LIVESTRONG VENTURE CAPITALPARTNERS, INC. PH.: (949) 645-6069 FAX:(949) 645-5469 FINANCIAL CONSULTING SERVICES AGREEMENT
Exhibit
10.9
LIVESTRONG
VENTURE CAPITALPARTNERS, INC.
0000
XX0X
XXXXX XXXXXXX. XXXXX #000, XXXXXXX XXXXX. XX 000000
PH.:
(000) 000-0000 FAX:(000) 000-0000
THIS
FINANCIAL CONSULTING SERVICES AGREEMENT (1HE "AGREEMENT") IS ENTERED THIS
9TH
DAY OF JANUARY 2007 BY AND BETWEEN LIVESTRONG VENTURE CAPITAL PARTNERS.
INC. ("CONSULTANT"), AND XEDAR CORPORATION ("CLIENT" OR "COMPANY")
WITH OFFICES AT 0000 XXXXX XXXXXX XXXXXXX XXXXX 000 XXXXXXXXX, XX., 00000;
WITH
REFERENCE TO THE FOLLOWING:
PRELIMINARY
STATEMENT
THE
CLIENT DESIRES TO BE ASSURED OF THE ASSOCIATION AND SERVICES OF THE CONSULTANT
IN ORDER TO AVAIL ITSELF OF THE CONSULTANT’S EXPERIENCE, SKILLS, ABILITIES.
KNOWLEDGE. AND BACKGROUND TO FACILITATE LONG RANGE STRATEGIC PLANNING. AND
TO
ADVISE THE CLIENT IN BUSINESS AND/OR FINANCIAL MATTERS AND IS THEREFORE WILLING
TO ENGAGE THE CONSULTANT UPON THE TERMS AND CONDITIONS SET FORTH
HEREIN.
CONSULTANT
DESIRES TO BE ASSURED, AND CLIENT DESIRES TO ASSURE CONSULTANT. THAT. IF
CONSULTANT ASSOCIATES WITH CLIENT AND ALLOCATES ITS RESOURCES NECESSARY TO
PROVIDE CLIENT THE AFOREMENTIONED SERVICES. THAT CONSULTANT WILL BE PAID
THE
CONSIDERATION DESCRIBED HEREIN AND SAID CONSIDERATION WILL BE NONREFUNDABLE.
REGARDLESS OF THE CIRCUMSTANCES EXCEPT FOR CONSULTANT'S WILLFUL MALFEASANCE,
GROSS NEGLIGENCE, FRAUD, MISAPPROPRIATION, EMBEZZLEMENT, AND AFTER TEN (10)
DAYS
PRIOR WRITTEN NOTICE WITHOUT CURE, CONSULTANT'S DEFAULT, VIOLATION OF OR
FAILURE
TO PERFORM ANY PROVISION OF THIS AGREEMENT. AND THEREFORE CONSULTANT AGREES
TO
BE ENGAGED AND RETAINED BY THE CLIENT ON THE TERMS AND CONDITIONS SET FORTH
HEREIN. NOW, THEREFORE. IN CONSIDERATION OF THE FOREGOING PRELIMINARY
STATEMENT, AND OF THE MUTUAL PROMISES HEREINAFTER SET FORTH AND FOR OTHER
GOOD
AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED. THE PARTIES HERETO AGREE AS FOLLOWS:
ENGAGEMENT. CLIENT
HEREBY ENGAGES CONSULTANT ON A NON-EXCLUSIVE BASIS, AND CONSULTANT HEREBY
ACCEPTS THE ENGAGEMENT TO BECOME A FINANCIAL CONSULTANT TO THE CLIENT AND
TO
RENDER SUCH ADVICE, CONSULTATION. INFORMATION, AND SERVICES TO THE DIRECTORS
AND/OR OFFICERS OF THE CLIENT REGARDING GENERAL. FINANCIAL AND BUSINESS MATTERS
INCLUDING, BUT NOT LIMITED TO:
REORGANIZATIONS,
REVERSE MERGERS. DIVESTITURES, AND DUE DILIGENCE STUDIES, CAPITAL SOURCES
AND
THE FORMATION OF FINANCIAL TRANSACTIONS INCLUDING EQUITY CREDIT LINES; IT
IS
UNDERSTOOD THAT THAT THE CLIENT DOES NOT CURRENTLY NEED OR IS IN SEARCH OF
SUCH
ACTIVITIES, AND AS SUCH. THE MAJORITY OF THE CAMPAIGN SHALL BE IN AN EFFORT
TO
MAXIMIZE SHAREHOLDER VALUE.
