Ex-10.78 Invisa, Inc.



 



Exhibit 10.78


G.M. CAPITAL PARTNERS, LTD.


September 9, 2003


Invisa, Inc.

Attention: Stephen Michael, President

4400 Independence court

Sarasota, FL 34234


Dear Mr. Michael:


This letter confirms the engagement agreement (the “Agreement”)
between G.M. Capital Partners, Ltd. (“GMC”) and Invisa, Inc. a Nevada
corporation, (hereinafter “Invisa” or the
“Company”) pursuant to which
GMC will furnish management consulting, financial advisory and
investor relations services. GMC will assist Invisa in the capacity
as detailed below.


1. RESPONSIBILITY OF GMC


A.     Subject to the terms and conditions hereof, GMC services will
include, among
other things, a due diligence overview of the Company including;
reviewing Invisa’s current financial position and projections relating
to Invisa’s capital requirements, analyzing the proforma effects of
the financing on such projections, and rendering advice on methods of
structuring such financing (“Financing”).


B.     It is expressly acknowledged and agreed by the parties hereto that
GMC’s obligations do not insure the successful negotiation of or
obtaining of any type of Financing for Invisa and any efforts for
obtaining Financing shall be on a “best efforts” basis only. GMC is
not a registered broker dealer.


C.     The central task of GMC will be attracting suitable entities that
are in the business of, or interested, in making equity or debt
investments in companies such as Invisa. GMC’s role will include
assisting the Company in proposing an equity or debt investment in
Invisa to prospective investors, presenting Invisa’s analysis in
support of the investment, and structuring and negotiating the
financial terms of the investment.


D.     We will also assist in the coordination of the many parties involved and
attend


“Registered in the British
Virgin Islands”



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to the numerous technical details required in arranging and finalizing
any transaction. These tasks often present substantive issues or other
difficulties and constitute the most time-consuming aspects of a Financing,
requiring an anticipation of problems and experienced coordination of attorneys
and other parties, as appropriate.


2. INFORMATION


A.     GMC will perform services for the Company in all areas generally considered
to be management consulting, financial advisory and investor relations,
including but not limited to the preparation and dissemination of financial
publicity, annual and interim reports for stockholders and the financial
community, preparation and dissemination of information concerning the
Company’s operations, and consultation with respect to financial negotiations
with investment banking firms, lenders and private investors.


B.     Information to be released by GMC will be disseminated to general, financial
and trade media, the investment banking community, banks and statistical
organizations, all as deemed necessary or appropriate by GMC and the Company.


C.     All information to be disseminated through GMC will be based upon material
furnished by the Company and will be released only after receipt by GMC of
final approval from the Company. The Company recognized that GMC may have,
either at the present time or in the future, obligations imposed upon it by the
federal securities laws to verify independently certain of the information
contained in release being made through it. Accordingly, the Company agrees
that GMC shall have the right to make such reasonable inquiries as it shall
deem necessary or appropriate of officers and employees of the Company and its
counsel and auditors with respect to information being released by GMC upon
approval by designated management. Such approval shall not be unreasonably
withheld. The Company recognizes that the accuracy and completeness of all
information contained in release ultimately rests with the Company and agrees
to indemnify and hold GMC harmless from and against any loss and expense
arising out of a claim that any information released by GMC is inaccurate or
incomplete.


     D.     You acknowledge and understand that GMC, in order to perform its services
effectively under this agreement, and to satisfy such obligation as may be
imposed upon it by the federal securities laws, requires the prompt receipt of
all material information with respect to the Company, its operations and its
prospects. Accordingly, you agree to furnish promptly to GMC copies of all
reports and other filings with the Securities and Exchange Commission, all
communications with Stockholders and all reports received from your auditors.
Furthermore, you recognize the necessity of promptly notifying GMC of all
material developments concerning the
Company, its business and prospects and to supply GMC with sufficient
information


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necessary for GMC to make a determination as to its compliance with
its own procedures as well as any legal requirements.


