EXHIBIT 10.10
CONSULTING AGREEMENT
This CONSULTING AGREEMENT ("Agreement"), dated September 1, 1998 is
made by and between X.X. XXXXX & ASSOCIATES, ("Consultant") and Electric City
Corp., a Delaware corporation ("Company").
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. Services.
The Company hereby retains Consultant and its employee Xxxxxx X. Xxxxx
to provide, on a non-exclusive basis, marketing consulting assistance in
developing contracts with private and public sector organizations to which
Company has not previously sold its energy management system, including the
EnergyMiser or for which Company requests Consultant's services. Consultant
hereby 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 contract negotiations requested by the Company. Consultant and Company
will identify potential clients and mutually agree to list them on a report,
"Target Client Report", submitted monthly to Company by Consultant. Company
shall have ten (10) business days from receipt of the Target Client Report to
provide any change(s) to the submitted list.
Section 2. Term.
The term of this Agreement shall commence as of the date hereof and
shall remain in effect to and including August 31, 1999, unless earlier
terminated as hereinafter provided in Section B.
Section 3. Compensation.
3.1 Sales Commission
For the services to be rendered by Consult and until the expiration or
earlier termination of this Agreement, Company shall pay Consultant as provided
below for sales to Purchasers introduced and directly attributable to Consultant
as reflected on the Target Client Report.
(a) If ten (10) or less machines are sold to a Purchaser then
Company shall pay Consultant five percent (5%) of the gross
Sales.
(b) If more than ten (10) machines are sold to a Purchaser then
Company shall pay Consultant two percent (2%) of the gross
sales.
i. Fifty percent (50%) of the amount due will be paid in
cash within seven (7) days of the Company receiving
payment from the Purchaser referred by Consultant.
ii. Fifty percent (50%) of the amount due will be paid in
Electric City Corp. common stock, which will be
issued at a price based on the average selling price
per share for the thirty (30) day trading period
prior to receipt of payment from the Purchaser.
(c) For purposes of this Agreement, "gross sales" shall mean the
sum of all amounts actually invoiced and received by the
Company for its product from a Purchaser.
(d) Consultant shall receive a monthly draw of $2,000.00 that will
be applied against any and all commissions due and owing by
the Company to the Consultant. In the event this Agreement is
terminated for any reason whatsoever, Consultant will
reimburse Company for any draw amount outstanding which will
not be offset by earned commissions during six (6) months
following the date of termination of the Agreement. Said
amount shall be paid by the Consultant to the Company in equal
installments not to exceed one year from the date of
termination unless otherwise agreed to in writing by the
Company.
3.2 Additional Compensation
The Company will issue a warrant to purchase 100,000 shares of its
common stock at a strike or exercise price per share of the average between the
high and the low or if none, the close of the last trading day, or the date of
issuance, if prior to the termination of this Agreement, Consultant procures a
single contract with one customer which exceeds $10,000,000 in gross sales. The
Warrant shall be issued on the first date of shipment in fulfilling said
contract.
Section 4. Expenses.
Other than the $2,000.00 a month draw set forth in Section 3.2(d), and
during the term of this Agreement, Consultant shall be responsible for its own
out-of pocket expenses incurred by it or any of its employees, agents or
representatives in performing the Services, except as expressly approved in
advance and in writing by Company.
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. Competition During Period of Engagement.
Consultant agrees that during the term of this Agreement and for a
period of six (6) months thereafter, it will not provide marketing or other
services on behalf of any other entity which is offering the same or similar
type of product for which it is representing Company pursuant to this Agreement.
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 Sales Commission (Section 3.1) and
Additional Compensation (Section 3.2) which are due or owing to Consultant based
on contracts entered into prior to the termination date hereof.
Further, Company agrees to pay Sales Commission and Additional
Compensation to Consultant on contracts entered into within six (6) months
following termination hereof for Purchases listed by mutual agreement on the
Target Client Report. The parties agree that no Sales Commission or Additional
Compensation shall be due or owing to Consultant for contracts entered into
within the six (6) months following termination hereof which are not on the
"Target Client Report" or are not Purchasers.
Section 9. General Provisions.
9.1 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:
X.X. XXXXX & ASSOCIATES
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx
If to the Company:
Electric City Corp.
0000 Xxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxxxx Xxxxxx
9.2 Governing Law.
This Agreement and all questions arising in connection herewith shall
be governed by the laws of the State of Illinois.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first set forth above,
X.X. XXXXX & ASSOCIATES
By: ______________________________________
Its: _____________________________________
ELECTRIC CITY CORP.
By: ______________________________________
Its: _____________________________________