AGAIN,
GUIDANCE AND ASSISTANCE IN AVAILABLE ALTERNATIVES TO MAXIMIZE SHAREHOLDER
VALUE:
PERIODIC
PREPARATION AND INC. OF THIRD PARTY RESEARCH REPORTS AND INFORMATION TO THE
BROKER/DEALER AND INVESTMENT BANKING COMMUNITY. IT IS EXPRESSLY
UNDERSTOOD THAT CONSULTANT SHALL HAVE NO POWER TO BIND CLIENT TO ANY CONTRACT
OR
OBLIGATION OR TO TRANSACT ANY BUSINESS IN CLIENT’S NAME OR ON BEHALF OF CLIENT
IN ANY MANNER. HOWEVER IF CLIENT WISHES TO ENGAGED. CONSULTANT TO RENDER
SERVICES REGARDING AN EQUITY LIEN OF CREDIT, CLIENT WILL BE REQUIRED TO SIGNED
THE ENGAGEMENT AGREEMENT WITH THE CONSULTANT LIAISON TO THE CREDIT FACILITY,
WHICH IS ATTACHED HERETO AS EXHIBIT -A" AND INCORPORATED BY REFERENCE TO
THIS
AGREEMENT.
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IT
IS
EXPRESSLY UNDERSTOOD AND AGREED BY CLIENT THAT, IN RELIANCE UPON CLIENTS
REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED HEREIN. IMMEDIATELY UPON
EXECUTION AND DELIVERY OF THIS AGREEMENT BY CLIENT. CONSULTANT IS SETTING
ASIDE
AND ALLOCATING FOR THE BENEFIT OF CLIENT VALUABLE RESOURCES (INCLUDING, WITHOUT
LIMITATION. CAPITAL AND RESERVATION OF WORK SCHEDULES OF EMPLOYEES) REQUIRED
TO
FULFILL CONSULTANT'S OBLIGATIONS HEREUNDER AND IN DOING SO. CONSULTANT WILL
NECESSARILY FOREBEAR FROM UNDERTAKING OTHER OPPORTUNITIES AND COMMITMENTS
(THAT
WOULD RESULT IN ENRICHMENT TO CONSULTANT) IN ORDER TO BE AVAILABLE TO PROVIDE
CLIENT THE SERVICES CONTEMPLATED BY THIS AGREEMENT.
2. TERM.
THE TERM ("TERM") OF THIS AGREEMENT SHALL COMMENCE ON THE DATE HEREOF AND
CONTINUE FOR TWELVE (2) MONTHS. THE AGREEMENT MAY BE EXTENDED UPON AGREEMENT
BY
BOTH PARTIES, UNLESS OR UNTIL. THE AGREEMENT IS TERMINATED. EITHER PARTY
MAY
CANCEL THIS AGREEMENT UPON FIVE (5) DAYS WRITTEN NOTICE IN THE EVENT EITHER
PARTY VIOLATES ANY MATERIAL PROVISION OF THIS AGREEMENT AND FAILS TO CURE
SUCH
VIOLATION WITHIN FIVE (5) DAYS OF WRITTEN NOTIFICATION OF SUCH VIOLATION
FROM
THE OTHER PARTY. SUCH CANCELLATION SHALL NOT EXCUSE THE BREACH OR NONPERFORMANCE
BY THE OTHER PARTY OR RELIEVE THE BREACHING PARTY OF ITS OBLIGATION INCURRED
PRIOR TO THE DATE OF CANCELLATION. INCLUDING, WITHOUT LIMITATION, THE OBLIGATION
OF CLIENT TO PAY THE NONREFUNDABLE CONSIDERATION DESCRIBED IN PARAGRAPH 4A.
HEREOF.
3. DUE
DILIGENCE. THE CLIENT SHALL SUPPLY AND DELIVER TO THE CONSULTANT
ALL. INFORMATION RELATING TO THE CLIENT COMPANY'S BUSINESS AS MAY BE
REASONABLY REQUESTED BY THE CONSULTANT TO ENABLE THE CONSULTANT TO MAKE AN
ASSESSMENT OF CLIENT'S COMPANY AND BUSINESS PROSPECTS AND PROVIDE THE CONSULTING
SERVICES DESCRIBED HEREIN.
4. COMPENSATION
AND FEES. AS CONSIDERATION FOR CONSULTANT ENTERING INTO THIS AGREEMENT, CLIENT
AGREES TO PAY AND DELIVER TO CONSULTANT THE FOLLOWING CONSIDERATION, (500,000
SHARES OF COMMON STOCK OF THE PUBLICLY TRADED COMPANY TRADED ON THE NASDAQ.
OTCBB UNDER THE: SYMBOL XDRC).WHICH CONSIDERATION IS CONSIDERED FULLY EARNED
AND
NONREFUNDABLE REGARDLESS OF THE CIRCUMSTANCES EXCEPT FOR CONSULTANT'S WILLFUL
MALFEASANCE, GROSS NEGLIGENCE, FRAUD, MISAPPROPRIATION OR EMBEZZLEMENT, AND
AFTER TEN (10) DAYS PRIOR WRITTEN NOTICE WITHOUT CURE, CONSULTANT'S DEFAULT,
VIOLATION OF OR FAILURE TO PERFORM ANY PROVISION OF THIS AGREEMENT.
