EXHIBIT 10.59
CONSULTING AGREEMENT
This Agreement made this 6th day of March, 2003, by and between
Crescent Fund, Inc., a Texas corporation, whose address is 00 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, hereinafter referred to as "CRESCENT" or
"Consultant" and Invisa, Inc., a Nevada corporation, its agents, successors or
assigns, hereinafter referred to as "INVISA" or "Client" or "Company", whose
address is 0000 Xxxxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000.
Whereas Consultant is in the business of providing management
consulting services to businesses in an effort to obtain capital from third
parties for business use, including equipment leasing, purchase order and/or
contract financing, factoring and financing for land and buildings utilizing
instruments of debt and/or equity and whereas Client desires to retain
Consultant for the following purposes:
Institutional investor relations services and to attempt to arrange
financing for the purpose of working capital.
For and in consideration of mutual benefits, detriments, and promises,
and the cross considerations hereinafter set forth, the adequacy of which is
hereby acknowledged, the parties hereto, CRESCENT and INVISA, collectively "THE
PARTIES", hereby covenant and agree as follows:
1. Services
a. CRESCENT is hereby engaged to provide Public Relations and
market support services including serving as an investment banking liaison,
introducing and presenting the Company to securities brokerage firms and
institutional investors, obtaining write ups about the company and acting as an
institutional public relations consultant for a six month period from the date
hereof. Under the direction of the Company, Consultant shall perform its
services in coordination with G.M. Capital Partners, the Company's
international investor relations consultant and Hawk Associates, the Company's
domestic investor relations consultant.
b. CRESCENT is hereby engaged by INVISA to provide capital
funding services including serving as an investment banking liaison, and acting
as capital consultant for a six month period from the date hereof. CRESCENT
shall contact institutional investors, arrange presentation of the Company,
assist in restructuring INVISA'S business plan for presentation, and arrange
conferences with capital sources.
c. CRESCENT is further engaged to provide capital structure
consulting to include working capital, equipment financing, consulting services
to INVISA for a six month period from the date hereof.
2. Compensation
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a. INVISA hereby agrees during the term of this agreement,
subject to termination as hereinafter provided, to pay CRESCENT for the services
set forth in Paragraph 1, the following non-refundable retainer items:
1.
A. The shares of the company's common stock described
in subparagraphs B, C, D and E below (the "Shares"). For a period of twelve
months from the date hereof, Consultant shall not directly or indirectly sale,
assign, transfer or otherwise dispose of any of the Shares for consideration
less than $4.10 cash per share. Consultant agrees to provide the Company with
monthly verification of its ownership position in the Company's stock and the
terms of any sale or assignment of the Shares. Consultant may assign the Shares
provided the assignee consents in writing to comply with the conditions of this
agreement relating to said Shares;
B. 7,143 shares of restricted stock with registration
rights (or in the Company's discretion $25,000 in cash) shall be delivered to
Consultant on April 5, 2003;
C. 7,142 shares of restricted stock with registration
rights shares rights (or in the Company's discretion $25,000 in cash) shall be
delivered to Consultant on May 5, 2003;
D. 7,142 shares of restricted stock with registration
rights (or in the Company's discretion $25,000 in cash) shall be delivered on
June 5, 2003; and
E. 7,142 shares of restricted stock with registration
rights (or in the Company's discretion $25,000 in cash) shall be delivered on
July 5, 2003.
b. Recognizing that CRESCENT has extensive sources of venture
capital, coupled with brokerage industry contacts, INVISA hereby agrees to pay
CRESCENT for the consulting services set forth in Paragraph 1 in the form of a
success fee of seven percent (7%) in cash of the amount of cash financing raised
as a result of investors Introduced by Consultant during the term of this
Agreement ("Finders Fee"). The Company has sole discretion to accept or reject
any investor or any proposed financing Introduced by Consultant and the Finders
Fee shall only be paid for cash financing accepted by the Company in the
exercise of its discretion. In the event that other nonaffiliated parties are
entitled to compensation or fees as a result of any proposed financing
Introduced by Consultant, the Finders Fee payable to Consultant hereunder shall
be automatically reduced so that the aggregate fees/compensation to all parties
including Consultant do not exceed twelve per cent of the cash funding received
by the Company from the financing introduced by Consultant. The Company is not a
party to any agreement that would reduce a Finder's Fee due to Consultant for
any party or transaction Introduced by Consultant hereunder. Such Finders Fees
shall be due as the time the Company receives the cash funds from
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any such financing in which CRESCENT has acted as the introducing person. Should
the Company wish to engage Consultant to assist in any merger or acquisition
project, the parties will exercise good faith to negotiate a separate
compensation/fee to cover such project which may include a success fee and,
pending such written arrangement, Consultant shall not be authorized to
represent the Company or be compensated by the Company for introductions which
result in any merger or acquisition.
