CONSULTING AGREEMENT
Exhibit
10.8
This
Consulting Agreement (the "Agreement"), effective as of January 9, 2007,
is
entered into by and between, XEDAR CORPORATION, a Colorado corporation
(herein
referred to as the "Company''), and CAPITAL GROUP COMMUNICATIONS, INC.,
a
California corporation (herein referred to as the "Consultant").
RECITALS
WHEREAS,
Company desires to engage the services of Consultant to represent
the
Company in investors' 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 covenants
and agreements hereinafter set forth, the parties hereto covenant and
agree as
follows:
1) Term
of Consultancy. Company hereby agrees to retain
the Consultant to act in a consultingcapacity to the Company and the
Consultant
hereby agrees to provide services to the Company
commencing
January 9, 2007 and ending
January 9,2008.
2) Duties
of Consultant. The Consultant agrees that it
generally provide the following specifiedconsulting services:
a) When
requested in writing by an officer of the Company, assist the Company
in
raisingcapital through introductions. (It is understood that the
Consultant is not an "investmentbanking" firm);
b) Consult
and assist the Company in developing and implementing appropriate plans
andmeans
for presenting the Company and its business plans, strategy and personnel
to
thefinancial community, establishing an image for the Company in the
financial
community, and creating the foundation for subsequent financial public
relations
efforts;
c) When
requested in writing by an officer of the Company, introduce the Company
tospecific financial institutions.
d) With
the cooperation of the Company, maintain an awareness during the term
of
thisAgreement of the Company's plans, strategy and personnel, as they
may evolve
duringsuch period, and consult and assist the Company in communicating
appropriate information regarding such plans, strategy and personnel
to the
financial community;
e) Assist
and consult with the Company with respect to its (i) relations with
stockholders,(ii) relations with brokers, dealers, analysts and other
investment
professionals, and (iii)financial public relations generally; f) Upon
the
Company's direction and written approval of the officers of the Company,
disseminate information regarding the Company to shareholders, brokers,
dealers,
other investment community professionals and the general investing
public;
1.
g) Upon
the Company's direction and written approval of the officers of the
Company,conduct meetings, in person or by telephone, with brokers, dealers,
analysts and otherinvestment professionals to communicate with them regarding
the Company's plans, goals and activities
h) 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,
i) Otherwise
perform as the Company's consultant for public relations and relations
with
financial professionals.
3) Allocation
of Time and Energies. The Consultant hereby promises to perform and
discharge faithfully the responsibilities which may be assigned to the
Consultant from time to time upon the written directions of the officers
and
duly authorized representatives of the Company in connection with the
conduct of
its financial and public relations and communications activities, so
long as
such activities are in compliance with 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 appended and the costs 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 its duties hereunder
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 d1at the
Company is
entering into this Agreement with Consultant, a corporation and not any
individual member of Consultant, as such, Consultant will not be deemed
to have
breached this Agreement if any member, officer or director of Consultant
leaves
the firm or dies or becomes physically unable to perform any meaningful
activities during the term of the Agreement, provided the Consultant
otherwise
performs its obligations under this Agreement.
4) Remuneration.
As full and complete compensation for services described in this Agreement,
theCompany shall compensate Consultant as follows:
a) For
undertaking tills engagement and for other good and valuable consideration,
the
Company agrees to issue and deliver to the Consultant a "Commencement
Bonus"
payable in the form of five hundred thousand (500,000) shares of the
Company's
Common Stock ("Common Stock" or "Shares"). This Commencement Bonus shall
be
issued to the Consultant in1mediately following execution of this Agreement
and
shall, when issued and delivered to Consultant, be fully paid and
nonassessable. The Company understands and agrees that Consultant has
foregone significant opportunities to accept this engagement and that
the
Company derives substantial benefit from the execution of this Agreement
and the
ability to announce its relationship with Consultant. The shares of Common
Stock
issued as a Commencement Bonus, therefore, constitute payment for Consultant's
agreement to consult with the Company and are a 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 end date 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
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
Company's 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
shares.
2.
b) With each
transfer of shares of Common Stock to be issued pursuant to thisAgreement,
Company shall cause to be issued a certificate representing the CommonStock.
Company warrants 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.
c) Consultant
acknowledges that the shares of Common Stock to be issued pursuant to
this
Agreement have not been registered under the Securities Act of 1933,
as amended
(the "Act") and accordingly are "restricted securities" within the meaning
of
Rule 144 of the Act. Consultant represents that it is acquiring these
Shares for
investment and not with a view to any sales, transfer or other distribution.
Consultant understands that the Shares have not been registered under
the Act and, therefore, cannot be resold unless they are registered
under the Act or unless an exemption is available Consultant understands
that
the resale of these Shares is restricted within the meaning of the Act
and that
the certificate representing the Shares will contain an appropriate legend
to
such effect.
d) In
connection with the acquisition of Shares hereunder, the Consultant represents
and warrants to the Company, to the best of its knowledge, as
follows:
i) Consultant
acknowledges that the Consultant has been afforded the opportunity to
ask questions of and receive answers from duly authorized officers or
other
representatives of the Company concerning an investment in the
Shares, and any additional information which the Consultant has
requested.
ii) 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 l1.skof
loss
of investment. Consultant acknowledges that an investment in the Shares
is
speculative and involves the risk of loss. Consultant has the requisite
knowledge to assess the relative merits of this investment without the
necessity
of relying upon other advisors, and Consultant can afford the risk of
loss of
its entire investment in the Shares.
e) In the
course of performance of Consultant's duties, Consultant may receive
information, which is considered material inside information within the
meaning
and intent of the United States federal securities law, rules and regulations.
