EXHIBIT 10.9
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is entered into and is effective as
of July 6, 2004 (the "Effective Date") by and between IVI Communications, Inc.,
a Nevada Corporation, with a principal place of business at 0000 X. Xxxxxxx
Xxxxxxxxx, Xxxxx 000X, Xxx Xxxxxxx, Xxxxxxxxxx, 00000 ("Company"), and Big Apple
Consulting U.S.A., Inc., a Delaware Corporation, with principal offices at 000
Xxxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000 ("Consultant").
R E C I T A L S:
A. Consultant represents various financial websites that
individuals can access to learn more about companies they may not otherwise be
exposed to.
B. In addition, Consultant maintains an extensive database of
brokers representing investors interested in owning stock in companies such as
the Company and employs a stock profiler team which regularly communicates with
such brokers.
C. Company wishes to promote itself through Consultant's efforts
in the brokerage community in order to gain as much exposure as possible for
Company.
T E R M S:
NOW THEREFORE, in consideration of the mutual premises and covenants contained
herein, and other good and valuable consideration, the receipt, sufficiency and
adequacy of which is hereby acknowledged, the parties agree as follows:
1.00 Services to be Performed by Consultant
1.01 Consultant shall access its database of brokers and shall utilize a
profiler team (comparable in size and capability to that currently
employed by Consultant) in order to contact brokers interested in
recommending Company to their investor clients.
1.02 Consultant shall diligently market and promote Company to brokers and
other investors, advisors, counselors, trustees, agents and other
individuals and entities whom Consultant is legally permitted to
contact (including with the proper disclosures and disclaimers) and
shall introduce Company and its principals to Consultant's current and
future network of brokerage firms and market makers.
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1.03 Consultant shall provide investor lead management services normal and
customary in the industry.
1.04 Consultant shall organize, initiate, manage and facilitate
broker/investor conference telephone calls and other presentations
mutually agreeable to Company and Consultant. Expenses for
broker/investor conference calls and other presentations are to be
paid by the company, and must be pre-approved.
1.05 Consultant shall review and monitor Company's stockholder base and all
transfer agent and DTC reports, and shall analyze, present to, and
discuss with Company the results and implications of such reports.
2.00 Terms & Fees
2.01 The term of this Agreement shall commence on the Effective Date and
shall expire six (6) months thereafter. The Company shall have the
right to extend this contract an additional six (6) months after the
first six (6) months expire.
2.02 As compensation for Consultant's services required hereunder,
Consultant shall be entitled to receive: (a) Cash Value: Cash value of
contract is Two Hundred Forty Thousand ($240,000) Dollars. (b)
Compensation: On a monthly basis Consultant shall be entitled to
receive Forty Thousand U.S. Dollars ($40,000.00) per month due the 1st
of each month. If payment is made in stock Consultant shall be
entitled to receive Forty Thousand U.S. Dollars ($40,000.00) per month
worth of free trading shares of IVI Communications, Inc. (IVCM) common
stock due the 1st of each month based upon a thirty percent (30%)
discount to market of the previous ten (10) day average closing bid
price. The first month's payment of 980,000 free trading shares of
common stock is due and payable upon the signing of this Agreement.
This is based upon a $.007 price which is a 30% discount of the
current bid price (which is also the average 10 day closing bid)
2.03 Options:
As compensation, Consultant will have the right to purchase Two
Hundred Fifty Thousand ($250,000) Dollars worth of free trading shares
(subject to registration or a third party willing to sell to the
consultant on the required terms and the Company believes at present
there would be willing third parties able to enter such transactions)
common stock at a thirty three (33%) percent discount to market of the
ten (10) day average bid price. Should the Consultant elect to
exercise the above-described option, the free trading shares common
stock purchased under this option shall be delivered to Consultant
from the escrow account. The option described herein shall expire
after six months.
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2.04 No Short Provision:
Consultant represents and warrants that it will not short sell, or
cause the Company's stock to be sold short by others under the control
of the Consultant. The Consultant will only sell shares of stock that
it has purchased or received as compensation for services.
