Consulting Services Agreement
This Consulting Services Agreement (the “Agreement”) is effective as of
(the “Effective Date”), by and between (the
“Company”) and (“Consultant”):
A. Whereas the Company desires to utilize the consulting services of Consultant
pursuant to the terms of this Consulting Services Agreement; and
B. Whereas Consultant is ready, willing and able to undertake such services and to
perform such function pursuant to the terms of this Consulting Services Agreement;
NOW THEREFORE, in consideration of the exchange of rights and obligations set forth
below, the parties agree as follows:
1.1 The Company engages Consultant to utilize his experience, expertise and industry
contacts, as well as contacts that he will endeavor to make during the term of this agreement, to
facilitate the Company’s business development strategy with respect to customer acquisition and
development of strategic business relationships. Consultant will assist in the development of the
Company’s competitive market awareness and product positioning and in the conceptualization
of marketing and sales materials and presentation of same. Consultant will assist in the
development of competitive pricing strategies and creation of and prioritization of leads and
sales targets and endeavor to consummate relationships with such targets.
1.2 Consultant may hold himself out as the Executive Vice President of Business
Development of the Company subject to the supervision of the Company during the term of this
Agreement and the Company has the right to represent the same to third parties including
disclosure in the Company’s offering materials. It is currently the intention of the Parties,
though not a binding commitment by either that Consultant will, subject to the terms of a
mutually agreed written arrangement executed by each party, be retained by the Company on a
long term basis to serve in a mutually agreeable executive position. Upon execution of such
written agreement, this Agreement shall terminate. Notwithstanding the foregoing, both
Consultant and the Company acknowledge that nothing in this paragraph shall confer upon
Consultant the rights and obligations associated with an employee or corporate officer status
under the California corporate law or the bylaws of the Company’s corporation and Consultant
may not enter into any contract or agreement on behalf of the Company and may not make any
commitments, representations or warranties on behalf of the Company without prior written
consent of the President or Chief Executive Officer of the Company.
1.3 Method of Performing Services. Consultant shall determine the method, details,
and means of performing the Services to be performed hereunder subject to the approval of the
Company. Consultant may engage subcontractors to perform any of the Services provided
hereunder, provided that Consultant obtains the prior written consent of the Chief Executive
Officer of the Company prior to such engagement.
1.4 Authority of the Company. All business and legal decisions regarding any the
Company transactions shall be made by the Company in its sole discretion, and all binding
transactional documents shall be executed by the Company, and the Company shall not be bound
by any commitment, document or agreement made by Consultant purported to be on behalf of
the Company or otherwise except by a prior written document signed by the Company. the
Company shall be free to reject any proposed transactions for any reason or no reason without
liability (except for reimbursement of actual out-of-pocket expenses pursuant to this Agreement
as set forth below).
2. Term and Termination.
2.1 Term. This Agreement shall be effective as of the Effective Date stated above and
thereafter shall remain in effect for an initial term of six (6) months (the “Term”) unless
terminated pursuant to the provisions of this Section 2.2 hereunder. Upon the expiration of the
initial term, the Agreement will automatically renew for additional, successive periods of six (6)
months, unless one party provides the other party written notice of termination no less than sixty
(60) days prior to the expiration of the then current term. If such notice of termination is given,
then termination shall become effective upon the expiration of the then current term.
2.2.1 Termination for Breach. In the event that either party hereto materially
defaults in the performance of any of its duties or obligations under the Agreement (except for a
default in payments to Consultant as set forth below) and does not substantially cure such default
within fifteen (15) days after being given written notice specifying the default, then the non-
defaulting party may, by giving written notice thereof to the defaulting party, immediately
terminate this Agreement by written notice.
2.2.2 Termination for Convenience. Either party may terminate this
Agreement for convenience and without cause, upon thirty days (30) days prior written notice to,
provided that in such event, should such termination be at the election of the Company, the
Company will bring current any amounts owed to Consultant, including any deferred fees a
provided in Section 3 prior to such termination and the Company will pay Consultant an
additional Retainer Fee of $ on or before the date of termination.
2.2.3 Termination for Nonpayment. In the event that the Company defaults in
the payment when due of any amount due to Consultant hereunder and does not cure such default
within fifteen (15) days of when the payment is due, then Consultant may, by giving written
notice thereof to the Company, immediately terminate the Agreement by written notice.
2.2.4 Effect of Termination. Upon termination of this Agreement (other than
under Section 2.2.2 (Termination for Convenience), the Company shall be obligated to pay
Consultant the next installment of the Retainer Fee for the balance of the then-current month plus
any unpaid expenses. Additionally, upon termination of this Agreement by Consultant as
provided above in this Section 2 (i.e., as a result of a breach of the Agreement by the Company),
the Company shall also pay an early termination charge of $ . Payment of such
amounts shall be Consultant’s sole and exclusive remedy in connection with any termination of
this Agreement by Consultant.
2.2.5 Survival. Termination of this Agreement by either party pursuant to the
provisions of this Section 2 shall terminate each party’s obligations under this Agreement except
for the provisions of Section 2 (Term and Termination), Section 3 (Payments to Consultant) for
amounts due by not yet paid as of the date of termination, Section 6 (Consultant Representations
and Warranties), Section 7 (No Representations or Warranties as to Results), Section 8 (the
Company Representations and Warranties), Section 9 (Exclusion of Warranties), Section 11
(Limits of Liability), Section 12 (Defense of Infringement Actions) and Section 13 (General), all
of which shall survive termination of this Agreement.
3. Payments to Consultant.
3.1 Retainer Fee. For the Services provided hereunder, the Company shall pay to
Consultant a monthly retainer amount of ($
) (the “Retainer Fee”) in two equal monthly installments of
($ ) on the 15th day and the final business day of each month together
with a deferral of an additional ($ ) per month (the
“Deferred Retainer”. The Deferred Retainer will accumulate and be paid upon the occurrence
of one of the following: a.) upon the funding of at least $ million in bridge funding
contemplated to be raised in preparation for the Company’s private placement offering b.) Upon
the consummation of a first close of the offering. c.) upon the consummation of a deal(s) that
Consultant closes resulting in reasonably projected monthly revenue in excess of $12,000.
3.2 Equity Compensation. As additional compensation, the Company hereby grants
to Consultant up to warrants exercisable at $ until
, the form of which is attached hereto as Exhibit A.
3.3 Expenses. the Company will pay, or reimburse Consultant for, any out-of-pocket
expenses incurred by Consultant