Air Water International Corp – ‘10KSB’ for 9/30/02 – EX-10.12

On:  Friday, 2/14/03, at 4:31pm ET   ·   For:  9/30/02   ·   Accession #:  1116502-3-194   ·   File #:  0-30405

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Annual Report — Small Business   —   Form 10-KSB
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 10KSB       Annual Report                                         50    221K 
 2: EX-10.12    Consulting Agreement                                   9     45K 
 3: EX-99.1     Zwebner Certification                                  1      5K 
 4: EX-99.2     Orgil Certification                                    1      5K 

EX-10.12   —   Consulting Agreement

EX-10.12
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                                                                 EXHIBIT 10.12

CONSULTING ENGAGEMENT AGREEMENT 

   THIS ENGAGEMENT AGREEMENT made as of the November 2, 2001, by and
between; WORLD WIDE WIRELESS COMMUNICATIONS INC , whos principal place of       
business is ; suite 6K 407, Lincoln Road, Miami Beach, Florida 33139_(hereafter 
referred to as the "company")                                                   

And 

         OVERSEAS DEVELOPMENT HOLDINGS LIMITED, of Suite 16, 6th floor, 22 Nitza
Boulevard, Netanya Israel, a BVI corporation, represented by Michael J Zwebner  
(the "Consultant")                                                              

W I T N E S S E T H : 

     WHEREAS, the Company wishes to assure itself of the services of the
Consultant, and the Consultant wishes to serve the Company, upon the terms and  
conditions hereinafter set forth.                                               

 NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto, intending to be legally   
bound, hereby agree as follows:                                                 

1. Engagement Term.                                                             

1.1 The Company agrees to engage the Consultant, and the Consultant agrees to   
serve the Company, for the term set forth in Section 1.2, in the position and   
with the responsibilities, duties and authority set forth in Section 2 and on   
the other terms and conditions set forth in this Agreement.                     

1.2 The term of the Consultant's engagement under this Agreement shall be for a 
period of 3 (three) years, the period commencing on the date hereof and         
continuing through the end of October 31st 2004, unless sooner terminated in    
accordance with this Agreement.                                                 

2. Position, Duties.                                                            

The Consultant shall serve as International Consulting Executive of             
the Company.  The Consultant shall have such duties and                         
responsibilities as the Chief Executive Officer of the Company, or              
his or her designee or successor shall assign to the Consultant.                
The Consultant shall perform her duties and responsibilities                    
hereunder, faithfully and diligently.  The Consultant shall report              
to the Board of Directors of the Company.  The Consultant shall                 
devote sufficient business time and attention to the performance of             
his duties and responsibilities hereunder.  The Consultant hereby               
represents that he is not bound by any confidentiality agreements or            
restrictive covenants which restrict or may restrict his ability to             
perform his duties hereunder, and agrees that he will not enter into            
any such agreements or covenants during the term of his contract                
hereunder, except such restrictive covenants or confidentiality                 
agreements which are required by the Company.                                   

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2.1 Business Plan / Project                                                     

The consultant shall produce an outline "business plan" for the company,        
outlining in detail his plans for execution, and this plan shall be presented to
the board of directors for approval. Post approval, the consultant shall        
commence the program for implementation. The plan shall be detailed enough to   
include recommendations for the restructuring of the corporation, new directors,
management staff, new business opportunities, the identification of potential   
merger and or acquisition candidates both US and Overseas, etc.                 

