CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement"), effective as of May _ _, 2004 is
entered into by and between TECHNOLOGY ACQUISITION CORPORATION, a Nevada
corporation (herein referred to as the "Company"), and LIVIAKIS FINANCIAL
COMMUNICATIONS, INC., a California corporation (herein referred to as the
"Consultant"). This agreement supercedes any prior oral or written agreements
between the parties hereto.
RECITALS
WHEREAS, Company is a public company seeking to acquire an operating company,
and;
WHEREAS, Company desires to engage the services of Consultant to represent the
company in investors' communications and public relations with existing and
prospective shareholders, brokers, dealers and other investment professionals as
to the Company's current and proposed activities, and to consult with management
concerning such Company activities;
NOW THEREFORE, in consideration of the promises and the mutual covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1) Term of Consultancy. Company hereby agrees to retain the Consultant to act
in a consulting capacity to the Company, and the Consultant hereby agrees
to provide services to the Company commencing from the date that this
contract is effective and ending twelve (12) months after the date upon
which Company has completed its merger with an operating company.
2) Duties of Consultant. The Consultant agrees that it will generally provide
the following specified consulting services:
a) Assist the Company in raising capital through introductions (it is
understood LFC is not an "investment banking" firm);
b) Consult and assist the Company in developing and implementing
appropriate plans and means for presenting the Company and its
business plans, strategy and personnel to the financial community,
establishing an image for the Company in the financial community,
and creating the foundation for subsequent financial public
relations efforts;
c) Introduce the Company to the financial community;
d) With the cooperation of the Company, maintain an awareness during
the term of this Agreement of the Company's plans, strategy and
personnel, as they may evolve during such period, and consult and
assist the Company in communicating appropriate information
regarding such plans, strategy and personnel to the financial
community;
e) Assist and consult the Company with respect to its (i) relations
with stockholders, (ii) relations with brokers, dealers, analysts
and other investment professionals, and (iii) financial public
relations generally;
f) Perform the functions generally assigned to stockholder relations
and public relations departments in major corporations, including
responding to telephone and written inquiries (which may be referred
to the Consultant by the Company); preparing press releases for the
Company with the Company's involvement and approval of press
releases, reports and other communications with or to shareholders,
the investment community and the general public; consulting with
respect to the timing, form, distribution and other matters related
to such releases, reports and communications; and, at the Company's
request and subject to the Company's securing its own rights to the
use of its names, marks, and logos, consulting with respect to
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corporate symbols, logos, names, the presentation of such symbols,
logos and names, and other matters relating to corporate image;
g) Upon the Company's direction and approval, disseminate information
regarding the Company to shareholders, brokers, dealers, other
investment community professionals and the general investing public;
h) Upon the Company's approval, conduct meetings, in person or by
telephone, with brokers, dealers, analysts and other investment
professionals to communicate with them regarding the Company's
plans, goals and activities, and assist the Company in preparing for
press conferences and other forums involving the media, investment
professionals and the general investment public;
i) At the Company's request, review business plans, strategies, mission
statements budgets, proposed transactions and other plans for the
purpose of advising the Company of the public relations implications
thereof; and,
j) Otherwise perform as the Company's consultant for public relations
and relations with financial professionals.
k) Manage and coordinate the efforts of certain adjunct investor
relations and public relations professionals who may be
subcontracted for future services.
3) Allocation of Time and Energies. The Consultant hereby promises to perform
and discharge faithfully the responsibilities which may be assigned to the
Consultant from time to time by the officers and duly authorized
representatives of the Company in connection with the conduct of its
financial and public relations and communications activities, so long as
such activities are in compliance with applicable securities laws and
regulations. Consultant and staff shall diligently and thoroughly provide
the consulting services required hereunder. Although no specific
hours-per-day requirement will be required, Consultant and the Company
agree that Consultant will perform the duties set forth herein above in a
diligent and professional manner. It is explicitly understood that
Consultant's performance of its duties hereunder will in no way be
measured by the price of the Company's common stock, nor the trading
volume of the Company's common stock. It is also understood that the
Company is entering into this Agreement with Liviakis Financial
Communications, Inc. ("LFC"), a corporation, and not any individual member
of LFC, as such. Consultant will not be deemed to have breached this
Agreement if any member, officer or director of LFC leaves the firm or
dies or becomes physically unable to perform any meaningful activities
during the term of the Agreement, provided the Consultant otherwise
performs its obligations under this Agreement.
