SERVICES AGREEMENT
This Business Consulting and Services Agreement (hereinafter "Agreement")
is made and entered into this 20th day of January, 2006, by and between World
Energy Solutions, Inc., a Florida corporation, having its principal place of
business at 0000-X 00xx Xxxxxx Xxxxx, Xx. Xxxxxxxxxx, XX 00000 (hereinafter
"Principal") and Xxxxx X. Xxxx, Esquire (hereinafter "Consultant").
RECITALS
WHEREAS, Consultant is in the business of providing corporate advisory and
business consulting services with respect to real estate acquisitions and
desires to provide such services to Principal pursuant to the terms and
conditions of this Agreement; and
WHEREAS, the Consultant wishes to provide the Principal with consulting
services as described below; and
WHEREAS, Principal desires to engage the services of Consultant to perform
such business consulting and advisory services as set forth herein below, is in
need of such services, and is able to pay for same, in furtherance of expanding
and developing Principal's business.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, and for other good and valid consideration, the adequacy and
receipt of which is hereby acknowledged, the parties agree to be legally bound
as follows:
1. Recitals. The recitals set forth above are true and correct, and are
incorporated herein by reference.
2. Engagement. Principal hereby engages Consultant to render the consulting
and advisory services set forth in Paragraph 3 of this Agreement. Consultant
hereby accepts the engagement and agrees to use its best efforts to perform the
duties and services on behalf of Principal.
3. Nature of Services and Duties. Consultant shall make herself available
to consult with Principal concerning the location and acquisition of desirable
real estate and/or office space for the relocation of Principal's corporate
headquarters and in furtherance of Principal's business activities, including,
generally, all issues of concern or import in the ongoing growth, development
and related business affairs of the Principal as may be brought to the attention
of Consultant by Principal. Consultant shall provide services in an ongoing
manner in the following business areas:
a. Financial and consulting advice with respect to an analysis of the
ongoing business of the Principal that relate to real estate acquisition
and title issues;
b. Assistance to the Principal in negotiation of the terms and
conditions of any necessary real estate agreements, including but not
limited to matters involving brokering arrangements if any, strategic
planning, development of mergers, affiliations, conglomerations, and other
such business ventures as may be contemplated between Principal and other
entities; and
c. Submit to the Principal, when requested, written reports of the
status of Consultant's efforts under this Agreement;
4. Representations of Principal.
a. This Agreement has been duly authorized, and executed by Principal.
This Agreement constitutes the valid, legal and binding obligation of
Principal, enforceable in accordance with its terms, except as rights to
indemnity hereunder may be limited by applicable federal or state
securities laws, except in each case as such enforceability may be limited
by bankruptcy, insolvency, reorganization or similar laws affecting
creditor's rights generally;
b. The consummation of the transactions contemplated hereby will not
result in any breach of the terms, or conditions, or constitute a default
under any agreement, or other instrument to which Principal is a party, or
violate any order, applicable to Principal, of any court or federal or
state regulatory body, or administrative agency having jurisdiction over
Principal, or over any of its property;
c. Principal agrees to provide Consultant such financial, business and
other material and information about Principal, its products, services,
contracts, litigation, patents, trademarks and other business matters which
Consultant may request and any additional information which Consultant
considers to be important material for the completion of this Agreement;
d. Principal will cooperate fully with Consultant in executing the
responsibilities required under this Agreement so that Consultant may
fulfill its responsibilities in a timely manner;
e. Principal is a corporation duly organized and existing under the
laws of the State of Florida and is in good standing with the jurisdiction
of its incorporation and in each state where it is required to be qualified
to do business;
5. Representations by Consultant.
a. Consultant represents, warrants and covenants that Consultant will
cooperate in a prompt and professional manner with Principal, its
attorneys, accountants and agents in the performance of this Agreement;
b. This Agreement has been duly authorized, executed and delivered by
Consultant. This Agreement constitutes the valid, legal and binding
obligation of Consultant, enforceable in accordance with its terms, except
as rights to indemnity hereunder may be limited by applicable federal or
state securities laws, and except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditor's
rights generally; and
c. The Consultant has the resources, time and personnel to provide the
consulting services required hereunder on a timely basis.
6. Term of the Agreement.
a. General. This Agreement, including all of its terms and conditions,
shall be in full force and effect as of the date hereof through and
including that period which ends twelve (12) full months from the date of
this Agreement. The Principal and the Consultant shall each have the right
to terminate this Agreement in the event of the bankruptcy, insolvency, or
assignment for the benefit of creditors of the other party.
b. Termination by Consultant. The Consultant shall have the right to
terminate this Agreement if the Principal is in breach of the terms of this
Agreement, including without limitation its responsibilities for
compensation to the Consultant as set forth in this Agreement after
Consultant provides written notice to Principal of such breach and
Principal fails to cure such breach within fifteen (15) days of its receipt
of such notice or, if such breach is not reasonably curable in fifteen (15)
days, has not exercised diligent and good faith efforts to cure such breach
within said fifteen (15) day period.
