CONSULTING AGREEMENT
Exhibit
10.36
AGREEMENT
made as of the 11th day of January,
2008 by and between Xxxxxxx
Associates, LLC, a Connecticut
limited liability company ("Consultant"), having an address at 00 Xxxxxxx Xxxx
Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000-0000 and Able Energy, Inc.
("Client") having an office at 000 Xxxxx Xxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx
00000.
WITNESSETH:
WHEREAS, the Consultant has
established its expertise in, among other things, accounting and compliance with
financial reporting regulations of the Securities and Exchange Commission for
reporting public companies such as the Client; and,
WHEREAS, the Client desires to
obtain the benefits of the Consultant's knowledge and expertise by retaining the
Consultant and the Consultant is agreeable thereto.
NOW, THEREFORE, in
consideration of the mutual covenants, conditions and promises contained herein,
the parties hereby agree as follows:
Section 1. Retention
of Consultant. Client hereby agrees to
engage Consultant, and Consultant agrees to serve Client as a non-exclusive
financial consultant, subject to the terms and conditions of this Agreement.
Consultant represents that Xx X. Xxxxxxx shall be the individual that renders
the services on behalf of Consultant to be provided hereunder by Consultant to
the Client.
Section 2. Services. Consultant will provide such consulting
services and advice pertaining to the Client's business affairs as the Client may from time to
time reasonably request. Without limiting the generality of the foregoing, it
is hereby agreed that
Consultant shall be retained by Client to provide accounting and financial
reporting services to the Client and its employees in connection with the
preparation of the Client's Quarterly Reports on Form 10-Q for the quarters
ending September 30, 2006, December 31, 2006, March 31, 2007, September 30,
2007 and December 31, 2007
(hereinafter referred to as the "Quarterly Reports") and the Client's Annual
Report on Form 10-K for the year ended June 30, 2007 (the "Annual
Report"). The services to
be provided by Consultant to Client in connection with the Quarterly Reports and
Annual Report shall
include but are not limited to:
(a) Provide
assistance with the coordination of the proper closing of the reporting periods
on a GAAP basis, including assistance to Client's personnel in the making of
proper period end adjustments and accruals;
(b) Preparation
of research and analysis of accounting and SEC reporting issues, as needed to
properly record company transactions;
(c) Provide
assistance with the coordination of the audit and quarterly reviews as provided
by Client's Independent Registered CPA Firm, as needed:
(d) Provide
assistance with the accounting and disclosure review and evaluation of
agreements with lenders, investors, vendors, and other third parties;
and
(e) Provide
other financial, strategic, analytical and advisory services as requested by the
Client which services are within the core competency of Consultant.
The
foregoing services of Consultant to Client shall be at the direction of the
Client's Chief Executive Officer, Chief Financial Officer or the designee of the
Client during normal business hours and at such times as are mutually convenient
for Consultant and Client. Client acknowledges that Consultant may provide
services to others, subject to the terms and conditions of this Agreement;
however, no such other services shall be rendered to competitors of the Client,
its subsidiaries and affiliates.
Section 3. Term and
Termination. The term of this
Agreement shall commence on the date hereof and shall end upon the Client's
completion and filing of all of the Quarterly Reports and the
Annual Report with the Securities and Exchange Commission
("SEC").
Section 4. Compensation. As compensation for Consultant's services
hereunder, the Client shall promptly pay to Consultant the
following:
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a.
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Upon
execution of this Agreement, Client shall pay Consultant five thousand
dollars ($5,000.00) (the "Retainer"). Consultant shall apply the Retainer
amount as a credit to the last invoice relating to services provided by
the Consultant under this engagement. Commencing thirty (30) days after
the Consultant begins to provide services hereunder to Client, and every
thirty (30) days thereafter, Client shall promptly pay Consultant for its
services based upon an hourly fee of $150.00 per hour payable $ 125.00 in
cash and the balance of the hourly fee to be paid in shares of common
stock of the Client based on the per share closing price
of the stock as listed on the Pink Sheets on the date of payment,
Client agrees to include any Client stock (includes any Client stock
underlying any derivative instrument) granted hereunder to Consultant in
the first and subsequent registration statements it files with SEC after
it re-establishes filing compliance upon the completion and filing of the
Quarterly Reports and Annual Report ("Registration Rights"). In the event
that Consultant's hours for any weekly period (Monday through Sunday)
exceed forty (40) hours ("Excess Hours"), Consultant shall receive written
authorization from the Company's Chief Executive Officer to perform
services for such Excess Hours prior to rendering such
services.
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b.
