Exhibit 99.3
CONSULTING AGREEMENT
THIS "CONSULTING AGREEMENT" is entered into this 2nd day of February, 2004
by and between ▇▇▇▇ ▇▇▇▇▇▇ (hereafter referred to as "Consultant"), and
BROADCAST INTERNATIONAL, INC., a Utah Corporation (hereafter "Company").
R E C I T A L S
WHEREAS, Company acquired the rights to certain patentable technology
relating to the compression decompression of video signals for transmission of
video through traditional broadcast media and via the Internet while requiring
reduced bandwidth; and,
WHEREAS, Company employs a variety of video-powered business solutions,
including IP and digital satellite, Internet streaming, and other types of
wired/wireless network distribution. In addition, Company assists clients with
video production, rich media development and a full range of network support
services. The Company has also recently introduced CodecSys, a patent-pending
technology that enables full-screen, full-motion video at low bandwidths by
switching on the fly between multiple codecs.
WHEREAS, Consultant is engaged in the business of locating businesses,
both domestic and foreign, that may have interest in various new technologies
and that can provide distribution for products and serve as channel and
marketing partners in foreign countries for products employing low bandwidth
video transmission and in providing due diligence of such businesses including
analysis and on-going monitoring and/or management; and,
WHEREAS, Consultant has provided the forgoing services to Company in the
past year pursuant to a commission agreement in seeking licensees for the
Company technology, but the Company has made the decision not to license the
technology for geographic specific licenses and desires to compensate the
Consultant for the services he and his predecessor performed and Company
desires that Consultant continue to utilize his experience to evaluate various
foreign opportunities and provide the above described services (hereafter
together, the "Services") all on the terms and conditions contained herein.
NOW THEREFORE, the Parties agree to the following terms and conditions
pursuant to which the Consultant shall provide the Services described herein
for the Company.
1. INCORPORATION OF RECITALS
Recitals as set forth above are agreed to be true and incorporated into
the body of this Agreement by reference.
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2. DESCRIPTION OF BUSINESS
The business of Company ("Business") involves providing services to large
organizations by employing a variety of video-powered business solutions,
including IP and digital satellite, Internet streaming, and other types of
wired/wireless network distribution. In addition, the Company assists clients
with video production, rich media development and a full range of network
support services. The Company has also recently introduced CodecSys, a
patent-pending technology that enables full-screen, full-motion video at low
bandwidths by switching on the fly between multiple codecs.
3. ENGAGEMENT OF CONSULTANT
Company hereby hires Consultant and Consultant hereby accepts the
consulting engagement all on the terms of this Agreement. The scope of the
Services to be rendered at any given time shall include all activities
necessary or requested by Company.
a) Consultant has familiarized himself with and provided
introductions to each of the companies which he believes may be a potential
licensee of the Company's technology or a distributor of products using the
technology. Such due diligence investigations have included and will continue
to include, but not be limited to, on-site visits to each of the companies,
detailed evaluations of the businesses with specific emphasis on the
compatibility of product lines of such companies with the Company's
technology, and evaluations of the management teams and the ability to bring
such new technology to market according to the budgets and plan created by
management, and provided advice to the Company on personnel and strategic
matters.
b) Consultant shall meet regularly with Company and/or its clients.
Such meetings shall be to provide individual analysis and/or progress reports
on the potential licensees or marketing partners and to bring the Company or
its clients up to date on any new developments, problems or requirements.
c) Consultant shall also be available upon request by the Company to
visit new companies to evaluate such companies for potential recommendation to
Company regarding the potential for business relationships including
acquisition. Consultant shall make such reports to the Company on such
potential licensees or marketing partners in such manner as may be directed
from time to time.
d) Company acknowledges that Consultant has already performed the
services over the past year and has introduced the Company's technology to
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potential licensees in the Middle East, Europe, and Asia and desires to
compensate the Consultant for such services.
4. TERMINATION OF PRIOR AGREEMENT AND TERM OF THE AGREEMENT
The Consultant and the Company hereby agree that all prior agreements
between the Company and Consultant are hereby terminated and that the
compensation set forth herein is in full satisfaction of all amounts owed by
Company to Consultant.
This Agreement shall continue until either party shall give 30 days
written notice to the other.
5. COMPENSATION
(a) Company shall issue to Consultant 70,000 shares of common stock
of the Company in compensation of the past services rendered by the Consultant
in introducing potential exclusive licensees to the Company. The Company
agrees that it will register the common stock issued to the Consultant as soon
as reasonably practicable using Form S-8.
(b) For services rendered in the future in the form of sales of
products or technology licenses brought to the Company by the Consultant, for
the sale of all products sold by the Consultant, Consultant shall receive a
sales commission equal to 2% of the Net Revenue (as defined below) received by
the Company on all such sales. Net Revenue shall mean gross revenues less all
costs of goods sold and direct costs of providing its services (as calculated
using generally accepted accounting principles, consistently applied and any
royalties payable to third party licensors, for the use of technology.