3.00 Termination
In the event of a breach of this agreement by Company, Company shall
be responsible for any outstanding fees and expenses. Consultant shall
have the right to terminate this Agreement on the grounds of the
Company's failure to remit the required monthly payments or in the
event of any breach of the Agreement by Company. After expiration of
the first thirty (30) days of this Agreement, Company has the right to
terminate this Agreement without penalty with thirty (30) days written
notice. The parties agree that written notice will be deemed accepted
and received by the parties via certified mail delivered to the
address above or fax notification.
4.00 Representation: Company represents and warrants that it is in
compliance with all required filings and regulations of NASD, the SEC
and/or any other governmental agencies, and that the Company's stock
is not suspended from trading for any reason whatsoever. Company
further represents and warrants that during the term of this
agreement, it will continue to file all required reports with the SEC,
NASD and/or any other governmental agencies and will continue to
adhere to SEC, NASD, and/or any other governmental agency's
requirements, and that it will take whatever steps are deemed
necessary to keep its shares listed and "fully reporting." The
Company's failure to comply with the provisions of this paragraph
shall constitute a material breach of the parties' agreement. However,
the Consultant will allow a 30 day "cure period" for the Company to
come current with any delinquent filings. Since Consultant has agreed
to accept payment for services, in part, in the form of shares of the
Company, the Company agrees that the value of the shares at the time
of this agreement will be adversely affected and impacted if the
promotion of the Company to the financial community and others is
suspended due to a breach of the representations and warranties
contained herein. Further, in the event of a breach of the
representations and warranties contained herein the Company agrees to
continue to make any payments due and the Consultant
5.00 Miscellaneous Terms
5.01 Anti-dilution Clause. The company must notify the Consultant in
writing at least 3 days prior to any new shares being added to the
Company's outstanding share total; including notifying the Consultant
if any new shares are being added to the company's float. Officers of
the company must notify the Consultant of any transactions regarding
the company's security. If dilution of the Companies float occurs, the
Consultant's compensation and bonuses must be adjusted
proportionately. Having approved a two for one forward split of the
Companies stock, (Board approval on 7/2/04) the Company confirms it
has no plans for any Reverse stock split.
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5.02 Successors. The provisions of this Agreement shall be deemed to
obligate, extend to and inure to the benefit of the successors,
assigns, transferees, grantees, and indemnities of each of the parties
to this Agreement.
5.03 Governing Law. This Agreement and the interpretation and enforcement
of the terms of this Agreement shall be governed under and subject to
the laws of the State of New York.
5.04 Jurisdiction. Jurisdiction for court action, court and authorities in
the State of New York or the Federal District Court having venue for
the State of New York should have jurisdiction over all controversies
that may arise with respect to this agreement. Company hereby waives
any other venue to which it might be entitled to by virtue of domicile
or otherwise.
5.05 Integration. This Agreement, after full execution, acknowledgment and
delivery, memorializes and constitutes the entire agreement and
understanding between the parties and supersedes and replaces all
prior negotiations and agreements of the parties, whether written or
unwritten. Each of the parties to this Agreement acknowledges that no
other party, nor any agent or attorney of any other party has made any
promises, representations, or warranty whatsoever, express or implied,
which is not expressly contained in this Agreement; and each party
further acknowledges that he or it has not executed this Agreement in
reliance upon any belief as to any fact not expressly recited herein
above.
5.06 Attorneys Fees. In the event of a dispute between the parties
concerning the enforcement or interpretation of this Agreement, the
prevailing party in such dispute, whether by legal proceedings or
otherwise, shall be reimbursed immediately for the reasonably incurred
attorneys' fees and other costs and expenses by the other parties to
the dispute.
5.07 Context. Wherever the context so requires, the singular number shall
include the plural and the plural shall include the singular.
5.08 Captions. The captions by which the sections and subsections of this
Agreement are identified are for convenience only, and shall have no
effect whatsoever upon its interpretation.