c. Termination by Principal. The Principal shall have the right to
terminate this Agreement if the Consultant is in breach of the terms of
this Agreement after Principal provides written notice of such breach to
Consultant and Consultant fails to cure such breach within fifteen (15)
days of its receipt of such notice or, if such breach is not reasonably
curable in fifteen (15) days, has not exercised diligent and good faith
efforts to cure such breach within said fifteen (15) day period.
d. Payment of Compensation Upon Termination. The obligations of the
Principal to pay unpaid compensation (such as under Section 9.b) to the
Consultant, as the case may be, shall survive any termination for cause
attributable to Principal or upon expiration of this Agreement. Principal
shall have no obligation to pay any unpaid compensation following
termination by Principal as a result of an uncured breach by Consultant.
7. Costs, Expenses and Assistance of Consultant. Consultant, subject to
approval in writing of the Principal, where necessary and reasonable, may seek
out and utilize the assistance and services of other persons, companies, or
firms to properly perform the duties and obligations required under this
Agreement, and Consultant shall be directly reimbursed by Principal for such
assistance. Notwithstanding the above, all costs and expenses reasonably
incurred by Consultant in pursuit of services provided to Principal hereunder
shall be approved by Principal and shall be chargeable directly to Principal via
monthly invoices of Consultant. No individual cost item in the amount of One
Hundred and 00/100 ($100.00) or greater shall be incurred by Consultant without
prior consent of Principal, and in no event shall Principal be required to
reimburse Consultant for any such cost item that has not been pre-approved by
Principal.
8. Compensation to Consultant.
a. Consulting Fee. In consideration for the efforts of the Consultant
on behalf of the Principal, the Principal shall tender to Consultant a
consulting fee consisting of 100,000 shares of Principal's common stock to
be registered with the United States Securities and Exchange Commission on
Form S-8. Thereafter, Principal shall pay to Consultant, as cash
compensation for all such services provided pursuant to Paragraph 3 herein
above, and for other services reasonably related to such matters as
authorized by Principal, a fair and reasonable compensation for all
services provided.
(i) The parties may agree that on individual projects it is
advisable to compensate consultant on a flat-fee basis. Consultant
will be paid a reasonable amount for services rendered, and the
Parties must agree, in writing, to the terms, conditions, and amounts
relating to any engagement on a flat-fee basis.
(ii) With regard to the methods of compensation as set forth in
paragraphs above, the parties shall agree, in writing, as to which
method or several methods will be utilized in connection with the
engagement referenced herein and such memorialization shall be
appended to this Agreement as such compensation arrangements are
agreed upon.
b. U.S. Dollars. Throughout this Agreement, all dollar figures
expressed represent United States dollars.
9. Relationship of Parties. The parties hereby acknowledge the Consultant
is an independent contractor of Principal and is not authorized to act on behalf
of Principal as its agent, except as may be specifically agreed otherwise.
Consultant shall have full control over the manner in which its services are
rendered hereunder. Nothing in this Agreement or the course of conduct between
the parties shall be deemed to constitute an employment, agency, joint venture,
partnership or any other type of relationship between the parties other than the
independent contractor status established hereby. Consultant shall not have the
right or power to bind Principal to any contracts or agreements with any third
party, nor shall Consultant have the right or power to direct any operations of
the Principal not authorized specifically by Principal. The relationship created
by this Agreement is that of a contract for services.
10. Limited Liability; Indemnification. With regard to services to be
performed by Consultant pursuant to the terms of this Agreement, Consultant
shall not be liable to the Principal, nor to any one who may claim any right due
to any relationship with the Principal, for any acts or omissions in the
performance of services on the part of the Consultant or on the part of the
agents or employees of the Consultant, except when said acts or omissions of the
Consultant are due to its willfulness or intentional misconduct. Principal shall
defend, indemnify and hold Consultant and her assigns, attorneys, accountants,
employees, officers, and directors harmless from and against all losses,
liabilities, judgments, damages, claims, demands, actions, proceedings, suits,
costs, and expenses, presently or in the future, arising from or pertaining to
the services rendered to the Principal pursuant to this Agreement, except when
the same shall arise due to the willful misconduct of culpable negligence of
Consultant.
11. Non-exclusivity of Agreement. Principal acknowledges and agrees that
Consultant provides ongoing consulting services to a variety of clientele, and
Consultant shall not, by the terms of this Agreement, be bound, prevented or
barred in anyway from rendering services of the same nature as contemplated
herein to existing and future clientele.
12. Waiver, Modification and Cancellation; Writing Required. This Agreement
may not be modified, amended or canceled except by a mutual agreement by an
instrument in writing duly executed by the parties hereto. No waiver of
compliance with any provision or condition hereof and no consent provided for
herein shall be effective unless evidenced by an instrument in writing duly
executed by the party hereto sought to be charged with such waiver or consent.