CLIENT
SHALL ISSUE CERTIFICATES REPRESENTING AN AGGREGATE OF (500,000 SHARES) SHARES
OF
COMMON STOCK OF THE CLIENT. .AS DESCRIBED HEREIN, THE SHARES PAYABLE TO THE
CONSULTANT IF RESTRICTED, SHALL HAVE PIGGYBACK REGISTRATION RIGHTS COINCIDENT
WITH XXX 0-0, 0-0, X-0 OR ANY OTHER APPLICABLE FILING THAT IS THE RESULT
OF A
FUNDING ACCEPTED BY THE CLIENT, CURRENTLY OR HEREINAFTER UNDER PREPARATION
BY
THE CLIENT.
AND
CONSULTANT
WILL RECEIVE UPON MUTUAL AGREEMENT: A SUCCESS BASED FEE ("FEE") WHICH
INCLUDES PLACEMENT AGENT FEES CALCULATED AS NOT TO EXCEED THREE PERCENT (3%)
OF
ANY FINANCING ACCEPTABLE IN WHOLE OR IN ANY PART BY XXXXXX, FOR "THE FINANCING
FROM ANY CONTACTS INTRODUCED TO XEDAR CORPORATION BY CONSULTANT ("CONTACTS").
WHICH SHALL BE DUE AND PAYABLE UPON ACCEPTANCE OF RECEIVING A LOAN/INVESTMENT
COMMITMENT. AGAIN. IT IS UNDERSTOOD THAT THE COMPANY IS NOT CURRENTLY
LOOKING FOR ADDITIONAL CAPITAL AND THIS CLAUSE WOULD ONLY APPLY UPON MUTUAL
AGREEMENT.
THE
SHARES, WHEN ISSUED TO CONSULTANT. WILL BE DULY AUTHORIZED, VALIDLY ISSUED
AND
OUTSTANDING, FULLY PAID AND NON-ASSESSABLE AND WILL. NOT BE SUBJECT TO ANY
LIENS
OR ENCUMBRANCES. 5ECURITFES SHALL. BE ISSUED TO CONSULTANT IN ACCORDANCE
WITH A
MUTUALLY ACCEPTABLE PLAN OF ISSUANCE AS TO RELIEVE SECURITIES OR CONSULTANT
FROM
RESTRICTIONS UPON TRANSFERABILITY OF SHARES IN COMPLIANCE WITH APPLICABLE
REGISTRATION PROVISIONS OR EXEMPTIONS
AFTER
CAREFUL REVIEW AND EXTENSIVE DISCUSSIONS AND NEGOTIATIONS BETWEEN CLIENT
AND
CONSULTANT AND THEIR ADVISORS, CLIENT AGREES THAT, WHEN RECEIVED BY
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CONSULTANT.
THE CONSIDERATION DESCRIBED IN SUBPARAGRAPH "A" ABOVE SHALL BE NONREFUNDABLE
REGARDLESS OF THE CIRCUMSTANCES EXCEPT FOR CONSULTANT'S WILLFUL MALFEASANCE.
GROSS NEGLIGENCE. FRAUD, MISAPPROPRIATION OR EMBEZZLEMENT, AND AFTER TEN
(10)
DAYS PRIOR WRITTEN NOTICE WITHOUT CURE. CONSULTANT'S DEFAULT. VIOLATION OF
OR
FAILURE TO PERFORM ANY PROVISION OF THIS AGREEMENT. WHETHER FORESEEN OR
UNFORESEEN UPON EXECUTION AND DELIVERY OF THIS AGREEMENT. CLIENT FURTHER
ACKNOWLEDGES AND AGREES THAT SAID CONSIDERATION IS EARNED BY CONSULTANT:
(1)
UPON CLIENT'S EXECUTION AND DELIVERY OF THE AGREEMENT AND PRIOR TO THE PROVISION
OF ANY SERVICE HEREUNDER; (2) IN PART, BY REASON OF CONSULTANT'S AGREEMENT
TO
MAKE ITS RESOURCES AVAILABLE TO SERVE CLIENT AND AS FURTHER DESCRIBED IN
THE
PRELIMINARY STATEMENT AND ELSEWHERE HEREIN; AND (3) REGARDLESS OF WHETHER
CLIENT
SEEKS TO TERMINATE THIS AGREEMENT
PRIOR
TO
CONSULTANT'S DELIVERY OF ANY SERVICES HEREUNDER. IF CLIENT TAKES ANY ACTION
TO
TERMINATE THIS AGREEMENT OR TO RECOVER ANY CONSIDERATION PAID OR DELIVERED
BY
CLIENT TO CONSULTANT OTHER THAN BY REASON OF CONSULTANT'S GROSS NEGLIGENCE.
