EXHIBIT 10.72
NATIONAL FINANCIAL COMMUNICATIONS CORP
CONSULTING AGREEMENT
AGREEMENT made as of the 9th day of July, 2003 by and between Invisa
Inc., maintaining its principal offices at 0000 Xxxxxxxxxxxx Xxxxx, Xxxxxxxx, XX
00000 (hereinafter referred to as "Client") and National Financial
Communications Corp. DBA/ OTC Financial Network, a Commonwealth of Massachusetts
corporation maintaining its principal offices at 000 Xxxxxxxx Xx, Xxxxx 000,
Xxxxxxx, XX 00000 (hereinafter referred to as the "Company").
W I T N E S S E T H :
WHEREAS, Company is engaged in the business of providing and rendering
public relations and communications services and has knowledge, expertise and
personnel to render the requisite services to Client; and
WHEREAS, Client is desirous of retaining Company for the purpose of
obtaining public relations and corporate communications services so as to
better, more fully and more effectively deal and communicate with its
shareholders and the investment banking community.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, it is agreed as follows:
I. Engagement of Company. Client herewith engages Company and
Company agrees to render to Client public relations, communications, advisory
and consulting services.
A. The consulting services to be provided by the Company
shall include, but are not limited to, the development, implementation and
maintenance of an ongoing program to increase the investment community's
awareness of Client's activities and to stimulate the investment community's
interest in Client. Client acknowledges that Company's ability to relate
information regarding Client's activities is directly related to the information
provided by Client to the Company.
B. Client acknowledges that Company will devote such
time as is reasonably necessary to perform the services for Client, having due
regard for Company's commitments and obligations to other businesses for which
it performs consulting services.
II. Compensation and Expense Reimbursement.
A. Client will pay the Company, as compensation for the
services provided for in this Agreement and as reimbursement for expenses
incurred by Company on Client's behalf, in the manner set forth in Schedule A
annexed to this Agreement which Schedule is incorporated herein by reference.
B. In addition to the compensation and expense
reimbursement referred to in Section 2(A) above, Company shall be entitled to
receive from Client a "Transaction Fee", as a result of any Transaction (as
described below) between Client and any other company, entity, person, group or
persons or other party which is introduced to, or put in contact with, Client by
Company, or by which Client has been introduced to, or has been put in contact
with, by Company. A "Transaction" shall mean merger, sale of stock, sale of
assets, consolidation or other similar transaction or series or combination of
transactions whereby Client or such other party transfer to the other, or both
transfer to a third entity or person, stock, assets, or any interest in its
business in exchange for stock, assets, securities, cash or other valuable
property or rights, or wherein they make a contribution of capital or services
to a joint venture, commonly owned enterprise or business opportunity with the
other for purposes of future business operations and opportunities. To be a
Transaction covered by this section, the transaction must occur during the term
of this Agreement or the one year period following the expiration of this
Agreement.
The calculation of a Transaction Fee shall be based upon the total
value of the consideration, securities, property, business, assets or other
value given, paid, transferred or contributed by, or to, the Client and shall
equal 10% of the dollar value of the Transaction in the event of a transaction
which is an equity investment in Client up to $5,000,000 in Transaction value
and 7% thereafter. In the event of a transaction that is a loan to the Client,
the Transaction Fee shall be 5% of the principal amount of the loan. In a
merger, sale of assets or joint venture, the Transaction Fee shall be based on
the Xxxxxx Formula. Such fee shall be paid by certified funds as received by
Client.
The Transaction Fee shall be subject to the following: (i) the
Transaction Fee shall be limited to closed and funded financings, (ii) the
acceptance or rejection of any financing is in the sole discretion of the Client
and (iii) the Transaction Fee represents the aggregate or total fee that Client
can be required to pay in the financing and should there be additional parties
entitled to fees as a result of the transaction, the Transaction Fee shall be
shared by the Company.
Term and Termination. This Agreement shall be for a period of 6 months
commencing on July 9, 2003 and terminating January 9, 2004. If the Client
approves in writing, the contract will be automatically extended for an
additional three months. Either party hereto shall have the right to terminate
this Agreement upon 15 days prior written notice to the other party.
Professional Services. The Company shall only provide professional
services reasonably calculated to be consistent with the standards employed by
other well respected professionals in the investor and public relations
industry. The Company shall only publish and use information regarding the
Client in a fair, balanced and professional manner. The Company shall not
publish or use: (i) nonpublic information regarding the Client or forward
looking statements regarding the Client without written authorization from the
Client.
Treatment of Confidential Information. Company shall not disclose,
without the consent of Client, any financial and business information concerning
the business, affairs, plans and programs of Client which are delivered by
Client to Company in connection with Company's services hereunder, provided such
information is plainly and prominently marked in writing by Client as being
confidential (the "Confidential Information"). The Company will not be bound by
the foregoing limitation in the event (i) the Confidential Information is
otherwise disseminated and becomes public information or (ii) the Company is
required to disclose the Confidential Informational pursuant to a subpoena or
other judicial order.
