CONSULTING AGREEMENT
This Consulting Agreement (“the
agreement “), effective as of Monday, October 25, 2010 which is
entered into and by and between Iveda
Corp, a Nevada
Corporation (herein referred to as the company) and A.S. Austin company a
(“herein referred to as the consultant”)
RECITALS
WHEREAS, company is a
publicly- held corporation with its stock trading on the OTC Bulletin Board
Markets under the symbol: IVDA and
WHEREAS, Company
desires to engage the services of consultant to represent the company in the
area of investor’s communications and public relations with existing
shareholders, brokers, dealers, and other investment professionals as to the
company’s current and proposed activities, and to consult with management
concerning such Company activities.
NOW THEREFORE, In
Consideration of the promises and the mutual covenant and agreements hereinafter
set forth, the parties hereto covenant and agree as follows:
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1.
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Term
f Consultancy, Company
hereby agrees to retain the consultant to act in a consulting capacity to
the company and the consultant hereby agrees has been proving
services to the company commencing on Monday, October 25,
2010.
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2.
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Duties
of Consultant, The
consultant agrees that it will generally provide the following services
through its officers and employees during the term specified in section
1:
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a.
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consult
and assist the company in developing and implementing appropriate plans
and means for presenting the company and its business plans, strategy and
personal to the financial community, and creating the foundation for
subsequent financial public relations
efforts:
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b.
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Introduce
the company to the financial
community.
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c.
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With
the cooperation of the company, maintain an awareness during the term of
this Agreement of the company’s plans, strategy and personal, as they may
evolve during such a period, and consult and assist the company in
communicating appropriate information regarding such plans, strategy and
personnel to the financial
community;
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d.
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Assist
and consult the company with respect to its (i) relations with
stockholders (ii) relations with brokers, dealers, analysts and other
investment professional, and (iii) financial public
generally;
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e.
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Perform
the functions generally assigned to stockholder relations and public
relations departments in major corporations, including responding to
telephone and written inquiries (which may be referred to the consultant
by the company); assisting in the preparation of press releases for the
company with the company’s involvement and approval of all press releases,
reports and communications with or to shareholders, the investment
community and the general public; consulting with respect to the timing,
form, distribution and other matters related to such releases, reports and
communications; and at the company’s request and subject to the company’s
securing its own rights to the use of its names, marks, and logos,
consulting with respect to corporate symbols, logos, names, the
presentation of such symbols, logos and other matters relating to
corporate image.
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f.
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Upon
the company’s direction and approval, disseminate information regarding
the company to shareholders, brokers, dealers, and other investment
community professional and the general investing
public.
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g.
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Upon
the company’s approval conduct meetings, in person or by the telephone,
with , brokers, dealers, analyst and other investment professionals to
communicate with them regarding the company’s plans, goals and activities
the company in preparing for press conferences and other forums involving
the media, investment professionals and the general investment
public.
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h.
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At
the company’s request , review business plans, strategies, mission
statements budgets, proposed transactions and other plans for the purpose
of advising the company of the public relations implications thereof;
and
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i.
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Otherwise
perform as the company’s consultant for public relations with the
financial professionals.
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3.
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Allocation
of Time and Energies. The
consultant herby promises to perform and discharge faithfully the
responsibilities which may be assigned to the consultant from time to time
by the officers and dully authorized representatives of the company in
connection with the conduct of its financial and public relations and
communication activities, so long as such activities are in compliance
with the applicable securities laws and regulations. Consultant and staff
shall diligently and thoroughly provide the consulting services required
hereunder. Although no specific hours-per day requirement will be
required, consultant and the company agree that consultant will perform
the duties set forth herein above in a diligent and professional manner.