13. Severability. The invalidity or unenforceability of any particular
provisions hereof shall not affect the remaining portions or provisions of this
Agreement, and this Agreement shall be construed in all respects as if such
invalid or unenforceable provision were omitted.
14. Attorneys Fees. In the event it becomes necessary for either party
herein to seek legal means to interpret or enforce the terms of this Agreement,
the non-prevailing party shall be liable to the prevailing party for all
reasonable attorney fees, attorney fees on appeal, travel expenses, deposition
costs, expert witness expenses and fees, and any other costs of whatever nature
and reason necessarily incurred by the prevailing party incident to the
prosecution or defense of any action arising from or related to the subject
matter of this Agreement, plus costs in all proceedings, trials and appeals.
Notwithstanding the preceding sentence, and in no way limiting the scope or
application of same, Principal shall be liable to Consultant for any fees,
Attorney fees, costs, and related expenses incurred as a result of Consultant's
collection activities concerning compensation due and owing pursuant to the
terms of this Agreement, whether or not litigation is initiated.
15. Governing Law and Venue. This Agreement and all transactions
contemplated by this Agreement shall be governed by, construed, and enforced in
accordance with the Laws of the State of Florida without regard to any conflicts
of laws, statutes, rules, regulations or ordinances. The Parties agree that
venue regarding any and all disputes arising from this Agreement and any and all
other disputes between the Parties shall be in the United States District Court
for the Middle District of Florida, Tampa Division or the Circuit Court in and
for Pinellas County, Florida, St. Petersburg Division and the Parties consent
and voluntarily submit to personal jurisdiction of such courts over them.
16. Arbitration. Notwithstanding the foregoing venue and jurisdiction
provisions, the Parties agree that any and all controversies and disputes
between them, arising from this Agreement or regarding any other matter
whatsoever shall be submitted to arbitration before the American Arbitration
Association, utilizing its Commercial Rules. Any arbitration action brought
pursuant to this section shall be heard in St. Petersburg, Pinellas County,
Florida. The United States District Court for the Middle District of Florida,
Tampa Division and the Circuit Court in and for Pinellas County, Florida, St.
Petersburg Division, shall have concurrent jurisdiction with any arbitration
panel for the purpose of entering temporary and permanent injunctive relief.
17. Entire Agreement. This Agreement contains the entire understanding
between the parties hereto with respect to the matters contemplated hereby, and
this Agreement supercedes any and all prior understandings and written and oral
agreements between the parties with respect to the subject matter hereof.
18. Binding Effect; Successors and/or Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the respective parties hereto and
any successors, grantees and/or assigns, whether resulting from a merger,
acquisition, recapitalization, asset purchase or otherwise, and the parties'
legal representatives and affiliates. This Agreement shall not be assignable by
either party hereto without the prior written consent of the other.
19. Authority to Enter into Agreement. The individuals executing this
Agreement on behalf of Principal and Consultant represent that they are duly
authorized by their respective entities to enter into said Agreement, and that
their acts are binding upon the entities which they represent.
20. Notices. Any notice, request, demand, or other communication given
pursuant to the terms of this Agreement shall be deemed given upon delivery, if
hand delivered or sent via facsimile, or forty eight (48) hours after deposit
with a courier for overnight delivery, correctly addressed to the addresses of
the parties indicated below or at such other address as such party shall in
writing have advised the other party.
If to the Principal:
Xxxxxxxx X. Xxxxxxx, President Copy to:
World Energy Solutions, Inc. Xxxxxxxx X. Xxxx, Esquire
0000-X 00xx Xxxxxx Xxxxx Xxxxxxx & Xxxx, P.A.
Xx. Xxxxxxxxxx, XX 00000 000 Xxxxxx Xxxxxx Xxxxx, Xxx 000
(727) 525-5552 Xx. Xxxxxxxxxx, XX 00000
(000) 000-0000 (fax)
If to Consultant:
Xx. Xxxxx X. Xxxx Copy to:
0000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
21. Nondisclosure. Unless directed by a government agency, responsible
regulatory agency, or a court of competent jurisdiction over the parties, each
party hereto agrees to keep the terms of this Agreement and the transactions
contemplated hereby as confidential and shall not disclose such information to
any third party, other than professional advisors utilized to negotiate and
consummate the transactions contemplated hereby. Consultant further agrees to
keep the proprietary business information and/or confidential business
information of the Principal confidential, including, but not limited to, its
customer and prospective customer list, its vendors, strategic partners and
business alliances and not to disclose, use or allow the use of such
information, without the prior written consent of the Principal.
22. Captions. The captions in this Agreement are inserted only as a matter
of convenience and for reference and shall not be deemed to define, limit,
enlarge, or describe the scope of this Agreement or the relationship of the
parties, and shall not affect this Agreement or the construction of any
provisions herein.
23. Counterparts. This Agreement may be executed in one or more
counterparts and via facsimile signatures, each of which shall be deemed an
original, but all of which shall together constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first set forth above.
WORLD ENERGY SOLUTIONS, INC.
/s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx, President
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, Esquire