Representation by Company of other clients. Client acknowledges and
consents to Company rendering public relations, consulting and/or communications
services to other clients of the Company engaged in the same or similar business
as that of Client.
Indemnification by Client as to Information Provided to Company. Client
acknowledges that Company, in the performance of its duties, will be required to
rely upon the accuracy and completeness of information supplied to it by
Client's officers, directors, agents and/or employees. Client agrees to
indemnify, hold harmless and defend Company, its officers, agents and/or
employees from any
proceeding or suit which arises out of or is due to the inaccuracy or
incompleteness of any material or information supplied by Client to Company.
Independent Contractor. It is expressly agreed that Company is acting
as an independent contractor in performing its services hereunder. Client shall
carry no workers compensation insurance or any health or accident insurance on
Company or consultant's employees. Client shall not pay any contributions to
social security, unemployment insurance, Federal or state withholding taxes nor
provide any other contributions or benefits which might be customary in an
employer-employee relationship.
Non-Assignment. This Agreement shall not be assigned by either party
without the written consent of the other party.
Notices. Any notice to be given by either party to the other hereunder
shall be sufficient if in writing and sent by registered or certified mail,
return receipt requested, addressed to such party at the address specified on
the first page of this Agreement or such other address as either party may have
given to the other in writing.
Entire Agreement. The within agreement contains the entire agreement
and understanding between the parties and supersedes all prior negotiations,
agreements and discussions concerning the subject matter hereof.
Modification and Waiver. This Agreement may not be altered or modified
except by writing signed by each of the respective parties hereof. No breach or
violation of this Agreement shall be waived except in writing executed by the
party granting such waiver.
Law to Govern; Forum for Disputes. This Agreement shall be governed by
the laws of the Commonwealth of Massachusetts without giving effect to the
principle of conflict of laws. Each party acknowledges to the other that courts
within the City of Boston, Massachusetts shall be the sole and exclusive forum
to adjudicate any disputes arising under this agreement. In the event of
delinquent fees owed to the Company, Client will be responsible for pay for all
fees associated with the collection of these fees.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first written above.
National Financial Communications Corp.
By: /s/ Xxxxxxxx Xxxxx 6/22/03
----------------------------------- ----------------------
Xxxxxxxx Xxxxx, President Date
Invisa Inc.
By: /s/ Xxxxxxx X. Xxxxxxx, President 7/9/03
----------------------------------- ----------------------
Xxxxxxx X. Xxxxxxx, President Date
SCHEDULE A-1 PAYMENT FOR SERVICES AND REIMBURSEMENT OF EXPENSES.
SCHEDULE A-2 GRANT OF OPTIONS TO NATIONAL FINANCIAL COMMUNICATIONS CORP. IN
ADVANCE OF SERVICES RENDERED
SCHEDULE A-1
PAYMENT FOR SERVICES AND REIMBURSEMENT OF EXPENSES
A. For the services to be rendered and performed by Company during the
term of the Agreement, Client shall pay to Company the sum of $5,000 per month
for the first two months of the contract and then $3,000 per month for the
remaining term and any extensions to the contract.
B. Client shall also reimburse Company for all reasonable and necessary
out-of-pocket expenses incurred in the performance of its duties for Client upon
presentation of statements setting forth in reasonable detail the amount of such
expenses. Company shall not incur any expense for any single item in excess of
$250 either verbally or written except upon the prior approval of the Client.
Company agrees that any travel, entertainment or other expense which it may
incur and which may be referable to more than one of its clients (including
Client) will be prorated among the clients for whom such expense has been
incurred. Shares will be accepted for payment of expenses in the same manner as
the base fee per month in Paragraph A above.
National Financial Communications Corp.
By: /s/ Xxxxxxxx Xxxxx 6/22/03
----------------------------------- ----------------------
Xxxxxxxx Xxxxx, President Date
Invisa Inc.
By: /s/ Xxxxxxx X. Xxxxxxx, President 7/9/03
----------------------------------- ----------------------
Xxxxxxx X. Xxxxxxx, President Date
SCHEDULE A-2
GRANT OF OPTIONS TO NATIONAL FINANCIAL COMMUNICATIONS CORP. IN ADVANCE OF
SERVICES RENDERED
X. Xxxxx of Options and Option Exercise Price. As compensation
for the services to be rendered by Company hereunder, Client herewith issues and
grants to Company stock options (the "Options") to purchase an aggregate of
100,000 shares of Client's Common Stock as follows:
(i) 25,000 options at a strike price of $3.00 per share vesting immediately upon
signing of this agreement
(ii) 25,000 options at a strike price of $3.50 per share vesting 60 days after
the signing of this agreement
(iii) 25,000 options at a strike price of $4.00 per share vesting 90 days after
the signing of this agreement
(iv) 25,000 options at a strike price of $4.50 per share vesting 120 days after
the signing of this agreement
The Options are exercisable upon and subject to the terms and conditions
contained herein. The Options are exercisable during the period commencing on
the date hereof and ending three years subsequent to the termination date of
this Agreement. These restricted shares will be issued to the Company upon the
signing of this Agreement and held by the Client until payment is made.