2.2 Finance                                                                     

The Consultant shall work with the company and shall use his best efforts to    
seek corporate financing from funding entities, at generally acceptable         
commercial terms. The company will act in its best efforts and co-operate to    
close such financing arrangements.                                              

2.3 Travel requirements                                                         

The Consultant shall be expected in the normal course of the execution of his   
responsibilities, to travel to places and locations as shall be designated or   
required by the company, and the company shall reimburse the Consultant with all
costs and expenses appertaining thereto.                                        

3. Compensation.                                                                

3.1 Remuneration - Payment.                                                     

During the term of this Agreement, in consideration of the performance by the   
Consultant of the services set forth in Section 2 and his observance of the     
other covenants set forth herein, the Company shall pay the Consultant (via his 
corporation), and the Consultant shall accept, a consulting fee at the rate of  
Twenty thousand US dollars per month ($ 20,000) per month, payable in accordance
with the standard payment terms and practices of the Company. Save for the first
month, (November 2001) which shall be paid for in cash, for the balance of the  
term, the company may make payment by way of cash and or by S8 issued Stock,    
such stock to be issued in accordance with the applicable SEC regulations       
pertaining such issuances. In addition to the consulting fee payable hereunder, 
the Consultant may be entitled to receive merit increases in payment during the 
term hereof in amounts and at such times as shall be mutually determined by the 
Chief Executive Officer of the Company and the consultant.                      

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3.2 Bonus.                                                                      

In addition to the consulting fee payable pursuant to Section 3.1 above, the    
Consultant will be eligible to receive a bonus in the form of stock options or  
shares. These shall be granted on a case by case basis. Such options and or     
shares shall be of publicly traded corporations in or with which the company has
business relationships. Such bonuses are to be based upon the achievement of    
objectives mutually agreed upon in writing by the Company and the Consultant.   

4. Expense Reimbursement.                                                       

During the term of this Agreement, consistent with the Company's policies and   
procedures as may be in effect from time to time, the Company shall reimburse   
the Consultant for all reasonable and necessary out-of-pocket expenses incurred 
by him in connection with the performance of her duties hereunder upon the      
presentation of proper accounts therefor in accordance with the Company's       
policies. In all cases, such expenses shall have been incurred by the Consultant
on a pre-approved basis.                                                        

5. Other Benefits.                                                              

During the term of this Agreement, the Consultant shall be entitled to receive  
25 days of paid vacation time per annum, such paid personal time, paid sick     
leave and such other benefits and customary medical and life insurance as are   
from time to time made available to other similarly situated executives of the  
Company on the same terms as are available to such similarly situated           
executives, it being understood that the Consultant shall be required to make   
the same contributions and payments in order to receive any of such benefits.   

6. Termination of Engagement.                                                   

6.1 Death. In the event of the death of the Consultant during the term of this  
Agreement, the Company shall pay to the estate or other legal representative of 
the Consultant the consulting fee provided for in Section 3.1 (at the annual    
rate then in effect) accrued to the Consultants date of death and not           

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theretofore paid, and the estate or other legal representative of the Consultant
shall have no further rights under this Agreement. Rights and benefits of the   
Consultant, his estate or other legal representative under the Consultant       
benefit plans and programs of the Company, if any, will be determined in        
accordance with the terms and provisions of such plans and programs.            

6.2 Disability. If the Consultant shall become incapacitated by reason of       
sickness, accident or other physical or mental disability and shall for a period
of ninety (90) consecutive days be unable to perform his normal duties          
hereunder, the contract of the Consultant hereunder may be terminated by the    
Company upon thirty (30) days' prior written notice to the Consultant / his     
Corporation. Within thirty (30) days after such termination, the Company shall  
pay to the Consultant the consulting fee provided for in Section 3.1 (at the    
annual rate then in effect) accrued to the date of such termination and not     
theretofore paid. Rights and benefits of the Consultant, his estate or other    
legal representative under the Consultant benefit plans and programs of the     
Company, if any, will be determined in accordance with the terms and provisions 
of such plans and programs. Neither the Consultant nor the Company shall have   
any further rights or obligations under this Agreement, except as provided in   
Sections 7, 8 and 9.                                                            

