EXHIBIT 10.29
CONSULTING AGREEMENT BETWEEN
IVI COMMUNICATIONS, INC. AND
BIG APPLE CONSULTING U.S.A., INC.
EXHIBIT 10.29
CONSULTING AGREEMENT
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THIS CONSULTING AGREEMENT (this "Agreement") is entered into and is effective as
of August 8, 2006 (the "Effective Date") by and between IVI Communications,
Inc., a Nevada Corporation, with a principal place of business at 0000 X.
Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 ("Company") and Big
Apple Consulting U.S.A., Inc., a Delaware Corporation, with principal offices at
000 Xxxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000 ("Consultant").
R E C I T A L S:
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A. Consultant represents various financial websites that individuals can
access to learn more about companies they may not otherwise be exposed to.
B. In addition, Consultant maintains an extensive database of brokers
representing investors interested in owning stock in companies such as the
Company and employs a stock profiler team which regularly communicates with such
brokers.
C. Company wishes to promote itself through Consultant's efforts in the
brokerage community in order to gain as much exposure as possible for Company.
T E R M S:
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NOW THEREFORE, in consideration of the mutual premises and covenants contained
herein, and other good and valuable consideration, the receipt, sufficiency and
adequacy of which is hereby acknowledged, the parties agree as follows:
1.00 Services to be Performed by Consultant
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1.01 Consultant shall access its database of brokers and shall utilize
a profiler team (comparable in size and capability to that currently
employed by Consultant) in order to contact brokers interested in
recommending Company to their investor clients.
1.02 Consultant shall diligently market and promote Company to brokers
and other investors, advisors, counselors, trustees, agents and other
individuals and entities whom Consultant is legally permitted to
contact (including with the proper disclosures and disclaimers) and
shall introduce Company and its principals to Consultant's current and
future network of brokerage firms and market makers.
1.03 Consultant shall provide investor lead management services normal
and customary in the industry.
1.04 Consultant shall organize, initiate, manage and facilitate
broker/investor conference telephone calls and other presentations
mutually agreeable to Company and Consultant. Expenses for
broker/investor conference calls and other presentations are to be paid
by the Consultant, and must be pre-approved by the Company.
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1.05 Consultant shall review and monitor Company's stockholder base and all
transfer agent and DTC reports, and shall analyze, present to, and
discuss with Company the results and implications of such reports.
1.06 In addition to the services identified in Section 1.01 to 1.05
above, at the direction of and with the consent of the Company,
Consultant has agreed to retain Management Solutions International,
Inc. to provide the services described in Exhibit "A" and made a part
of this Agreement under the terms and conditions set forth herein.
2.00 Terms & Fees
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2.01 The term of this Agreement shall commence on the Effective Date
and shall expire one (1) year thereafter. The Company shall have the
right to extend this contract an additional six (6) months after the
initial term expires.
2.02 As compensation for Consultant's services required hereunder,
Consultant shall be entitled to receive:
(a) Cash Value: Cash value of contract is Seven
Hundred Eighty Thousand ($780,000) Dollars.
(b) Compensation: On a monthly basis Consultant shall
be entitled to receive Sixty-Five Thousand U.S.
Dollars ($65,000.00) per month due the 8th of each
month. If payment is made in stock Consultant shall
be entitled to receive Sixty-Five Thousand U.S.
Dollars ($65,000.00) per month worth of common shares
of IVI Communications, Inc. (IVCM) common stock due
the 8th of each month based upon the previous ten
(10) day average closing bid price. The first and
last month's payment of 2,600,000 shares of common
stock is due and payable upon the signing of this
Agreement. Commencing on or before August 8, 2006,
all subsequent monthly payments will be delivered
from the escrow account as described in Section 2.03
below. All shares are earned when received.
(d) SB-2 Registration: Company agrees to register
14,764,413 shares, the common stock issued for
compensation, in the name of "Big Apple Consulting
USA, Inc." in an SB-2 registration with the SEC with
-in one hundred twenty (120) days of the effective
date of the currently pending SB-2 registration which
shall become effective within sixty (60) days after
the date of such SB-2 filing date. However, Consult-
ant acknowledges that the Company cannot guarantee
the exact date on which SEC shall declare the SB-2
effective. In the event that the SB-2 has not become
effective within one hundred twenty (120) days after
the date of such SB-2 filing date, then Consultant
shall have the option to terminate this Agreement
with five (5) days written notice.
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2.03 Escrow Account: Company agrees to deposit 12,164,413 shares of
common stock in an escrow account with X. Xxxxxxx Xxxxxxx,
Esq., an SEC attorney, upon the signing of this Agreement.
Pursuant to Section 2.02(b), commencing on or before August 8,
2006, and continuing throughout the Initial Term of this
Agreement, on or before the 8th of each month, Sixty-Five
Thousand U.S. Dollars ($65,000.00) worth of IVI
Communications, Inc. common stock based upon the previous ten
(10) day average closing bid price will be released from the
escrow account. After expiration of this Agreement any free
trading shares common stock remaining in escrow will be
returned to the Company.
