Exhibit 10.85
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made and entered into this
26th day of January, 2004 by and between Invisa, Inc. a Nevada corporation, (the
"Company") and Xxxxxxx X. Xxxxxxx (the "Consultant").
RECITALS
WHEREAS, the Consultant is the co-founder of the Company and has been
employed by the Company since February 9, 2000 and is a member of its Board of
Directors; and
WHEREAS, the Consultant's employment with the Company terminates effective
January 31, 2004 and the Company and Consultant have determined that it is in
the best of interest of the Company that Consultant continue to provide services
to the Company as an independent consultant pursuant to the terms of this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises in this Agreement,
and for additional good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by the parties hereto, the Company and the
Consultant agree as follows:
1. TERM. On the terms and subject to the conditions of this Agreement,
Consultant agrees to provide consulting services to the Company and the Company
agrees to accept such services. The term of this Agreement shall commence on
February 1, 2004, and shall continue in effect for a period of 12 months from
said data and terminate on January 31, 2005 unless earlier terminated as
provided for in this Agreement.
2. DUTIES. The Consultant shall provide services to the Company as are
requested from time to time by the Board of Directors and agreed to by the
Consultant. The scope of these services is more specifically set forth in
Exhibit "A" attached hereto and incorporated herein (the "Duties"). The parties
acknowledge that specific time allocations for specific projects undertaken by
the Consultant in furtherance of his Duties will be difficult to develop.
However, where practical, time allocations and/or a budget for such specific
projects will be mutually agreed upon by the parties. The Board of Directors
will ensure that reasonable cooperation is provided by the Company to assist the
Consultant in the completion of such projects. The Consultant shall use the
experience, tools, research and resources which may be provided by the Company.
The Consultant acknowledges that any employees of the Company who may assist the
Consultant with his Duties shall do so solely at the direction of the Company
and shall report directly and exclusively to the Company. The Consultant shall
conduct himself at all times during the term of this Agreement with the same
high standards of professionalism that would be expected from a representative
of the Company and shall consult with the Company's CEO to ensure that the
services which the Consultant is providing to the Company do not interfere with
the overall goals and direction of the Company.
3. COMPENSATION AND SCHEDULE OF SERVICE. Except as otherwise provided for
in this Section 3, the Company shall pay the Consultant $550.00 per day for each
day which the Concurrent provides services to the Company pursuant to this
Agreement. The parties acknowledge that any six hours expended by the Consultant
during the day in furtherance of his Duties, including travel, shall constitute
a billable day. Billable time starts and ends when navel begins and ends. In the
event, that the Consultant provides less than six hours of service to the
Company during a day, such service shall be billed at $67.85 per hour. The
Parties further acknowledge that a billable day shall be between 9:00 A.M. and
5:00 P.M. ("Normal Business Hours"). The Consultant shall expend time for the
Company outside Normal Business Hours only at the request of the Company. The
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Consultant shall be paid $137.50 per hour for time expended outside Normal
Business Hours. Unless otherwise agreed to by the parties, the Consultant shall
provide no more than 15 days per month of service to the Company which shall be
preformed by the Consultant on Mondays through Thursdays. The Consultant shall
xxxx no more than 10 hours a month as "in office time" which for purposes of
this Agreement shall be deemed time spent by the Consultant at the Consultant's
home office or any other facility where the Consultant maintains an office
independent from the Company. Notwithstanding anything to the contrary contained
in this Agreement, the Consultant shall not be paid for attending any meetings
of the Company's Board of Directors or for any work which he performs in
furtherance of his responsibilities as a director. Subject to the terms of this
Agreement, the Consultant shall set his own schedule in which he will perform
his Duties and shall use his best efforts to notify the Company in writing of
his schedule one month in advance. The Consultant acknowledges that the
performance of his Duties will, where practical, take priority over any
commitments which he may have outside of this Agreement. The Company shall pay
the Consultant for services rendered pursuant to this Section 3 of the
Agreement, within 10 days following the presentment by the Consultant to the
Company of invoices, accompanied by short form project updates and/or relevant
reports and other documentation as may be agreed to by the parties.
