EXHIBIT 10.8
Consulting Agreement
This Agreement is effective as of the 18th of January, 1999, by and
between 1252996 Ontario Limited (dba The Stockpage), (the "Consultant"), and
Electric City Corp., a corporation duly incorporated according to the laws of
the state of Delaware, United States (trading symbol ECCC) (the "Company").
Whereas, the Company is a publicly traded Company; and
Whereas, the Consultant is in the business of assisting public
companies in the promotion of Company activities through the internet and Print
media; and
Whereas, the Company desires to retain Consultant to provide specific
services for the Company as herein set forth;
Now Therefore, in consideration of the mutual covenants and promises
contained herein, the receipt and sufficiency of which is hereby acknowledged,
the parties hereby agree as follows:
1. Duties and Involvement.
a. The Company hereby engages Consultant to provide Internet and
public relations services during the Term. Such services will
consist of advice to and consulting with the Company's
management concerning the developing of an Internet site for
the Company, investor profile information, methods of
expanding investor support and increasing investor awareness
of the Company and its products and/or services through the
Internet.
b. Consultant acknowledges that neither it nor any of its
employees or affiliates is an officer, director, or agent of
the Company, that in rendering advice or recommendations to
the Company it is not and will not be responsible for any
management decisions of behalf of the Company and that it is
not authorized or empowered to commit the Company to any
recommendation or course of action. The Company represents
that Consultant does not have, through stock ownership or
otherwise, the power to control the Company nor to exercise
and dominating influence over its management.
2. Term. This Agreement shall continue until six (6) months from the date of
execution (the "Term").
3. Compensation. The Company shall pay to the Consultant 100,000 common shares
of Electric City Corp., (trading symbol ECCC), as consideration for the services
herein. The shares shall be delivered according to the following schedule; The
Company shall deliver 50,000 within ten (10) business days following the
execution of this Agreement. The Company will provide an additional 25,000
shares sixty (60) days following the execution of this Agreement. The Company
will provide a final installment of 25,000 shares ninety (90) days following the
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execution of this Agreement. If legally able, Company will commence registration
of the aforementioned 100,000 shares of its common stock within six (6) months
from this Agreement. In addition and subject to all applicable securities laws,
the Company will provide to the Consultant 100,000 transferable warrants on ECCC
common stock exercisable at a price of $4.00 per share with an expiry of not
less than 24 months. The warrant contract will be prepared and delivered by the
Company to the Consultant within thirty (30) business days. In addition the
Company shall reimburse the Consultant for all reasonable out of pocket
disbursements incurred by the Consultant related to this Agreement but only with
the prior written approval of Company's Board of Directors.
4. Non Disclosure. The Company covenants not to disclose the nature of its
relationship with the Consultant or any of the Terms of this Agreement
without prior written consent of the Consultant. Company, however, may
disclose this information if it is required to do so 1) pursuant to an
order of a court of competent jurisdiction; or 2) due to Company's
nature as a publicly traded entity.
5. Confidential Information. The term "Confidential Information" as used
herein, means all information documentation or other materials not
generally known by non-Company personnel which (i) gives the Company
some competitive business advantage or the opportunity of obtaining
such advantage or the disclosure of which could be detrimental to the
interests of the Company; (ii) which is owned by the Company or in
which the Company has an interest and (iii) which is either (A) marked
"Confidential Information," "Proprietary Information" or other similar
marking, (B) known by Consultant to be considered confidential and
proprietary by the Company or (C) from all the relevant circumstances
should reasonably be assumed by Consultant to be confidential and
proprietary to the Company. Confidential Information includes, but is
not limited to, the following types of information and other
information of similar nature (whether or not reduced to writing):
trade secrets, inventions in various stages of development, drawings,
documentation, diagrams, blueprints, specifications, processes,
formulas, models, software in various stages of development, research
and development procedures, marketing techniques and materials, price
lists, pricing policies, information relating to customers and/or
suppliers' identities financial information and projections, and
employee files. Confidential Information also includes any information
described above which the Company obtains from another party and which
the company treats as proprietary or designates as Confidential
Information, whether or not owned or developed by the Company.
NOTWITHSTANDING THE ABOVE, HOWEVER, NO INFORMATION CONSTITUTES
CONFIDENTIAL INFORMATION IF IT IS GENERIC INFORMATION OR GENERAL
KNOWLEDGE WHICH CONSULTANT WOULD HAVE LEARNED IN THE COURSE OF SIMILAR
ACTIVITIES ELSEWHERE IN THE TRADE OR IF IT IS OTHERWISE PUBLICLY KNOWN
AND IN THE PUBLIC DOMAIN.
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The Consultant nor its associated or affiliated companies shall during
the term of this Agreement or thereafter disclose any Confidential
Information obtained or acquired by it in connection with this
Agreement or its activities, duties and obligations thereunder.
Consultant shall, however, be permitted to disclose (x) all or portions
of such confidential information on a strictly need-to-know basis to
the extent required by an order of a court of competent jurisdiction or
by the order or demand of a regulatory body having jurisdiction over
one or both parties and (y) any of such confidential information that
is the sole property of the party making the disclosure and does not
include any information owned by the other party. The Consultant shall
not disclose this agreement except upon written consent of Company.
Consultant agrees to use the Confidential Information only for the
purposes of carrying out its duties to the Company and will not use the
Confidential Information in any other way (including, but not limited
to, direct or indirect disclosure to any third parties).
6. Services Not Exclusive. Consultant shall devote such of its time and
effort necessary to the discharge of its duties hereunder. The Company
acknowledges that Consultant is engaged in other business activities of
a similar nature to this contract with other clients and that it will
continue such activities during the term of this Agreement. Consultant
shall not be restricted from engaging in other activities during the
Term of this Agreement.