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Client
shall issue to Consultant five-year warrants to purchase shares of the
Client's common stock (the "Warrants") as follows: (i) 25,000 shares upon
filing with the Securities and Exchange Commission ("SEC") of the
Company's Quarterly Reports on Form 10-Q for the quarters ended September
30, 2006, December 31, 2006 and March 31, 2007; (ii) 25,000 shares upon
filing with the SEC of the Company's Annual Report on Form 10-K for
the year ended June 30, 2007; (iii) 25,000 shares upon the Company
being in compliance with the filing of all its reports required under the
rules and regulations of the SEC ("SEC Filing Compliance") ; and; (iv) 25,
000 shares if the Company achieves SEC Filing Compliance on or before May
1, 2008.
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Each of
the Warrants shall be at a purchase price equal to the per share closing price
of the Client's common stock as listed on the Pink Sheets on the date such
Warrants are granted hereunder. The Warrants shall have the same Registration
Rights as noted in Section 4.a., above.
Section 5. Expenses. Consultant shall be
entitled to reimbursement for all reasonable expenses Consultant incurs in the
performance of its duties (the "Expenses") upon presentation of appropriate
documentation therefor. Such Expenses shall include, but not be limited to,
transportation related to the engagement, cost of hotels, meals, etc., provided
that Client first approves, in writing, the activity and expenses for which such
costs are incurred for any amount over $250.00 on a cumulative weekly basis.
Consultant's expenses shall be paid within fifteen (15) calendar days of
submission to Client.
Section 6. Full
Cooperation. In connection with the
activities of the Consultant on behalf of Client, Client will cooperate with the
Consultant and will furnish the Consultant and the Consultant's representatives
with all information and data concerning Client as may be required in connection
with the Consultant's
services hereunder. Client will also provide Consultant and the Consultant's
representatives with access to Client's, agents, representatives, independent
accountants and legal counsel,
Section 7. Client's
Representations and Warranties. Client represents and
warrants that:
(a) It is
duly organized, validly existing and in good standing under the laws of the
place of its incorporation;
(b) it has the authority to enter into
this
Agreement;
(c) the
consummation of this transaction contemplated hereby and the performance of this
Agreement will not result in any breach of, or constitute a default under, any
agreement, corporate charter, bylaws or other agreement or instrument to which
Client is
a party or by which Client may be bound or affected; and
(d) Client
has
the
authority to offer and pay Consultant's compensation set forth in
paragraph 4 hereof.
Section 8. Consultant's
Representations and Warranties. Consultant represents
and warrants that:
(a)
Consultant has the authority to enter into this Agreement;
(b) the
consummation of this transaction contemplated hereby and the performance of this
Agreement will not result in any breach of, or constitute a default under, any
agreement or instrument to which Consultant is a party or by which Consultant
may be bound or affected;
(c) there
are no actions, suits or proceedings pending, or to the knowledge of Consultant,
threatened against or affecting Consultant which would preclude Consultant from
performing the services set forth herein; and
(d)
Consultant to his knowledge is not in default with respect to any order, writ,
injunction, decree or demand of' any court or Governmental
Authority.
Section 9. Indemnification. Client will protect,
indemnify and hold harmless Consultant against any claims or litigation
including any damages, liability, cost and reasonable attorney's fees as
incurred with respect thereto in
connection with Consultant's duties hereunder, except as such may arise
from the grossly negligent or intentional wrongful acts of Consultant. This
indemnity and hold harmless obligation shall include expenses and fees,
including reasonable attorneys' fees, incurred by Consultant in connection with
the defense of any act, suit or proceeding arising out of the foregoing.
However, it is understood and agreed that Client shall have the absolute right
to utilize its attorneys for the protection and defense of
Consultant.
Consultant
hereby agrees to indemnify Client, and each of its officers, directors,
employees, legal representatives and assigns and hold each of them harmless from
and against any and all intentionally wrongful and grossly negligent acts of
Consultant in connection with the performance of Consultant's duties hereunder.
This indemnity and hold harmless obligation shall include expenses and fees, including
reasonable attorneys fees, incurred in connection with the defense of any act,
suit or proceeding arising out of the foregoing.
Section 10. Proprietary
Work Product and Confidential Company Information. All work product
produced by the Consultant shall be the sole and exclusive property of Client.
In addition, Consultant acknowledges and agrees that as a result of the services
to be provided hereunder, the persons performing such services may acquire
knowledge and information of a secret and confidential nature. Consultant
further acknowledges and agrees that this information constitutes valuable
property of Client generally not being disseminated or made known to persons or
organizations outside Client at all, or if made known, being done so only under
specific and restrictive conditions such as to ensure that it does not become
readily available to the public, and also that confidential information of
others may be received by Client with restrictions on its use and disclosure.