(b) The Company shall reimburse Consultant for all out of pocket
expenses incurred by Consultant in performance of its services rendered
hereunder, including, but not limited to, all travel expenses including
airfare, hotel, food, taxi and rental cars, tolls and parking, tips and
gratuities, supplies and office expenses incurred while away from home office
and maintenance of remote offices necessary for the performance of the
services, all of which shall be subject to prior approval by Company.
6. CONSULTANT'S REPRESENTATIONS, WARRANTIES DUTIES AND COVENANTS
Consultant does hereby warrant and represent:
(a) Consultant is an individual, who has not been convicted of any
felonies or received any regulatory warnings or sanctions in any jurisdiction
and who is qualified and experienced in providing the Services required under
the terms of this Agreement.
(b) Consultant covenants to perform all services required hereunder
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in a professional manner and shall at all times conduct himself in a
professional manner
7. COMPANY'S REPRESENTATIONS WARRANTIES AND COVENANTS
Company agrees to and does hereby make the following representations,
warranties and covenants, each of which is material and may be relied upon by
Consultant in entering into and performing this Agreement, and each of which
shall be true and correct on the date hereof:
(a) This Consulting Agreement constitutes a valid and binding
agreement of Company in accordance with its terms.
(b) The execution and delivery of this Agreement and the performance
by Company of its obligations hereunder does not and will not contravene or
constitute a violation under any provision of any law, regulation, judgment,
order, indenture, agreement, franchise, license or other instrument to which
Company or any of its property is subject.
(c) Company agrees to defend, indemnify and hold Consultant harmless
from and against any and all loss or damage, and to defend, indemnify and hold
Consultant harmless from and against any and all claims, damages, expenses, or
liabilities incurred by, or asserted against it, as a result of Consultant's
performance of the services required hereunder or in the operation of the
Business as long as Consultant is not grossly negligent in discharging his
duties hereunder.
8. REPORTS
Consultant shall render to Company monthly reports concerning Consultant
activities, including meetings with companies that represent, potential
technology licensees, product distributors, or acquisition targets.
9. RELATIONSHIP OF THE PARTIES
In all matters pertaining to the operation of the Business, Consultant
shall operate as an independent contractor. Nothing herein contained shall be
construed to be a partnership, joint venture and/or agency, and neither party
hereto shall be liable for the debts or obligations of the other, unless
expressly assumed in writing.
10. COMPLIANCE WITH LAW
Consultant shall comply with all laws, ordinances and regulations of any
countries in which Consultant makes presentations or visits which pertain
directly or indirectly to the operation of the Business. Company shall pay
for all taxes, licenses, bonds and deposits made to or
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required by any governmental agency or body, which may be required by
Consultant to remain in compliance with any law or regulation.
11. DEFAULT
The occurrence of any of the following events shall constitute a default
by Consultant under this Agreement:
(a) Continuance for 30-days after notice by Company of any default by
consultant in performance of services required to be rendered under this
Agreement.
(b) Any affirmative act of insolvency by Consultant or the filing by
Consultant of any petition or action in bankruptcy or insolvency or for
appointment of a receiver or trustee, or an assignment by Consultant for the
benefit of creditors, or the failure to vacate or dismiss, within 60-days
after filing, any of the foregoing proceedings commenced against Consultant by
a third party.
(c) Failure to comply with all the terms of this Agreement, and all
other agreements between the parties, oral or written.
12. NOTICES
All notices, requests, demands, payments, consents and other
communications hereunder shall be transmitted in writing and shall be deemed
to have been duly given when sent by registered or certified mail, postage
prepaid, addressed as indicated on the signature page of this Agreement. Any
party may change its address on giving notice of such a change of address to
the other party.
13. COUNTERPARTS
This Agreement may be executed in one or more counterparts, all of which
shall constitute one Agreement.
14. COVENANT OF FURTHER ASSURANCES
The parties hereby agree to execute such other documents as may be
necessary or desirable to carry out the purpose of this Agreement.
15. HEIRS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the
parties, their heirs, successors and assigns.
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16. ENTIRE AGREEMENT
This Agreement represents the entire understanding between the parties,
and supersedes all other negotiations, agreements, representations and
covenants, oral or written. This Agreement may not be modified except by a
writing signed by the party to be charged.
17. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
internal laws and enforced in Utah.
18. WAIVER
Failure by other party to enforce any rights shall not be construed as a
waiver of such rights. Any waiver, including waiver of default, in any one
instance shall not constitute a continuing waiver or a waiver in any other
instance.
19. INVALIDITY
Any invalidity of any portion of this Agreement shall not affect the
validity of the remaining portions; and unless substantial performance of this
Agreement is frustrated by any such invalidity, this Agreement shall continue
in effect.
20. HEADINGS
The headings used herein are for purposes of convenience only and should
not be used in construing the provisions hereof.
CONSULTANT COMPANY
▇▇▇▇ ▇▇▇▇▇▇ Broadcast International, Inc.
"Consultant" "Company"
/s/ ▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇
_______________________ By____________________________
President
Its___________________________
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