BREACH OF CONTRACT IS NOT OPENED WITHIN TEN DAYS AFTER THE NOTICE FROM CLIENT
OR
WILLFUL MISCONDUCT, CONSULTANT SHALL BE ENTITLED TO ALL AVAILABLE EQUITABLE
REMEDIES, CONSEQUENTIAL AND INCIDENTAL DAMAGES AND REASONABLE ATTORNEYS'
FEES
AND COSTS INCURRED AS A RESULT THEREOF. TO THE EXTENT THAT CONSULTANT PREVAILS
IN ANY SUCH SUIT. CONSULTANT AGREES NEVER TO DIRECTLY-OR INDIRECTLY "SELL
SHORT"
THE SHARES OF XEDAR CORPORATION INC.
5A. REPRESENTATIONS.
WARRANTS AND COVENANTS OF CLIENT. THE CLIENT REPRESENTS. WARRANTS AND COVENANTS
TO THE CONSULTANT AS FOLLOWS:
THE
CLIENT HAS THE FULL AUTHORITY, RIGHT, POWER AND LEGAL CAPACITY TO ENTER INTO
THIS AGREEMENT AND TO CONSUMMATE THE TRANSACTIONS, WHICH ARE PROVIDED FOR
HEREIN. THE EXECUTION OF THIS AGREEMENT BY THE CLIENT AND ITS DELIVERY TO
THE
CONSULTANT AND THE CONSUMMATION BY IT OF THE TRANSACTIONS WHICH ARE CONTEMPLATED
HEREIN HAVE BEEN DULY APPROVED AND AUTHORIZED BY ALL NECESSARY ACTION BY
THE
CLIENT'S BOARD OF DIRECTORS AND NO FURTHER AUTHORIZATION SHALL BE NECESSARY
ON
THE PART OF THE CLIENT FOR THE PERFORMANCE AND CONSUMMATION BY THE CLIENT
OF THE
TRANSACTIONS WHICH ARE CONTEMPLATED BY THIS AGREEMENT.
B. THE
BUSINESS AND OPERATIONS OF THE CLIENT HAVE BEEN AND ARE BEING CONDUCTED IN
ALL
MATERIAL RESPECTS IN ACCORDANCE WITH ALL APPLICABLE LAWS. RULES AND
REGULATIONS OF ALL AUTHORITIES, WHICH AFFECT THE CLIENT OR ITS PROPERTIES,
ASSETS, BUSINESSES OR PROSPECTS. THE PERFORMANCE OF THIS AGREEMENT
SHALL NOT RESULT IN ANY BREACH OF. OR CONSTITUTE A DEFAULT UNDER. OR RESULT
IN
THE IMPOSITION OF ANY LIEN OR ENCUMBRANCE UPON ANY PROPERTY OF THE CLIENT
OR
CAUSE AND ACCELERATION UNDER ANY ARRANGEMENT, AGREEMENT OR OTHER INSTRUMENT
TO
WHICH THE CLIENT IS A PARTY OR BY WHICH ANY OF ITS ASSETS ARE BOUND. THE
CLIENT
HAS "PERFORMED IN ALL RESPECTS ALL OF ITS OBLIGATIONS WHICH ARE. AS OF THE
DATE
OF THIS AGREEMENT. REQUIRED TO BE PERFORMED BY IT PURSUANT TO THE TERMS OF
ANY
SUCH
AGREEMENT,
CONTRACT OR COMMITMENT.
5.B. REPRESENTATIONS.
WARRANTS AND COVENANTS OF THE CONSULTANTS. THE CONSULTANTS REPRESENTS. WARRANTS
AND COVENANTS TO THE COMPANY AS FOLLOWS:
A. THE
CONSULTANT OR AGENT FOR THE CONSULTANT HAS BEEN GIVEN THE FULL AUTHORITY.
RIGHT.
POWER AND LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT AND TO CONSUMMATE THE
TRANSACTIONS. WHICH ARE PROVIDED FOR HEREIN.
B. THE
BUSINESS AND OPERATIONS OF THE CONSULTANT HAVE BEEN AND ARE BEING CONDUCTED
IN
ALL MATERIAL RESPECTS IN ACCORDANCE WITH ALL APPLICABLE LAWS, RULES AND
REGULATIONS OF ALL AUTHORITIES. WHICH AFFECT THE CONSULTANT OR ITS PROPERTIES,
ASSETS, BUSINESSES OR PROSPECTS. THE PERFORMANCE OF THIS AGREEMENT
SHALL NOT RESULT IN ANY BREACH OF, OR CONSTITUTE A DEFAULT UNDER, OR RESULT
IN
THE IMPOSITION OF ANY LIEN OR ENCUMBRANCE UPON ANY PROPERTY OF THE
CONSULTANT
OR CAUSE AN ACCELERATION UNDER ANY ARRANGEMENT. AGREEMENT OR OTHER INSTRUMENT
TO
WHICH THE CONSULTANT IS A PARTY OR BY WHICH ANY OF ITS ASSETS ARE
BOUND. THE CONSULTANT HAS PERFORMED IN ALL RESPECTS ALL OF ITS OBLIGATIONS
WHICH
ARE. AS OF THE DATE OF THIS AGREEMENT, REQUIRED TO BE PERFORMED BY IT PURSUANT
TO THE TERMS OF ANY SUCH AGREEMENT. CONTRACT OR COMMITMENT.