3. COMPENSATION TO GMC


In consideration of our services as set forth above, GMC shall be entitled to
receive, and Invisa agrees to pay to GMC the following:


A.     GMC will receive a success fee (“Success fee”) in the form of a cash payment
in the amount of ten percent (10%) of the gross proceeds of any private
Financing, including any form of equity, convertible debt, debt with warrants,
debt with equity incentives to the lender, or any other form of equity, debt or
guarantees obtained by or invested in Invisa payable upon closing or receipt of
funds by Invisa or any entity described in Paragraph 5., whichever is earlier.
GMC agrees that it will adjust its Success Fee in the event that a fee is
required to be paid to a third party. Such adjustment will be made to reflect
usual and customary practices in these types of transactions with a limit of
total aggregate combined compensation payable to GMC and all third parties
being no more than 12%.


B.     Invisa shall have sole discretion in determining what constitutes an
acceptable Financing as contemplated by this Agreement. GMC shall earn the
Success Fee only upon the closing or receipt of funds from a Financing as
described in 3.A, above, and not merely for presenting a financing option or
prospective investor which in Invisa’s sole discretion is unacceptable.


C.     GMC will be retained as Financial Advisor, Management Consultant and
Investors Relations firm for the Company at a fee of $5,000 per month. Monthly
payments will commence on September 1st, 2003, and will be payable on the 1st
of each month for twelve (12) consecutive months.


D.     GMC’s out of pocket expenses will be reimbursed on a pre-approved basis.


4. EXCLUSIVITY


A.     From the effective date of this Agreement, Invisa and its officers will not
engage any other person or entity to serve as its agent or representative to
provide services similar to those to be provided by GMC through the term of
this Agreement without the prior written consent of GMC and such consent would
not be unreasonably withheld.


B.     If for a period of two (2) years after successfully closing a Financing, as
contemplated under this Agreement, Invisa desires to commence any Transaction
(as hereinafter defined), and GMC has the expertise, resources and infrastructure
to


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complete such a transaction (as determined by an independent
industry-related third party mutually agreed upon by the parties hereto) GMC
shall have the right of first refusal to act as Invisa’s financial advisors, to
arrange for placement agents or underwriters, as the case may be, with respect
to any such Transaction or Transactions. For purposes of this Agreement, the
term “Transaction” shall include each of the following; the purchase, sale,
merger, consolidation or any other business combination, in one or a series of
transactions involving Invisa or any sale of securities of Invisa or a New
Entity as described below, effected pursuant to a private sale or an
underwritten public offering.


C.     If Invisa decides to actively pursue any such Transaction and GMC has the
expertise, resources and infrastructure to complete such a transaction (as
determined by an independent industry-related third party) and exercises the
right of first refusal provided hereunder, GMC and Invisa will enter into an
agreement appropriate to the circumstances containing provisions for among
other things, compensation, indemnification, contribution, and representations
and warranties which are usual and customary for similar agreements entered
into by GMC or other investment bankers of national standing acting in similar
transactions. Invisa agrees that it will not enter into any such Transaction,
unless GMC has waived their right of first refusal with respect thereto or
prior to or simultaneously with the consummation of such Transaction, until
adequate provision is made with respect to the payment of compensation to GMC
as contemplated hereby.


D.     Invisa will provide GMC a list of contacts that it has been in discussions
with regarding possible Transactions attached hereto as Schedule A. Invisa
will consult with GMC as to GMC’s involvement in the Transaction. GMC will
provide Invisa with its list of contacts on a monthly basis, to include name,
address and phone number for the sole purpose of Invisa to log GMC’s contacts
in the event of future possible business conducted with the contacts of GMC.


