EXHIBIT 10.117
CONSULTING AGREEMENT
94-C-060
THIS CONSULTING AGREEMENT (the "Agreement") is between
Electrosource, Inc., a Delaware corporation, having principal
offices at 0000-X Xxxxxxxx Xxxxx, Xxxxxx, Xxxxx, 00000-0000,
X.X.X. ("Electrosource") and Beacon Advisors, Inc. ("Consultant")
having its place of business at 00 Xxxxxxxx Xxxx Xxxxxxx, Xxxxx
000, Xxxx Xxx 000, Xxxxxx, Xxxxx 00000.
W I T N E S S E T H:
WHEREAS, Consultant possesses knowledge and experience in
investment banking, finance, strategic relationships, mergers,
acquisitions, international business and related matters, and
WHEREAS, Electrosource desires the assistance of Consultant
in its financial and business arrangements,
NOW, THEREFORE, in consideration of the promises and
agreements hereinafter contained, Electrosource and Consultant,
intending to be legally bound, agree as follows:
1. Term. Electrosource hereby engages Consultant as an
independent contractor for a six month term commencing on
the effective date hereof. Either party may cancel this
Agreement for cause upon at least twenty (20) days prior
written notice. Upon early termination, Electrosource's sole
liability will be to pay for services rendered to that date
at the rate specified for the month(s) or fraction thereof.
Electrosource shall also pay any success fee earned to that
date as provided for herein and for reasonable travel or
business expenses incurred to that date in accordance with
Section 4.
2. Duties. Consultant is expected to the use its best
efforts, through its employee Langhorne Reid, III, to assist
Electrosource with respect to investment banking, finance,
corporate structuring and strategic relationships and to
provide general corporate advisory services to
Electrosource.
All such work shall be coordinated with and directed by the
President of Electrosource. Consultant shall be reasonably
available to perform such services as may be requested from
time to time by Electrosource, recognizing that Xx. Xxxx is
involved in other business activities and cannot make a
specific time commitment to the work under this agreement.
3. Compensation.
(a) Monthly Fee. As compensation for the services
which Consultant renders to Electrosource under this
Agreement, Electrosource shall pay to Consultant a fee
of $3,000 per full month. Consultant shall also be
granted 2,000 options or warrants to purchase
Electrosource common stock each month at market price
on the date of each issue. Payment shall be made at
the end of each thirty day period hereunder. Consultant
shall invoice Electrosource monthly for such services,
together with expenses as set forth in Section 4.
(b) Success Fee. Consultant shall also be entitled to
a fee for its efforts in successfully developing and
completing agreements during the term hereof for a
strategic partner, financing or similar agreements for
Electrosource as mutually identified from time to time.
The success fee shall be based upon the net proceeds to
Electrosource from such agreements (exclusive of
product sales). If another broker or finder is
involved in such transaction to which Electrosource
owes a fee, Consultant shall be paid a success fee of
three percent (3%) of the net proceeds to
Electrosource. The fee shall be paid in the form of
options or warrants at the then market price ( i.e. the
strike price shall be at the last trade price quoted by
NASD for the prior day). The amount of options or
warrants shall be for one share for each $1 represented
by the three percent (3%) fee. For example a $10
million financing would result in grant of 300,000
options or warrants (3% x 10 million x 1).
The fee if no other broker or finder is involved shall
be an industry standard fee of 7-10% (to be agreed) of
the net proceeds, one-half in cash and the other one-
half in options or warrants as above.
The success fee shall be paid within 10 days of receipt
of the relevant funds by Electrosource, as and when
received. The success fee payments shall cease upon
termination of this Agreement, except with respect to
contracts consummated or substantially completed prior
to such date in which case the success fee will
continue to apply.
4. Expenses. Electrosource shall reimburse Consultant for
all proper and reasonable expenses incurred by consultant
pursuant to Consultant's duties hereunder. Such expenses
may include necessary, actual expenses of out-of-town
travel, communications, hotel accommodations, meals and the
like, provided that Consultant shall keep and provide to
Electrosource an accurate and complete accounting of all
such expenses. Consultant shall obtain Electrosource's
prior consent to any significant such expenses.
Reimbursement of expenses will be made within thirty (30)
days of receipt of an accounting of same.
5. Confidential and Proprietary Information. The parties
agree that from time to time during performance of this
Agreement confidential or proprietary technical or business
information may be provided either orally or in written form
to Consultant. Consultant shall keep confidential all such
designated information furnished by Electrosource and
safeguard same from disclosure or use by any unauthorized
individuals for any purpose other than in performance of
this Agreement.
