EXHIBIT 10.13
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into as of this
15th day of August, 2005, by and between IVI communications, Inc., a Nevada
corporation (the "Company") having a place of business at 0000 X. Xxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 and Xxxxx Xxxxxxxxx, an
individual having an office at 0 Xxxxxxxx Xxxx, Xxxxxx 0, Xxxxx 000,
Xxxxxxxxxxxxx, Xxx Xxxxxx 00000 ("Consultant").
RECITALS
A. The Company is in the business of providing broadband wireless communications
services.
B. Consultant has certain skills, experience and abilities with respect to
Company's industry.
C. The Company desires to retain Consultant as an independent contractor to
perform certain consulting services set forth below for the Company from
time-to-time, and Consultant is willing to perform such services, on the basis
set forth more fully below.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises contained
herein, the Company and Consultant agree as follows:
1. Services.
(a) Consultant agrees to perform the services described below
(the "Services") in a workmanlike manner. Consultant agrees that the terms of
this Agreement will apply to all services performed by Consultant for the
Company, even if such services are not set forth below.
(i) Consultant shall introduce Company to certain
persons or entities who may be interested in entering into merger or acquisition
transactions with the Company;
(ii) Consultant will introduce Company to certain
persons who may be interested in assisting or advising the Company with respect
to any potential merger or acquisition transactions;
(iii) Consultant will recommend appropriate
consultants, service providers and other third parties to provide services to
the Company;
(iv) Consultant will assist the Company in identifying
appropriate Contacts for possible business expansion; and
(v) Consultant will advise Company with respect to general business matters.
2. Payment for Services. Upon the execution hereof, the Company shall
pay Consultant the consideration as set forth below:
(a) Options to purchase 2,000,000 shares of Company's common
stock at a purchase price of $0.075;
(b) Options to purchase 250,000 shares of Company's common
stock at a purchase price of $0.15;
(c) Options to purchase 250,000 shares of Company's common
stock at a purchase price of $0.175;
Exhibit 10.13 Xxxxxxxxx Consulting Agreement
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(d) Options to purchase 250,000 shares of Company's common
stock at a purchase price of $0.20;
(e) Options to purchase 250,000 shares of Company's common
stock at a purchase price of $0.225;
(f) Options to purchase 500,000 shares of Company's common
stock at a purchase price of $0.25; and
(g) Options to purchase 500,000 shares of Company's common
stock at a purchase price of $0.275; and
(h) Options to purchase 500,000 shares of the Company's
common stock at a purchase price of $0.35.
All options granted hereunder ("Options") shall be evidenced by an option
agreement in the form of Exhibit A attached hereto. All Options shall vest and
be fully exercisable immediately, and shall remain in full force and effect and
be exercisable for no less than one (1) year from the date hereof. Company shall
cause all shares of its common stock subject to the Options to be registered on
Form S-8 no later than sixty (60) days after the date hereof.
3. Relationship of Parties. Consultant shall perform the Services under
the general direction of the Company and agrees to devote Consultant's best
efforts to the Services and to the reasonable satisfaction of the Company.
Notwithstanding the foregoing, Consultant shall determine, in Consultant's sole
discretion, the manner and means by which the Services are accomplished, subject
to the express condition that Consultant shall at all times comply with
applicable law. Consultant is an independent contractor and Consultant is not an
agent or employee of the Company, and has no authority whatsoever to bind the
Company by contract or otherwise without the express written consent of the
President or Board of Directors of the Company.
4. Taxes and Benefits. Consultant acknowledges and agrees that shall be
the obligation of Consultant to report as income all compensation received by
Consultant pursuant to this Agreement, and Consultant agrees to indemnify the
Company and hold it harmless to the extent of any obligation imposed on the
Company to pay any taxes or insurance, including without limitation, withholding
taxes, social security, unemployment, or disability insurance, including
interest and penalties thereon, in connection with any payments made to
Consultant by the Company pursuant to this Agreement, whether such payments are
made in cash or any other property.