4) Remuneration. As full and complete compensation for services described in
this Agreement, the Company shall compensate LFC as follows:
a) For undertaking this engagement and for performance of the services
described above for a period of at least twelve months, the Company
acknowledges that Consultant shall be issued 400,000 shares of
Company, with a par value of $0.001 per share and a current value of
$0.04 per share. The Company understands and agrees that Consultant
has foregone significant opportunities to accept this engagement and
that the Company derives substantial benefit from the execution of
this Agreement and the ability to announce its relationship with
Consultant. The shares of Common Stock, therefore, constitute
payment for Consultant's agreement to consult to the Company and are
a nonrefundable, non-apportionable, and non-ratable retainer; such
shares of common stock are not a prepayment for future services. If
and in the event the Company is acquired during the term of this
agreement, it is agreed and understood Consultant will not be
requested or demanded by the Company to return any of the shares of
Common stock paid to it hereunder. It is further agreed that if at
any time during the term of this agreement, the Company or
substantially all of the Company's assets are merged with or
acquired by another entity, or some other change occurs in the legal
entity that constitutes the Company that results in a change in
control of substantially all of the Companies shares or assets, the
Consultant shall retain and will not be requested by the Company to
return any of the shares. Consultant agrees that it will not sell or
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transfer during the term of this Agreement any of the Company stock
issued to Consultant. b) 100,000 of Consultants' 400,000 shares
described above shall vest in 4 equal quarterly increments on the
first day of each new financial quarter beginning with the first
whole quarter after which the Company has successfully closed a
merger with an operating company. In the event Consultant
significantly fails to perform its general duties during the
contract period, Consultant will agree to return shares prorata for
the remaining period.
c) Additional shares or warrants shall be provided through LFC for
investor relations services which will be allocated to Xxxxxxx Xxxx
(shares), Xxxxxxx Xxxxxxxxx ( shares), and Xxxxx _____ ( shares).
All restrictions, requirements, indemnification, and other
provisions included in this contract shall be applicable to these
additional shares.
d) With each transfer of shares of Common Stock to be issued pursuant
to this Agreement (collectively, the "Shares"), Company shall cause
to be issued a certificate representing the Common Stock and a
written opinion of counsel for the Company stating that said shares
are validly issued, fully paid and non-assessable and that the
issuance and eventual transfer of them to Consultant has been duly
authorized by the Company. Company warrants that all Shares issued
to Consultant pursuant to this Agreement shall have been validly
issued, fully paid and non-assessable and that the issuance and any
transfer of the shares to Consultant shall have been duly authorized
by the Company's board of directors.
e) Consultant acknowledges that the shares of Common Stock to be issued
pursuant to this Agreement (collectively, the "Shares") have not
been registered under the Securities Act of 1933, and accordingly
are "restricted securities" within the meaning of Rule 144 of the
Act. As such, the Shares may not be resold or transferred unless the
Company has received an opinion of counsel reasonably satisfactory
to the Company that such resale or transfer is exempt from the
registration requirements of that Act.
f) In connection with the acquisition of Shares hereunder, the
Consultant represents and warrants to the Company, to the best of
its/his knowledge, as follows:
i) Consultant acknowledges that the Consultant has been afforded
the opportunity to ask questions of and receive answers from
duly authorized officers or other representatives of the
Company concerning an investment in the Shares, and any
additional information which the Consultant has requested.
ii) Consultant's investment in restricted securities is reasonable
in relation to the Consultant's net worth, which is in excess
of ten (10) times the Consultant's cost basis in the Shares.
Consultant has had experience in investments in restricted and
publicly traded securities, and Consultant has had experience
in investments in speculative securities and other investments
which involve the risk of loss of investment. Consultant
acknowledges that an investment in the Shares is speculative
and involves the risk of loss. Consultant has the requisite
knowledge to assess the relative merits of this investment
without the necessity of relying upon other advisors, and
Consultant can afford the risk of loss of his entire
investment in the Shares. Consultant is (i) an accredited
investor, as that term is defined in Regulation D promulgated
under the Securities Act of 1933, and (ii) a purchaser
described in Section 25102 (f) (2) of the California Corporate
Securities Law of 1968, as amended.
iii) Consultant is acquiring the Shares for the Consultant's own
account for long-term investment and not with a view toward
resale or distribution thereof except in accordance with
applicable securities laws.
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5) Non-Assignability of Services. Consultant's services under this contract
are offered to Company only and may not be assigned by Company to ant
entity with which Company merges or which acquires the Company or
substantially all of its assets. In the event of such merger or
acquisition, all compensation to Consultant herein under the schedules set
forth herein shall remain due and payable, and any compensation received
by the Consultant may be retained in the entirety by Consultant, all
without any reduction or pro-rating and shall be considered and remain
fully paid and non-assessable. Notwithstanding the non-assignability of
Consultant's services, Company shall assure that in the event of any
merger, acquisition, or similar change of form of entity, that its
successor entity shall agree to complete all obligations to Consultant,
including the provision and transfer of all compensation herein, and the
preservation of the value thereof consistent with the rights granted to
Consultant by the Company herein, and to Shareholders.
