Exhibit 10.13
CONSULTING AGREEMENT
This consulting agreement (the "Agreement"), effective as of August 14, 2001 is
entered into by and between iSecureTrac, Corp. (herein referred to as the
"Company") and Xxxxxxxxx Financial Communications, Inc., a Oregon corporation
(herein referred to as the "Consultant").
RECITALS
WHEREAS, Company is a public Company with its ordinary shares trading on the
NASDAQ Bulletin Board Stock market in the United States; and
WHEREAS, Consultant has experience in the area of corporate finance, investor
communications and financial and investor public relations; and
WHERAS, Company desires to engage the services of Consultant to assist and
consult with the Company in matters concerning corporate finance and 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;
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. TERMS OF CONSULTANCY. Company hereby agrees to retain the Consultant to act
in a consulting capacity to the Company, and the Consultant agrees to
provide services to the Company commencing immediately and ending on
February 13, 2002.
2. DUTIES OF CONSULTANT. The Consultant agrees that it will generally provide
the following specified consulting services through its officers and
employees during the term specified in Section 1.:
(a) Advise and assist the Company in developing and implementing
appropriate plans and materials for presenting the Company and
its business plans, strategy and personnel to the financial
community, establishing an image for the Company in the financial
community, and creating the foundation for subsequent financial
public relations efforts;
(b) Introduce the Company to the financial community;
(c) With the cooperation of the Company, maintain an awareness during
the term of this Agreement of the Company's plans, strategy, and
personnel, as they may evolve during such period, and advise and
assist the Company in communicating appropriate information
regarding such plans, strategy and personnel to the financial
community;
(d) Assist and advise the Company with respect to its (I) stockholder
and investor relations, (ii) relations with brokers, dealers,
analysts and other investment professionals, and (iii) financial
and media public relations generally;
(e) Perform the functions generally assigned to investor/stockholder
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 or reviewing press releases, reports and other
communications with or to shareholders, the investment community
and the general public; advising with respect
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to the timing, form, distribution and other matters related to
such releases, reports, communications and consulting with
respect to corporate symbols, logos, names, the presentation of
such symbols, logos and names, and other matters relating to
corporate image.
(f) Upon the Company's approval, disseminate information regarding
the Company to shareholders, brokers, dealers and other
investment community professionals and the general investing
public.
(g) Upon the company's approval, conduct meetings in person or by
telephone, with brokers, dealers, analysts, other investment
professionals and the general investment public;
(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 investment
community implications thereof; and
(i) Otherwise perform as the Company's financial relations and public
relations consultant.
3. ALLOCATION OF TIME AND ENERGIES. The Consultant hereby promises to perform
and discharge well and faithfully the responsibilities which may be
assigned to the Consultant from time to time by the officers and duly
authorized representatives of the Company in connection with the conduct of
its financial and investor public relations and communications activities,
so long as such activities are in compliance with applicable securities
laws and regulations. Consultant will 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 hereinabove in a diligent and
professional manner. The parties acknowledge and agree that a
disproportionately large amount of the effort to be extended and the costs
to be incurred by the Consultant and the benefits to be received by the
Company are to be expected to occur upon and shortly after, and in any
event, within two months of the effectiveness of this Agreement. It is
explicitly understood that Consultants performance of its 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.
4. REMUNERATION As full and complete compensation for services described in the
Agreement the Company shall compensate the Consultant as follows:
4.1 For undertaking this 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 300,000 shares of the Company's
Common Stock ("Common Stock"). This Commencement Bonus shall be issued to the
Consultant immediately following execution of this Agreement and shall, when
issued to the Consultant be fully paid and non-assessable. The Company
understands and agrees that Consultant has forgone significant opportunities to
accept this engagement and the Company derives substantial benefit from the
execution of this Agreement and the ability to maintain its relationship with
Consultant. The 300,000 shares of Common Stock issued as a Commencement Bonus,
therefore, constitute payment for Consultant's agreement to consult to the
Company and are a nonrefundable, non-apportionable and non-ratable retainer;
such Shares are not a prepayment for future services. If the Company decides to
terminate this Agreement prior to February 13, 2002 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 paid to it hereunder. All Shares of the
Common Stock issued pursuant to
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this Agreement shall be issued in the name of Xxxxxxxxx Financial
Communications, Inc. The Company agrees that it will include all shares issuable
to Consultant hereunder in the Company's next Registration Statement with the
SEC on Form S-i and will use its best efforts to cause such Registration
Statement to be declared effective by the SEC as soon as possible thereafter.
Xxxxxxxxx Financial Communications, Inc. agrees that it will not sell or
transfer during the term of this Agreement any of the 300,000 shares of
Company's stock issued to it hereunder. Additionally the Company agrees to pay
Consultant the sum of $6,000.00 cash per month due and payable on fourteenth day
of each month on this Agreement.
4.2 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 a resale or transfer is exempt from the
registration requirements of that Act.