Consultant shall restrict the disclosure of Electrosource's
confidential or proprietary technical and business
information to those of its employees who need to know the
same for purposes of carrying out this contract. Consultant
shall advise all such employees of Consultant's obligations
of confidentiality under this Agreement. In event of
termination or cancellation of this Agreement for any reason
whatsoever, Consultant agrees promptly to deliver to
Electrosource all written information of any sort made
available to Consultant or created by it under the terms of
this Agreement.
Work product created by Consultant shall become the
confidential proprietary property of Electrosource.
Consultant agrees to treat such work product in the same
manner as confidential proprietary information of
Electrosource. Consultant agrees that any remedy at law
would be inadequate for a violation of this provision;
consequently, Consultant agrees that Electrosource is
entitled to obtain an injunction against Consultant's
disclosure of any confidential proprietary information.
Neither expiration of this Agreement nor its earlier
termination for any reason shall release Consultant from its
obligations under this Section 5.
6. Assignment and Subcontracting. Neither this Agreement
nor its performance, either in whole or in part, shall be
assigned or subcontracted by Consultant to a third party
without, in each case, the prior written consent of
Electrosource.
7. No Conflicts. Consultant represents and warrants that:
(a) He has full authority to enter into this
Agreement and to perform his obligations hereunder; and
(b) Performance by Consultant of his obligations
hereunder will not be a conflict of interest with
representation of other clients.
8. Independent Contractor. Consultant's relationship to
Electrosource shall be solely to provide personal services
on an independent contractor basis. In this capacity,
Consultant will not be a regular employee of Electrosource
and will not be entitled to worker's compensation coverage,
unemployment insurance, or any other type or form of
insurance or benefit normally provided by Electrosource for
its employees except as may be required by law for payments
to non-residents, and Electrosource will not be responsible
for withholding federal income or social security taxes from
the fees paid to Consultant. The Consultant will be solely
responsible for reporting and paying all taxes arising from
his performance of this agreement. The consultant is
generally free to perform the services hereunder in any
manner desired, subject to satisfactory completion of the
subject task.
9. Notice. A notice communicated to Electrosource shall
be sent to the President or Vice President, and General
Counsel, Electrosource, Inc., 0000-X Xxxxxxxx Xxxxx, Xxxxxx,
XX 00000-0000, or to such other place or places as
Electrosource by notice in writing shall specify. Any
notice to be served shall be deemed to be served if the same
be sent by registered or certified mail through the United
States mail, addressed to the party on which service is to
be effected at the address stated in the immediately
preceding sentences and shall be deemed to have been
received on the day indicated on the return receipt relating
thereto.
10. Binding Agreement. This Agreement shall be binding
upon and inure to the benefit of the successors and assigns
of Electrosource, and to the successors and assigns of
Consultant.
11. Modification. This Agreement supersedes all prior
agreements or understandings between Consultant and
Electrosource relating to the subject matter hereof, and no
change, termination or attempted waiver of any of the
provisions hereof shall be binding unless reduced to writing
and signed by duly authorized officers of Electrosource and
by Consultant.
12. Construction. This Agreement shall be construed in
accordance with the laws of the State of Texas. Consultant
hereby submits to the continuing jurisdiction of the laws
and the courts of the State of Texas in the prosecution of
any interpretation or dispute under or arising out of this
Agreement. Should any portion of this Agreement be adjudged
or held to be invalid, unenforceable or void, such judgment
shall not have the effect of invalidating or voiding the
remainder of this Agreement, and the parties hereto agree
that the portion to be held invalid, unenforceable or void
shall, if possible be deemed amended or reduced in scope or
to otherwise be stricken from this Agreement to the extent
required for the purposes of validity and enforcement
thereof.
13. All dollars referenced herein are $U.S.
14. Mediation/Arbitration. Any controversy, claim or
dispute arising out of or relating to this Agreement or any
breach thereof which cannot be settled amicably by the
parties shall be resolved by mediation with a mediator
mutually selected by the Parties, or failing successful
mediation, by arbitration in Austin, Texas or other location
in the Texas under the Commercial Arbitration Rules of the
American Arbitration Association. Arbitration shall be by a
single arbitrator chosen by the Parties, provided that if
the Parties fail to agree and appoint an arbitrator within
30 days after demand for arbitration, the Arbitrator shall
be chosen in accordance with the Rules. The decision of the
arbitrator shall be final and binding on the Parties, and a
judgment on any award may be entered in any court of
competent jurisdiction.
IN WITNESS WHEREOF, this Agreement is dated and is effective
as of this 15th day of February, 1996.
ELECTROSOURCE, INC. CONSULTANT:BEACON ADVISORS, INC.
By: /S/ By: /S/
Xxxxx X. Xxxxx, Vice President Langhorne Reid, III
Finance, Law and Contracts President
Date: March 4, 1996 Date: March 4, 1996