Accordingly, Consultant agrees that:
(a) Consultant
and any person performing any services for Consultant hereunder shall not,
during the term of
this Agreement nor at any time thereafter, disclose to anyone outside
Client or use in other than Client's business any secret or confidential
information of Client or its subsidiaries or affiliates, except as authorized by
authoritative personnel of Client. Client information which is not
readily available to the public shall be considered secret and
confidential for the purpose of this Agreement and shall include, but not be
limited to, information relating to Client, its subsidiaries and affiliates,
customers, processes, products apparatus. data, compounds, business studies,
business and contracting plans, business procedures and finances;
(b) Consultant
and any person performing any services for Consultant hereunder shall not,
during the term of this Agreement nor at any time thereafter, disclose to any
other person or
use secret or confidential information of others, which, to the knowledge of
Consultant, has been disclosed to Consultant with restriction on the use or
disclosure thereof, in violation of those restrictions;
(c) Consultant
and any person performing any services for Consultant hereunder shall not,
during the term of this Agreement nor at an time thereafter, disclose to Client
or induce Consultant to use, without prior permission of the owner, any secret
or confidential information or material of others of which Consultant is or may
become possessed; and
(d) Notwithstanding
the foregoing, Consultant and any person performing services for Consultant
hereunder shall not be liable for the disclosure of
information, which may otherwise he deemed confidential hereunder:
(i) if the
information is in, or becomes part of, the public domain, other than by
Consultant's disclosure of the information; or
(ii) if the
information is furnished to a third party by CIient without restriction of the
third party's right to disseminate the information; or
(iii) if the
information is already of record in Consultant's files at the time of
disclosure, or is disclosed to Consultant by a third party as a matter of right;
or
(iv) if the
information is disclosed with Client written approval; or
(v) if the
information is compelled to be revealed via subpoena, civil investigative demand
or other judicial or administrative process.
Section 11. Relationship
of the Parties. Consultant shall be
deemed to be an independent contractor and, except as expressly authorized,
shall have no authority to act for, represent or bind the Client.
Section 12. Reliance
on Client's Information. Client acknowledges and
agrees that Consultant, in performance of its duties under this Agreement, will
be relying on the completeness and accuracy of the written documentation
delivered and the verbal communications made by CIient and its agents to
Consultant in connection with the matters relating to Consultant's engagement
hereunder.
Section 13. Termination
of Agreement. Either party may
terminate this Agreement prior to the completion and filing with the SEC of the
Quarterly Reports or Annual Report upon thirty (30) days written notice to the
other.
Section 14. Cumulative
Rights. The
rights and remedies granted in this Agreement
are cumulative and not exclusive, and are in addition to any and all
other rights and remedies granted and permitted under and pursuant to
law.
Section 15. No
Waiver. The
failure of any of the parties hereto to enforce any provision hereof on any
occasion shall not he deemed to be a waiver of any preceding or succeeding
breach of such provision or any other provision.
Section 16. Entire
Agreement; Amendment. This Agreement
constitutes the entire agreement and understanding of the parties hereto and no
amendment, modification or waiver of any provision herein shall be
effective unless in writing, executed by the party charged
therewith.
Section 17. Governing
Law.
This Agreement shall be construed, interpreted and enforced in accordance with
and shall be governed by the laws of the State of New York without regard to the
principles of conflicts of laws.
Section 18. Assignment
and Delegation of Duties. This Agreement may not
be assigned by the parties hereto, and any attempted assignment hereof shall he
void and of no effect. This Agreement is in the nature of a personal service
contract and the duties imposed hereby are non-delegable.
Section
19. Paragraph
Headings. The
paragraph headings herein have been inserted for convenience of reference only,
and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 20. Notices. Any notice or other
communication under the provisions of this Agreement shall he in writing, and
shall be given by postage prepaid, registered or certified mail, return receipt
requested, by hand delivery with an acknowledgement copy requested, or by a
reputable overnight courier service, directed to the addresses set forth above,
or to any new address of which any party hereto shall have informed the others
by the giving of notice in the manner provided herein. Such notice or
communication shall be effective, if sent by mail, three (3) days after it is
mailed within the continental United States; if sent by overnight courier
service, one (1) day after it is delivered to the courier service; or by hand
delivery, upon receipt.
Section 21. Unenforceability;
Severability. If any provision of this
Agreement is found to be void or unenforceable by a court of competent
jurisdiction, then the remaining provisions of this Agreement, shall,
nevertheless, be binding upon the parties with the same force and effect as
though the unenforceable part had been severed and deleted.
Section 22. No Third
Party Rights. The representations,
warranties and other terms and provisions of this Agreement are for the
exclusive benefit of the parties hereto, and no other person shall have any
right or claim against any
party by reason of any of those terms and provisions or be entitled to
enforce any of those terms and provisions against any party.
Section 23. Counterparts. This Agreement may be
executed in counterparts, all of which shall be deemed to be duplicate
originals.
IN WITNESS WHEREOF, the
parties hereto have executed this instrument the date first above
written.
| XXXXXXX ASSOCIATES, LLC | |
| By: /s/ Xx X. Xxxxxxx | |
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Xx X.
Xxxxxxx
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Title:
Chairman
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| ABLE ENERGY, INC. | |
| By: /s/ Xxxxxxx Xxxxx | |
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Name: Xxxxxxx
Xxxxx
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Title: Cheif
Executive Officer
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