5. FINANCING "FINDERS FEE". It is understood in the event Consultant introduces
Company to a lender or equity purchaser, not already having a preexisting
relationship with the Company, with who Company, or its nominees, ultimately
finances or causes the completion of such financing, Company agrees to
compensate Consultant for such services with a "finders fee" in the amount of
2.5% of total gross funding provided by such lender or equity purchaser, such a
fee to be payable in cash. This will be in addition to any fees payable by the
company to any other intermediary, if any, which shall be per separate
agreements negotiated between the Company and such other intermediary. It is
also understood that in the event Consultant introduces Company, or its nominees
to a merger and/or acquisition, candidate, either directly or indirectly through
another intermediary, not already having a preexisting relationship with the
Company, with whom Company, or its nominees, ultimately is acquired with who
Company or its nominees acquires or causes the completion of such acquisition,
Company agrees to compensate Consultant for such services with a "finders fee"
in the amount of 2.5% of total gross consideration provided by such a merger
and/or acquisition, such fee to payable in the same form of consideration
received by the seller/merged company. This will be in addition to any fees
payable by Company to any other intermediary. It is specifically understood that
Consultant is not nor does it hold itself out to be a Broker/Dealer, but rather
merely a "Finder" in reference to the Company procuring financing sources and
acquisition and merger candidates.
5.1 it is further understood that Company, and not Consultant, is
responsible to perform any and all due diligence on such lender,
equity purchaser or acquisition/merger 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.
5.2 Company agrees that said compensation to Consultant shall be paid in
full at the time said financing or merger/acquisition is closed.
Moreover, said compensation, will be a condition precedent to the
closing of such financing or merger/acquisition and Company shall
execute any and all documents necessary to effect said compensation.
5.3 As further consideration to Consultant, Company or its nominees,
agrees to pay with respect to any financing or acquisition candidate
provided directly or indirectly to the Company by any lender or equity
purchaser covered by this Section 5 for a period
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commencing at the effective date of this Agreement and ending one year
from the termination of this Agreement, a fee to Consultant equal to
that outlined in Section "5" herein.
5.4 Consultant will notify Company of introductions it makes for potential
sources of financing or acquisitions in a timely manner (within 3 days
of introduction). If Company has a preexisting relationship with such
nominee and believes such party should be excluded from the Agreement,
then Company will notify Consultant immediately of such circumstances
via facsimile memo.
6. EXPENSES. Consultant agrees to pay for all its expenses (phone, labor, etc.),
other than extraordinary items (travel and entertainment required by/or
specifically requested by the Company, luncheons or dinners 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 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 materials furnished to Consultant are
accurate, and the Consultant warrants and represents that all
communications with the public, with respect to the financial affairs,
operations, profitability and strategic planning of the Company are in
accordance with information provided to it by the Company. The Consultant
may rely upon the accuracy of the information provided by the Company
without independent investigation. The Company and Consultant will each
protect and indemnify and hold each other harmless against claims or
litigation including any damages, liability, cost and reasonable attorney's
fees as incurred in connection with this engagement arising out of the acts
or omissions of the other party.
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 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
judgement involving any violation of the SEC or securities law. 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 judgement involving any violation of the SEC or securities
laws.
9. STATUS AS INDEPENDENT CONTRACTOR. Consultants engagement pursuant to this
Agreement shall be as independent contractor, and not as 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
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authority to bind each other in any agreements without the express written
consent of the entity to be bound.
10. ATTORNEY'S FEES. If any legal action or any arbitration or other proceeding
is brought for the enforcement or interruption of the Agreement, or because
of 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 attorney's fees and other costs in
connection with that action or proceeding, in addition to any other relief
to which they may be entitled.
11. 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.
12. NOTICES. All notices, requests, and other communications hereunder shall be
deemed to be duly given if sent by U.S. mail, postage prepaid, addressed to
the other party at the address set forth herein below:
To the Company:
ISecureTrac, Corp.
0000 Xxxxx 000xx Xxxxxx
Xxxxx, XX 00000
To the Consultant:
Xxxxxxxxx Financial Communications, Inc.
Xxxxxxx X. Xxxxxxxxx, President
00000 XX. Xxx Xxxx Xx.
Xxxxxxxx, XX 00000
It is understood that either party may change address to which notices for it
shall be addressed by providing notice of such change to the other party in the
manner set forth in this paragraph.
13. CHOICE OF LAW, JURISDICTION AND VENUE. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of Oregon.
The parties agree that Clackamas County, Oregon 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 Oregon, in accordance with the applicable rules of
the American Arbitration Association, and judgement on the award rendered
by the arbitrator(s) shall be binding on the parties and may be entered in
any court having jurisdiction thereof The provisions of The Oregon Code of
Civil Procedure permitting expanded discovery proceedings shall be
applicable to all disputes that are arbitrated under this paragraph.
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
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by an agreement in writing signed by the party against whom enforcement of
any waiver, change, modification, extension or discharge is sought.
AGREED TO:
"Company" ISECURETRAC, CORP.
Date: By:
--------------------- ------------------------------------
Xxxxx X. Xxxxx, Vice President, CFO
& Its Duly Authorized Officer
"Consultant" XXXXXXXXX FINANCIAL COMMUNICATIONS, INC
Date: By:
--------------------- ------------------------------
Xxxxxxx X. Xxxxxxxxx, President
& Its Duly Authorized Officer
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