EXHIBIT 10.6
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement"), effective as of June 1, 2008,
is entered into by and between Synergy Resources Corporation, a Colorado
corporation (herein referred to as "the Company") and Energy Capital Advisors
(herein referred to as "the Consultant").
RECITALS
In consideration of the promises and the mutual covenants and agreements
hereinafter set forth, the parties hereto covenant and agree as follows:
1. Term. The Company hereby agrees to retain the Consultant to act in a
consulting capacity to the Company and the Consultant hereby agrees to provide
services to the Company commencing on June 1, 2008 and ending on May 31, 2009.
Notwithstanding the above, if the Company's capital, paid-in capital and
additional paid-in capital accounts do not exceed:
o $2,500,000 by September 1, 2008; o $5,000,000 by December 1, 2008; or o
$7,500,000 by March 1, 2009;
then the Company may terminate this Agreement at any time by providing notice of
such termination to the Consultant.
2. Duties of Consultant. The Consultant agrees that it will generally
provide the following specified consulting services during the term specified in
Section 1. Consultant will comply with all federal and state laws, rules and
regulations in providing these services.
(a) Consult and assist the Company in implementing appropriate plans
and means for raising capital.
(b) Introduce the Company to the financial community;
(c) With the cooperation of the Company, maintain an awareness
during the term of this Agreement of the Company's plans and strategy, as they
may evolve during such period, and consult and assist the Company in
communicating appropriate information regarding such plans, strategy and
personnel to the financial community;
(d) Assist and consult the Company with respect to its relations
with analysts and other investment professionals;
(e) Upon the Company's direction and approval, disseminate
information regarding the Company to investment community professionals;
(f) Upon the Company's approval, conduct meetings, in person or by
telephone, with analysts and other investment professionals to communicate with
them regarding the Company's plans, goals and activities, and assist the Company
in preparing for press conferences and other forums involving the media,
investment professionals and the general investment public;
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3. Allocation of Time and Energy. The Consultant hereby promises to
perform and discharge faithfully its services which may be assigned to the
Consultant from time to time so long as the services provided are in compliance
with applicable securities laws and regulations. Consultant will diligently
provide the consulting services required hereunder. Although no specific
hours-per-day requirement will be required, Consultant and the Company agree
that Consultant will perform the duties set forth herein above in a diligent and
professional manner and on a "best efforts" basis.
4. Remuneration. As full and complete compensation for services described
in this Agreement, the Company shall pay the Consultant $30,000 per month.
5. Non-Assignability of Services. Consultant's duties under this Agreement
may not be assigned by the Consultant to any third party without the written
consent of the Company.
6. Expenses. Consultant agrees to pay for the following expenses:
A. Compensation for the Consultant's employees and advisors; B. Telephone
and internet changes; C. Rent for the Denver, CO office; and D. All costs
relating to the Company's initial private offerings of $1.00
and $1.50 per share, including sales commissions, printing offering
materials, postage and courier expenses and investor meetings
(including luncheons and dinners), but excluding legal fees and
expenses.
The Company will be responsible for all other expenses relating to its
operations, including website development/hosting, as well as expenses relating
to the formation of the Company, the preparation of this Agreement, employment
agreements, consultant agreements, and related agreements involving the
formation of the Company. The Company will reimburse the Consultant for all out
of pocket expenses incurred by the Consultant on behalf of the Company (other
than out of pocket expenses pertaining to the services described in A through D
above), provided that any such expense must be approved by the Company in
writing prior to the Company incurring an obligation for reimbursement.
7. Representations. Consultant represents to the Company that, to the best
of its knowledge, Consultant is not the subject of any investigation, claim,
decree or judgment involving any violation of the SEC or securities laws. The
Company represents to the Consultant that, (i) to the best of its knowledge, the
Company is not the subject of any investigation, claim, decree or judgment
involving any violation of the SEC or securities laws, and (ii) all written
documents or materials furnished to Consultant by the Company with respect to
financial affairs, operations, profitability and strategic planning of the
Company are accurate and Consultant may rely upon the accuracy thereof without
independent investigation.
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8. Status as Independent Contractor. Consultant's engagement pursuant to
this Agreement shall be as independent contractor, and not as an employee,
officer or other agent of the Company. Neither party to this Agreement shall
represent or hold itself out to be the employer or employee of the other.
Consultant further acknowledges the consideration provided in this Agreement is
a gross amount of consideration and that the Company will not withhold from such
consideration any amounts as to income taxes, social security payments or any
other payroll taxes. All such income taxes and other such payment shall be made
or provided for by Consultant and the Company shall have no responsibility or
duties regarding such matters. Neither the Company nor the Consultant possesses
the authority to bind each other in any agreements without the express written
consent of the entity to be bound.
9. Attorney's Fees. If any legal action or any arbitration or other
proceeding is brought for the enforcement or interpretation of this Agreement,
or because of an alleged dispute, breach, default or misrepresentation in
connection with or related to this Agreement, the successful or prevailing party
shall be entitled to recover reasonable attorneys' fees and other costs in
connection with that action or proceeding, in addition to any other relief to
which it or they may be entitled.
10. Waiver. The waiver by either party of a breach of any provision of
this Agreement by the other party shall not operate or be construed as a waiver
of any subsequent breach by such other party.
11. Notices. All notices, requests, and other communications hereunder
shall be deemed to be duly given if sent by U.S. mail, postage prepaid,
addressed as follows:
Synergy Resources Corporation
00000 Xxxxxxx 00
Xxxxxxxxxxx, XX 00000
Energy Capital Advisors
000 00xx Xx.
Xxxxx 0000 Xxxxx
Xxxxxx, XX 00000
12. Choice of Law, Jurisdiction and Venue. This Agreement shall be
governed by, construed and enforced in accordance with the laws of Colorado.
13. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the alleged breach thereof, shall be settled by binding
arbitration in Denver, Colorado in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, Inc., and judgment on the award
rendered by the arbitrator(s) shall be binding on the parties and may be entered
in any court.
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14. Complete Agreement. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof. This Agreement and its terms may
not be changed orally but only by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
AGREED TO: SYNERGY RESOURCES CORPORATION
By: /s/ Xx Xxxxxxxx
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Authorized Officer
ENERGY CAPITAL ADVISORS
By : /s/ Xxxx Xxxxxx
-----------------------------------
Authorized Officer
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