EXHIBIT 10.75
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is made as of July 22, 2003 by and between
Invisa, Inc., a Nevada corporation with its principal place of business in
Sarasota, Florida (the "Corporation") and Xxxxxxx X. X. Xxxxxxx d/b/a The
Xxxxxxx Group of West Xxxxxxx CT ("Consultant Company").
R E C I T A L S:
WHEREAS, the Corporation is a publicly traded company; and
WHEREAS, the Consultant Company is a firm providing investor, public,
trade and media relations services and marketing programs to public companies;
and
WHEREAS, the Corporation and the Consultant Company have agreed to
enter into a consulting agreement for their mutual benefit pursuant to the terms
and conditions set forth hereinbelow ("Agreement").
NOW, THEREFORE, in consideration of the mutual promises made herein,
and for other good and valuable consideration, receipt of which is hereby
acknowledged by each party, the parties, intending to be legally bound, hereby
agree as follows:
1. DESCRIPTION OF SERVICES
(1) The Consultant Company represents and warrants to the
Corporation that the Consultant Company has the required
skills and experience to perform the duties and exercise the
responsibilities required of the Consultant Company as an
investor, public, trade and media relations consultant. In
carrying out these duties and responsibilities, the Consultant
shall comply with all lawful and reasonable instructions as
may from time to time be given by superiors representing the
Corporation.
(2) The Consultant Company agrees to act in an advisory and
consultative and action capacity for the Company in respect to
all of the items set forth in (a) through (n) below, and more
specifically agrees: (i) to develop and prepare (and/or to
supervise the development and preparation of) the items set
forth in (a), (b), (c), (d), (e), and (g) below; and (ii) to
perform the activities set forth in items (f), (h), (i), (j),
(k), (l), (m), (n) and (o) below:
(a) The Corporation's Corporate Mission Statement;
(b) The Corporation's 32-page "Corporate Bible";
(c) The Corporation's website (including conceptualizing,
designing and programming);
(d) The Corporation's corporate materials including, but
not limited to, a pocket folder and various color
inserts;
(e) The Corporation's quarterly newsletter;
(f) Establishment of a relationship with ADP shareholder
services and coordination with shareholder
communication efforts via ADP;
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(g) The Corporation's corporate advertising materials for
National Investor Awareness Initiatives including,
but not limited to, a 16 page advertising newsletter
feature, email campaign components, inserts and
space-ads;
(h) Assisting in providing guidance in the preparation,
writing and dissemination of press releases, reports,
annual reports or other informational material to be
sent from time to time to shareholders and/or
prospectively interested parties;
(i) Development and management of an ongoing nationwide
public relations campaign for the
consumer/trade/media.
(j) Ensuring complete and regular review of the
Corporation Investor Relations Program for the
purpose of maintaining its timely relevance to the
Corporation's requirements;
(k) Providing the Corporation with (at least) a monthly
summary of activities, in writing and verbally;
(l) Posting the Corporation corporate information on a
website specifically developed for the Corporation;
(m) Providing the Corporation with a monthly list of all
contact information for: (i) all individuals or
others contacting Consultant Company or its
subcontractors regarding the Corporation; and (ii)
all individuals sent information regarding the
Corporation in response to any inquiry;
(n) Maintain a record of all the mailing and contact
lists the Consulting Company uses in the event the
Corporation is required, under law, to disclose the
recipients of the mailings.
(o) To advise the Corporation with regard to the manner
of dissemination of creative materials.
(3) It is understood and agreed that the decision whether to make
or disseminate forecasts and/or financial projections and if
so, the preparation of such forecasts and/or financial
projections rests solely with the Corporation. The Consultant
Company shall obtain the Corporation's written approval for
content before distributing or otherwise disseminating any and
all information and material of whatever nature or kind
relating to the Corporation to any person or group whatsoever.
(4) The Consultant Company agrees to comply with and be bound by
the terms and conditions of this Agreement and cause its
agents, employees and contractors to be similarly bound.
(5) In consideration of the Consultant Company's agreement hereto
and the Consultant Company's performance in accordance
herewith, the Corporation retains the Consultant Company as
Investor, Public, Trade and Media Relations Consultant for a
term of 12 months commencing upon the resolution of the
conditions set forth in Section 17. of this Agreement (the
"Term of this Agreement"), subject to earlier termination as
provided in Section 7.(a) or (b).
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(6) The Consultant Company acknowledges and agrees that the
effective performance of the Consultant Company's duties
requires the highest level of integrity and the Corporation's
complete confidence in the Consultant Company's employees. The
Consultant Company acknowledges that the officers responsible
for implementing the Corporation's investor relations program
and with whom the Consultant Company's employees will deal
with in regards to such program are to be designated by the
Corporation.
(7) It is understood and agreed to by the Consultant Company that
the Corporation reserves the right to modify the Consultant
Company's assignments, duties and reporting relationships
within the parameters of its responsibilities as an Investor,
Public, Trade and Media Relations Consultant.
