EXHIBIT 10.7
CONSULTING AGREEMENT
This CONSULTING AGREEMENT ("Agreement"), dated this _4__ day of
___16_____, 1999 is made by and between XXXX XXXXX & ASSOCIATES LLC
("Consultant") and ELECTRIC CITY CORP., a Delaware corporation ("Company").
RECITALS
WHEREAS, the Company desires to engage Consultant to serve, on a
non-exclusive basis, as a consultant and the Consultant desires to be engaged by
the Company as a consultant to perform certain activities as hereinafter
described for an initial period of six (6) months unless terminated earlier
pursuant to Section 8.
WHEREAS, the Company intends to strengthen its position in the public
market place and increase the value of its business through organic growth and
through the acquisition of other operating companies.
WHEREAS, the Company has announced its intentions to increase sales and
operations of the business.
WHEREAS, it is understood by both the Company and Consultant that they
will work together leveraging Consultant's relationships in the private and
public financial market place with the intent of moving Company from
Over-the-Counter ("OTC") Bulletin Board status to the NASDAQ Small-Cap Market as
soon as practicable.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Consultant and Company do
hereby agree as follows:
SECTION 1
RECITALS:
The aforementioned Recitals are incorporated into the terms and
conditions of this Agreement.
SECTION 2
SERVICES:
The Company hereby retains Consultant to provide, on a non-exclusive
basis, the services listed below. Consultant further agrees to perform such
services, to devote its knowledge and skill to the best interests of the Company
in the performance thereof, and upon reasonable notice from the Company to make
itself available at all reasonable times during normal business hours for
consultation with the officers and directors of the Company with respect
thereto. Consultant will work with the Company's executives to develop
strategies, arrange meetings, review proposals, provide feedback, and assist in
negotiations as requested by the Company.
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(A) Consultant will introduce the Company to at least three reputable
market makers ("Market Makers"). The Company will have the right, but not
obligation, to work with any one or all of the Market Makers introduced by
Consultant. The Company understands and agrees that it may be required to
compensate a broker, dealer or Market Maker if Company agrees to work with a
Market Maker. In the event Company works with any one of the Market Makers
Consultant shall receive 25,000 shares of Company's common stock.
(B) Consultant shall provide various services by and on behalf of the
Company in order to promote the image and opportunities of the Company in the
public market place. As part of those services Consultant will work with the
Company to develop a business/financial needs plan ("Financial Plan") to
facilitate capitalization of the Company. Upon the completion of a Financial
Plan acceptable to Company, Consultant shall receive 15,000 shares of Company's
common stock. Said payment to be made within ten (10) business days after
completion of the Financial Plan.
(C) Regardless of the mechanism used by the Company to facilitate its
equity capitalization, ("Equity Process") Consultant will coordinate said Equity
Process for the Company. Notwithstanding the foregoing, both Company and
Consultant agree that both have financial contacts that are capable of funding
some or all of the capital requirements for the Company through the Equity
Process. Therefore, Consultant will receive a fee (paid in U.S. Dollars) (the
"Fee") of 10% for each Equity transaction consummated between Company and an
individual or entity introduced to Company by Consultant. ("Equity Transaction")
Consultant's Fee is due at closing of each Equity Transaction.
(D) Regardless of the mechanism used by the Company to facilitate its
debt capitalization, ("Debt Process") Consultant will use the Financial Plan to
maximize the funding of working capital needs of the Company through asset
and/or cash flow based financial institutions. Consultant will receive a Fee of
3% for transactions consummated between Company and an individual or entity
introduced to Company by Consultant. ("Debt Transaction") Consultant's Fee is
due at closing of each Debt Transaction. Additionally, Consultant shall receive
10,000 shares of Company's common stock within ten (10) business days of the
closing of the first Debt Transaction.