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C. THE
EXECUTION. DELIVERY AND PERFORMANCE OF THIS AGREEMENT: (I) DOES NOT VIOLATE
ANY
AGREEMENT OR UNDERTAKING TO WHICH THE CONSULTANT IS A PARTY OR BY WHICH THE
CONSULTANT MAYBE BOUND AND (II) SHALL NOT RESULT IN THE IMPOSITION OF ANY
RESTRICTIONS OR OBLIGATIONS UPON THE CONSULTANT OTHER THAN THE RESTRICTIONS
AND
OBLIGATIONS IMPOSED BY THIS AGREEMENT.
D.
THE EXECUTION AND DELIVERY BY THE CONSULTANT OF THIS AGREEMENT AND THE
PERFORMANCE BY THE CONSULTANT OF ITS OBLIGATIONS HEREUNDER AND THEREUNDER,
WILL
NOT VIOLATE ANY PROVISION OF LAW. ANY ORDER OF ANY COURT OR OTHER AGENCY
OF
GOVERNMENT AND WILL NOT RESULT IN A MATERIAL. BREACH OF OR CONSTITUTE (WITH
DUE
NOTICE OR LAPSE OF TIME OR BOTH) A MATERIAL DEFAULT UNDER ANY PROVISION OF
ANY
AGREEMENT OR OTHER INSTRUMENT TO WHICH THE CONSULTANT, OR ANY OF ITS PROPERTIES
OR ASSETS, IS BOUND.
E. THE
CONSULTANT HAS NOT ENTERED INTO AND IS NOT SUBJECT TO ANY AGREEMENT, INCLUDING,
BUT NOT LIMITED, TO ANY EMPLOYMENT, NON-COMPETE, CONFIDENTIALITY OR WORK
PRODUCT
AGREEMENT WHICH WOULD (I) PROHIBIT THE EXECUTION OF THIS AGREEMENT, 00 PROHIBIT
ITS ENGAGEMENT AS A CONSULTANT BY THE COMPANY, OR (II) AFFECT ANY OF THE
PROVISIONS OF OR ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT.
F. THE
RECEIPT OF THE COMMON STOCK BY THE CONSULTANT IS FOR THE CONSULTANT'S OWN
ACCOUNT, IS FOR INVESTMENT PURPOSES ONLY, AND IS NOT VIEWED TO NOR FOR OFFER
OR
SALE IN CONNECTION WITH THE DISTRIBUTION THE COMMON STOCK. THE CONSULTANT
IS NOT
PARTICIPATING AND DOES NOT HAVE A PARTICIPATION IN ANY SUCH DISTRIBUTION
OR THE
UNDERWRITING OF ANY SUCH DISTRIBUTION.
G. THE
CONSULTANT HAS NO PRESENT INTENTION OF CREATING A MARKET OR PARTICIPATING
OR
ASSISTING IN THE CREATION OF A MARKET OR IN THE PROMOTION OF A MARKET FOR
ANY
SECURITIES OF THE COMPANY. HOWEVER, THE CONSULTANT MAY IN FACT TRADE THE
SECURITY IN ITS OWN ACCOUNT AS IT DEEMS NECESSARY.
H.
THE CONSULTANT HAS NO PRESENT INTENTION OF SELLING OR OTHERWISE DISPOSING
OF THE
COMMON STOCK.
I. THE
CONSULTANT IS AWARE THAT NO FEDERAL OR STATE GOVERNMENTAL AUTHORITY HAS MADE
MY
FINDING OR DETERMINATION AS TO THE FAIRNESS OF AN INVESTMENT IN THE COMMON
STOCK, OR ANY RECOMMENDATI0N OR ENDORSEMENT WITH RESPECT THERETO.
