall not
alter or excuse the parties' obligations under Paragraphs 3, 4, or 9 of this
Agreement.
11. Independent Contractors. The Company and the Consultant agrees
that the Consultant is an independent contractor for all services performed
and to be performed under the terms and conditions of the Agreement and shall
not be deemed to be the Company's agent for any purpose whatsoever and are not
granted any right or authority under this Agreement to assume or create any
obligation or liability, whether express or implied, absolute or contingent,
on the Company's behalf, or to bind the Company's in any manner. The
Consultant shall be liable for any FICA taxes, withholding or other similar
taxes or charges arising from the issuance of any Shares of the Company's
common stock to the Consultant or any other compensation received hereunder,
and the Consultant shall indemnify and hold harmless the Company therefrom, it
is understood by the parties in determining the amount of compensation for
services rendered by the Consultant hereunder.
12. Representation and Warranties of Consultants. The Consultant
individually represents and warrants to, and covenants with, the Company as
follows:
13. Personal Nature of Services. The services performed by the
Consultant have been personally rendered by the Consultant, and no one acting
for or on behalf of the Consultant.
13.1 Sophisticated Investors. The Consultant represents and
warrants that by reason of income, net assets, education background and
business acumen, he has the experience and knowledge to evaluate the risks and
merits attendant to an investment in the Shares, either singly or through the
aid and assistance of a competent professional, and is fully capable of
bearing the economic risk of loss of his/her total investment in the Company.
13.2 Limitation on Service. None of the services rendered or
to be rendered by the Consultants and paid for by the issuance of the Shares
shall be services related to any "capital raising" transaction.
13.3 Valid Obligation; No Conflicts. Execution of this
Agreement and performance of services hereunder by the Consultant constitutes
a valid and binding obligation of the Consultant and his performance hereunder
will not violate any other agreement to which such Consultant is a party.
14. Miscellaneous Provisions.
14.1 Notices. All notices or other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be considered as properly given or made if hand delivered, mailed from within
the United States by certified or registered mail, or sent by prepaid telegram
to the applicable addresses appearing in the preamble to this Agreement, or to
such other addresses as a party may have designated by like notice forwarded
to the other parties hereto. All notices, except notices of change of
address, shall be deemed given when mailed or hand delivered and notice of
change of address shall be deemed given when received.
14.2 Further Assurances. At any time, and from time to time,
after the execution hereof, each party will execute such additional
instruments and take such action as may be reasonably requested by the other
party to carry out the intent and purposes of this Agreement.
14.3 Binding Agreement; Nonassignability. Each of the
provisions and agreements herein contained shall be binding upon and inure to
the benefits of the personal representatives, heirs, devises, successors and
permitted assigns of the respective parties hereto; assigned, without the
express written consent of the Company.
14.4 Entire Agreement. This Agreement, and the other
documents referenced herein, constitute the entire understanding of the
parties hereto with respect to the subject matter hereof and supersedes and
cancels any prior agreement, representation or communication, whether oral or
written, between the parties relating to the transactions contemplated herein
or subject matter hereof. No amendment, modification or alteration of the
terms hereof and duly approved and executed by each of the parties hereto.
14.5 Severability. Every provision of this Agreement is
intended to be severable. If any term or provision hereof is illegal or
invalid for any reason whatever, such illegality or invalidity shall not
affect the validity of the remainder of the Agreement.
14.6 Headings. The headings of this Agreement are inserted
for convenience and identification only, and are in no way intended to
describe, interpret, define or limit the scope, extent or intend hereof.
14.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
14.8 Governing Law. This Agreement, and the application or
interpretation hereof, shall be governed exclusively by its terms and by the
laws of the State of Utah. Venue for any action hereunder shall be the State
of Florida.
14.9 Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or a breach hereof, shall be settled by
arbitration, in accordance with the rules of the American Arbitration
Association, and the parties hereto agree to submit any such claim or
controversy to a competent arbitration body for resolution.
14.10 Legal Fees and Costs. If any action is initiated by any
party to this Agreement against another, arising out of or relating to the
alleged performance or nonperformance of any right or obligation established
herein, or any dispute concerning the same, any and all fees, costs and
expenses reasonably incurred by each successful party or his assigns, or its
legal counsel in investigation, preparing for, prosecuting, defending against,
or providing evidence, producing documents or taking any other action in
respect of, such action shall be the joint and several obligation of and shall
be paid or reimbursed by the unsuccessful party.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement the day and year first written above.
WIRELESS DATA SOLUTIONS, INC.
By: /s/ Michael McLaughlin
---------------------------
Mike McLaughlin, President
/s/ Eric Wallsten
----------------------------
Erik Wallsten, Consultant
Holland & Hart LLP
ATTORNEYS AT LAW
SUITE 500
215 SOUTH STATE STREET
SALT LAKE CITY, UTAH 84111-2346
DENVER * ASPEN TELEPHONE (801) 595-7800
BOULDER * COLORADO SPRINGS FACSIMILE (801) 364-9124
DENVER TECH CENTER
BILLINGS * BOISE
CHEYENNE * JACKSON HOLE
SALT LAKE CITY
June 11, 1998
Wireless Data Solutions, Inc.
1016 Shores Acres Drive
Leesburg, Florida 34748
Ladies and Gentlemen:
We have acted as counsel to Wireless Data Solutions, Inc., a Utah
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933 (the "Act") of 300,000 shares of the Company's common
stock, no par value (the "Shares"), to be offered upon the terms and subject
to the conditions set forth in a Consulting Agreement between the Company and
David Wood dated as of April 20, 1998, a Consulting Agreement between the
Company and Tana Renze dated as of May 22, 1998 and a Consulting Agreement
between the Company and Eric Wallsten dated as of May 27, 1998 (collectively,
the "Consulting Agreements").
In connection therewith, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of the Certificate of
Incorporation of the Company, the Bylaws of the Company, the Consulting
Agreements, records of relevant corporate proceedings with respect to the
offering of the Shares and such other documents, instruments and corporate
proceedings with respect to the offering of the Shares and such other
documents, instruments and corporate records as we have deemed necessary or
appropriate for the expression of the opinion contained herein. We have also
reviewed the Company's Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission on June
11, 1998 with respect to the Shares.
We have assumed the authenticity and completeness of all records,
certificates and other instruments submitted to us as originals, the
conformity to original documents of all records, certificates and other
instruments submitted to us as copies, the authenticity and completeness of
the originals of those records, certificates and other instruments submitted
to us as copies and the correctness of all statements of fact contained in all
records, certificates and other instruments that we have examined.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued in accordance with the terms of the
Consulting Agreements, upon the performance of all services to be rendered in
consideration therefor, will be validly issued, fully paid and non-assessable.
The opinion expressed herein is based solely upon and is limited to the
provisions of the Utah Revised Business Corporation Act and the federal laws
of the United States of America, to the extent applicable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Holland & Hart LLP
James J. Harned
Certified Public Accountant
1316 Christopher Court
Bel Air, Maryland 21014
Bus.: (410) 838-5948 Fax: (410) 838-1843
Consent of Independent Auditor
I consent to the reference to my firm as expert in Part II, Item 3 of the
Registration Statement (Form S-8) pertaining to Wireless Data Solutions, Inc.
Consulting Agreement, and to the incorporation by reference therein of my
report with respect to the financial statements of Wireless Data Solutions,
Inc. incorporated by reference to its Annual Report (Form 10SB), filed with
the Securities and Exchange Commission.
/s/ James J. Harned
James J. Harned
C.P.A.
Bel Air, Maryland
June 10, 1998
