BUSINESS CONSULTING AGREEMENT
THIS
BUSINESS CONSULTING AGREEMENT made this 7th day of August 2006 (the “Effective
Date”), by and between: Invisa, Inc., (hereinafter referred to as the “COMPANY”)
and Xxxx Xxxxxxxx, an individual engaged in providing Financial Investor
relations services (hereinafter referred to as “CONSULTANT”).
WITNESSETH
THAT:
WHEREAS,
the COMPANY requires Financial Investor relations services and desires to employ
CONSULTANT, as an independent contractor consultant, to provide such services,
and CONSULTANT is agreeable to such employment, and the parties desire a written
document formalizing their relationship and evidencing the terms of their
agreement:
NOW,
THEREFORE, intending to be legally bound, and in consideration of the mutual
promises and covenants, the parties have agreed as follows:
1.
APPOINTMENT.
The
COMPANY hereby appoints CONSULTANT as non-exclusive Financial Investor relations
consultant and hereby retains and employs consultant, on the terms and
conditions of this Agreement. CONSULTANT accepts such appointment and agrees
to
perform the services upon the terms and conditions of this Agreement.
2.
TERM.
The term
of this Agreement shall begin on or before August 16, 2006 and shall terminate
on August 16, 2007. This Agreement shall supersede the oral agreement under
which the parties have operated prior to the effective date of this Agreement.
3.
SERVICES.
(a)
CONSULTANT shall act, generally, as a non-exclusive Business consultant,
essentially acting (1) as advisor to the COMPANY with respect to all business
matters including but not limited to market opportunities, product and
technology opportunities, sales, marketing, and public relations.
(b)
CONSULTANT’S services shall be rendered on a discretionary basis, as determined
by consultant during the term of this agreement. CONSULTANT shall not be
required to devote any minimum number of hours or efforts to CONSULTANT’S
services, the extent of said services being completely within the discretion
of
CONSULTANT, as CONSULTANT believes, in good faith, to be necessary to carry
out
the intent of this agreement. In consideration hereof, CONSULTANT shall allot
himself sufficient time, throughout the term, to carry out the services to
be
performed hereunder.
(c)
CONSULTANT, in providing the foregoing services, shall be responsible for all
costs of providing the services including, but not limited to, out-of-pocket
expenses for travel entertainment, postage, delivery service, (e.g., Federal
Express), telephone/facsimile charges, as well as compensation to third party
vendors, copy writers, xxxxx xxxxxxx, art and graphic personnel, printing,
etc.
CONSULTANT’S compensation under Paragraph 7 shall be deemed to include all
CONSULTANT’S costs and expenses.
4.
LIMITATIONS
ON SERVICES.
The
parties recognize that certain responsibilities and obligations are imposed
by
federal and state securities laws and by the applicable rules and regulations
of
stock exchanges, the National Association of Securities Dealers, in-house
“due-diligence” or “compliance” departments of brokerage houses, etc.
Accordingly, CONSULTANT agrees:
(a)
CONSULTANT shall NOT release any financial or other information or data about
the COMPANY without the consent and approval of the COMPANY.
(b)
CONSULTANT shall not conduct any meetings with financial analysis without
informing the COMPANY in advance of the proposed meeting and the format or
agenda of such meeting and the COMPANY may elect to have a representative of
the
COMPANY attend at such meeting.
(c)
CONSULTANT shall NOT release any information or data about the COMPANY to any
selected or limited person(s), entity, or group if CONSULTANT is aware that
such
information or data has not been generally released or promulgated.
(d)
After
notice by the COMPANY of filing for a proposed public offering of securities
of
the COMPANY, and during and period of restriction on publicity, CONSULTANT
shall
not engage in any public efforts not in the normal course without approval
of
counsel for the COMPANY and of counsel for the underwriter(s), if any.
(e)
CONSULTANTS shall NOT, for themselves or either of them, take any action or
advise or knowingly permit the COMPANY to take any action, which would violate
any foreign securities laws or rules and regulations issued there under.
(f)
CONSULTANT’S services are not in connection with the offer or sale of securities
in a capital raising transaction; and
(g)
CONSULTANT’S services do not directly or indirectly promote or maintain the
market for the Company’s securities.
5.
DUTIES
OF
COMPANY.
(a)
Company shall supply CONSULTANT, on a regular and timely basis, with all
approved data and information about the COMPANY, its management, its products,
and its operations and COMPANY shall be responsible for advising CONSULTANT
of
any facts which would affect the accuracy of any prior data and information
previously supplied to CONSULTANT so that CONSULTANT may take corrective action.
(b)
COMPANY shall promptly supply CONSULTANT: with full and complete copies of
all
filings with all federal and state securities agencies; with full and complete
copies of all shareholders reports and communications whether or not prepared
with CONSULTANT’S assistance; with all data and information supplied to any
analyst, broker-dealer, market maker, or other member of the financial
community; and with all product/services brochures, sales materials, etc.
