EXHIBIT 10.27
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement"), dated and effective as of June 29,
1998 is entered into by and between U.S. WIRELESS DATA, INC., a Colorado
corporation (herein referred to as the "Company") and LIVIAKIS FINANCIAL
COMMUNICATIONS, INC., a California corporation (herein referred to as the
"Consultant").
RECITALS
WHEREAS, Company is a publicly held corporation with its common stock
traded through the OTC Bulletin Board; and
WHEREAS, Consultant has experience in the area of investor communications
and financial and investor public relations; and
WHEREAS, Company desires to engage the services of Consultant to assist and
consult with the Company in matters concerning and to represent the company in
investors' communications and public relations with existing shareholders,
brokers, dealers and other investment professionals as to the Company's current
and proposed 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 August 1, 1998 and ending on March
15, 1999.
2. Duties of Consultant. The Consultant agrees that it will generally
provide the following specified consulting services through its officers and
employees during the term specified in Section 1.:
(a) Advise and assist the Company in developing and implementing
appropriate plans and materials 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;
(b) Introduce the Company to the financial community;
(c) 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 advise and assist the Company in
communicating appropriate information regarding such plans, strategy and
personnel to the financial community;
(d) Assist and advise the Company with respect to its (i) stockholder and
investor relations, (ii) relations with brokers, dealers, analysts and other
investment professionals, and (iii) financial public relations generally;
(e) Perform the functions generally assigned to investor/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 or reviewing press releases, reports and
other communications with or to shareholders, the investment community and the
general public; advising with respect to the timing, form,distribution and other
matters related to such releases, reports and communications; and consulting
with respect to corporate symbols, logos, names, the presentation of such
symbols, logos and names, and other matters relating to corporate image;
(f) Upon the Company's approval, disseminate information regarding the
Company to shareholders, brokers, dealers, other investment community
professionals and the general investing public;
(g) Upon the Company's approval, conduct meetings, in person or by
telephone, with brokers, dealers, analysts and other investment professionals to
advise them of 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;
(h) 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 investment community implications thereof; and,
(i) Otherwise perform as the Company's financial relations and public
relations consultant.
3. Allocation of Time and Energies. The Consultant hereby promises to
perform and discharge well and 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 investor public relations and communications activities, so long as such
activities are in compliance with applicable securities laws and regulations.
Consultant shall diligently andthoroughly 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 hereinabove in a diligent and professionalmanner. 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
Companyis entering into this Agreement with Liviakis Financial Communications,
Inc. ("LFC"), a corporation and not any individual member of LFC, and with 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 Consultant as follows:
4.1 For undertaking this engagement and for other good and valuable
consideration, the Company agrees to issue and deliver to the Consultant a
"Commencement Bonus" payable in the form of 290,000 shares of the Company's
Common Stock ("Common Stock"). This Commencement Bonus shall be issued to the
Consultant immediately following execution of this Agreement and
shall, when issued and delivered to Consultant, be fully paid and
non-assessable. 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 Consultants. The 290,000 shares of Common Stock
issued as a Commencement Bonus, therefore, constitute payment for Consultant's
agreement to represent 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 the Company decides to terminate this Agreement prior to
March 15, 1999 for any reason whatsoever, it is agreed and understood that
Consultant will not be requested or demanded by the Company to return any of the
shares of Common Stock paid to it hereunder. 217,500 shares of Common Stock
issued pursuant to this Agreement shall be issued in the name of Liviakis
Financial Communications, Inc. and 72,500 shares of Common Stock issued pursuant
to this Agreement shall be issued in the name of Xxxxxx X. Xxxx ("Prag"). The
Common Stock issued to the Consultant and Prag hereunder shall have "piggyback"
registration rights and will be included in the next appropriate registration
done by the Company. All registration costs shall be borne solely by the
Company. In the event the Company for any reason, including without limitation
the unavailability of authorized but unissued shares, does not deliver
certificates representing shares of the Company's Common Stock as and when
required hereunder, the Company shall, unless the time for performance is
extended in writing by the Consultant, pay to Consultant and Prag in lieu of
delivery of the shares of Common Stock with respect to which the Company is in
default, an amount per undelivered share equal to the average closing asked
price per share of Common Stock during the five trading days ending with the day
on which the Company was required hereunder to deliver but failed to deliver
such shares of Common Stock. The Common Stock to be issued to the Consultant &
Prag hereunder is also covered by the registration covenants in Section 5 of the
Subscription Agreement between the Company and Prag and Xxxx X. Xxxxxxxx
("JML"), respectively, dated August 6, 1997. For purposes of said Section 5 of
the Subscription Agreement between the Company and JML, any shares of common
stock held by the Company shall be considered to be shares of Common Stock held
by JML and the Company shall have the same rights as JML under said Section 5.