3.00 Termination
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In the event of a breach of this agreement by Company, Company shall be
responsible for any outstanding fees and expenses. Consultant shall
have the right to terminate this Agreement on the grounds of the
Company's failure to remit the required monthly payments or in the
event of any breach of the Agreement by Company. Company has the right
to terminate this agreement with ninety (90) days written notice. The
parties agree that written notice will be deemed accepted and received
by the parties via certified mail delivered to the address above or fax
notification.
4.00 Representations
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Company represents and warrants that it is in compliance with all
required filings and regulations of NASD, the SEC and/or any other
governmental agencies, and that the Company's stock is not suspended
from trading for any reason whatsoever. Company further represents and
warrants that during the term of this agreement, it will continue to
file all required reports with the SEC, NASD and/or any other
governmental agencies and will continue to adhere to SEC, NASD, and/or
any other governmental agency's requirements, and that it will take
whatever steps are deemed necessary to keep its shares listed and
"fully reporting." The Company's failure to comply with the provisions
of this paragraph shall constitute a material breach of the parties'
agreement. Since Consultant has agreed to accept payment for services,
in part, in the form of shares of the Company, the Company agrees that
the value of the shares at the time of this agreement will be adversely
affected and impacted if the promotion of the Company to the financial
community and others is suspended due to a breach of the
representations and warranties contained herein. Further, in the event
of a breach of the representations and warranties contained herein the
Company agrees to continue to make any payments due and the Company
agrees to pay Consultant one and a half (1.5) times the cash value for
any shares Consultant holds or is due and payable (as part of its
compensation for this agreement) at the time of the Company's breach of
this paragraph. This "make whole payment" shall be made within five (5)
business days of the date of the breach.
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5.00 Miscellaneous Terms
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5.02 Successors. The provisions of this Agreement shall be deemed to
obligate, extend to and inure to the benefit of the successors,
assigns, transferees, grantees, and indemnities of each of the
parties to this Agreement.
5.03 Governing Law. This Agreement and the interpretation and
enforcement of the terms of this Agreement shall be governed
under and subject to the laws of the State of New York.
5.04 Jurisdiction. Jurisdiction for court action, court and
authorities in the State of New York or the Federal District
Court having venue for the State of New York should have
jurisdiction over all controversies that may arise with respect
to this agreement. Company hereby waives any other venue to
which it might be entitled to by virtue of domicile or
otherwise and expressly consents and acknowledges that the
courts and authorities in the State of New York shall have
jurisdiction.
5.05 Integration. This Agreement, after full execution,
acknowledgment and delivery, memorializes and constitutes the
entire agreement and understanding between the parties and
supersedes and replaces all prior negotiations and agreements
of the parties, whether written or unwritten. Each of the
parties to this Agreement acknowledges that no other party, nor
any agent or attorney of any other party has made any promises,
representations, or warranty whatsoever, express or implied,
which is not expressly contained in this Agreement; and each
party further acknowledges that he or it has not executed this
Agreement in reliance upon any belief as to any fact not
expressly recited herein above.
5.06 Attorneys Fees. In the event of a dispute between the parties
concerning the enforcement or interpretation of this Agreement,
the prevailing party in such dispute, whether by legal proceed-
ings or otherwise, shall be reimbursed immediately for the
reasonably incurred attorneys' fees and other costs and
expenses by the other parties to the dispute.
5.07 Context. Wherever the context so requires, the singular number
shall include the plural and the plural shall include the
singular.
5.08 Captions. The captions by which the sections and subsections of
this Agreement are identified are for convenience only, and
shall have no effect whatsoever upon its interpretation.
5.09 Severance. If any provision of this Agreement is held to be
illegal or invalid by a court of competent jurisdiction, such
provision shall be deemed to be severed and deleted and neither
such provision, nor its severance and deletion, shall affect
the validity of the remaining provisions.
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5.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and,
when taken together shall constitute one and the same instru-
ment.
5.11 Expenses Associated With This Agreement. Each of the parties
hereto agrees to bear its own costs, attorney's fees and relat-
ed expenses associated with this Agreement.
5.12 Arbitration. Any dispute or claim arising from or in any way
related to this agreement shall be settled by arbitration in
New York at the option of Consultant. All arbitration shall be
conducted in accordance with the rules and regulations of the
American Arbitration Association ("AAA"). AAA shall designate a
panel of three arbitrators from an approved list of arbitrators
following both parties' review and deletion of those arbitrat-
ors on the approved list having a conflict of interest with
either party. Each party shall pay its own expenses associated
with such arbitration. A demand for arbitration shall be made
within a reasonable time after the claim, dispute or other
matter has arisen and in no event shall such demand be made
after the date when institution of legal or equitable proceed-
ings based on such claim, dispute or other matter in question
would be barred by the applicable statutes of limitations. The
decision of the arbitrators shall be rendered within sixty (60)
days of submission of any claim or dispute, shall be in writing
and mailed to all the parties included in the arbitration. The
decision of the arbitrator shall be binding upon the parties
and judgment in accordance with that decision may be entered
in any court having jurisdiction thereof.