E.     This agreement may be terminated by mutual consent between GMC and Invisa.


5. ASSIGNMENT AND TRANSFER OF OBLIGATION


In the event that Invisa contributes, pledges, guarantees or otherwise conveys
any of its assets (including without limitation the assets of its subsidiaries
or affiliates) to, or incurs any liabilities on behalf of, or grants the
authority to operate its business(es) or affiliated business(es) to a new
entity, whether a corporation, partnership, sole proprietorship, or national
person (“New Entity”) for the purpose of obtaining Financing as contemplated by
this Agreement that would result in a circumvention of this Agreement, then GMC
will be compensated by Invisa for whatever funds were received by the New
Entity on the same basis as if the funds were invested directly in Invisa. The
parties further agree that all Invisa’s rights and obligations under the
Agreement will be equally binding upon New Entity and that Invisa will not
enter into


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or create any agreement, undertaking or legal obligation with a New
Entity without requiring said New Entity to accept and satisfy Invisa’s right
and obligations under this Agreement as if they were their own.


6. TWO YEAR PROVISION


If, within two (2) years from the termination of this Agreement, Invisa or its
officers consummate any Financing with any party to whom Invisa or its officers
were introduced by GMC or who was contacted by GMC in connection with its
services for Invisa hereunder, or who received information prepared by GMC in
connection with the Financing, then Invisa shall pay to GMC the agreed upon
compensation.


7. TERMINATION


This Agreement shall terminate twelve (12) months from the above written date
of this Agreement unless extended in writing and signed by both parties. GMC
shall be paid by Invisa all fees earned through Termination Date together with
reimbursement of all expenses due hereunder. All such fees and reimbursement
due GMC shall be paid on or before the Termination Date. Notwithstanding
anything expressed or implied herein to the contrary, the terms and provisions
of Section 3, 4B, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 shall survive
the termination of this Agreement.


8. INDEMNIFICATION


As is customary in engagements of this nature, each party agrees to indemnify
and hold the other party harmless from and against any losses, claims, damages
or liabilities (or actions, including security holder actions, in respect
thereof) related to or arising out of the engagement hereunder or either
party’s role in connection therewith, and each party will reimburse the other
for all reasonable expenses (including reasonable counsel fees) incurred in
connection with pending or threatened litigation. Neither party will, however,
be responsible for any claims, liabilities, losses, damages or expenses which
are finally judicially determined to have resulted from the bad faith, gross
negligence, negligence, or wrongful intentional acts of the other party.
Neither party shall have any liability to the other in connection with such
engagement, except to the extent the other party incurs liability for losses,
claims damages, liabilities or expenses as a result of the bad faith, gross
negligence, or wrongful intentional act of such party. In the event both
parties are at fault, then each party shall contribute to amounts paid or
payable by the other party in respect of its losses, claims, damages and
liabilities in such proportion as appropriately reflects the relative benefits
received by, and fault of, the respective parties. The foregoing shall be in
addition to any rights that either party may have at common law or otherwise
and shall extend upon the same terms to inure to the benefit of any director,
officer, employee, agent or controlling person of Invisa, Inc.


9. ENTIRE AGREEMENT



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The Parties agree that the Agreement embodies the entire agreement and
understanding of the Parties and that no understanding or agreements, verbal or
otherwise, exists between the Parties excepts set forth in the Agreement. Any
modification to the Agreement must be reduced to writing, signed by both
Parties, and attached to the Agreement to be effective.


10. SEVERABILITY


Should any section or any part of any section of the Agreement be rendered
void, invalid, or unenforceable by any court or law for any reason such
determination shall not render void, invalid, or unenforceable any other
section or any part of any section in the Agreement.


11. SURVIVAL OF REPRESENTATIONS


Each Party, for itself, and its successors, heirs, executors, administrators,
representatives, insures, agents, and assigns, covenants and agrees that all
representations made hereunder and obligations created hereunder shall apply to
their successors and assigns provided however, that GMC shall not assign this
Agreement to a third party without the prior written consent of the board of
directors (unless otherwise designated) of Invisa which consent shall not be
unreasonable withheld.


12. NOTICES


Any required notices under this Agreement shall be made by overnight courier or
certified mail, postage prepaid and return receipt requested as follows:


If to GMC


	 	G.M. Capital Partners, Ltd.