2. SERVICE
During the Term of this Agreement the Consultant Company shall well and
faithfully serve the Corporation. The Corporation acknowledges that the
Consultant Company is engaged in the business of investor marketing and
ancillary functions on behalf of other companies, whether public or private.
3. CONFIDENTIAL INFORMATION
(1) The Consultant Company acknowledges that as Investor, Public,
Trade and Media Relations Consultant, and in such other
position as it may from time to time be appointed to, or may
be deemed by law, the Consultant Company will acquire
information about certain matters and things which are
confidential to the Corporation, (the "Information") and which
Information is the exclusive property of the Corporation
including, but not limited to:
(a) Lists of present and prospective customers, and
related information;
(b) Pricing and sales policies, techniques and concepts;
(c) List of suppliers and customers;
(d) Trade secrets;
(e) Financial information not provided to the public;
(f) All non-public information; and
(g) All information regarding the proprietary aspects of
the Corporation's technology and/or products.
(2) The Consultant Company acknowledges such Information as
referred to in Section 3(1) above could be used to the
detriment of the Corporation. Accordingly, the Consultant
Company undertakes to treat confidentially all such
Information, except if same is already or becomes information
generally known to the public, and agrees not to disclose same
to any third party either during or after the Term of this
Agreement, except as may be necessary in the proper discharge
of its services, however caused, except with the written
permission of an officer of the Corporation.
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(3) The Consultant Company acknowledges that, without prejudice to
any and all rights of the Corporation, an injunction is the
only effective remedy to protect the Corporation's rights and
property as set out in Sections 3.(1) and 3.(2) hereinabove.
4. REPRESENTATIONS AND WARRANTIES
The Consultant Company represents and warrants to the Corporation that:
(a) It will exercise reasonable care to assure that all materials
and documents descriptive of or relating to the Corporation
which are prepared by the Consulting Company or its
subcontractors (the "Creative Materials") be accurate, not
misleading and balanced in presentation;
(b) It will exercise reasonable care to assure that all Creative
Materials submitted to the Corporation for approval are: (i)
compliant with the requirements of federal securities laws for
such material; (ii) in the long term best interests of the
Corporation and its shareholders; and (iii) consistent with
good practices for shareholder relations for a development
stage public company;
(c) The entities engaged to perform website and PR services
hereunder will be supervised by the Consultant Company and
that the Expenses/Program Costs referenced in Section 6. and
listed in Exhibit B represent maximum anticipated costs for
such services; and
(d) To provide the Corporation its best advice regarding the
manner of preparation and designing of Creative Materials to
enhance long-term shareholder liquidity and value without
spikes.
5. NON-COMPETITION
The Consultant Company agrees that, during the Term of this Agreement
and for a period of twenty-four (24) months following termination of this
Agreement, however caused, it will not hire or take away or cause to be hired or
taken away any employee of the Corporation or, following termination of this
Agreement, any employee who was in the employ of the Corporation during the six
(6) months preceding termination.
6. REMUNERATION AND BENEFITS
In consideration of the Consultant Company's undertaking and the
performance of the obligations contained herein, the Corporation shall pay cash
compensation as outlined in Exhibit A hereto. In addition, the Corporation shall
provide for expenses and costs associated with the Consultant Company's
activities, payments to sub-contractors and production of materials. These
expenses/program costs are outlined in chart format as Exhibit B hereto and
require an advance deposit as outlined in Exhibit B.
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7. TERMINATION
The parties understand and agree that this Agreement may be terminated
in the following manner in the specified circumstances:
(a) By the Consultant Company for any reason, on the giving of not
less than thirty (30) days notice to the Corporation.
Consultant Company acknowledges and agrees that Consultant
Company shall not be entitled to any additional monthly cash
compensation following the expiration of the 30-day notice
period;
(b) By the Corporation for any reason, on the giving of not less
than thirty (30) days notice to the Consultant Company.
Consultant Company acknowledges and agrees that Consultant
Company shall not be entitled to any additional monthly cash
compensation following the expiration of the 30-day notice
period;
(c) By the Corporation, at its option, without notice, for cause
including:
i. Any material breach of the provisions of this
Agreement;
ii. Conviction of the Consultant Company of a criminal
offense;
iii. Any mental or physical disability or illness which
results in the Consultant Company being unable to
substantially perform his duties in accordance with
this Agreement for a period of thirty (30) days in
any one hundred and twenty (120) day period. Failure
by the Corporation to rely on this provision in any
given instance or instances, shall not constitute a
precedent or be deemed a waiver; or
(d) By the Consultant Company for cause, including any material
breach of this Agreement by the Corporation.
(e) In the event of termination by either party, Consultant
Company shall exercise its best efforts to provide Corporation
with a smooth transition in all functions covered by this
agreement and to deliver to Corporation all information and
investor inquiries received by it subsequent to termination.
