CONSULTING SERVICES AGREEMENT
Exhibit 10.1
THIS CONSULTING SERVICES AGREEMENT (the
"Agreement") is entered into on April 30, 2009 between Clear Skies Solar, Inc,
(CSKHE) ("Company"), having its principle address at 000 Xxx Xxxxxxx Xxxx, Xxxxx
000, Xxxxxxx, XX 00000 and Ice Cold Stocks or nominee Xxx Xxxxx - to whom the
stock is to be assigned - having its principal address at 0000 Xxxxxx Xxxxxx,
Xxxxxxx Xxxxx XX 00000 ("Consultant").
WHEREAS, the Company desires to retain
the services of Consultant as described herein and Consultant desires to provide
such services for the consideration set forth below and for such other mutual
promises and consideration received the Company and Consultant hereby enter into
this Agreement as follows:
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I.
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Services. The Company retains Consultant to
render to the Company the following services (the
"Services"):
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a)
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Consultant will provide public
relations, and advisory, and consulting services to the Company in
conjunction with the development of the Company's marketing plan, business
plan, and goals.
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b)
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Consultant shall provide advisory and consulting services alternatives for
maximizing the Company's exposure to, and penetration of, its target
market.
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c)
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In
consultation with the Company, Consultant shall schedule and arrange
meetings and conferences, in person, by telephone, or other media, for the
Company's representatives and such third parties as the Consultant
believes will further the purposes of this Agreement. Said meetings and
conferences shall be with representatives of potential strategic partners
of the Company, marketing and media representatives and representatives of
investment and banking advisory services.
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d)
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It
is expressly agreed herein that the Company shall be responsible for all
reasonable costs and necessary expenses incurred by Consultant, including
travel, mileage, duplicating and communication expenses. The Company shall
reimburse Consultant for all such expenses with thirty (30) days, subject
to submission by Consultant of reasonably satisfactory documentation.
Consultant shall be required to receive prior written approval from the
Company's Chief Financial Officer for any reimbursed
expenses. Board.
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2.
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Compensation. As consideration for Consultant's
performance of the Services, the Company shall issue to
 , One Million (1,000,000) shares
of the Company's restricted common stock (the "Shares") and one-year
warrants exercisable for One Million (1,000,000) shares of restricted
common stock exercisable @ twenty-five cents (25¢)
per share (the "Warrants") upon the signing of this contract by both
parties. The Company and Consultant agree to the
following: |
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ICS
Consulting Agreement 001
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Initial |
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(i)
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Consultant shall be entitled to "piggy-back" registration rights for the
Shares on all registrations of the Company, except for registrations filed
on Form S-4 or Form S-8, or on any demand registrations of any other
investor subject to the right, however, of the Company and its
underwriters to reduce the number of shares proposed to be registered pro
rata in view of market conditions. The Company shall bear registration
expenses (exclusive of underwriting discounts and commissions) of all such
registrations; and
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(ii)
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The
following legend (or a legend substantially in the following form) shall
be placed on certificates representing the Shares and the
Warrants:
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THE SECURITIES EVIDENCED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW, AND NO INTEREST
THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE
TRANSFERRED OR DISPOSED OF UNLESS (A) THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE UNITED STATES STATE SECURITIES LAWS
COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES, OR (B) THIS CORPORATION
RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE HOLDER OF THESE SECURITIES
(CONCURRED IN BY LEGAL COUNSEL FOR THIS CORPORATION) STATING THAT SUCH
TRANSACTION IS EXEMPT FROM REGISTRATION.
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3.
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Term
and Termination.
Subject to earlier termination, the term of this agreement shall begin on
the date set forth above and will continue in full force and effect for a
period of six (6) months from the date hereof. Either party may terminate
this Agreement on thirty (30) calendar days written notice, or if prior to
such action, the other party materially breaches any of its
representations, warranties or obligations under this Agreement. Except as
may be otherwise provided in this Agreement, such breach by either party
will result in that party being responsible to reimburse the
non-defaulting party for all costs incurred directly as a result of the
breach of this Agreement. Upon any termination or expiration of this
Agreement, Company shall pay all unpaid and outstanding fees, through the
effective date of termination or expiration of this Agreement. And upon
such termination, Consultant shall provide and deliver to Company any and
all outstanding Services due through the effective date of this Agreement.
Termination by either party shall not result in the forfeiture by
Consultant of the Shares or
Warrants.
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ICS
Consulting Agreement 001
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Initial |
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4.
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Independent
Contractor Status.
The parties agree and acknowledge that this Agreement shall not be
construed so as to make either an employee of the other and neither party
shall hold themselves out as such. Neither party shall i) have the
authority bind the other to any contract, agreement, nor indenture; ii) be
liable to any third party for the acts of the other; nor iii) accept
service of process for the
other.
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5.
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Confidential
Information. It is
agreed by the parties that Consultant shall have access to, have disclosed
to it, or otherwise obtain Confidential Information about the Company.
"Confidential Information" shall mean confidential, non-public or other
proprietary information including, without limitation, letters addressed
from the Securities and Exchange Commission to the Company, trade secrets,
technical information, including algorithms, code, data, designs,
documentation, drawings, formulae, hardware, knowhow, ideas,
inventions, whether patentable or not, photographs, plans, procedures,
processes, reports, research, samples, sketches, software, specifications,
business information, including customer and distributor names, marketing
information, operations, plans, products, financial information, including
pricing and other confidential information that is disclosed under the
terms of this Agreement by the Company or the Consultant. Consultant shall
not disclose to, or use for the benefit of, any third party, Confidential
Information it receives without the prior written consent of the Company.