7. Relationship of the Parties. The Parties intend that the relationship
between them created under this Agreement is that of an independent
contractor only/ Consultant is not to be considered an agent or
employee of the Company for any purpose. Consultant shall be
responsible for all provincial, federal, and local taxes, and Canadian
goods and service tax, including estimated taxes, and employment
reporting for Consultant or any employees or agents of the Consultant.
Consultant acknowledges that it is not an agent of the Company, and
that it may not commit the Company to any action or obligation. Any and
all Agreements or arrangements that Consultant may negotiate for or
with the Company will be subject to acceptance by the Company through
its board of directors or authorized corporate officers.
8. Records. Consultant shall keep full and accurate records of consulting
work performed under this Agreement. All records, sketches, drawings,
prints, computations, charts, reports, and other documentation made in
the course of the consulting work performed hereunder, or in
anticipation of the consulting work to be performed in regard to this
Agreement shall at all times remain the sole property of Company.
Consultant shall turn over to the Company all copies of such
documentation on request by the Company. Consultant agrees that neither
it not its employees or agents will, during the term of this Agreement,
or any time thereafter, disclose or divulge or use, directly or
indirectly, for its own benefit any confidential information, data,
trade secrets, etc. relating to the business of the Company learned in
connection with its work for the Company. The provisions of this
paragraph shall survive the termination of this Agreement and shall
continue until such information; data, trade secrets, etc. become
public knowledge through no action of Consultant or any of its
employees or agents.
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9. Notices. Any notice under this Agreement shall be in writing and shall
be effective when actually delivered in person or three days after
being deposited with Canada Post or US Postal Services, registered or
certified, postage prepaid and addressed to the party at the address
stated in this Agreement or such other address as either party may
designate by written notice to the other.
10. Information Provided by Company.
a. The Company covenants and agrees to provide to the Consultant
all information and documentation pertaining to the Company
that is reasonably necessary for the Consultant to perform its
services hereunder. The Company covenants, represents and
warrants to the Consultant that all information and
documentation provided herein will be timely, accurate and
complete in all respects.
b. The Company covenants to make full, fair and plain disclosure
to the Consultant of all material facts and changes to allow
the Consultant to accurately profile the Company. The Company
acknowledges that the Consultant will be relying on the above
mentioned disclosure in the preparation of the Consultants
materials.
c. Consultant acknowledges that it may have access to
confidential "non-public" information regarding the Company's
business, properties, prospective and actual investors, and
business partners. Consultant agrees that it will not, during
or subsequent to the term of this Agreement, divulge, furnish,
or make accessible to any person or entity information or
plans of the Company with respect to the Company's business,
properties, investors, or business partners except as
authorized by representatives of the Company for dissemination
hereunder.
d. The Company acknowledges and agrees that all reports and
documents prepared by the Consultant for the Company shall
contain a disclaimer with respect to liability of the
Consultant to members of the public. Notwithstanding the
foregoing, the Company hereby covenants and agrees to
indemnify and save the Consultant, its officers, directors,
shareholders, successors and assigns harmless, of and in
respect to any costs, expenses, damages, claims, causes of
action of liabilities of any nature or kind solely arising
from acts or omissions by the Company with regard to the
provision of information or other materials to the Consultant.
11. Survival of Obligations. All warranties, covenants and indemnities of
the Company in favor of the Consultant shall survive the termination of
this Agreement and remain in full force and effective thereafter.
12. Time. Time is of essence of this Agreement.
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13. Waiver. Failure of either party at any time to require performance of
any provision of this Agreement, shall not limit the party's right to
enforce the provision, nor shall any waiver of any breach of any
provision be a waiver of any succeeding breach of any provision or a
waiver of the provision itself or any other provision.
14. Assignment. Except as otherwise provided within this Agreement, neither
party hereto may transfer or assign this Agreement without prior
written consent of the other party.
15. Law Governing. Consultant represents and warrants that it is licensed
and qualified to do business in the State of Illinois. As such,
Consultant agrees to personal service made on it through the Illinois
Secretary of State provided that a copy of such service is made on
Consultant at its last known address.
16. Titles and Captions. All article, section and paragraph titles or
captions contained in this Agreement are for convenience only and shall
not be deemed part of the context nor affect the interpretation of this
Agreement.
17. Pronouns and Plurals. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural
as the identity of the Person or Persons may require.
18. Entire Agreement. This Agreement contains the entire understanding
between and among the parties and supersedes any prior understandings
and Agreements among them respecting the subject matter of this
Agreement.
19. Agreement Binding. This Agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of the parties
hereto.
20. Good Faith, cooperation and Due Diligence. The parties hereto covenant,
warrant and represent to each other good faith, complete cooperation,
due diligence and honesty in fact in the performance of all obligations
of the parties pursuant to this Agreement. All promises and covenants
are separate and independent and in the event any covenant of provision
herein is found to be void or unenforceable it shall be deemed to be
removed from this Agreement and the balance of the Agreement shall be
construed as though such provision did not form part thereof.
21. Counterparts. This Agreement may be executed in several counterparts
and all so executed shall constitute one Agreement, binding on all the
parties hereto even though all the parties are not signatories to the
original to the same counterpart.
22. Parties in Interest. Nothing herein shall be construed to be to the
benefit of any third party, nor is it intended that any provision shall
be for the benefit of any third party.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement to be effective as of the day and year first above written.
1252996 Ontario Limited
Per: ___/SS/ Xxxxxx Landau__________
Xxxxxx Xxxxxx, President
_________________________ Witness Name
_________________________, Witness Signature
Company: Electric City Corp.
___/SS/Xxx Marino_____________
Xxxxxx Xxxxxx, President
_________________________ Witness Name
_________________________ Witness Signature
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