CONSULTING AGREEMENT
AGREEMENT
dated as
of June 26, 2007, effective July 1, 2007 (the “Effective Date”), by and between
TISSERA,
INC.,
a
Washington corporation (the "Company"), and ADVISOR
ASSOCIATES, INC.,
a New
York corporation (the "Consultant").
WITNESETH:
WHEREAS,
the
Company desires to receive the benefit of Consultant's expertise and knowledge
in evaluating financing opportunities and other matters;
NOW
THEREFORE,
in
consideration of the mutual covenants and agreements and upon the terms and
subject to the conditions hereinafter set forth, the parties do hereby covenant
and agree as follows:
1. Retention
of Consultant.
The
Company hereby retains and engages Consultant, and Consultant accepts such
engagement, subject to the terms and conditions of this Agreement.
2. Term. This
Agreement shall be for a term of one (1) year commencing on the date hereof
and
ending on June 30, 2008
3. Consulting
Services.
During
the term hereof, Consultant shall provide consulting and advisory services
in
connection with strategic business planning, corporate finance, investor
support, broker relations and related matters (the "Consulting Services").
Consultant shall solely and exclusively determine the methods, details and
means
of providing the Consulting Services hereunder.
4. Devotion
of Time.
Subject
to the provisions hereof, during the term of this Agreement, Consultant shall
devote such of its time and effort as may be necessary to the discharge of
its
duties hereunder. The Company acknowledges that Consultant is engaged in other
business activities, and that it will continue such activities during the term
hereof. Notwithstanding anything to the contrary herein contained, Consultant
shall not be restricted in any manner whatsoever from engaging in other business
activities during the term of this Agreement.
5. Consultant
Shares.
(a)
In
consideration for the Consulting Services hereunder, on the date hereof, the
Company shall issue to Consultant 1,000,000 shares of Common Stock, par value
$0.0001 per share, of the Company (the “Consultant Shares”). All of the
Consultant Shares shall be delivered to the Consultant not later than 14 days
following the date hereof (the “Outside Delivery Date”).
(b)
On
or
prior to the Outside Delivery Date, the Company shall deliver to Consultant
certificate(s) evidencing all of the Consultant Shares sufficient to transfer
all right, title and interest in and to the Consultant Shares to Consultant,
and
such certificate(s) shall otherwise be in form acceptable to Consultant and
its
counsel. The Consultant Shares shall be free and clear of any and all liens,
security interests, pledges, encumbrances, charges, restrictions, demands or
claims of any kind or nature whatsoever except for those restrictions required
under the Securities Act of 1933, as amended.
(c) Notwithstanding
anything to the contrary contained in this Agreement in any other agreement
or
instrument, the Consultant Shares issued and delivered by the Company to
Consultant under this Agreement shall be deemed to be fully earned for all
purposes as of the date hereof, and shall not be subject to return or rescission
for any reason whatsoever, or conditioned upon any event or circumstance
whatsoever.
(d) The
Consultant shall bear all the regular and day-to-day expenses incurred in
connection with the services provided by him. Any additional expenses digressing
from the usual state of consulting activities and deemed by the Consultant
to be
incurred by the Company shall be subject to advance approval by the Company.
6. Representations
and Warranties of the Company.
The
Company hereby represents and warrants to Consultant that:
(a) The
Company has the full power and authority to execute, deliver and perform the
terms and provisions of this Agreement, including without limitation, the
issuance and delivery of the Consultant Shares. The execution, delivery and
performance of this Agreement, including the issuance and delivery of the
Consultant Shares, have been duly authorized by all appropriate corporate action
by the Company. This Agreement constitutes the legal, valid and binding
obligation of the Company enforceable in accordance with its terms, except
to
the extent that the enforceability hereof may be limited by bankruptcy,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles (regardless of whether enforcement
is sought in equity or at law).