B. Manner of Exercise. Exercise of any of the Options by Company
shall be by written notice to Client accompanied by Company's certified or bank
check for the purchase price of the shares being purchased. Upon receipt of such
notice and payment, Client shall promptly cause to be issued, without transfer
or issue tax to the option holder or other person entitled to exercise the
option, the number of shares for which the Option has been exercised, registered
in the name of Company. Such shares, when issued, shall be fully paid and
non-assessable.
C. Option Shares. Company acknowledges that any shares which it
may acquire from Client pursuant to the exercise of the Options provided for
herein will not have been registered pursuant to the Securities Act of 1933, as
amended (the "Securities Act"), and therefore may not be sold or transferred by
Company except in the event that such shares are the subject of a registration
statement or any future sale or transfer is, in the opinion of counsel for
Client, exempt from such registration provisions. Company acknowledges that any
shares which it may acquire pursuant to the exercise of the Options will be for
its own account and for investment purposes only and not with a view to the
resale or redistribution of same. Company further consents that the following
legend be placed upon all certificates for shares of Common Stock which may be
issued to Company upon the exercise of the Options:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION
IS NOT REQUIRED."
Company further consents that no stop transfer instructions being placed against
all certificates may not be issued to it upon the exercise of the Options.
(i) If the Client executes a Registration during the term of the
contract, then the Company's shares will be added to this Registration at no
cost to the Company. The Client shall bear all costs and expenses attributable
to such registration, excluding fees and expenses of Company's counsel
and any underwriting or selling commission. Client shall maintain the
effectiveness of such registration throughout the term of this Agreement and for
a 120 day period thereafter.
(ii) Notwithstanding the foregoing, if the Shares issuable upon
exercise of the Options are not otherwise registered under the Securities Act
and the Client shall at any time after the date hereof propose to file a
registration statement under the Securities Act, which registration statement
shall include shares of Common Stock of Client or any selling shareholder,
Client shall give written notice to Company of such proposed registration and
will permit Company to include in such registration all Shares which it has
acquired as of the date of such notice. The Client shall bear all costs and
expenses attributable to such registration, excluding fees and expenses of
Company's counsel and any underwriting or selling commission.
D. Adjustments in Option Shares.
(i) In the event that Client shall at any time sub-divide its
outstanding shares of Common Stock into a greater number of shares, the Option
purchase price in effect prior to such sub-division shall be proportionately
reduced and the number of shares of Common Stock purchasable shall be
proportionately increased. In case the outstanding shares of Common Stock of
Client shall be combined into a smaller number of shares, the Option purchase
price in effect immediately prior to such combination shall be proportionately
increased and the number of shares of Common Stock purchasable shall be
proportionately reduced.
(ii) In case of any reclassification or change of outstanding
shares of Common Stock issuable upon exercise of this Option (other than change
in par value, or from par value to no par value, or from no par value to par
value, or as a result or a subdivision or combination), or in case of any
consolidation or merger of the Client with or into another corporation (other
than a merger in which the Client is the continuing corporation and which does
not result in any reclassification or change of outstanding shares of Common
Stock, other than a change in number of the shares issuable upon exercise of the
Option) or in case of any sale or conveyance to another corporation of the
property of the Client as an entirety or substantially as an entirety, the
Holder of this Option shall have the right thereafter to exercise this Option
into the kind and amount of shares of stock and other securities and property
receivable upon such reclassification, change, consolidation, merger, sale or
conveyance by a holder of the number of shares of Common Stock of the Client for
which the Option might have been exercised immediately prior to such
reclassification, change, consolidation, merger, sale or conveyance. The above
provisions shall similarly apply to successive reclassifications and changes of
shares of Common Stock and to successive consolidations, mergers, sales or
conveyances.
(iii) The Company reserves the right to assign these options to a
third party at its own discretion.
National Financial Communications Corp.
By: /s/ Xxxxxxxx Xxxxx 6/22/03
----------------------------------- ----------------------
Xxxxxxxx Xxxxx, President Date
Invisa Inc.
By: /s/ Xxxxxxx X. Xxxxxxx, President 7/9/03
----------------------------------- ----------------------
Xxxxxxx X. Xxxxxxx, President Date