Consultant will not disclose this information to others, except as expressly
authorized by the Company and will not use this information directly
or
indirectly for the benefit of Consultant or as a basis for advice to
any other
party concerning any decision to buy, sell, or otherwise deal in the
Company's
securities or those of any of its affiliated companies. The provisions
of this
Section 4(e) shall survive the termination or expiration of this
Agreement.
5) Financing
"Finder's Fee". It is understood that in the event an
officer of the Company requests in writing that the Consultant introduces
Company, or its nominees, to a lender or equity purchaser, not
already having a preexisting relationship with the Company, with whom
Company,
or its nominees, ultimately finances or causes the completion of such
financing,
Company agrees to compensate Consultant for such services with a "finder's
fee"
in the amount of 3% of total gross funding provided by such lender
or equity purchaser, such fee to be payable in cash. This 3% will be
in addition to any fees payable by Company to any other intermediary,
if any,
which shall be the subject of separate agreements, negotiated between
Company
and such other intermediary. It is also understood that in the event
an officer
of the Company requests in writing that the Consultant introduces Company,
or
its nominees. to an acquisition candidate, either directly or indirectly
through
another intermediary, not already having a preexisting relationship with
the
Company, which Company, or its nominees, ultimately acquires or causes
the
completion of such acquisition, Company agrees to compensate Consultant
for such
services with a "finder's fee" in the amount of 2% of total gross consideration
provided by such acquisition, such fee to be payable in kind. This 2%
will be in
addition to any fees payable by Company to any other intermediary. It
is
specifically understood that Consultant is not and does not hold itself
out be a
Broker/Dealer, but is rather merely a "Finder" in reference to the Company
procuring financing sources and acquisition candidates. Any obligation
to pay a "Finder's Fee" hereunder shall survive the merging,
acquisition, or other change in the form of entity of the
3.
Company
and to the extent it remains unfulfilled shall be assigned and transferred
to
any successor to the Company.
a) It
is further understood that Company, and not Consultant, is responsible
to
perform anyand all due diligence on such lender, equity purchaser or
acquisition
candidate introduced to it by Consultant under this Agreement, prior
to Company
receiving funds or closing on any acquisition. However, Consultant will
not
introduce any parties to Company about which Consultant has any prior
knowledge
of questionable, unethical or illicit activities.
b) Company
agrees that said compensation to Consultant shall be paid in full at
the time
said financing or acquisition is closed, such compensation to be transferred
by
Company to Consultant , within seven (7) business days of the closing.
Payment
of said compensation shall be a condition subsequent to the closing of
such
financing or acquisition, and Company shall execute any and all documents
necessary to effect said compensation.
c) As
further consideration to Consultant, Company, or its nominees, agrees
to pay
with respect to any financing or acquisition candidate provided directly
or
indirectly in writing to the officers of the Company by any lender or
equity
purchaser covered by this Section 5 during the period of one year from
the close
of the term of this Agreement, a fee to Consultant equal to that outlined
in
Section 5 herein.
d) If
an introduction is not requested in writing by the Company, Consultant
may
notify theofficers of the Company in writing of introductions it intends
to make
for potential sources of financing or acquisitions via facsimile memo.
If
Company has a preexisting relationship with such nominee and believes
such party
should be excluded from this Agreement, then Company will notify Consultant
immediately within twenty-four (24) hours of Consultant's facsimile to
Company
of such circumstance via facsimile memo.
5) Non-Assignability
of Services. N /A
6) Expenses.
Consultant agrees to pay for all its expenses (phone, mailing, labor,
etc.),
other than extraordinary items (travel required by/or specifically requested
by
the Company, luncheons ordinners to large groups of investment professionals,
mass faxing to a sizable percentage of the Company's constituents, investor
conference calls, print advertisements in publications, etc.) approved
in
writing by an officer of the Company prior to its incurring an obligation
for
reimbursement.
7) Indemnification.
The Company warrants and represents that all written documents or materials
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 attorney's fees as incurred ,with respect thereto resulting
from
Consultant's communication or dissemination of any said information,
documents
or materials.
8) Representations.
Consultant represents that it is not required to maintain any licenses
andregistrations 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 the 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 the subject of any
investigation, claim, decree or judgment involving any violation of the
SEC or
securities laws. Consultant further acknowledges that it is not a securities
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, decree or judgment involving any violation of the
SEC or
securities laws.
.
4.
9)
Legal
Representation. The Company acknowledges that it has been represented
by
independent legal counsel in the preparation of this 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 or employee 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 nor the Consultant possesses 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 or 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 otl1er costs 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 party of a breach of 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)
Choice of Law. Jurisdiction and Venue. This Agreement shall be governed
by,
construed and enforced in accordance with the laws of title State of
Colorado.
The parties agree that the courts located in the city and county of Denver,
Colorado, will be the venue of any dispute and will have jurisdiction
over all
parties.
14)
Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or the alleged breach thereof, or relating to Consultant's
activities
or remuneration under this Agreement, shall be settled by binding arbitration
in
Denver, Colorado, in accordance ,with the applicable rules of American
Arbitration Association then in effect, and the award rendered by the
arbitrator(s) shall be binding on the parties and may be enforced in
any court
having jurisdiction as provided by Paragraph 14 herein.
15)
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 parry
against
whom enforcement of any waiver, change, modification, extension or discharge
is
sought.
AGREED
TO:
"Company" XEDAR
CORPORATION
Date:
January 9, 2006 By: /s/
Xxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxxxx, CEO
"
Consultant" CAPITAL
GROUP COMMUNICATIONS, INC.
Date:
January 9,
2006 By: /s/
Xxxxx Xxxxx
Xxxxx
Xxxxx, President
5.