The parties acknowledge and agree that a disproportionately large amount
of the effort to be expended and the cost to be incurred by the consultant
and the benefits to be received by the company are expected to occur
within or shortly after the first two months of the effectiveness of this
Agreement. It is explicitly understood that consultant’s performance of it
duties hereunder will in no way be measured by the price of the company’s
common stock nor the trading volume of the company’s common stock. It is
also understood that the company is entering into this agreement with
A.S. Austin
Company or Xxxxxx
X. Xxxxxx (ASA) a Nevada Corporation and not any individual member
of ASA and as such
, consultant will not be deemed
to have breached this Agreement if any member, officer or director of
ASA leaves the
firm or dies or becomes physically unable to perform any meaningful
activities during the term of this agreement, provided the consultant
otherwise performs its obligation under this
Agreement.
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4.
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Remuneration. As full and
complete compensation for services in this agreement, the company shall
compensate ASA as
follows:
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4.1 For
undertaking this engagement and for other good and valuable consideration, the
company agrees to Issue to the consultant a “Commencement Bonus”
of 150,000
shares of the company’s common stock (Common Stock) to be delivered to
consultant within five (5) days
business days of 10/25/2010. This commencement bonus shall be
issued to the consultant immediately following the execution of this agreement
and shall, when issued and delivered to consultant, be fully paid and
non-assessable. The company understands and agrees that consultant has foregone
significant opportunities to accept this engagement and that the company derives
substantial benefits from the execution of this agreement and the ability to
announce its relationship with consultant. The 150,000 shares of common stock
issued as a Commencement Bonus, therefore, constitute payments for consultant’s
agreement to consult to the company and are nonrefundable, non-apportionable,
and non-ratable retainer, such shares of common stock are not a prepayment for
future services. If the company decides to terminate this Agreement prior to
02/01/2011 for any
reason whatsoever, it is agreed and understood that consultant will not be
requested or demanded by the company to return any of the shares of common stock
paid to it as Commencement Bonus hereunder. Further if and in the
event the company is acquired in whole or in part, during the term of this
agreement, it is agreed and understood consultant will not be requested or
demanded by the Company to return any of the 150,000 shares of common
stock paid to it hereunder. It is further agreed that if at any time during the
term of this agreement, the company or substantially all of the assets are
merged with or acquired by another entity, or some other change occurs in the
legal entity that constitutes the company, the consultant shall retain and will
not be requested by the company to return any of the 150,000 shares,
(Commencement Bonus)
4.2 The
Commencement Bonus shares issued pursuant to this agreement shall be issued in
the names of A. S. Austin Company TAX ID# 00-0000000.
4.3 With
each transfer of shares of the common stock to be issued pursuant to this
agreement ( Collectively, the “shares”), company shall cause to be issued a
certificate representing the common stock and a written Opinion of counsel for
the company stating that said shares are validly issued fully paid and non
assessable and that the issuance and eventual transfer of them to consultant has
been dully authorized by the company. Company that all shares issued to
consultant pursuant to this agreement shall have been validly issued, fully paid
and non-assessable and that the issuance and any transfer of them to consultant
shall have been duly authorized by the company’s board of
directors.
4.4
Consultant acknowledges that the shares of common stock to be issued pursuant to
this Agreement (Collectively the “Shares”) have not been registered under the
securities Act of 1933, and accordingly are “restricted securities” within the
meaning of Rule 144 of the act. As such, the shares may not be resold or
transferred unless the company has received an opinion of counsel reasonably
satisfactory to the company that such resale or transfer is exempt from the
registration requirements of the Act.
4.5 Grant
of Warrants. The company shall grant and deliver to A. S. Austin Company
warrants (the Warrants) to purchase up to 100,000 shares of the common stock
(the Common Stock). The warrants shall be exercisable at any time or
from time to time commencing on The grant date ( The signing of this
agreement) at an exercise price of $ 1.00 ( One Dollar) per
share, subject to customary stock splits and the like and payable in cash
(including check, bank draft or money order). The warrants shall carry a 3 year
term from the signing of this agreement.