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8. THE CORPORATION'S PROPERTY
The Consultant Company acknowledges that all items of any and every
nature or kind created or used by the Consultant Company or its subcontractors
including, but not limited to, website codes and development, PR materials and
pending contacts or proposals, and fulfillment, pursuant to the Consultant
Company's services under this Agreement, or furnished by the Corporation to the
Consultant Company, and including, without limitation all equipment,
automobiles, credit cards, books, records, reports, files, manuals, literature,
all items developed or referred to in Section 1.(2)(3) herein, confidential
information or other materials shall remain and be considered the exclusive
property of the Corporation at all times and shall be surrendered to the
Corporation, in good condition, promptly on the termination of the Consultant
Company's services irrespective of the time, manner or cause of the termination.
9. ASSIGNMENT OF RIGHTS
The rights, which accrue to the Corporation under this Agreement, shall
pass to its successors or assigns. The rights of the Consultant Company under
this Agreement are not assignable or transferable in any manner unless assigned
to a company controlled by the same individuals as the Consultant Company.
10. NOTICES
(1) Any notice required or permitted to be given to the Consultant
Company shall be sufficiently given if delivered to the
Consultant Company or if mailed by registered mail to the
Consultant Company or if mailed by registered mail to the
Consultant Company's address last known to the Corporation.
(2) Any notice required or permitted to be given to the
Corporation shall be sufficiently given if mailed by
registered mail to the Corporation's Head Office at its
address last known to the Consultant Company.
11. SEVERABILITY
In the event that a court of competent jurisdiction shall deem any
provision or part of this Agreement void or invalid, the remaining provisions or
parts shall be and remain in full force and effect.
12. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement between the parties
hereto with respect to the engagement of the Consultant Company and any and all
previous agreements, written or oral, express or implied between the parties
hereto ("Prior Agreements") are hereby null and void, and the parties hereto
hereby release and forever discharge the other of and from all manner of
actions, causes of action, claims and demands whatsoever, under or in respect of
any such Prior Agreements.
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13. MODIFICATION OF AGREEMENT
Any modification of this Agreement must be in writing and signed by the
parties or it shall have no effect and shall be void.
14. HEADINGS
The headings used in this Agreement are for convenience only and are
not to be construed in any way as additions to or limitations of the covenants
and agreements contained in it.
15. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the
State of Connecticut.
16. COUNTERPART
This Agreement can be signed in counterpart.
17. CORPORATION'S BOARD OF DIRECTOR APPROVAL
This Agreement is subject to approval by the Corporation's Board of
Directors of: (a) this Agreement; and (b) funding.
18. COSTS
In the event of a dispute arising under the terms and conditions of
this consulting agreement, the prevailing party in any such dispute shall be
entitled to reasonable legal fees and cost of collection.
IN WITNESS WHEREOF, this Agreement has been executed by the parties to
it, as of the day, month and year first written above.
Invisa, Inc. Xxxxxxx X. X. Xxxxxxx d/b/a
The Xxxxxxx Group
Per: /s/ Xxxxxxx X. Xxxxxxx, President Per: /s/ Xxxxxxx X.X. Xxxxxxx
--------------------------------- ----------------------------
Authorized Signatory Authorized Signatory
EXHIBIT A
CASH COMPENSATION
Cash Compensation pursuant to Section 6. of this Agreement
- Monthly fee of $12,500
- First two months fee deliverable upon resolution of the
conditions set forth in Section 17. then, a payment of $12,500
every thirty (30) days thereafter over a period of ten (10)
consecutive months (subject to the 30 day written notice of
cancellation pursuant to Section 7.(a) or (b).
- The first two months' fee of $25,000 has been paid.
EXHIBIT B
EXPENSES/PROGRAM COSTS PURSUANT TO SECTION 6. OF THIS AGREEMENT
The following table provides an estimation of various costs and
expenses associated with the Consultant Company's duties and provisions of
services as described in this Agreement.
A $25,000 deposit against these anticipated costs and expenses shall be
paid upon the resolution of the conditions set forth in Section 17. of this
Agreement.
-------------------------------- ------------------ ------------ --------------
INVISA 1-4 MONTHS(1) 5-8 MONTHS 9-12 MONTHS
-------------------------------- ------------------ ------------ --------------
Website pursuant to 1.(2)(c) $12,500-25,000 $5,000 $5,000
-------------------------------- ------------------ ------------ --------------
Newsletter pursuant to 1.(2)(e) $2,000 $2,000 $2,000
-------------------------------- ------------------ ------------ --------------
PR pursuant to 1.(2)(i) $8,000 $8,000 $8,000
-------------------------------- ------------------ ------------ --------------
Self-mailer Design $8,000 $0 $0
-------------------------------- ------------------ ------------ --------------
Misc. Design $6,000 $6,000 $6,000
-------------------------------- ------------------ ------------ --------------
Writing* $11,000 $5,000 $5,000
-------------------------------- ------------------ ------------ --------------
Misc. Expenses $3,000 $2,000 $2,000
-------------------------------- ------------------ ------------ --------------
TOTAL $50,500-$63,000+/- $28,000 $28,000
-------------------------------- ------------------ ------------ --------------
* Writing includes ingredients for Corporation's main story, investor folder,
brochures, press releases, web site, research (i.e.- the items in 1.(2) of this
Agreement.
(1) $25,000 of the 1 - 4 months' cost and expenses has been paid.