Information shall not be considered Confidential Information if such
information is i) already known to Consultant at the time it is obtained,
ii) subsequently learned from an independent third party; or iii)
available publicly.
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6.
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Confidentiality
of Agreement. The
parties shall not disclose to any third person or entity, any portion of
this Agreement except as necessary for the Consultant to provide the
Services set forth in Section 1 herein and as otherwise required by
applicable law. Except as permitted in the preceding sentence, neither
party shall disclose the existence or terms of this Agreement without
first obtaining prior written approval of the other party which approval
may be withheld by Consultant for any reason. Neither party shall use the
other's name, logo, trademarks, or service marks in any advertising,
publicity releases, or any other materials without that party's prior
written approval, which shall not be unreasonably withheld by the Company
if Consultant determines such use to be consistent with the performance of
its Services described
herein.
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ICS
Consulting Agreement 001
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Initial |
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7.
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Best
Efforts. The parties
agree that Consultant will utilize its best efforts to provide the
Services set forth in Section 1 above. The Company acknowledges and
accepts that Consultant does not and cannot promise or guarantee that any
specific result can or will be achieved by the Consultant as a result of
its performance of the Services set forth
herein,
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8.
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Assignment. This Agreement may be assigned to
and inure to the benefit of, and be binding upon, any successor to
substantially all of the assets and business of the Company as a going
concern, whether by merger, consolidation, liquidation or sale of
substantially all of the assets of the Company or otherwise. The Company
will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform as if no such succession had taken
place; and, as used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation
of law, or otherwise; provided that for purposes of Section 8 hereof, the
term "Company" shall mean the Company as hereinbefore defined and any such
transaction in which this Agreement is assigned to a successor may not
expand or enlarge the scope of restrictions applicable to Consultant
pursuant to this Agreement. Consultant understands and agrees, however,
that this Agreement is exclusive and personal to him only, and, as such,
he will neither assign nor subcontract all or part of his undertaking(s)
or obligation(s) under the terms of this
Agreement.
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9.
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Suit/Jurisdiction. The parties agree that any and
all disputes arising out of or relating to this Agreement shall be
submitted to the American Arbitration Association ("AAA") for binding and
final resolution in accordance with the rules of the AAA. The parties
further agree that such arbitration shall take place in New York, NY.
Notwithstanding the foregoing, the parties shall each retain the right to
seek injunctive or equitable relief for any actual or threatened breach of
Sections 5 and 6 of this Agreement. In the event either party exercises
its right to seek injunctive or equitable relief, it shall do so in a
court of competent jurisdiction in the State of New York. Without
limitation of the foregoing, each party acknowledges that it hereby waives
the right to have disputes arising out of or relating to this
Agreement resolved by jury trial and the parties
shall not be entitled to special, punitive, incidental and similar damages
in any proceeding brought for enforcement of this
Agreement.
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ICS
Consulting Agreement 001
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Initial |
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10.
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Interpretation
of Agreement. This
Agreement shall be interpreted in accordance plain meaning of its terms
and under the laws of the State of New York without reference to conflicts
of law provisions.
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11.
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Contents
of Agreement and Amendments. This Agreement set forth the
entire agreement of the parties. No amendment or modification to this
Agreement shall be binding unless in writing and signed by both parties.
The parties agree the terms of the Addendum hereto are hereby incorporated
into this Agreement.
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12.
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Counterparts;
Delivery by Facsimile. 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 instrument.
Delivery of this Agreement may be effected by
facsimile.
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IN WITNESS WHEREOF, the parties have
executed this Agreement effective as of the date and year first written
above.
| CONSULTANT: | COMPANY: | |||
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/s/
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/s/
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Print
Name: Xxxxx Xxxxx
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Print
Name:
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for
Ice Cold Stocks
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Title:
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Title:
Partner
Dated:
5-4-09
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Dated:  |
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ICS
Consulting Agreement 001
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Initial |
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Addendum
Consultant represents that it is not
required to maintain any licenses or registrations under federal or any state
regulations necessary to perform the services set forth herein that it does not
possess. Consultant acknowledges that, the performance of the services set forth
under this Agreement will not violate any rule or provision of any regulatory
agency having jurisdiction over Consultant and Consultant will fully and
accurately disclose its compensation provided hereunder and its ownership of
securities of the Company in connection with any publications, reports or
analysis. Consultant acknowledges that, to the best of its knowledge, Consultant
and its officers and directors are not the subject of any investigation, claim,
decree or judgment involving any violation of the SEC or securities laws.
Consultant further acknowledges that it is not a securities Broker, Dealer or a
registered investment advisor
Consultant acknowledges that the shares
of Common Stock to be issued pursuant to this Agreement (collectively, the
"Shares") have not been registered under the Securities Act of 1933, and
accordingly are "restricted securities" within the meaning of Rule 144 of the
Act. As such, the Shares may not be resold or transferred unless the Company has
received an opinion of counsel reasonably satisfactory to the Company that such
resale or transfer is exempt from the registration requirements of that
Act.
Consultant is (i) an accredited
investor, as that term is defined in Regulation D promulgated under the
Securities Act of 1933. Consultant is acquiring the Shares for the
Consultant's/Nominee's own account for investment and not with a view toward
resale or distribution thereof except in accordance with applicable securities
laws.
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ICS
Consulting Agreement 001
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Initial |
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