4.2 Consultant and Prag (hereinafter referred to as "Consultants") acknowledge
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.
4.3 In connection with the acquisition of Shares hereunder, the Consultants
represent and warrant to the Company as follows:
(a) Consultants acknowledge that the Consultants have 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 Consultants have requested.
(b) Consultants' investment in restricted securities is reasonable in relation
to the Consultants' net worth, which is in excess of ten (10) times the
Consultants' cost basis in the Shares. Consultants have had experience in
investments in restricted andpublicly traded securities, and Consultants have
had experience in investments in speculative securities and other investments
which involve the risk of loss of investment. Consultants acknowledges that an
investment in the Shares is speculative and involves the risk of loss.
Consultants have the requisite knowledge to assess the relative merits and risks
of this investment without the necessity of relying upon other advisors, and
Consultants can afford the risk of loss of his entire investment in the Shares.
Consultants are (i) accredited investors, 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.
(c) Consultants are acquiring the Shares for the Consultants' own account for
long-term investment and not with a view toward resale or distribution thereof
except in accordance with applicable securities laws.
5. Financing "Finder's Fee". It is understood that in the event CONSULTANT
introduces COMPANY, or its nominees, to a lender or equity purchaser, not
already having a preexisting relationship with the Company, with whom COMPANY,
or its nominees, ultimately finances or causes the completion of such financing,
COMPANY agrees to compensate CONSULTANT for such services with a "finder's fee"
in the amount of 2.5% of total gross funding provided by such lender or equity
purchaser, such fee to be payable in cash.This will be in addition to any fees
payable by COMPANY to any other intermediary, if any, which shall beper separate
agreements negotiated between COMPANY and such other intermediary .
5.1 It is further understood that COMPANY, and not CONSULTANT, is responsible to
perform any and all due diligence on suchlender or equity purchaser introduced
to it by CONSULTANT under this Agreement, prior to COMPANY receiving funds.
5.2 COMPANY agrees that said compensation to CONSULTANT shall be paid in full at
the time said financing is closed. Moreover, said compensation, will be a
condition precedent to the closing ofsuch funding or financing and COMPANY shall
execute any and all documents necessary to effect said compensation.
5.3 As further consideration to CONSULTANT, COMPANY , or its nominees, agrees to
pay with respect to any financing provideddirectly or indirectly to the Company
by anylender or equity purchaser covered by this Section 5. during the period of
five years from the date of this Agreement,a fee to Consultant equal to that
outlined in Section "5" herein.
5.4 Consultant will notify Company of introductions it makes for potential
sources of financing in a timely manner (within approximately 3 days of
introduction) via facsimile memo. If Company has a preexisting relationship with
such nominee and believes such party should be excluded from this Agreement,
then Company will notify Consultant immediately of such circumstance via
facsimile memo.
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 not designated by
the Company to the Consultant as "confidential" or "Company private", excluding
any such claims or litigation resulting from Consultant's communication or
dissemination of information not provided or authorized by the Company. To the
extent feasible, the Company agrees to make Consultant an additional insured on
any and all commercial liability and directors and officers liability insurance
policies and to provide Consultant with current Certificates of Insurance
reflecting the same.
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 they have 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
orhold 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 incometaxes, 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. Neither the Company or the Consultant possess the authority to bind
each other in any agreements without the express written consent of the entity
to be bound.
11. Attorney's Fee. 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
orrelated 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. Notices. All notices, requests, and other communications hereunder shall be
deemed to be duly given if sent by U.S. mail, postage prepaid, addressed to the
other party at the address as set forth herein below:
To the Company: U.S. Wireless Data, Inc.
Xx. Xxx Xxxxxxxxx, Chairman
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
To the Consultant: Liviakis Financial Communications, Inc.
Xxxx X. Xxxxxxxx, President
0000 "X" Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
It is understood that either party may change the address to which
notices for it shall be addressed by providing notice of such change to the
other party in the manner set forth in this paragraph.
14. 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 Sacramento County, CA. will be the venue of any dispute
and will have jurisdiction over all parties.
15. 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 inCalifornia, in accordance with the applicable
rules of the American Arbitration Association, 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 thereof. 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.
16. 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" U.S. WIRELESS DATA, INC.
Date: 6/30/98 By: /s/ Xxx Xxxxxxxxx
---------------------------------
Xxx Xxxxxxxxx, Chairman
& Its Duly Authorized Officer
"Consultant" LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
Date:6/29/98 By:/s/Xxxx X. Xxxxxxxx /s/Xxxxxx X. Xxxx
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Xxxx X. Xxxxxxxx Xxxxxx X. Xxxx
President Sr. Vice President