(b) Neither
the execution, delivery or performance by the Company of this Agreement and
issuance of the Consultant Shares, nor compliance by the Company with the terms
and provisions hereof, will: (i) contravene any provision of any applicable
law,
statute, rule or regulation or any order, writ, injunction or decree of any
court or governmental instrumentality; (ii) conflict with or result in any
breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or
obligation to create or impose) any lien upon any of the property or assets
of
the Company pursuant to the terms of, any indenture, mortgage, deed of trust,
credit agreement or loan agreement or any other agreement, contract or
instrument to which the Company is a party or by which any of its property
or
assets is bound or may be subject; or (iii) violate any provision of the
Certificate of Incorporation or Bylaws (or similar organizational documents)
of
the Company.
2
(c) All
of
the Consultant Shares issued by the Company to Consultant hereunder are validly
issued, fully paid and non-assessable.
(d) The
Company shall transfer good and valid title in and to the Consultant Shares
to
Consultant hereunder, free and clear of all liens, security interests, pledges,
encumbrances, charges, restrictions, demands and claims of any kind or nature
whatsoever, whether direct or indirect or contingent.
7. Representations
and Warranties of the Consultant.
The
Consultant hereby represents and warrants to the Company that:
(a)
Consultant has all necessary power and authority to execute and deliver this
Agreement and to consummate the transactions hereunder. All action on
Consultant's part required for the lawful execution and delivery of this
Agreement have been taken. Upon execution and delivery, this Agreement will
be
valid and binding obligations of Consultant, enforceable in accordance with
their terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application affecting
enforcement of creditors' rights.
(b) Consultant
understands that the Consultant Shares are being offered and sold pursuant
to an
exemption from registration contained in the Securities Act of 1933, as amended,
based in part upon Consultant's representations contained in this Agreement,
and
that the appropriate restrictive legends will be affixed to the certificates
representing the Consultant Shares.
(c) Consultant
represents that it is an accredited investor within the meaning of Regulation
D
under the Securities Act of 1933, as amended.
8. Confidential
Information.
The
Company hereby represents and warrants that it has provided Consultant access
to
all information available to the Company concerning its condition, financial
and
otherwise and/or its management, business and/or prospects, including without
limitation, all of the Company's filings pursuant to the Securities Act of
1933,
as amended (the "1933 Act") and/or the Securities Exchange Act of 1934, as
amended (the "1934 Act"), respectively, and the regulations promulgated
thereunder (collectively, the "Disclosure Documents"). The Company further
represents that the Company is current in the filing of the periodic reports
required by the 1934 Act. The Company represents that it has provided, and
will
continue to provide, Consultant with any information and/or documentation
necessary to verify the accuracy of the information contained in the Disclosure
Documents (the “Confidential Information”). Consultant
agrees to hold in confidence and not to reveal, report, publish, disclose or
transfer, directly or indirectly, any of the Confidential Information of the
Company to any third party or use any of the Company’s Confidential Information
for any purpose at any time. All Confidential Information shall remain the
sole
property of the Company. Upon the request of the Company, Consultant will
promptly destroy or return, which such decision to destroy or return will be
at
the discretion of the Company, to the Company all Confidential Information
(in
any media), including any copies as well as all materials (in any media) which
contain or embody Confidential Information, and, with respect to abstracts
or
summaries of Confidential Information that Consultant may have made, Consultant
will destroy such abstracts or summaries. Due to the unique confidential,
proprietary, unique and valuable nature of the Confidential Information,
Consultant acknowledges and agrees that in the event Consultant fails to comply
with its obligations hereunder, that monetary damages may be inadequate to
compensate the Company. Accordingly, Consultant agrees that the Company shall,
in addition to any other remedies available to it at law or in equity, be
entitled to seek injunctive relief to enforce the terms of this Section 8 of
this Agreement. In the event of any breach or threatened breach of this
Agreement, the Consultant consents to the entry of preliminary and permanent
injunctions by a court of competent jurisdiction prohibiting the Consultant
from
any violation or threatened violation of such provisions and compelling the
Consultant to comply with such provisions. This section shall not affect or
limit, and the injunctive relief provided in this section shall be in addition
to, any other remedies available to the Company at law or in equity for any
such
violation. Consultant shall not engage in any transaction using the Confidential
Information including any purchase of the Company’s equity securities to be
traded on the Over-the-Counter Bulletin Board or any other successor exchange
which the Company is traded on until three (3) days after the Confidential
Information becomes public.