5. Confidentiality. Consultant and its agents agree to hold the
Company's Confidential Information in strict confidence and not to disclose such
Confidential Information to any third parties. Consultant and its agents further
agree to deliver promptly all Confidential Information in Consultant's or its
agents possession to the Company at any time upon the Company's request. For
purposes hereof, "Confidential Information" shall include all confidential and
proprietary information disclosed by the Company including but not limited to
software source code, technical and business information relating to the
Company's current and proposed products and services, research and development,
production, manufacturing and engineering processes, costs, profit or margin
information, finances, customers, suppliers, marketing and production, personnel
and future business plans. "Confidential Information" also includes proprietary
or confidential information of any third party who may disclose such information
to the Company or Consultant and its agents in the course of the Company's
Exhibit 10.13 Xxxxxxxxx Consulting Agreement
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business. The above obligations shall not apply to Confidential Information
which is already known to the Consultant or its agents at the time it is
disclosed, or which before being divulged either (a) has become publicly known
through no wrongful act of the Consultant or its agents; (b) has been rightfully
received from a third party without restriction on disclosure and without breach
of this Agreement or other Agreements entered into by the Company; (c) has been
independently developed by the Consultant or its agents; (d) has been approved
for release by written authorization of the Company; (e) has been disclosed
pursuant to a requirement of a governmental agency or of law. Company agrees to
hold Consultant's Confidential Information in strict confidence and not to
disclose such Confidential Information at anytime. Consultant's Confidential
Information shall include, without limitation, the names and contact information
of all Contacts, Consultant's business practices, methods, techniques,
procedures, contact information and lists of third parties who assist Consultant
in performing the Services, and any other information designated by Consultant
as Confidential.
6. Termination. This Agreement shall commence on the date first written
below and shall continue until the date that is one (1) year from the date
hereof, unless terminated earlier as follows:
(a) Either party may terminate the Agreement in the event of a
breach by the other party of any of its obligations contained herein if such
breach continues uncured for a period of five (5) days after written notice of
such breach to the other party;
(b) Either party may terminate this Agreement upon written
notice to the other party if either party is adjudicated bankrupt, files a
voluntary petition of bankruptcy, makes a general assignment for the benefit of
creditors, is unable to meet its obligations in the normal course of business as
they fall due or if a receiver is appointed on account of insolvency;
Upon the termination of this Agreement for any reason, each
party shall be released from all obligations and liabilities to the other
occurring or arising after the date of such termination, except that any
termination shall not relieve Consultant or the Company of their obligations
under Paragraph 2 ("Payment for Services"), Paragraph 3 ("Contacts"), (Paragraph
4 ("Taxes and Benefits"), Paragraph 6 ("Confidentiality"), Paragraph 7
("Indemnification") and Paragraph 8 ("General"), nor shall any such termination
relieve Consultant or the Company from any liability arising from any breach of
this Agreement.
7. Indemnification. The Company shall indemnify Consultant, and hold
Consultant harmless against, any and all debts, obligations and other
liabilities (whether absolute, accrued, contingent, fixed or otherwise, or
whether known or unknown, or due or to become due or otherwise), monetary
damages, fines, fees, penalties, interest obligations, deficiencies, losses and
expenses, including without limitation attorneys fees and litigation costs
("Claims") incurred or suffered by the Consultant resulting from Consultant's
performance hereunder.
8. General.
(a) Assignment. The rights and liabilities of the parties
hereto shall bind and inure to the benefit of their respective successors,
executors and administrators, as the case may be, provided that, as the Company
has contracted for Consultant's services, Consultant may not assign or delegate
Consultant's obligations under this Agreement either in whole or in part without
the prior written consent of the Company.
Exhibit 10.13 Xxxxxxxxx Consulting Agreement
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(b) Attorney's Fees. If any action at law or in equity is
necessary to enforce the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, costs and expenses in addition to any
other relief to which such prevailing party may be entitled.
(c) Governing Law; Severability. This Agreement shall be
governed by and construed in accordance with the laws of New Jersey as such laws
are applied to Agreements to be entered into and to be performed entirely within
New Jersey between New Jersey residents. The parties agree that the exclusive
venue for any dispute hereunder shall be New Jersey and the parties hereby
consent to the jurisdiction of the state and federal Courts located in New
Jersey. If any provision of this Agreement is for any reason found by a court of
competent jurisdiction to be unenforceable, the remainder of this Agreement
shall continue in full force and effect.
(d) Counterpart. This Agreement may be executed in
counterparts, each of which shall constitute an original and all of which shall
be one and the same instrument.
(e) Complete Understanding Modification. This Agreement
constitutes the full and complete understanding and agreement of the parties
hereto and supersedes and replaces all prior understandings and agreements. Any
waiver, modification or amendment of any provision of this Agreement shall be
effective only in writing and signed by the parties thereto.
(f) Waiver. The failure of either party to insist upon strict
compliance with any of the terms, covenants or conditions of this Agreement by
the other party shall not be deemed a waiver of that term, covenant or
condition, nor shall any waiver or relinquishment of any right or power at any
one time be deemed a waiver or relinquishment of that right or power for all or
any other time.