6.3 Due Cause.                                                                  

The engagement of the Consultant hereunder may be terminated by the Company at  
any time during the term of this Agreement for Due Cause (as hereinafter        
defined). In the event of such termination, the Company shall pay to the        
Consultant the consulting fee provided for in Section 3.1 (at the annual rate   
then in effect) accrued to the date of such termination and not theretofore paid
to the Consultant, and, after the satisfaction of any claim of the Company      
against the Consultant arising as a direct and proximate result of such Due     
Cause, neither the Consultant nor the Company shall have any further rights or  
obligations under this Agreement, except as provided in Sections 7, 8 and 9.    
Rights and benefits of the Consultant, his estate or other legal representative 
under the Consultant benefit plans and programs of the Company, if any, will be 
determined in accordance with the terms and provisions of such plans and        
programs. For purposes hereof, "Due Cause" shall mean (a) a material breach of  
any of the Consultants obligations hereunder (it being understood that any      
breach of the provisions of Sections 2 or 7 hereof shall be considered          
material); or (b) that the Consultant, in carrying out his duties hereunder, has
been guilty of (i) willful or gross neglect or (ii) willful or gross misconduct,
which has or is expected to have a materially adverse effect on any member of   
the Company Group (as hereinafter defined);                                     

or (c) that the Consultant is determined to be intoxicated by drugs or alcohol  
during the performance of his duties for the Company; or (d) that the Consultant
has been convicted of or formally charged with (provided such charge, in the    
reasonable judgment of the Company, has or is expected to have a material       
detrimental effect on the business of any member of the Company Group) any      
felony or any crime or offense involving moral turpitude. In the event of an    
occurrence under this Section 6.3, the Consultant shall be given written notice 
by the Company that it intends to terminate the Consultants engagement for Due  
Cause under this Section, which written notice shall specify the act or acts    
upon the basis of which the Company intends so to terminate the Consultants     
engagement.                                                                     

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If the basis for such written notice is an act or acts described in clause (a)  
above and not involving moral turpitude, the Consultant shall be given ten (10) 
days to cease or correct the performance (or nonperformance) giving rise to such
written notice (or give 10 days payment in lieu of notice) and, upon failure of 
the Consultant within such ten (10) days to cease or correct such performance   
(or nonperformance), the Consultants engagement by the Company shall            
automatically be terminated hereunder for Due Cause.                            

6.4 Other Termination by the Company. The Company may terminate the Consultants 
engagement prior to the expiration of the term of this Agreement for whatever   
reason it deems appropriate; provided, however, that in the event that such     
termination is not pursuant to Sections 6.1, 6.2 or 6.3, the Company shall (a)  
continue to pay to the Consultant (or his estate or other legal representative  
in the case of the death of the Consultant subsequent to such termination), in  
the same periodic installments as his annual compensation was paid, the         
compensation provided for in Section 3.1 (at the annual rate then in effect)    
until the then scheduled expiration of the term hereof. Neither the Consultant  
nor the Company shall have any further rights or obligations under this         
Agreement, except as provided in Sections 7, 8 and 9.                           

7. Confidential Information.                                                    

7.1 (a) The Consultant shall, during the Consultant employment with the Company 
and at all times thereafter, treat all confidential material (as hereinafter    
defined) of the Company or any of the Company's subsidiaries, affiliates or     
parent entities (the Company and the Company's subsidiaries, affiliates and     
parent entities being hereinafter collectively referred to as the "Company      
Group") confidentially.                                                         

The Consultant shall not, without the prior written consent of the Chief        
Executive Officer of the Company, disclose such material, directly or           
indirectly, to any party, who at the time of such disclosure is not an          
Consultant or agent of any member of the Company Group, or, except in order to  
carry out her duties under this Agreement, remove from the Company's premises   
any notes or records relating thereto, copies or facsimiles thereof (whether    
made by electronic, electrical, magnetic, optical, laser, acoustic or other     
means), or any other property of any member of the Company Group.               