J. THE
CONSULTANT IS ABLE TO BEAR THE ECONOMIC RISK OF THE INVESTMENT IN THE COMMON
STOCK FOR AN INDEFINITE PERIOD OF TIME, INCLUDING THE RISK OF TOTAL LOSS
OF SUCH
INVESTMENT AND THE CONSULTANT RECOGNIZES THAT AN INVESTMENT IN THE COMMON
STOCK
INVOLVES A HIGH DEGREE OF RISK. THE CONSULTANT UNDERSTANDS THAT THE COMMON
STOCK
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. AS AMENDED (THE
"SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE AND THEREFORE. CANNOT
BE
SOLD UNLESS THEY SUBSEQUENTLY ARE REGISTERED UNDER THE SECURITIES ACT AND
ANY
APPLICABLE STATE SECURITIES LAWS OR EXEMPTIONS FROM REGISTRATION THEREUNDER
ARE
AVAILABLE. THE CONSULTANT FURTHER UNDERSTAND THAT ONLY THE COMPANY CAN TAKE
ACTION TO REGISTER THE COMMON STOCK.
K. THE:
CONSULTANTS IS AN "ACCREDITED INVESTOR" AS THAT TERM IS DEFINED IN RULE 501
(A)
OF REGULATION D PROMULGATED UNDER THE SECURITIES ACT.
L. THE
CONSULTANT HAS SUCH KNOWLEDGE AND EXPERIENCE IN FINANCIAL, INVESTING AND
BUSINESS MATTERS AS TO BE CAPABLE OF EVALUATING THE RISKS AND MERITS OF AN
INVESTMENT IN THE COMMON STOCK AND PROTECTING THE CONSULTANT'S INTERESTS
IN
CONNECTION WITH AN INVESTMENT IN THE COMMON STOCK.
M. THE
CONSULTANT WAS NOT CONTACTED BY THE COMPANY OR ITS REPRESENTATIVES FOR THE
PURPOSE OF INVESTING IN ANY SECURITIES OF THE COMPANY ISSUED HEREBY THROUGH
ANY
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ADVERTISEMENT,
ARTICLE, MASS MAILING, COLD CALL, NOTICE OR ANY OTHER COMMUNICATION PUBLISHED
IN
ANY NEWSPAPER, MAGAZINE, OR SIMILAR MEDIA OR BROADCAST OVER TELEVISION OR
RADIO,
OR ANY SEMINAR OR MEETING WHOSE ATTENDEES WERE INVITED BY ANY GENERAL
ADVERTISING.
N. THE
CONSULTANT HAS HAD ACCESS TO AND AN OPPORTUNITY TO INSPECT ALL RELEVANT
INFORMATION RELATING TO THE COMPANY SUFFICIENT TO ENABLE THE CONSULTANT TO
EVALUATE THE MERITS AND RISKS OF ITS RECEIPT OF THE COMMON STOCK HEREUNDER.
THE
CONSULTANT ALSO HAS HAD THE OPPORTUNITY TO ASK QUESTIONS OF OFFICERS OF THE
COMPANY AND HAS RECEIVED SATISFACTORY ANSWERS RESPECTING AND REGARDING THE
BUSINESS, FINANCIAL CONDITION AND AFFAIRS OF THE COMPANY.
O. IT
SHALL NOT BE A DEFENSE TO A SUIT FOR DAMAGES FOR ANY MISREPRESENTATION OR
BREACH
OF COVENANT OR WARRANTY THAT THE COMPANY KNEW OR HAD REASON TO KNOW THAT
ANY
REPRESENTATION, WARRANTY OR COVENANT IN THIS AGREEMENT OR FURNISHED OR TO
BE
FURNISHED TO THE COMPANY CONTAINED UNTRUE STATEMENTS.
P. NO
REPRESENTATION OR WARRANTY OF THE CONSULTANTS WHICH IS CONTAINED IN THIS
AGREEMENT. OR IN A WRITING FURNISHED OR TO BE FURNISHED PURSUANT TO THIS
AGREEMENT. CONTAINS OR SHALL CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT,
OMITS OR SHALL. OMIT TO STATE ANY MATERIAL FACT WHICH IS REQUIRED TO MAKE
THE
STATEMENTS WHICH ARE CONTAINED HEREIN OR THEREIN IN LIGHT OF THE CIRCUMSTANCES
PURSUANT TO WHICH THEY WERE MADE NOT MISLEADING.
Q. ALL
REPRESENTATIONS, WARRANT1ES AND COVENANTS MADE IN OR IN CONNECTION WITH THIS
AGREEMENT SHALL CONTINUE IN FULL FORCE AND EFFECT DURING AND AFTER THE TERM
OF
THIS AGREEMENT. IT BEING AGREED AND UNDERSTOOD THAT EACH OF SUCH
REPRESENTATIONS, WARRANTIES AND COVENANTS IS OF THE ESSENCE OF THIS
AGREEMENT AND THE SAME SHALL BE BINDING UPON THE CONSULTANT AND INURE TO
THE
CONSULTANT, ITS SUCCESSORS AND ASSIGNS.