4. REIMBURSEMENT OF EXPENSES. The Company shall reimburse the Consultant
for mileage incurred in furtherance of his Duties at current IRS rates. The
Company shall reimburse the Consultant for all other reasonable expenses
incurred by the Consultant, in furtherance of his Duties, consistent with the
Company's policy, including but not limited to air travel, car rentals, hotel
accommodations, telephone usage, entertainment and developmental or
demonstrative hardware. Unless otherwise agreed to by the parties, the Company
shall make all airline, car rental and hotel reservations. The parties
acknowledge that rental cars shall be mid-size or larger (GM where possible) and
the hotels will be Marriott Court yard, Holiday Inn Express or better. Except
for airline reservations which will be prepaid by the Company as part of the
reservation process, the Company shall reimburse the Consultant for
out-of-pocket expenses incurred by the Consultant pursuant to this Section 4 of
the Agreement within 10 days following the presentment by the Consultant to the
Company of the receipts documenting such expenses.
5. UNPAID INVOICES AND EXPENSES. Notwithstanding anything to the contrary
contained in this Agreement, the outstanding balance owed by the Company to the
Consultant for unpaid invoices and expenses shall not exceed $6,000.00. In the
event the outstanding balance exceeds $6,000.00, the Consultant may discontinue
providing services under this Agreement, until such time as the outstanding
balance is less than $6,000.00.
6. BREACH AND OPPORTUNITY TO CURE. If a party is in breach of any
provisions of this Agreement and fails to cure said breach within 30 days,
following written notice by the non-breaching party to the breaching party,
the non-breaching party may terminate this agreement. In the event that this
Agreement is terminated because the Company has failed to cure its breach
within said thirty (30) day period, all monies due Xxxxxxx under this Agreement
will be deemed immediately due and payable.
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7. NOTICES. Any notice provided for in this Agreement must be in writing
and must be either personally delivered or mailed by certified mail, return
receipt required, to the recipient at the address indicated below:
To the Company: To Consultant:
Xxxx X. Xxxxxx, CEO Xxxxxxx X. Xxxxxxx
Invisa, Inc. 0000 Xxxxxxxxx Xxxxx Xxxx.
0000 Xxxxxxxxxxxx Xxxxx Xxxxxxxx, XX 00000
Xxxxxxxx, XX 00000 Fax: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
8. SEVERABILITY. In the event that any provision of this Agreement shall
be held to be unreasonable, invalid, or unenforceable for any reason whatsoever,
the parties agree that: (i) such invalidity or unenforceability shall not affect
any other provision of this Agreement and the remaining covenants, restrictions,
and provisions hereof shall remain in full force and effect; and (ii) any
arbitrator or arbitration panel, as the case may be, may so modify the
objectionable provision as to make it valid, reasonable, and enforceable, and
such provision, as so modified, shall be valid and binding as though the
invalid, unreasonable, or unenforceable portion thereof had not been included
therein.
9. COMPLETE AGREEMENT. Except for the Confidentiality/Waiver of Interest
Agreement and Covenant Not To Compete executed by the parties on November 6,
2003, (collectively the "Confidentiality and Non Compete Agreements") and the
Severance Agreement executed by the parties, this Agreement contains the entire
agreement of the parties and supersedes and preempts any prior understandings,
agreements or representations between the Consultant and the Company, including
without limitation the employment agreement executed by the patios no February
9, 2000 and the term sheet executed by the parties on November 6, 2003.
10. CONFIDENTIALITY AND NON COMPETE AGREEMENTS. Notwithstanding my other
agreement executed by the parties, or the termination of the February 9, 2000
Employment Agreement, the parties acknowledge that the Confidentiality and Non
Compete Agreements shall remain in full force and effect. The parties further
acknowledge that the mediation and remedy provisions contained in paragraphs 4
and 5 of the Covenant Not to Compete and paragraphs 7 and 8 of the
Confidentiality/Waiver of Interest Agreement respectively, are the dispute
resolution and remedy provisions that govern the parties under the
Confidentiality and Non Compete Agreements. To this extent, Section 12 of this
Agreement shall not be applicable to the Confidentiality and Non Compete
Agreements.
11. COUNTERPARTS. This Agreement may be simultaneously executed in three
counterparts, each of which shall be an original, and all of which shall
constitute but one and the same instrument.