(g) Incorporation by Reference. Any exhibits referred to
within this Agreement shall be considered as incorporated into, and part of,
this Agreement.
(h) Notices. Any notices required or permitted hereunder
shall be given to the appropriate party at the address specified in the first
paragraph above or at such other address as the party shall specify in writing
and shall be by personal delivery, facsimile transmission or certified or
registered mail. Such notice shall be deemed given upon personal delivery to the
appropriate address or upon receipt of electronic transmission or, if sent by
certified or registered mail, three days after the date of the mailing.
Exhibit 10.13 Xxxxxxxxx Consulting Agreement
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Exhibit 10.13 Xxxxxxxxx Consulting Agreement
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date first written above.
COMPANY: CONSULTANT:
IVI Communications, Inc. /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Xxxxx X. Xxxxxxxxx
By: /s/ Xxxxxxx X. Roodenburg_
---------------------------------
Its: COO/CFO
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Exhibit 10.13 Xxxxxxxxx Consulting Agreement
EXHIBIT A
Option Agreement
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STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Agreement"), by and between IVI
Communications, Inc., a California corporation (the "Company"), and Xxxxx
Xxxxxxxxx ("Optionee"), is made effective as of this ___ day of _______ 2004.
RECITALS
WHEREAS, the Board of Directors of the Company has authorized the grant
of stock options to Optionee.
WHEREAS, the Company desires to issue stock options to Optionee and
Optionee desires to accept such stock options on the terms and conditions set
forth below.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Grant of Options. The Company hereby grants to the Optionee, options
("the Options") to purchase, on the terms and conditions hereinafter set forth,
all or any part of an aggregate of _______________________
_______________________________________________ (_________) shares of Company's
common stock (the "Shares"). The Options are fully vested and immediately
exerciseable.
2. Exercise Price. The exercise price shall be $______ per share of
common stock (the "Exercise Price"). The Exercise Price will be payable in legal
tender of the United States.
3. Time of Exercise. Commencing immediately upon the date of this
Agreement, the right to exercise this option will vest as to all of the Shares
subject to this option. The Optionee may exercise the Option, in whole or in
part, at anytime prior to the date that is one (1) year from the date hereof.
4. Notice of Exercise. Optionee may exercise the Options by giving
written notice of exercise of the Options sent by certified or registered mail,
return receipt requested, to the Company and sending a check for the Exercise
Price of the Options exercised.
5. Transferability. The Options shall be non-transferable; provided
that Optionee may transfer the options to a trust for the benefit of Optionee or
any member of his immediate family, to any member of Optionee's immediate
family, or to an entity which is owned 100% by Optionee and/or members of his
immediate family.
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6. Adjustment. The number and class of shares specified in paragraph 1
above, and the Option Price, are subject to appropriate adjustment in the event
of certain changes in the capital structure of the Corporation which alter the
per share value of Common Stock or the rights of holders thereof. A dissolution
or liquidation of the Corporation, or a merger or consolidation in which the
Corporation is not the surviving corporation, will cause the option granted
hereunder to terminate unless the agreement of merger, consolidation or other
acquisition otherwise provides. In the event of such dissolution, liquidation,
merger, or consolidation, Optionee will have the right for a period of not less
than sixty (60) days prior to the effective date of such event, to exercise the
option granted hereunder as to all of the shares specified in paragraph 1 above.
Such right of exercise will accrue, notwithstanding any limitations in this
option agreement as to the time Optionee may exercise such option.
7. Securities Laws. The issuance of shares of Common Stock upon the
exercise of the Options will be subject to compliance by the Company and the
person exercising the Options with all applicable requirements of federal and
state securities and other laws relating thereto. No person may exercise the
Options at any time when, in the opinion of counsel to the Company, such
exercise is not permitted under applicable federal or state securities laws. The
Company agrees to file a form S-8 with the Securities Exchange Commission, at
Company's expense, registering the Shares no later than sixty (60) days from the
date hereof.