6) Expenses. Consultant agrees to pay for all its expenses (phone, mailing,
labor, etc.), other than extraordinary items (travel required by/or
specifically requested by the Company, luncheons or dinners to large
groups of investment professionals, mass faxing to a sizable percentage of
the Company's constituents, investor conference calls, print
advertisements in publications, etc.) approved by the Company prior to its
incurring an obligation for reimbursement.
7) Indemnification. The Company warrants and represents that all oral
communications, written documents or materials furnished to Consultant by
the Company with respect to financial affairs, operations, profitability
and strategic planning of the Company are accurate and Consultant may rely
upon the accuracy thereof without independent investigation. The Company
will protect, indemnify and hold harmless Consultant against any claims or
litigation including any damages, liability, cost and reasonable
attorney's fees as incurred with respect thereto resulting from
Consultant's communication or dissemination of any said information,
documents or materials excluding any such claims or litigation resulting
from Consultant's communication or dissemination of information not
provided or authorized by the Company.
8) Representations. Consultant represents that it is not required to maintain
any licenses and registrations under federal or any state regulations
necessary to perform the services set forth herein. Consultant
acknowledges that, to the best of its knowledge, the performance of the
services set forth under this Agreement will not violate any rule or
provision of any regulatory agency having jurisdiction over Consultant.
Consultant acknowledges that, to the best of its knowledge, Consultant and
its officers and directors are not the subject of any investigation,
claim, decree or judgment involving any violation of the SEC or securities
laws. Consultant further acknowledges that it is not a securities Broker
Dealer or a registered investment advisor. Company acknowledges that, to
the best of its knowledge, that it has not violated any rule or provision
of any regulatory agency having jurisdiction over the Company. Company
acknowledges that, to the best of its knowledge, Company is not the
subject of any investigation, claim, decree or judgment involving any
violation of the SEC or securities laws.
9) Legal Representation. The Company acknowledges that it has been
represented by independent legal counsel in the preparation of this
Agreement. Consultant represents that it has consulted with independent
legal counsel and/or tax, financial and business advisors, to the extent
the Consultant deemed necessary.
10) Status as Independent Contractor. Consultant's engagement pursuant to this
Agreement shall be as independent contractor, and not as an employee,
officer or other agent of the Company. Neither party to this Agreement
shall represent or hold itself out to be the employer or employee of the
other. Consultant further acknowledges the consideration provided
hereinabove is a gross amount of consideration and that the Company will
not withhold from such consideration any amounts as to income taxes,
social security payments or any other payroll taxes. All such income taxes
and other such payment shall be made or provided for by Consultant and the
Company shall have no responsibility or duties regarding such matters.
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Neither the Company nor the Consultant possesses the authority to bind
each other in any agreements without the express written consent of the
entity to be bound.
11) Attorney's Fees. If any legal action or any arbitration or other
proceeding is brought for the enforcement or interpretation of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with or related to this Agreement, the
successful or prevailing party shall be entitled to recover reasonable
attorneys' fees and other costs in connection with that action or
proceeding, in addition to any other relief to which it or they may be
entitled.
12) Waiver. The waiver by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver
of any subsequent breach by such other party.
13) Choice of Law, Jurisdiction and Venue. This Agreement shall be governed
by, construed and enforced in accordance with the laws of the State of
California. The parties agree that San Francisco County, California will
be the venue of any dispute and will have jurisdiction over all parties.
14) Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or the alleged breach thereof, or relating to Consultant's
activities or remuneration under this Agreement, shall be settled by
binding arbitration in California, in accordance with the applicable rules
of JAMS Endispute, San Francisco, California, and judgment on the award
rendered by the arbitrator(s) shall be binding on the parties and may be
entered in any court having jurisdiction as provided by Paragraph 14
herein. The provisions of Title 9 of Part 3 of the California Code of
Civil Procedure, including section 1283.05, and successor statutes,
permitting expanded discovery proceedings shall be applicable to all
disputes that are arbitrated under this paragraph.
15) Complete Agreement. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof. This Agreement and its
terms may not be changed orally but only by an agreement in writing signed
by the party against whom enforcement of any waiver, change, modification,
extension or discharge is sought.
AGREED TO:
"COMPANY" TECHNOLOGY ACQUISITION CORPORATION
Date: By:
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"CONSULTANT" LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
Date: By:
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Xxxx Xxxxxxxx, President
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