4.6 In
connection with the acquisition of the shares, hereunder, the consultant
represents and warrants to the company, to the best of its/his knowledge, as
follows.
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a.
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Consultant
acknowledges that the consultant has been afforded the opportunity to ask
questions of and receive answers from duly authorized officers and other
representatives of the company concerning an investment in the shares and
any additional information which the consultant has
requested.
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b.
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Consultant’s
investment in restricted securities is reasonable in relation to the
consultant’s net worth, which is in excess of ten (10) times the
consultant’s cost basis in shares. Consultant has had experience in
investments in restricted and publicly traded securities, and consultant
has had experience in investments in speculative securities and other
investments which involve the risk of loss of investments. Consultant
acknowledges that an investment in the shares is speculative and involves
the risk of loss. Consultant has the request knowledge to assess the
relative merits and risk of this investment without the necessity of
relying upon other advisors, and consultant can afford the risk of loss of
his entire investment in the shares. Consultant is (i) an accredited
investor as that term is defined in Regulation D promulgated under the
Securities Act of 1933, and (ii) a purchaser described in section 25102(f)
(2) of the California Corporate Securities Law of 1968, as
amended.
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c.
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Consultant
is acquiring the shares for the consultants own account for long –term
investment and not with a view toward resale or distribution thereof
except in accordance with applicable
laws.
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4.7
Additionally, for a period of two years after the effective date hereof, should
the company make any public offering of its securities pursuant to an effective
registration statement under the securities act of 1933 or 1934 as
amended? Consultant shall be entitled, and the company agrees to
include in such registration any or all of the common stock given to consultant
by the company as consideration hereunder (commonly referred to as “Piggyback
Registration Rights”). Such piggyback registration rights include, at the
consultants option registration on Form S-1. All such registration rights shall
be subject to customary market stand – off and underwriter cutback
provisions.
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5.
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Non-Assignably
of services; Consultant’s services under this contract are offered
to company only and may not be assigned by company to any entity with
which company merges or which acquires the company or substantially all or
its assets. In the event of such merger or acquisition, all compensation
to consultant herein under the schedules set forth herein
remain due and payable, and any compensation received by the
consultant may be retained in the entirely by consultant, all without any
reduction or pro-rating and shall be considered and remain fully paid and
non-assessable.
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Not
withstanding the non-assignability of consultants services, company shall assure
that in the event of any merger, acquisition or similar change in form of
entity, that its successor entity shall agree to complete all obligation to
consultant, including the provision and transfer of all compensation herein, and
the perseveration of the value thereof consistent with the rights granted to
consultant by the company herein, and to shareholders.
6. Expenses:
Consultant agrees to pay for all its expenses (phone, mailing, labor, etc.)
other than extraordinary items (travel required bi/or specifically requested by
the company, luncheons or Dinners to large groups of investments professionals,
mass faxing to a sizable percentage of the company’s constituents, investor
conference calls, print advertisements in publications, etc.) approved by the
company prior to its incurring an obligation for reimbursement.
7. Indemnification
The Company warrants and represents that all oral
communications written documents or material furnished to consultant by the
company with respect to financial affairs operations profitability and strategic
planning of the company are accurate and consultant may rely upon the accuracy
thereof without independent investigation. The company will protect, indemnify
and hold harmless consultant against any claims or litigation including any
damages, liability, cost, and reasonable attorneys fees as incurred with respect
thereto resulting from consultants communication or dissemination of any said
information, documents or materials excluding any such claims or litigation
resulting from consultants communication or dissemination of information not
provided or authorized by the company.
8. Representations Consultant
represents that it is not required to maintain any licenses and registrations
under federal or any state regulations necessary to perform the services set
forth herein. Consultant acknowledges that to the best of its knowledge the
performance of services set forth under this agreement will not violate any rule
or provision of any regulatory agency having jurisdiction over consultant.