5.13 Assignment. Neither Company, nor Consultant, shall have the
right to assign or delegate this A greement or any rights or
obligations created hereby unless the non-assigning party
expressly approves the assignment in writing.
5.14 Authority to Bind. A responsible officer of each party has
read and understands the contents of this Agreement and is
empowered and duly authorized on behalf of that party to
execute it.
5.15 Continuing Obligations: Both Company and Consultant shall here-
after execute all documents and do all acts reasonably
necessary to effect the provisions of this Agreement.
5.16 Reversion of Payment: If at any time, Company shall be in
default of the payment provisions of this contract for a period
greater than seven (7) days, then the Consultant shall no long-
er be obligated to accept payment in the form of free trading
shares of stock and the balance due, and any payments due there
-after, shall be paid only in cash, certified check, cashiers
check or money order, unless Company is advised otherwise by
Consultant in writing. Further, if at any time, Company shall
be in default of the payment provisions of this contract for a
period greater than five (5) days, all services provided by Con
-sultant under this Agreement shall be suspended until such
time as payment in full of any outstanding balance is made and
services under the Agreement shall be reinstated on the day
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after the day on which payment is received. Consultant
reserves the right, at Consultant's sole option, to submit and
assign any outstanding balance to an independent third party
for the purpose of collecting any outstanding balance owed
Consultant.
5.17 Claims, Actions or Proceedings relating to the issuance of
Stock compensation: In the event that Company compensates
Consultant with stock, then Company agrees to indemnify and
hold harmless the Consultant from any action, claim or
proceeding resulting from the issuance of the shares. Said
indemnification shall include all fees and costs including
reasonable attorney's fees which the Consultant may incur.
Consultant shall have the right to designate its own counsel
for representation arising out of any indemnification and the
costs thereof shall be borne by the Company.
5.18 Notices: All notices must be in writing and sent to the
appropriate address listed above, or to such other address as
either party may designate in writing, by first class mail and
either certified mail return receipt requested or overnight
courier service. In the case of certified mail notice shall be
deemed given as of the date of deposit with the United States
Postal Service, and in case of overnight courier service
notice shall be deemed given as of the date of deposit with
such overnight courier service.
5.19 Confidentiality: Both Consultant and Company agree that it
will not at any time, or in any fashion or manner divulge,
disclose or otherwise communicate to any person or
corporation, in any manner whatsoever, any information of any
kind, nature, or description concerning any matters affecting
or relating to the business of each others company. This
includes its method of operation, or its plans, its processes,
or other data of any kind or nature that they know, or should
have known, is confidential and not already information that
resides in the public domain. Both the Consultant and Company
expressly agree that confidentiality of these matters is
extremely important and gravely affect the successful conduct
of business of each company, and its goodwill, and that any
breach of the terms of this section is a material breach of
this Agreement. The provisions of this section shall survive
termination of the Agreement.
6.00 Enforceability of Agreement: This Agreement shall neither be deemed to
be nor be enforceable until executed by Consultant. Further, should the
parties fail to execute this Agreement within thirty (30) days from the
date of delivery of this Agreement, then this Agreement and all the
terms and conditions contained herein shall become and be deemed null
and void and neither party named herein shall be bound hereby.
Consultant, without the consent of Company, shall have the sole option
to extend the time requirements set forth within this section 6.00, and
any request by Company to extend the time requirements set forth in
section 6.00 must be approved by Consultant in writing.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above.
COMPANY:
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IVI Communications, Inc.
A Nevada corporation
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, President
CONSULTANT:
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Big Apple Consulting USA, Inc.
A Delaware Corporation
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, President
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E X H I B I T A
(MANAGEMENT CONSULTING AND AGENT SERVICES)
At the direction of and with the consent of the Company, Consultant has agreed
to retain Management Solutions International, Inc. ("MSI") to provide the
services described below under the terms and conditions set forth in this
Agreement and the Consultant will work closely with the Company to set
priorities and objectives to be accomplished during this engagement.
A) Assist in Defining Capital needs and Sources and Uses of Funds.
B) Work closely with Client to develop a Business Plan
C) Draft a Private Placement Memorandum and Subscription.
D) Assist in the preparation of all of the appropriate form filing
to raise private capital.
E) Research and evaluate current and future acquisition candidates
based on the Client's outlined acquisition strategy.
F) Analyze, Evaluate and do preliminary Due Diligence on any current
and future acquisition candidates. This includes meetings in
Person, by Phone, Fax, Email, etc.
G) Evaluate existing and Develop new Distribution Channels for the
Client's products
H) Layout Timeline and Action Plan based on the outlined acquisition
strategy.
I) General Business Consulting (answering questions, giving advice,
introductions) as required.
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