ADVISORY SERVICES AGREEMENT
Exhibit
10.1
This
Advisory Services Agreement (this "Agreement") is entered into effective the 1st
day of October, 2009 by and between Summit Trading Limited ("Advisor") and Neah
Power Systems, Inc. (the "Company").
WHEREAS,
Advisor is engaged in the business of providing various professional and
consulting services for and on behalf of businesses whose equity securities are
publicly traded; and,
WHEREAS,
in accordance with and subject to rules, regulations and policies of the
Securities and Exchange Commission and consistent with federal and state law,
Advisor provides advisory services on behalf of its clients on numerous matters
pertaining to strategic business planning and new business development
(“Services”), which may include Advisor to provide opinions on matters relating
to mergers, acquisition, marketing, and financing transactions;
and,
WHEREAS,
the Company, whose shares are publicly traded under the ticker symbol “NPWZ”,
has recognized the need for assistance from Advisor on its behalf;
and,
WHEREAS,
the Company desires to engage Advisor to assist in its business efforts, and
Advisor desires to provide the above specified Services as agreed to by both
parties and any other matters concerning the public image, marketing,
international market awareness, or business nature of the Company that the
Company and Advisor believe is necessary; and,
NOW,
THEREFORE, for good and valuable consideration, the receipt, adequacy and
sufficiency are acknowledged, the parties agree as follows:
1. Engagement. The
Company engages Advisor and Advisor accepts the engagement from the Company to
perform Services upon the terms and conditions of this Agreement, as an
independent Advisor to the Company. Advisor agrees to devote the
necessary time required to perform the duties and tasks as may be required from
time to time by the Company. Primarily, Advisor shall identify,
introduce, engage, and compensate Investor Relations and/or Public Relations
firms (“Firms”), approved in writing by the Company, to provide IR and PR
services on behalf of the Company.
2. Term of
Engagement. The term will be for up to 12 months from the date
of this Agreement. This Agreement may be terminated by either party for any
reason, and in the event of termination, compensation to Advisor will be
prorated based on expenditures paid by Advisor to compensate Firms.
3. Compensation. Advisor
shall receive ONE MILLION SIX HUNDRED FIFTY THOUSAND (1,650,000) shares of the
Company’s common stock upon the execution of this Agreement to provided the
Services, of which 95% of the value will represent compensation to be applied
against services to be provided by Firms. Advisor shall not be reimbursed by the
Company for any expenses it incurs in providing the Services.
4. Independent
Contractor. Advisor is an independent contractor and not an
employee, partner, joint venture or other representative of the
Company. Advisor is not under the direct or indirect control of the
Company. Advisor may assign certain tasks to other affiliated or
non-affiliated third party providers to assist with performing
Services. Advisor agrees that it shall have no participation in any
employee benefit programs now in effect or hereafter established by the Company
or the Company, and Advisor shall not be entitled to participate in health,
accident, and life insurance programs, vacation benefits, and pension, profit
sharing or other employee benefits.
5. Communications with the
Public. Advisor recognizes that any information, prior to
publishing or publicly disseminating, either verbally, electronically, or by
mail, and that which references the Company, and/or the Company’s business (the
“Information”) shall be approved by the Company. In all respects, any
Information published or represented by Advisor shall be consistent with any
such materials, press releases, corporate filings, and other such data made
public solely by the Company.
7.
Assignment. This
Agreement may be assigned by the Advisor at any time other than to a competitor
of the Company, with ten (10) business days notice to the
Company.
8.
Miscellaneous.
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(a)
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Notices. Any
notice, request, demand or other communication required to be made or
which may be given to either party hereto shall be delivered by certified
U.S. mail, postage prepaid, to that party's attention at the address set
forth below or at such other address as shall be changed from time to time
by giving notice hereunder.
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Advisor: Summit Trading
Limited
000
Xxxxxxx Xxxxxx
Xxx
Xxxxxx Xxxxx, XX 00000
Telephone:
000-000-0000
Company: Neah Power Systems,
Inc.
00000 XX
00xx Xxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Telephone:
000-000-0000
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(b)
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Entire
Agreement. This document constitutes the complete and entire
agreement between the parties hereto with reference to the subject matters
hereof. No statement or agreement, oral or written, made prior to or at
the signing hereof, and no prior course of dealing or practice by either
party shall vary or modify the written terms
hereof.
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(c)
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Headings. The
headings and captions contained in this Agreement are for ease and
convenience of reference only and shall not be deemed for any purpose to
affect the substantive meaning of the rights and duties of the parties
hereto in any way.
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(d)
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Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and there respective successors and
assigns.
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(e)
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Counterparts. This
Agreement may be executed in multiple counterparts, each of which has the
same text and each of which shall be deemed an original for all purposes,
but together they constitute one single and the same
agreement.
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(f)
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Amendments. This
Agreement may be amended only by a written document signed by the parties
and stating that the document is intended to amend this
Agreement.
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(g)
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Applicable
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California but without regard to
its conflict of law
principles.
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2
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(h)
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Resolution
of Disputes. The parties agree to resolve all disputes arising
under or in connection with this Agreement by final and binding
arbitration, which either party may initiate 60 days after the parties
have failed to reach a mutually acceptable agreement after negotiating in
good faith to do so. The arbitration shall be conducted in accordance with
the Commercial Rules of Arbitration of the American Arbitration
Association, held in Los Angeles,
California.
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(i)
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Severability. If
any provision of this Agreement or the application thereof to any person
or circumstances shall be held invalid or unenforceable to any extent, the
remainder of this Agreement and the application of such provisions to
other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by
law.
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(l)
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Waiver. The
failure of a party to enforce any provision of this Agreement shall not
constitute a waiver of such party's right to thereafter enforce such
provision or to enforce any other provision at any
time.
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IN
WITNESS WHEREOF, the parties hereto have duly caused this Agreement to be
executed as of the date of this Agreement.
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Advisor
– Summit Trading Limited
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Company – Neah Power Systems, Inc. | ||||
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BY:
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BY:
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ITS:
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ITS:
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