CONSULTING SERVICES AGREEMENT
Exhibit 10.28
THIS
CONSULTING SERVICES AGREEMENT (the "Agreement") is made and entered into as of
this 1st day of
March 2008, by and between Location Based Technologies, Inc. the (“Company”), a
Nevada corporation and, The Xxxxxxxxx Group, LLC, a California Limited Liability
Company ("Consultant");
ENGAGEMENT
OF CONSULTANT; SERVICES TO BE PERFORMED
WHEREAS, Location Based
Technologies, Inc. desires to engage the services of Consultant as a Business
Development Executive. The duties will include:
|
(i)
|
To
lead, assist and advise on how the Company can position itself to raise
capital. The Consultant’s consulting engagement is on a
non-exclusive basis.
|
|
(ii)
|
To
introduce and present the Company to key strategic partners, investors and
technology service providers that will quickly and efficiently integrate
the device into their sales activities. This may take the form of a
teaming, merger or acquisition
play.
|
|
(iii)
|
To
provide corporate governance advice and
services.
|
NOW,
THEREFORE, in consideration for the mutual covenants contained herein, the
parties hereby agree as following:
1.
Compensation
for Executive Services:
(a) As
compensation for the capital raise services to be performed by Consultant
hereunder, the Company shall pay to Consultant a bonus fee of 7% (seven percent)
of the total investment value (paid in a combination of cash and/or equity at
the consultant’s choice).
(b) A
monthly sum of ten thousand Dollars ($10,000.00), payable on the first (1st) day
of each calendar month. This fee for services will commence March 1,
2008 and may be paid in cash and/or equity. The cash portion is subject to new
capital infusion and may be substituted for an equal value in
equity. The number of warrants to be issued in lieu of the $10,000.00
cash payment each month shall be calculated at follows: $10,000.00 divided by
the exercise price. The exercise price of the warrants is determined as the
closing price on the first business day of each quarter. The third quarter
exercise price will be based on the price of the stock at the close of the
market on March 3, 2008 and all equity compensation will be valued at that price
for March, April and May 2008 services. The fourth quarter exercise price will
be based on the price of the stock at the close of the market on June 2, 2008
and all equity compensation will be valued at that price for June, July and
August 2008 services. The quarterly warrant package shall be issued
in arrears for services performed. The warrants expire five (5) years from the
grant date.
(c) On
major accounts a seven percent (7%) commission of net revenues received by the
company from each Tier 1 (e.g. Thomson/GE) procured by Consultant for the first
twenty-four (24) months period during which such Account is active.
(d) A
standard three percent (3%) commission of net revenues on all other Tier 2 / 3
company accounts procured by the Consultant for the first twenty-four (24)
months period during which such Account is active.
1
(e) Consultant
will pay all expenses of its office, activities and domestic travel within the
contiguous United States and be responsible for the acts and expenses of its
employees. In
addition to the compensation to be paid to Consultant hereunder, the Company
shall reimburse Consultant for Consultant’s reasonable travel expenses incurred
in the performance of the consulting services hereunder, provided that such
expenses are presented to, and approved in advance.
2.
Term
The term
this Agreement will be for six months and may by mutual agreement be extended
for an additional six months, commencing on March 1, 2008 and ending on August
1, 2008; however, that the Company shall have the right and option, in its sole
discretion, to cancel the fifth (5th) and/or eleventh (11th) month of this
Agreement (if extended) by giving written notice of such cancellation to
Consultant on or before the thirtieth (30th) day of
the month. The monthly draw outlined in Part 1(b) of this agreement will
commence on March 1st, 2008
unless another date is mutually agreed upon prior to March 1, 2008.
3.
Names of
Accounts
During
the term hereof Consultant shall promptly provide to the Company in writing the
names of all potential Accounts contacted by Consultant. Specifically
identifying and confirming Tier 1, 2 and 3. Thomson has been confirmed as Tier
1. Consultant will work with and compensate Whizbiz within the
commission schedule agreed to above.
4.
Information and
Data
In
connection with Consultant’s activities hereunder, The Company will furnish
Consultant with analytics, engineering resources, administrative support and
such other information and data regarding the services the “Company” deems
appropriate, at the Company’s discretion.
5.
Independent
Contractor
In
rendering consulting services to the Company pursuant to this Agreement, it is
acknowledged and agreed that Consultant shall be acting solely as an independent
contractor and shall not have authority to the Company in any regard except as
may be specifically delegated to Consultant by the Company in
writing.
6.