12. MEDIATION/ARBITRATION PROVISION. The parties shall in good faith
endeavor to resolve all claims or disputes arising from or relating to the terms
of this Agreement first by mediation through a mediator selected by the parties
and if not resolved by mediation, then the parties agree to resolve all claims
or disputes by binding arbitration in accordance with this Section. The party
seeking mediation shall submit a written notice for mediation to the other party
(the "Notice"). The parties shall agree on a mediator and mediation date within
ten business (10) days from the date of the Notice. If the parties are unable to
agree upon a mediator and mediation date within ten (10) days from the date of
the Notice, the matter shall, within twenty (20) days from the date of the
Notice, be referred to the American Arbitration Association for final and
binding arbitration. If the matter is mediated but not resolved by mediation,
the matter shall, within ten (10) days farm the last mediation proceeding, be
referred to the American Arbitration Association for final and binding
arbitration. The arbitration proceedings shall take place in Sarasota County,
Florida and shall be governed by the Florida Arbitration Code and the rules
pertaining to commercial arbitration of the American Arbitration Association
then in effect (except the provisions of this paragraph shall govern if in
conflict with such rules). There shall be one arbitrator if the amount in
controversy is less than twenty four thousand dollars ($24,000), and otherwise
there shall be three arbitrators. The arbitration award may be entered in any
court of competent jurisdiction, as provided for in this Agreement, for an order
of enforcement if necessary. The prevailing party in the arbitration proceeding
shall be entitled to collect from the non-prevailing party, the cost of the
arbitration and reasonable attorneys' fees incurred by the prevailing party as a
direct result of the arbitration.
13. AMENDMENTS/WAIVERS. This Agreement nose only be modified, amended, or
waived by a writing duly authorized and executed by 411 parties.
14. DRAFTSMAN. In constructing this Agreement, neither of the parties
hereto shall have any term or provision of this Agreement construed against such
party solely by reason of such party having drafted same as each provision of
this Agreement is deemed by the parties to have been jointly drafted by the
Company sued the Consultant.
15. SEC COMPLIANCE. The Consultant acknowledges that the Company, as of
the date hereof, is a "Reporting Company" under the Securities Exchange Act of
1934 as stranded (the "Act'). While the Company remains a Reporting Company, its
officers and directors, and certain shareholders are required to file periodic
reports under Section 16, as it relates to the ownership, acquisition and
disposition of their equity in the Company. The Consultant agrees that he will
timely file Section 16 reports regarding his equity ownership in the Company.
The Consultant further agrees that he will abide by Regulation FD and the
Company's written policies as may adopted from time to time regarding xxxxxxx
xxxxxxx and disclosure of non-public information, where with regard to xxxxxxx
xxxxxxx policies, such policies are not in conflict with selling plans
previously adopted or which may be adopted by Xxxxxxx from time to time pursuant
to SEC Rule 10(b) 5-1 for sales of Invisa stock, provided such plans and sales
thereunder are in compliance in all respects with the requirements of SEC Rule
10(b) 5-1.
16. BINDING AGREEMENT. The parties represent and warrant that each has
consulted with legal counsel of their choice in connection with the review,
approval and execution of this Agreement, that each understands this Agreement
is a legally binding contract; that each has read and understands this
Agreement; and that each intends to be legally bound by each provision of this
agreement.
17. RELATIONSHIP CREATED. No joint venture, partnership, employment,
agency or similar agreement is created between the parties. Consultant is an
independent contractor and shall act as such hereunder.
18. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida and venue for any legal action
taken pursuant to this Agreement shall be in Sarasota County, Florida.
19. MISCELLANEOUS. Captions are for convenience only. In constructing this
Agreement, feminine or neuter pronouns shall be substituted for those masculine
in form or vice versa and plural terms shall be substituted for singular and
singular for plural for any place which the context so requires.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written:
INVISA, INC.
By: /s/ Xxxxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxx Xxxxxxx, Director Xxxxxxx X. Xxxxxxx
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, Director
EXHIBIT A
Consulting Agreement
Between
Invisa, Inc.
and
Xxxxxxx X. Xxxxxxx
In accordance with Paragraph 2, Consultant shall use his best efforts so
to seek out and identify new opportunities for integration, application,
licensing, and sales of InvisaShield technology (or any technology the Company
may develop or acquire). Consultant shall use his best efforts to research,
identify, present and follow-up and report his findings to the Company's Board
of Directors.