INVISA shall pay all out-of-pocket expenses related to the services set
forth in Paragraph 1 above, subject to written budget approval by INVISA prior
to incurring the expense.
d. The Company agrees, represents and warrants hereby that it
shall not circumvent Consultant with respect to any banking or lending
institution, investment bank, trust, corporation, individual or investor
Introduced by Consultant to the Company nor with respect to any financing
transaction Introduced by Consultant pursuant to the terms of this Agreement for
a period of one (1) year from the date of execution of this Agreement. For
Consultant to be deemed to have Introduced a potential investor or financing
transaction under this Agreement including but not limited to Paragraphs 2(b)
and 2(d), Consultant must submit to the Company a written record the name of the
party or transaction to be Introduced by it and the Company shall have one (1)
business day to reject the Introduction in writing by informing Consultant that
the company has or is already seeking an existing relationship or introduction
to the party ("Introduced by Consultant"). In the absence of a written rejection
by the Company, Consultant shall be deemed to be the Introducer of the recorded
party or transaction for purposes of this Agreement. Notwithstanding the
forgoing, because the Company anticipates that it may establish relationships
with numerous securities broker-dealers in the future, parties Introduced by
Consultant will not include any securities broker-dealers registered with the
NASD unless the Company expressly consents thereto in writing.
3. Termination of Agreement
This Consulting Agreement may not be terminated by either party prior
to the expiration of the term provided herein above, except as follows:
a. Either party may terminate on ten (10) days written notice
after April 6, 2003;
b. Upon the bankruptcy or liquidation of the other party,
whether voluntary or involuntary;
c. Upon the other party taking the benefit of any insolvency
law;
d. Upon the other party having or applying for a receiver
appointed for either party; and/or
e. Mutual consent of the parties.
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4. Notices
All notices hereunder shall be in writing and addressed to the party at
the address herein set forth, or at such other address which notice pursuant to
this section may be given, and shall be given by either certified mail, express
mail or other overnight courier service. Notices shall be deemed given upon the
earlier of actual receipt or three (3) business days after being mailed or
delivered to such courier service. Any notices to be given hereunder shall be
effective if executed by and/or sent by the attorneys for THE PARTIES giving
such notice and, in connection therewith, THE PARTIES and their respective
counsel agree in giving such notice such counsel may communicate directly in
writing with such party to the extent necessary to give such notice.
5. Attorney Fees
In the event either party is in default of the terms or conditions of
this Consulting Agreement and legal action is initiated or suit be entered as a
result of such default, the prevailing party shall be entitled to recover all
costs incurred as a result of such default including reasonable attorneys fees,
expenses and court costs through trial, appeal and to final disposition.
6. Time is of the Essence
Time is hereby expressly made of the essence of this Consulting
Agreement with respect to the performance by THE PARTIES of their respective
obligations hereunder.
7. Inurement
This Consulting Agreement shall inure to the benefit of and be binding
upon THE PARTIES hereto and their respective heirs, executors, administrators,
personal representatives, successors, and assigns.
8. Entire Agreement
This Consulting Agreement contains the entire agreement of THE PARTIES.
It is declared by THE PARTIES that there are no other oral or written agreements
or understanding between them affecting this Agreement. This Agreement
supercedes all previous agreements.
9. Amendments
This Agreement may be modified or amended provided such modifications
or amendments are mutually agreed upon by and between THE PARTIES hereto and
that said modifications or amendments are made only by an instrument in writing
signed by THE PARTIES.
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10. Waivers
No waiver of any provision or condition of this Agreement shall be
valid unless executed in writing and signed by the party to be bound thereby,
and then only to the extent specified in such waiver. No waiver of any provision
or condition of this Agreement shall be construed as a waiver of any other
provision or condition of this Agreement, and no present waiver of any provision
or condition of this Agreement shall be construed as a future waiver of such
provision or condition.
11. Non-Waiver
The failure of either party, at any time, to require any such
performance by any other party shall not be construed as a waiver of such right
to require such performance, and shall in no way affect such party's right to
require such performance and shall in no way affect such party's right
subsequently to require a full performance hereunder.
12. Construction of Agreement
Each party and its counsel have participated fully in the review and
revision of this Agreement. Any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not apply in the
interpretation of this Agreement.
13. Applicable Law
THIS AGREEMENT IS EXECUTED PURSUANT TO AND SHALL BE INTERPRETED AND
GOVERNED FOR ALL PURPOSES BY THE LAWS OF THE STATE OF TEXAS FOR WHICH THE COURTS
IN DALLAS COUNTY, TEXAS SHALL HAVE JURISDICTION WITHOUT GIVING EFFECT TO THE
CHOICE OR LAWS OR CONFLICT OF LAWS RULES THEREOF OR OF ANY STATE.
14. Counterparts
This Agreement may be executed in a number of identical counterparts.
Each such counterpart is deemed an original for all purposes and all such
counterparts shall, collectively, constitute one agreement, but, in making proof
of this Agreement, it shall not be necessary to produce or account for more than
one counterpart.
15. Facsimile
A facsimile copy of this Agreement is acceptable.
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16. Acceptance of Agreement.
Unless both parties have signed this Agreement within ten (10) business
days of the date listed above, this Agreement shall be deemed automatically
withdrawn and terminated.
IN WITNESS WHEREOF, THE PARTIES have set forth their hands and seal in
execution of this Consulting Agreement this 6th day of March, 2003, by and
between:
CRESCENT FUND, INC. INVISA, INC.,
a Texas corporation a Nevada corporation
By: /s/ Xxxxxxx Xxx By: /s/ Xxxxxxx X. Xxxxxxx, President
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Xxxxxxx Xxx, President Xxxxx Xxxxxxx, President CEO
Date: March 14, 2003 Date: 3-18-03
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