5.09 Severance. If any provision of this Agreement is held to be illegal or
invalid by a court of competent jurisdiction, such provision shall be
deemed to be severed and deleted and neither such provision, nor its
severance and deletion, shall affect the validity of the remaining
provisions.
5.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and, when
taken together shall constitute one and the same instrument.
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5.11 Expenses Associated With This Agreement. Each of the parties hereto
agrees to bear its own costs, attorney's fees and related expenses
associated with this Agreement.
5.12 Arbitration. Any dispute or claim arising from or in any way related
to this agreement shall be settled by arbitration in New York at the
option of Consultant. All arbitration shall be conducted in accordance
with the rules and regulations of the American Arbitration Association
("AAA"). AAA shall designate a panel of three arbitrators from an
approved list of arbitrators following both parties' review and
deletion of those arbitrators on the approved list having a conflict
of interest with either party. Each party shall pay its own expenses
associated with such arbitration. A demand for arbitration shall be
made within a reasonable time after the claim, dispute or other matter
has arisen and in no event shall such demand be made after the date
when institution of legal or equitable proceedings based on such
claim, dispute or other matter in question would be barred by the
applicable statutes of limitations. The decision of the arbitrators
shall be rendered within sixty (60) days of submission of any claim or
dispute, shall be in writing and mailed to all the parties included in
the arbitration. The decision of the arbitrator shall be binding upon
the parties and judgment in accordance with that decision may be
entered in any court having jurisdiction thereof.
5.13 Assignment. Neither Company, nor Consultant, shall have the right to
assign or delegate this Agreement or any rights or obligations created
hereby unless the non-assigning party expressly approves the
assignment in writing.
5.14 Authority to Bind. A responsible officer of each party has read and
understands the contents of this Agreement and is empowered and duly
authorized on behalf of that party to execute it.
5.15 Continuing Obligations: Both Company and Consultant shall hereafter
execute all documents and do all acts reasonably necessary to effect
the provisions of this Agreement.
5.16 Reversion of Payment: If at any time, Company shall be in default of
the payment provisions of this contract for a period greater than
thirty (30) days, then the Consultant shall no longer be obligated to
accept payment in the form of free trading shares of stock and the
balance due, and any payments due thereafter, shall be paid only in
cash, certified check, cashiers check or money order, unless Company
is advised otherwise by Consultant in writing. Further, if at any
time, Company shall be in default of the payment provisions of this
contract for a period greater than fourteen (14) days, all services
provided by Consultant under this Agreement shall be suspended until
such time as payment in full of any outstanding balance is made and
services under the Agreement shall be reinstated on the day after the
day on which payment is received. Consultant reserves the right, at
Consultant's sole option, to submit and assign any outstanding balance
to an independent third party for the purpose of collecting any
outstanding balance owed Consultant.
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5.17 Notices: All notices must be in writing and sent to the appropriate
address listed above, or to such other address as either party may
designate in writing, by first class mail and either certified mail
return receipt requested or overnight courier service. In the case of
certified mail notice shall be deemed given as of the date of deposit
with the United States Postal Service, and in case of overnight
courier service notice shall be deemed given as of the date of deposit
with such overnight courier service.
6.00 Enforceability of Agreement: This Agreement shall neither be deemed to
be nor be enforceable until executed by Consultant. Further, should
the parties fail to execute this Agreement within thirty (30) days
from the date of delivery of this Agreement, then this Agreement and
all the terms and conditions contained herein shall become and be
deemed null and void and neither party named herein shall be bound
hereby. Consultant, without the consent of Company, shall have the
sole option to extend the time requirements set forth within this
section 6.00, and any request by Company to extend the time
requirements set forth in section 6.00 must be approved by Consultant
in writing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
COMPANY:
IVI Communications, Inc.
A Nevada Corporation
By: /s/ Xxxx Xxxxxx
-----------------------------
Xxxx Xxxxxx, President
CONSULTANT:
Big Apple Consulting USA, Inc.
A Delaware Corporation
By: /s/ Xxxx Xxxxxx
--------------------------
Xxxx Xxxxxx, President
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