The Consultant agrees that all material, together with all notes and records of 
the Consultant relating thereto, and all copies or facsimiles thereof in the    
possession of the Consultant (whether made by the foregoing or other means) are 
the exclusive property of the Company.                                          

Except in order to carry out his duties under this Agreement, the Consultant    
shall not in any manner use any material of the Company Group, or any other     
property of any member of the Company Group, in any manner not specifically     
directed by the Company or in any way which is detrimental to any member of the 
Company Group, as determined by the Chief Executive Officer of the Company in   
his or her sole discretion.                                                     

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(b) For the purposes hereof, the term "material" shall mean all information in  
any way concerning the activities, business or affairs of any member of the     
Company Group or any of the customers of any member of the Company Group,       
including, without limitation, information concerning trade secrets, together   
with all sales and financial information concerning any member of the Company   
Group and any and all information concerning projects in research and           
development or marketing plans for any products or projects of the Company      
Group, and all information concerning the practices and customers of any member 
of the Company Group, and all information in any way concerning the activities, 
business or affairs of any of such customers, as such, which is furnished to the
Consultant by any member of the Company Group or any of its agents or customers,
as such, or otherwise acquired by the Consultant in the course of the Consultant
engagement with the Company; provided, however, that the term "material" shall  
not include information which (i) becomes generally available to the public     
other than as a result of an approved disclosure by the Consultant (ii) was     
available to the Consultant on a non-confidential basis prior to her employment 
with any member of the Company Group, or (iii) becomes available to the         
Consultant on a non-confidential basis from a source other than any member of   
the Company Group or any of its agents or customers, as such, provided that such
source is not bound by a confidentiality agreement with any member of the       
Company Group or any of such agents or customers.                               

7.2 Promptly upon the request of the Company, the Consultant shall deliver to   
the Company all material relating to any member of the Company Group in the     
possession of the Consultant without retaining a copy thereof, unless, in the   
opinion of counsel for the Consultant either returning such material or failing 
to retain a copy thereof would violate any applicable Federal, state, local or  
foreign law, in which event such confidential material shall be returned without
retaining any copies thereof as soon as practicable after such counsel advises  
that the same may be lawfully done.                                             

7.3 In the event that the Consultant is required, by oral questions,            
interrogatories, requests for information or documents, subpoena, civil         
investigative demand or similar process, to disclose any material relating to   
any member of the Company Group, the Consultant shall provide the Company with  
prompt notice thereof so that the Company may seek an appropriate protective    
order and/or waive compliance by the Consultant with the provisions hereof;     
provided, however, that if in the absence of a protective order or the receipt  
of such a waiver, the Consultant is, in the opinion of counsel for the          
Consultant compelled to disclose material not otherwise disclosable hereunder to
any legislative, judicial or regulatory body, agency or authority, or else be   
exposed to liability for contempt, fine or penalty or to other censure, such    
material may be so disclosed.                                                   

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8. Non-Competition.                                                             

8.1 The Consultant acknowledges that the services to be rendered by his to the  
Company are of a special and unique character. The Consultant agrees that, in   
consideration of his engagement hereunder, the Consultant will not (a) during   
the term of this Agreement and (b) prior to one year from the date of           
termination of the Consultant engagement by the Company or any other member of  
the Company Group, directly or indirectly, (w) engage, whether as principal,    
agent, investor, distributor, representative, stockholder, Consultant, volunteer
or otherwise, with or without pay, in any activity or business venture, anywhere
within a 3 -mile radius of any business owned or operated by the Company which  
is competitive with the businesses of the Company or any of the other members of
the Company Group, (x) solicit or entice or endeavor to solicit or entice away  
from any member of the Company Group any person who was or is at the time of    
solicitation or enticement a director, officer, Consultant, agent or consultant 
of such member of the Company Group, either on the Consultant own account or for
any person, firm, corporation or other organization, whether or not such person 
would commit any breach of such person's contract of employment by reason of    
leaving the service of such member of the Company Group,                        