6. EXCLUSIVITY:
PERFORMANCE: CONFIDENTIALITY. THE SERVICES OF CONSULTANT HEREUNDER SHALL
NOT BE
EXCLUSIVE. AND CONSULTANT AND ITS AGENTS MAY PERFORM SIMILAR OR DIFFERENT
SERVICES FOR OTHER PERSONS OR ENTITLES WHETHER OR NOT THEY ARE COMPETITORS
OF
CLIENT. THE CONSULTANT AGREES THAT IT WILL. AT ALL TIMES, FAITHFULLY AND
IN A
PROFESSIONAL MANNER PERFORM ALL OF THE DUTIES THAT MAY BE REASONABLY REQUIRED
OF
THE CONSULTANT PURSUANT TO THE TERMS OF' THIS AGREEMENT. CONSULTANT SHALL
BE
REQUIRED TO EXPEND ONLY SUCH TIME AS IS NECESSARY TO SERVICE CLIENT IN A
COMMERCIALLY REASONABLE MANNER. THE CONSULTANT DOES NOT GUARANTEE THAT ITS
EFFORTS WILL HAVE ANY IMPACT UPON THE CLIENT'S BUSINESS OR THAT THERE WILL
BE
ANY SPECIFIC RESULT OR IMPROVEMENT FROM THE CONSULTANT'S EFFORTS. CONSULTANT
ACKNOWLEDGES AND AGREES THAT CONFIDENTIAL AND VALUABLE INFORMATION PROPRIETARY
TO CLIENT AND OBTAINED DURING ITS ENGAGEMENT BY THE CLIENT. SHALL NOT BE,
DIRECTLY OR INDIRECTLY, DISCLOSED WITHOUT THE PRIOR EXPRESS WRITTEN CONSENT
OF
THE CLIENT, UNLESS AND UNTIL SUCH INFORMATION IS OTHERWISE KNOWN TO THE PUBLIC
GENERALLY OR IS NOT OTHERWISE SECRET AND CONFIDENTIAL.
7.
INDEPENDENT CONTRACTOR. IN ITS PERFORMANCE HEREUNDER, CONSULTANT AND ITS
AGENTS
SHALL BE AN INDEPENDENT CONTRACTOR. CONSULTANT SHALL COMPLETE THE SERVICES
REQUIRED HEREUNDER ACCORDING TO HIS OWN MEANS AND METHODS OF WORK. SHALL
BE IN
THE EXCLUSIVE CHARGE AND CONTROL OF CONSULTANT AND WHICH SHALL NOT BE SUBJECT
TO
THE CONTROL OR SUPERVISION OF CLIENT, EXCEPT AS TO THE RESULTS OF THE WORK.
CLIENT ACKNOWLEDGES THAT NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO
REQUIRE
CONSULTANT TO PROVIDE SERVICES TO CLIENT AT ANY SPECIFIC TIME, OR IN ANY
SPECIFIC PLACE OR MANNER. PAYMENTS TO CONSULTANT HEREUNDER SHALL NOT BE SUBJECT
TO WITHHOLDING TAXES OR OTHER EMPLOYMENT TAXES AS REQUIRED WITH RESPECT TO
COMPENSATION PAID TO AN EMPLOYEE.
8. ARBITRATION
AND FEES. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
OR BREACH THEREOF, MAY BE RESOLVED BY MUTUAL AGREEMENT; OR IF NOT. SHALL
BE
SETTLED IN ACCORDANCE WITH THE ARBITRATION RULES OF THE AMERICAN ARBITRATION
ASSOCIATION IN IRVINE, CALIFORNIA. ANY DECISION ISSUED THEREFROM SHALL BE
BINDING UPON THE PARTIES AND SHALL BE ENFORCEABLE AS A JUDGMENT IN ANY COURT
OF
COMPETENT JURISDICTION.
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THE
PREVAILING PARTY IN SUCH ARBITRATION OR OTHER PROCEEDING SHALL BE ENTITLED.
IN
ADDITION TOSUCH OTHER RELIEF AS ANY BE GRANTED, TO A REASONABLE SUM AS AND
FOR
ATTORNEY'S FEES IN SUCH ARBITRATION OR OTHER PROCEEDING WHICH MAY BE DETERMINED
BY THE ARBITRATOR OR OTHER OFFICER IN SUCH PROCEEDING. IF COLLECTION IS REQUIRED
FOR ANY PAYMENT NOT MADE WHEN DUE, THE CREDITOR SHALL COLLECT STATUTORY INTEREST
AND THE COST OF COLLECTION, INCLUDING ATTORNEY'S FEES WHETHER OR NOT COURT
ACTION IS REQUIRED FOR ENFORCEMENT. THE PREVAILING PARTY IN ANY SUCH PROCEEDING
SHALL ALSO BE ENTITLED TO REASONABLE ATTORNEYS' FEES AND COSTS IN CONNECTION
ALL
APPEALS OF ANY JUDGMENT.