8. Investment Representations. In connection with the receipt of the
Options and potential purchase of shares of common stock, Optionee represents
and warrants to the Company as follows:
a. Investment Intent. Optionee is receiving the Options and
may purchase the shares represented thereby solely for his own account for
investment. Optionee has no present intention to resell or distribute the
Options of underlying shares or any portion thereof. The entire legal and
beneficial interest of the Options and any underlying shares purchased, will be
held, for Optionee's account only, and neither in whole or in part for any other
person.
b. Information Concerning Company. Optionee has significant
prior experience and knowledge of the affairs of the Company. Optionee is aware
of the Company's business and financial condition and has acquired sufficient
information about the Company to make an informed and acknowledgeable decision
regarding the Options and the potential purchase of the Shares.
c. Economic Risk. Optionee realizes that the exercise of the
Options and purchase of the underlying shares will be a highly speculative
investment and involve a high degree of risk. Optionee is able, without
impairing his financial condition, to hold any shares purchased for an
indefinite period of time and to suffer a complete loss of his investment.
d. Restriction on Transfer. Optionee understands that the
Options and/or underlying Shares must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available. Optionee understands that the certificate evidencing
any shares purchased will be imprinted with a legend that prohibits the transfer
of the shares unless they are registered or unless the Company receives an
opinion of counsel reasonably satisfactory to the Company that such registration
is not required.
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e. Sales Under Rule 144. Optionee is aware of the adoption of
rule 144 by the Securities and Exchange Commission (the "Commission")
promulgated under the Securities Act, which permits limited public resale of
securities acquired in a non-public offering subject to the satisfaction of
certain conditions, including among other things: (i) the availability of
certain current public information about the Company, (ii) the resale occurring
not less than two years after the party has purchased and paid for the
securities to be sold, (iii) the sale being made through a broker in an
unsolicited "broker's transaction" or in transactions directly with a "market
maker," and (iv) the amount of securities sold during any three-month period not
exceeding specified limitations (generally 1% of the total shares outstanding).
f. Sales Not Under Rule 144. Optionee further acknowledges
that, if all of the requirements of Rule 144 are not met, then registration
under the Securities Act, compliance with Regulation A, or some other
registration exemption will be required; and that, although Rule 144 is not
exclusive, the staff of the Commission has expressed its opinion (i) that
persons proposing to sell private placement securities other than in a
registered offering and other than pursuant to Rule 144 will have a substantial
burden of proof in establishing that an exemption from registration is available
for such offers or sales, and (ii) that such persons and the brokers who
participate in the transactions do so at their own risk.
9 No Rights as Shareholder. Neither Optionee nor any person claiming
under or through Optionee will be, or have any of the rights or privileges of, a
shareholder of the Company in respect of any of the Shares issuable upon the
exercise of the Options, unless and until any of the Options are properly and
lawfully exercised.
10. Notices. Any notice to be given to the Company under the terms of
this Agreement will be addressed to the Company, in care of its Secretary, at
its executive offices, or at such other address as the Company may hereafter
designate in writing. Any notice to be given to Optionee will be in writing and
delivered or mailed by registered or certified mail, return receipt requested,
postage prepaid, addressed to Optionee at the address set forth beneath
Optionee's signature in writing. Any such notice will be deemed to have been
duly given when deposited in a United States post office in compliance with the
foregoing.
11. Successor. Subject to the limitation on the transferability of the
Options contained herein, this Agreement will be binding upon and inure to the
benefit of the heirs, legal representatives, successors and assigns of the
parties hereto.
12. Attorney's Fees. In the event that any legal action is brought to
enforce or interpret any part of this Agreement, the prevailing party shall be
entitled to recover reasonable attorney's fees and other costs incurred in that
action, in addition to any other relief to which that party may be entitled.
13. Governing Law. This Agreement shall in all respects be construed,
interpreted, and enforced in accordance with, and governed by the laws of the
State of New Jersey.
14. Severability. If any term or provision of this Agreement shall be
held invalid or unenforceable to any extent, the remainder of this Agreement
shall not be affected and each other term and provision of this Agreement shall
be valid to the fullest extent permitted by law.
15. Counterparts. This Agreement may be executed in counterparts, each
of which shall constitute an original and all of which shall be one and the same
instrument.
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16. Modification. Any amendment, change or modification of this
Agreement shall be effective only if it is in writing and signed by the parties
hereto.
17. Waiver. The failure of either party to insist upon strict
compliance with any of the terms, covenants or conditions of this Agreement by
the other party shall not be deemed a waiver of that term, covenant or
condition, nor shall any waiver or relinquishment of any right or power at any
one time be deemed a waiver or relinquishment of that right or power for all or
any other time.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
COMPANY: IVI Communications, Inc.
By: /s/ Unintelligible
------------------------------------
Its: /s/ Xxxxx Xxxxxxxxx
OPTIONEE: ---------------------------------------
Xxxxx Xxxxxxxxx
0 Xxxxxxxx Xxxx, Xxxxxx 0, Xxxxx 000
Xxxxxxxxxxxxx, Xxx Xxxxxx 00000