(y) solicit or entice or endeavor to solicit or entice away any person who was  
or is at the time of solicitation or enticement a customer of any member of the 
Company Group, either on the Consultant own account or for any other person,    
firm, corporation or organization, or (z) employ any person who was a director, 
officer or Consultant of any member of the Company Group or any person who is or
may be likely to be in possession of any confidential information or trade      
secrets relating to the business of any member of the Company Group, or (b) at  
any time take any action or make any statement the intended effect of which     
would be, directly or indirectly, to impair in any material respect the good    
will of any member of the Company Group or the business reputation or good name 
of any member of the Company Group, or be otherwise materially detrimental to   
the Company, including any action or statement intended, directly or indirectly,
to benefit a competitor of any member of the Company Group.                     

For purposes hereof, the "Company Group" shall mean, collectively, the Company  
and the Company's subsidiaries operating in the same lines of business.         

8.2 The Consultant and the Company agree that if, in any proceeding, the court  
or other authority shall refuse to enforce the covenants herein set forth       
because such covenants cover too extensive a geographic area or too long a      
period of time, any such covenant shall be deemed appropriately amended and     
modified in keeping with the intention of the parties to the maximum extent     
permitted by law.                                                               

8.3     The Consultant expressly acknowledges and agrees that the               
covenants and agreements set forth in this Section 8 are reasonable             
in all respects, and necessary in order to protect, maintain and                
preserve the value and goodwill of the Company Group, as well as the            
proprietary and other legitimate business interests of the members              
of the Company Group.  The Consultant acknowledges and agrees that              
the covenants and agreements of the Consultant set forth in this                
Section 8 constitute a significant part of the consideration given              
by the Consultant to the Company in exchange for the compensation               
and benefits provided for in this Agreement, and are a material                 
reason for such payment.                                                        

9. Equitable Relief. In the event of a breach or threatened breach by the       
Consultant of any of the provisions of Sections 7 or 8 of this Agreement, the   
Consultant hereby consents and agrees that the Company shall be entitled to     
pre-judgment injunctive relief or similar equitable relief restraining the      
Consultant from committing or continuing any such breach or threatened breach or
granting specific performance of any act required to be performed by the        
Consultant under any of such provisions, without the necessity of showing any   
actual damage or that money damages would not afford an adequate remedy and     
without the necessity of posting any bond or other security. The parties hereto 
hereby consent to the jurisdiction of the Courts of the state of Florida.       
Nothing herein shall be construed as prohibiting the Company from pursuing any  
other remedies at law or in equity which it may have.                           

10. Successors and Assigns.                                                     

Assignment by the Company. The Company shall require any successors (whether    
direct or indirect, by purchase, merger, consolidation or otherwise) to all or  
substantially all of the business and/or assets of the Company to assume and    
agree to perform this Agreement in the same manner and to the same extent that  
the Company would be required to perform if no such succession had taken place. 
As used in this Section, the "Company" shall mean the Company as hereinbefore   
defined and any successor to its business and/or assets as aforesaid which      
otherwise becomes bound by all the terms and provisions of this Agreement by    
operation of law and this Agreement shall be binding upon, and inure to the     
benefit of, the Company, as so defined.                                         

10.1 Assignment by the Consultant. The Consultant may assign this Agreement or  
any part hereof without the prior written consent of the Chief Executive Officer
of the Company; provided, however, that nothing herein shall preclude one or    
more beneficiaries of the Consultant from receiving any amount that may be      
payable following the occurrence of the Consultant legal incompetency or his    
death and shall not preclude the legal representative of his estate from        
receiving such amount or from assigning any right hereunder to the person or    
persons entitled thereto under her will or, in the case of intestacy, to the    
person or persons entitled thereto under the laws of intestacy applicable to his
estate.                                                                         

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11. Governing Law. This Agreement shall be deemed a contract made under, and for
all purposes shall be construed in accordance with the laws of the State of     
Florida USA, whether applicable to contracts to be performed entirely within    
such State or elsewhere.                                                        

12. Entire Agreement. This Agreement contains all the understandings and        
representations between the parties hereto pertaining to the subject matter     
hereof and supersedes all undertakings and agreements, whether oral or in       
writing, if there be any, previously entered into by them with respect thereto. 
No modification of this Agreement shall be effective unless in writing and      
signed by the party against which enforcement is sought to be enforced.         