3
9. Independent
Contractors.
Nothing
herein contained shall be construed to constitute the parties hereto as partners
or as joint venturers, or either as agent of the other, or as employer or
employee. Consultant acknowledges that it is not an officer, director or agent
of the Company, it is not and will not be responsible for any management
decisions on behalf of the Company. The Company represents that Consultant
does
not have, through stock ownership or otherwise, the power to control the
Company, or to exercise any dominating influence over its management. Consultant
understands and acknowledges that this Agreement shall not create or imply
any
agency relationship between the parties, and Consultant will not commit Company
in any manner except when a commitment has been specifically authorized in
writing by the Company. The parties hereto acknowledge that Consultant shall
be
engaged solely on an independent contractor basis hereunder.
4
10. Miscellaneous
Provisions.
(a)
Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York, without regard to principles of conflicts of law. The
parties hereby agree to irrevocably submit to the exclusive jurisdiction of
any
court of competent jurisdiction sitting in New York City, NY U.S.A. in respect
of any action, suit or proceeding arising out of or relating to this Agreement,
and hereby irrevocably waive any objection which any party may have to the
laying of venue in any such court and
agree
that service of process made be made in any manner acceptable for use in such
New York courts.
(b) Expenses.
Except
as otherwise expressly provided herein, all fees, costs and/or expenses incurred
in connection with this Agreement and the arrangements contemplated hereby
shall
be paid by the party incurring such fees, costs and/or expenses.
(c) Entire
Agreement.
This
Agreement contains the entire agreement and understanding between the parties
and merges and supersedes any prior understandings or agreements, whether
written or oral. The provisions of this Agreement shall be amended or waived
only with the written consent of both parties hereto.
(d) Notices.
All
notices and other communications under this Agreement shall be in writing and
shall be deemed effective and given upon actual delivery, if delivered by hand,
or one (1) business day after the date sent by nationally recognized overnight
courier service, or upon transmission via e-mail or facsimile transmission
(subject to confirmation of transmission), or five (5) business days after
the
date sent by registered or certified mail, return receipt requested, postage
prepaid, addressed in each case, to the following addresses:
if
to the
Company, to:
Tissera,
Inc.
Herzlia
Business Park
8
Maskit
Street, 4th
Floor
Xxxxxxx,
Xxxxxx 00000
Fax:
x000-0-0000000
With
a
copy top
Xxxxxxx
Xxxxxxxxx, Esq.
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax:
000-000-0000
5
if
to
Consultant, to:
Advisor
Associates, Inc.
0000
00xx
Xxxxxx
Xxxxxxxx,
Xxx Xxxx 00000
Fax:
_______________
(e) Successors
and Assigns.
This
Agreement shall be binding upon, inure to the benefit of, and shall be
enforceable by Consultant and the Company and their respective successors and
permitted assigns. Neither this Agreement nor any right, remedy, obligation
or
liability arising hereunder or by reason hereof shall be assignable by either
the Company or Consultant without the prior written consent of the other party
hereto.
(f) Severability.
If any
provision of this Agreement or the application of any such provision to any
person or circumstance shall be held invalid, illegal or unenforceable in any
respect by a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision hereof.
(g) Construction.
The
parties hereto are sophisticated and have been represented by attorneys in
connection with the arrangements contemplated by this Agreement, and the
provisions hereof have been carefully negotiated. Accordingly, this Agreement
shall be construed without regard to any presumption or rule requiring
construction of an agreement against the party causing it to be
drafted.
(h) Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed and delivered shall be deemed to be an original and all of which
together shall be deemed to be one and the same agreement.
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the date first above
written.
|
TISSERA,
INC.
|
||
| |
|
|
| By: | /s/ Xxxx Xxxxx | |
|
Xxxx Xxxxx, CEO |
||
| ADVISOR ASSOCIATES, INC. | ||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxxxx | |
|
|
||
| Xxxxxx Xxxxxxxx | ||
6