(E) Consultant, through various activities shall facilitate the process
needed to qualify Company as a NASDAQ small-cap company. Consultant shall also
facilitate and coordinate the application process for Company to apply as a
NASDAQ small-cap company. Consultant shall receive 15,000 shares of Company's
common stock within ten (10) business days of Company formally becoming a NASDAQ
small-cap company.
(F) Consultant will facilitate the funding of Company's purchase of
Marino Electric ("Acquisition"). Consultant shall receive a ten percent (10%)
fee for only the cash portion of the Acquisition. Additionally, Consultant shall
also receive 20,000 shares of Company's common stock at the closing of the
Acquisition. Said payments are to be made within ten (10) business days of the
Acquisition.
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SECTION 3
REGISTRIATION RIGHTS.
All of the shares of Company's common stock issued to
Consultant according to the terms and conditions of this Agreement shall have
piggyback registration rights for any registration the Company files with the
Securities & Exchange Commission registering shares of Company's common stock
that are similar to the shares issued to Consultant hereunder. The Company will
use its best efforts to file an S-8 registration when Company becomes a fully
reporting company
SECTION 4
SURVIVAL.
The term of this Agreement shall commence as of the date hereof and
shall remain in effect for a period of six (6) months from the date of this
Agreement, unless earlier terminated as hereinafter provided in Section 8.
SECTION 5
INDEPENDENT CONTRACTOR
Consultant shall be and is an independent contractor and nothing herein
shall be construed to create an agency relationship or a relationship of
employer and employee between the Company and Consultant or any of the
employees, agents or representatives of Consultant. Consultant shall have no
authority, executive or otherwise, to bind the Company.
SECTION 6
RESTRICTIVE COVENANT
Consultant agrees that during the term of this Agreement and for a
period of one (1) year thereafter, it will not provide marketing or other
services on behalf of any other entity which is offering the same or similar
type of services for which it is representing Company pursuant to this
Agreement.
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SECTION 7
ASSIGNMENT
In view of the nature of the services to be performed by Consultant
under this Agreement, Consultant shall not have the right to assign or transfer
any of the rights or benefits hereunder, nor shall they be subject to voluntary
or involuntary alienation without the written permission of the Company.
SECTION 8
TERMINATION
This Agreement may be terminated by either party at any time by written
notice of termination given to the other party at least thirty (30) days in
advance of the termination date stated in such notice. Following termination of
this Agreement, Company agrees to pay Consultant's Fee or shares of Company's
common stock which are due or owing to Consultant based on service standards as
set forth in Section 2 of this Agreement and achieved prior to the termination
date hereof.
SECTION 9
NOTICE
Any notice required or permitted hereunder shall be made in writing (a)
either by actual delivery of the notice into the hands of the party thereto
entitled, by messenger or by overnight delivery service or (b) by the mailing of
the notice in the United States mail, certified or registered mail, return
receipt requested, all postage prepaid and addressed to the party to whom the
notice is to be given at the party's respective address set forth below.
If to the Consultant:
Prinz & Associates LLC
Xxx Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
If to the Company:
Electric City Corp.
0000 Xxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxxxx Xxxxxx
With a copy to:
Xxxxxx & Xxxxx, Ltd.
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx, Esq.
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SECTION 10
GOVERNING LAW
This Agreement and all questions arising in connection herewith shall
be governed by the laws of the State of Illinois.
SECTION 11
ENTIRE AGREEMENT
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof, supersede all existing agreements between
them concerning such subject matter, and may be modified only by a written
instrument duly executed by each party.
SECTION 12
SEVERABLITY
All Sections, clauses and covenants contained in this Agreement are
severable, and in the event any of them shall be held to be invalid by any court
of competent jurisdiction, this Agreement shall be interpreted as if such
invalid sections, clauses or covenants were not contained herein.
SECTION 13
COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first set forth above.
ELECTRIC CITY CORP. PRINZ & ASSOCIATES LLC
By: __/SS/_Joe Marino________ By: __/SS/__John Prinz______
Title: _______________________ Title: _______________________
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