(c)
COMPANY shall promptly notify CONSULTANT of the filing of any registration
statement for the sales of securities and of any other event that triggers
restrictions on publicity.
(d)
COMPANY shall contemporaneously notify CONSULTANT if any information or data
being supplied to CONSULTANT has not been generally released or promulgated.
6.
REPRESENTATION
AND INDEMNIFICATIONS.
(a) The
Company shall be deemed to make a continuing representation of the accuracy
of
any and all material facts, material, information, and data, which it supplies
to CONSULTANT and the COMPANY, acknowledges its awareness that CONSULTANT will
rely on such continuing representation in disseminating such information and
otherwise performing it public relations functions.
(b)
Consultant, in the absence of notice in writing from COMPANY, will rely on
the
continuing accuracy of the material, information, and data supplied by the
COMPANY.
(c)
COMPANY hereby agrees to indemnify CONSULTANT against, and to hold CONSULTANT
harmless from, any claims, demands, suits, loss, damages, etc. arising out
of
CONSULTANTS reliance on the general availability of information supplied to
CONSULTANT and CONSULTANT’S ability to promulgate such information, unless
CONSULTANT has been negligent in fulfilling his duties and obligations
hereunder.
7.
COMPENSATION.
(a) For
all general services described herein, COMPANY shall compensate CONSULTANT
by
issuing to CONSULTANT Six Hundred Eighty One Thousand Eight Hundred (“681,800”)
shares of the COMPANY’S authorized but un-issued Common Stock which shares shall
be registered by a registration statement filed on form S-8 before issuance
of
said shares on or following the Effective Date of this Agreement. The parties
acknowledge that in negotiating this fee they recognize that the services will
probably not be performed in equal monthly segments, but may be more substantial
during the early portion of the term and less thereafter as relationships and
communications lines are established. Thus, part of the compensation for earlier
services will be deferred and the lessening of services shall not constitute
a
breach or termination hereof, but the level fee shall continue.
(b)
For
all special services, not within the scope of this Agreement, COMPANY shall
pay
CONSULTANT such fee as, and when, the parties shall determine in advance of
performance of the special services provided that COMPANY has agreed in advance
for the special services.
8.
RELATIONSHIP
OF PARTIES.
CONSULTANT is an independent contractor, responsible for compensation of its
agents, employees and representatives, as well as all applicable withholding
therefrom and taxes thereon (including unemployment compensation) and all
workers’ compensation insurance. This Agreement does not establish any
partnership, joint venture, or other business entity or association between
the
parties and neither party is intended to have any interest in the business
or
property of the other.
9.
TERMINATION.
This
agreement may not be terminated by either party prior to the expiration of
the
term provided in Paragraph 2 above except as follows:
(a)
Upon
failure of the other party to cure a default under, or a breach of, this
Agreement within thirty (30) days after written notice is given as to such
breach by the terminating party;
(b)
Upon
the bankruptcy or liquidation of the other party, whether voluntary or
involuntary;
(c)
Upon
the other party taking the benefit of any insolvency law; and/or
(d)
Upon
the other party having or applying for a receiver for all or a substantial
part
of such party’s assets or business.
10.
ATTORNEY’S
FEES.
Should
either party default in the terms or conditions of this Agreement and suit
be
filed as a result of such default, the prevailing party shall be entitled to
recover all costs incurred as a result of such default including all costs
and
reasonable attorney’s fees, expenses and court costs through trial and appeal.
11.
WAIVER
OF
BREACH.
The
waiver by either party of a breach of any provision of the Agreement by the
other party shall not operate to be construed as a waiver of any subsequent
breach by the other party.
12.
ASSIGNMENT.
The
rights and obligations of the parties under this Agreement shall inure to the
benefit of, and shall be binding upon the successors, and assigns of the
parties.
13.
NOTICES.
Any
notice required or permitted to be given under this Agreement shall be
sufficient if in writing, and if sent by certified mail, return receipt
requested, to the principal office of the party being notified.
14.
ENTIRE
AGREEMENT.
This
instrument contains the entire agreement of the parties and may be modified
only
by agreement, in writing, signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought. This Agreement
shall be governed for all purposes by the laws of the State of California.
If
any provision of this Agreement is declared void, such provision shall be deemed
severed from this Agreement, which shall otherwise remain in full force and
effect.
IN
WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Agreement.
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/s/
Xxxx Xxxxxxxx
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August
14, 2006
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Xxxx
Xxxxxxxx – Consultant
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Date
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By:
/s/
Xxxxxx Xxxx
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August
14, 2006
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Authorized
Agent Date
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Date
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