13. Modification and Amendment; Waiver. The provisions of this Agreement may be 
modified, amended or waived, but only upon the written consent of the party     
against whom enforcement of such modification, amendment or waiver is sought and
then such modification, amendment or waiver shall be effective only to the      
extent set forth in such writing. No delay or failure on the part of any party  
hereto in exercising any right, power or remedy hereunder shall effect or       
operate as a waiver thereof, nor shall any single or partial exercise thereof or
any abandonment or discontinuance of steps to enforce such right, power or      
remedy preclude any further exercise thereof or of any other right, power or    
remedy.                                                                         

14. Notices. All notices, requests or instructions hereunder shall be in writing
and delivered personally, sent by telecopier or sent by registered or certified 
mail, postage prepaid, as follows:                                              

If to the Company: to the address as above                                      

If to the Consultant: to the address as stated above, or any other address of   
the Consultant as shall be notified from time to time.                          

Any of the above addresses may be changed at any time by notice given as        
provided above; provided, however, that any such notice of change of address    
shall be effective only upon receipt. All notices, requests or instructions     
given in accordance herewith shall be deemed received on the date of delivery,  
if hand delivered or telecopied, and two business days after the date of        
mailing, if mailed.                                                             

15. Severability. Should any provision of this Agreement be held by a court of  
competent jurisdiction to be enforceable only if modified, such holding shall   
not affect the validity of the remainder of this Agreement, the balance of which
shall continue to be binding upon the parties hereto with any such modification 
to become a part hereof and treated as though originally set forth in this      
Agreement. The parties further agree that any such court is expressly authorized
to modify any such unenforceable provision of this Agreement in lieu of severing
such unenforceable provision from this Agreement in its entirety, whether by    
rewriting the offending provision, deleting any or all of the offending         
provision, adding additional language to this Agreement, or by making such other
modifications as it deems warranted to carry out the intent and agreement of the

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parties as embodied herein to the maximum extent permitted by law. The parties  
expressly agree that this Agreement as so modified by the court shall be binding
upon and enforceable against each of them. In any event, should one or more of  
the provisions of this Agreement be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions hereof, and if such provision or provisions are not        
modified as provided above, this Agreement shall be construed as if such        
invalid, illegal or unenforceable provisions had never been set forth herein.   

16. Withholding. Anything to the contrary notwithstanding, all payments required
to be made by the Company hereunder to the Consultant or his beneficiaries,     
including his estate, shall not be subject to withholding of such amounts       
relating to taxes or other reason.                                              

17. Survivorship. The respective rights and obligations of the parties hereunder
shall survive any termination of this Agreement to the extent necessary to the  
intended preservation of such rights and obligations.                           

18. Expenses. Each of the parties hereto shall bear his or its own costs and    
expenses, including attorneys' fees and disbursements, incurred in connection   
with this Agreement and the transactions contemplated hereby.                   

19. Titles. Titles of the sections of this Agreement are intended solely for    
convenience and no provision of this Agreement is to be construed by reference  
to the title of any section.                                                    

20. Counterparts. This Agreement may be executed in counterparts, each of which 
shall be deemed an original, but all of which taken together shall constitute   
one and the same instrument.                                                    

        IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.                                                   

WORLD WIDE WIRELESS COMMUNICATIONS INC                                          

--------------------------------------                                          
Director  Authorized Signature                                                  

OVERSEAS DEVELOPMENT HOLDINGS LIMITED                                           

By                                                                              
------------------------------------                                        
Michael J Zwebner                                                               
Title: Director                                                                 

Dates Referenced Herein   and   Documents Incorporated by Reference

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