Mr. Marc Angst

2, rue Thalberg

CP 1507

CH-1211 Geneve 1



With copies to:


	 	Mr. J.A. Michie

Managing Director

GM. Capital Partners, Ltd.

Usteristrasse19

POB 6681

CH-8023 Zurich

Switzerland



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If to Invisa:


Invisa, Inc.

Mr. Stephen A. Michael

President

4400 Independence Court

Sarasota, FL 34234


13. CHOICE OF LAW


The validity and interpretation of this Agreement shall be governed by the laws
of the State of Florida, without giving effect to the State of Florida’s choice
of law principle and all actions arising under this Agreement or arising out of
the operative facts represented by services performed pursuant to this
Agreement shall be resolved in the courts of the State of Florida.


14. HEADINGS


The headings are for informational purposes only and shall not constitute a
part of this Agreement.


15. NO WAIVER OF BREACH


Waiver of any one breach of the provisions of this Agreement shall not be
deemed a waiver of any other breach of the same or any other provision of this
Agreement.


16. SECURITIES LAW COMPLIANCE


The parties acknowledge and agree that this Agreement shall not impose
obligations on the parties that would not be compliant with all applicable
securities laws, rules and regulations (“Securities Laws”), and accordingly,
the obligations of the parties as set forth in this Agreement are only to the
extent that they shall be compliant with applicable Securities Laws.


AGREED AND ACCEPTED


Please confirm that the foregoing correctly sets forth our mutual understanding
by signing and returning the copy of this Agreement provided for that purpose.



	 	 	 
	Invisa, Inc.	 	
G.M. Capital Partners, Ltd
	 
	Stephen A. Michael



Stephen A. Michael

President	 	
J. A. Michie



J.A. Michie

Managing Director




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Schedule A



	 	 	 
	BarBell Group, Inc. — Equity Line of Credit	 	
Crescent Fund, Inc.
	c/o Edward H. Burnbaum, Esq	 	
67 Wall Street, 22nd Floor
	Novack Burnbaum Crystal LLP	 	
New York, NY 10005
	300 East 42nd Street, 10th Floor	 	
(212) 509-3060
	New York, NY 10017	 	
Contact: Jeff Stone
	(212) 682-4002	 	 
	 	 	 
	 	 	
Ash Capital Partners, Inc.
	Capstone Partners, L.C	 	
Affiliated with Wellfleet Partners, Inc.
	3475 Lenox Road, Suite 400	 	
One Penn Plaza, Suite 2032
	Atlanta, GA 30326	 	
New York, NY 10119
	(404) 238-0550	 	
(212) 714-0400 x224
	Contact: Gregory Bartko, Esq./CEO	 	
Contact: Ytzik Aranov
	 	 	 
	Brooks, Houghton & Company, Inc.	 	
National Financial Communications Corp.
	444 Madison Avenue, 25th Floor	 	
300 Chestnut Street, Suite 200
	New York, NY 10022	 	
Needham, MA 02492
	(212) 829-1675	 	
(781) 444-6100 x629
	Contact: Kevin Centofanti	 	
Contact: Gary Geraci
	 	 	 
	Source Capital Group, Inc.	 	
Various Angel Investor Groups
	1221 Post Road East	 	 
	Westport, CT 06880	 	 
	(203) 341-3500 or 800 882-2889	 	 
	Contact: W. Todd Coffin	 	 
	 	 	 
	Fusion Capital Fund II, LLC	 	 
	Manager: Fusion Capital Partners, LLC	 	 
	222 Merchandise Mart Plaza, Suite 9-112	 	 
	Chicago, IL 60654	 	 
	(312) 644-6644	 	 
	Contact: Joshua Scheinfeld — (312) 560-7337	 	 
	 	 	 
	Hawk Associates, Inc.	 	 
	204 Ocean Drive	 	 
	Tavernier, FL 33070	 	 
	(305) 852-2383	 	 
	Contact: Frank Hawkins, Jr.