Notices
All
notices and other communications required or permitted to be given hereunder
shall be in writing and shall be deemed to have been duly given if delivered
personally, given by prepaid telegram, sent by fax, sent by confirmed email, or
mailed by registered or certified mail, postage prepaid, addressed to the party
to who sent as follows:
|
|
To
Consultant:
|
The
Xxxxxxxxx Group
|
| Xxxxx 000 0000 Xxxxx Xxx | ||
| Xxxxx Xxxxxx, XX 00000 | ||
| Fax: (000) 000-0000 |
2
|
|
To
Company:
|
|
| 0000 X. Xx Xxxxx Xxx. | ||
| Xxxxxxx, XX 00000 | ||
| ATTN: Xxxxx Xxxxx | ||
| Fax: (000) 000-0000 |
Any party
may change the address to which such communications are to be directed to him or
it by giving written notice in the manner provided in this
paragraph.
7)
Indemnification
Company shall, at its sole cost and
expense, defend and hold harmless Contractor (including Contractor’s current and
former officers, directors and employees), from any and all allegations, claims,
losses, damages, penalties, judgments, liabilities, costs and expenses
(including, without limitation, the costs of defense and other reasonable
expenses of litigation, that may be incurred by, imposed upon, or asserted
against Contractor by reason of any legal proceeding, claim, action or demand of
a third party (each a “Claim”), including allegations that Contractor is
vicariously liable for the actions of Company, arising from Contractor’s
performance of services under this Agreement, any breach of this Agreement or
any willful misconduct or negligent act or omission of Company (including
Company’s officers, directors and employees) in connection with its activities
under this Agreement. Company’s obligation to hold Contractor
harmless under this Section 7 shall survive the expiration or termination of
this Agreement by either party for any reason.
Consultant agrees to indemnify and hold
harmless the Company and its directors, officers, employees, agents, and
controlling persons (each an “Indemnified Party”) from and against any and all
claims, loss, liability, damage, cost and expense whatsoever (a “Claim”)
relating to such Claims, including reasonable attorneys fees, arising out of or
relating to the engagement hereunder or any transaction contemplated
hereby:
8) Miscellaneous
Provisions
(a) This
Agreement may not be assigned by Consultant to any person without the prior
written consent of Company. Subject to the foregoing, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
(b) The parties
agree to execute any and all documents that may be reasonably necessary in order
to effectuate the transactions contemplated by this Agreement.
(c) This
Agreement shall be construed in accordance with and governed by the laws of the
State of California applicable to contracts made and to be performed in that
State.
(d) This
Agreement contains the entire understanding between the parties and supersedes
any prior written or oral agreements between them respecting the subject matter
contained herein.
(e) There are no
representations, agreements, arrangements or understandings, oral or in writing,
between or among the parties relating to the subject matter of this Agreement
which are not fully expressed herein.
(f) Any dispute
arising from the terms or obligations of this Agreement shall be submitted to
binding arbitration in accordance with the rules and regulations of the American
Arbitration Association sitting in San Francisco, and any decision by the
American Arbitration Association may be enforced by any court having
jurisdiction thereof. Notwithstanding the foregoing, any party may
commence legal action to obtain preliminary injunctive or other temporary relief
to enforce the terms of this Agreement pending arbitration, and/or to obtain or
compel specific performance of this Agreement pursuant to any award of the
American Arbitration Association.
3
(g) If
any legal action should be brought between or among the parties (including
arbitration), the prevailing party shall be entitled to recover all costs
incurred therein, including but not limited to reasonable attorneys’
fees.
(h) If
the scope of any provision of this Agreement is too broad in any respect
whatsoever to permit enforcement to its full extent, then such provision shall
be enforced to the maximum extent permitted by law, and the parties hereto
consent and agree that such scope may be judicially modified accordingly and
that the whole of this Agreement shall not thereby fail, but that the scope of
such provision shall be curtailed only to the extent necessary to conform to
law.
(i) All
paragraph headings herein are inserted for convenience only and shall not be
used in any way to modify, limit, construe or otherwise affect this Agreement or
the interpretation thereof.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
first above written.
| LOCATION BASED TECHNOLOGIES, INC. (The “Company”): | ||||
|
/s/
Xxxxx Xxxxx
|
|
|||
|
Xxxxx
Xxxxx, CEO
|
|
|||
| THE XXXXXXXXX GROUP, LLC (The “Consultant”): | ||||
|
/s/
Xxxxxxx Xxxxxxxxx
|
|
|||
|
Xxxxxxx
Xxxxxxxxx
|
|
|||
4