9. NOTICES.
ANY NOTICE OR OTHER COMMUNICATION REQUIRED OR PERMITTED HEREUNDER MUST BE
IN
WRITING AND SENT BY EITHER (I) CERTIFIED-MAIL, POSTAGE PREPAID, RETURN RECEIPT
REQUESTED AND FIRST CLASS MAIL: OR (II) OVERNIGHT DELIVERY WITH CONFIRMATION
OF
DELIVERY; OR (III) FACSIMILE TRANSMISSION WITH AN ORIGINAL MAILED BY FIRST
CLASS
MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS:
IF
TO
CLIENT, XEDAR CORPORATION INC.
ATTENTION:
XXXX X. XXXXXXXXXX III. CHAIRMAN AND / OR XXXXXXX XXXXXXX, PRESIDENT AND
CEO,
PREMIER DATA SERVICES. INC.
IF
TO
CONSULTANT: LIVESTRONG
VENTURE CAPITAL PARTNERS, INC.
ATTENTION:
AGENT FOR LIVESTRONG
VENTURE CAPITAL PARTNERS,
INC./
DIRECTOR
0000
XXXX XXXXX XXX. XXXXX
000
XXXXXXX
XXXXX, XX 00000
FACSIMILE
NO.: (000)
000-0000
OR
IN
EACH CASE TO SUCH OTHER ADDRESS AND FACSIMILE NUMBER AS SHALL HAVE LAST BEEN
FURNISHED BY LIKE NOTICE. IF MAILING IS IMPOSSIBLE DUE TO AN ABSENCE
OF POSTAL SERVICE AND OTHER METHODS OF SENDING NOTICE ARE NOT OTHERWISE
AVAILABLE, NOTICE SHALL BE HAND-DELIVERED TO THE AFORESAID ADDRESSES. EACH
NOTICE OR COMMUNICATION SHALL BE DEEMED TO HAVE BEEN GIVEN AS OF THE DATE
SO
MAILED OR DELIVERED. AS THE CASE MAY BE; PROVIDED, HOWEVER, THAT ANY NOTICE
SENT
BY FACSIMILE SHALL BE DEEMED TO HAVE BEEN GIVEN AS OF THE DATE SENT BY FACSIMILE
IF A COPY OF SUCH NOTICE IS ALSO MAILED; IF THE DATE OF MAILING IS NOT THE
SAME
AS THE DATE OF SENDING BY FACSIMILE. THEN THE DATE OF MAILING BY FIRST CLASS
MAIL SHALL BE DEEMED TO BE THE DATE UPON WHICH NOTICE GIVEN, OR ADDITIONAL
PROVISIONS. NO WAIVER OF ANY OF THE PROVISIONS OF THIS AGREEMENT SHALL BE
DEEMED
OR SHALL CONSTITUTE A WAIVER OF ANY OTHER PROVISION AND NO WAIVER SHALL
CONSTITUTE A CONTINUING WAIVER. NO WAIVER SHALL BE BINDING UNLESS EXECUTED
IN
WRITING BY THE PARTY MAKING THE WAIVER. NO SUPPLEMENT, MODIFICATION, OR
AMENDMENT OF THIS AGREEMENT SHALL BE BINDING UNLESS EXECUTED IN WRITING BY
ALL
PARTIES. THIS AGREEMENT CONSTITUTES THE EN11RE AGREEMENT BETWEEN "THE PARTIES
AND SUPERSEDES ANY PRIOR AGREEMENTS OR NEGOTIATIONS. THERE ARE NO THIRD PARTY
BENEFICIARIES OF THIS AGREEMENT. THIS AGREEMENT SHALL BE GOVERNED BY AND
"CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA
REGARDLESS OF LAWS OF CONFLICTS.
10.
COUNTERPARTS. THIS AGREEMENT MAYBE EXECUTED SIMULTANEOUSLY IN ONE OR MORE
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL. BUT ALL OF WHICH
TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT
11.
PRELIMINARY STATEMENT. THE PRELIMINARY STATEMENT IS INCORPORATED HEREIN BY
THIS
REFERENCE AND MADE A MATERIAL PART OF THIS AGREEMENT.
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IN
WITNESS WHEREOF, THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT ON THE
DATE
FIRST WRITTEN ABOVE.
XEDAR
CORPORATION, INC.
ATTENTION:
XXXX X. XXXXXXXXXX III. CHAIRMAN AND / OR XXXXXXX XXXXXXX. PRESIDENT AND
CEO
PREMIER DATA SERVICES. INC.
/S/ XXXX
X. XXXXXXXXXX
PRINT
NAME: ______________________________________
PRINT
TITLE: ______________________________________
“CONSULTANT”
LIVESTRONG
VENTURE CAPITAL PARTNERS, INC.
SIGNATURE:
/S/ LIVESTRONG VENTURE CAPITAL PARTNERS, INC.
PRINT
NAME: ______________________________________
PRINT
TITLE: ______________________________________
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