Consultant acknowledges that to the best of its knowledge, consultant and its
officers and directors are not subject to any investigation, claim, decree or
judgment involving and violation of the SEC or securities laws. Consultant
further acknowledges that it is not a security Broker Dealer or a registered
investment advisor. Company acknowledges that to the best of its knowledge that
it has not violated any rule or provision of any regulatory agency having
jurisdiction over the company. Company acknowledges that to the best of its
knowledge company is not the subject of any investigation, claim, degree or
judgment involving any violation of the SEC or securities laws.
9.
Legal
Representations The Company acknowledges
that it has been represented by independent legal counsel in the preparation of
the agreement. Consultant represents that it has consulted with independent
legal counsel and /or tax, financial and business advisors to the extent the
consultant deemed necessary.
10. Status as
Independent Contractor Consultant’s engagement
pursuant to this agreement shall be as independent contractor, and not as an
employee, officer or other agent of the company. Neither party to this agreement
shall represent or hold itself out to be the employer of the other. Consultant
further acknowledges the consideration provided hereinabove is a gross amount of
consideration and that the company will not withhold from such
consideration any amounts as to income taxes, social security payments or any
other payroll taxes. All such income taxes and other such payment shall be made
or provided for by Consultant and the Company shall have no responsibility or
duties regarding such matters. Neither the company or the Consultant possess the
authority to bind each other in any agreements without the express written
consent of the entity to be bound.
11. Attorney’s
Fee If any legal action or any arbitration or other proceeding is brought
for the enforcement of interpretation of this Agreement or because of an alleged
dispute, breach, default or misrepresentation in connection with or related to
this agreement the successful or prevailing party shall be entitled to recover
reasonable attorneys fees and other cost in connection with that action or
proceeding in addition to any other relief to which it or they may be
entitled.
12.
Waiver: The waiver by either of a breach or any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach by such other party.
13. Notices:
All notices, requests and other communications hereunder shall be deemed to be
duly given if sent by U.S. postage prepaid, addressed to the other party at the
address set forth herein below.
Company: Iveda Corp
Contact
Person: Xxxxxx X. Xxxxxxx,
CFO
Address:
0000 Xxxxx Xxxx School
Road
City:
Mesa
State:
AZ
Zip: 85210
Consultant:
A.S.
Austin Company/ Xxxxxx X. Xxxxxx
0000
Xxxxxxx Xxxx# 000-000
Xx Xxxxx,
Xx 00000
It is understood that either party may
change the address to which notices for it shall be addressed by providing
notice of such a change to the other party in the manner set forth in this
paragraph.
14. Choice of Jurisdiction and
Venue: This agreement shall be governed by, construed and enforced in
accordance with the laws of California. The parties agree that San Diego County,
Ca will be the venue of any dispute and will have jurisdiction over all
parties.
15. Arbitration: Any controversy
or claim arising out of or relating to this agreement, or the alleged breach
thereof or relating to consultants activities or remuneration under this
agreement shall be binding arbitration in California. In accordance with the
applicable rules of the American Arbitration Association, and judgment on the
award rendered by the arbitrator(s) shall be binding on the parties and may be
entered in any court having jurisdiction as provided by paragraph 14 herein. The
provisions of Title 9 of part 3 of the California Code of Civil procedure,
including section 1283.05 and successor statutes, permitting expanded discovery
proceedings shall be applicable to all disputes that are arbitrated under this
paragraph.
16. Complete
Agreement:
This Agreement contains the entire agreement of the parties relating to
the subject matter hereof. This Agreement and its terms may not be changed
orally but only by an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is
sought.
AGREED
TO:
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“COMPANY
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Date: 10/25/2010
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By
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/s/XXXXX XX
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| President & CEO | ||
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“CONSULTANT”
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A.S.
AUSTIN COMPANY
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Date: 10/25/2010
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By:
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/s/XXXXXX X. XXXXXX
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| Xxxxxx X. Xxxxxx, President | ||
