CONSULTING AGREEMENT
Exhibit 10.3
THIS
CONSULTING AGREEMENT (the “Agreement”) is entered
into as of May 12, 2017, by and between ENDRA Life Sciences Inc., a
Delaware corporation (the “Company”), and StoryCorp
Consulting, a Nevada corporation (“StoryCorp”).
RECITALS
WHEREAS, the
Company desires to engage StoryCorp to provide certain finance,
accounting and management services with respect to the Company's
business; and
WHEREAS, StoryCorp
represents that it has considerable knowledge and experience in
finance, accounting and management services, and desires to provide
those services to the Company, all as more specifically set forth
below.
NOW,
THEREFORE, in consideration of the promises and the respective
covenants and agreements of the parties herein contained, the
parties hereby agree as follows.
1. Consulting Engagement; Term.
The Company hereby engages StoryCorp and StoryCorp hereby accepts
such engagement by the Company as a consultant and advisor with
respect to the matters specifically set forth herein and/or
Schedule A attached
hereto. The term of this Agreement (the “Term”) shall commence on
the date of execution of this Agreement and continue on a monthly
basis unless terminated earlier as herein provided.
2. Consulting Services. During the
term of the Agreement, StoryCorp shall devote the time necessary
from the StoryCorp offices, completing tasks as outlined in
Schedule A.
StoryCorp represents and warrants to the Company that it is able to
provide such services in a professional manner consistent with this
type of engagement. The parties understand and further agree that,
during the Term of the Agreement, StoryCorp is not restricted from
providing similar consulting services to other companies, provided
that any such other activities shall not materially interfere with
the services required to be provided hereunder.
Company
agrees to respond timely by email to activity reports submitted by
StoryCorp. In the absence of comments from the Company, StoryCorp
assumes that activities are accepted by the Company.
3. Compensation.
(a) In consideration of
the consulting services to be rendered as set forth herein, Company
shall compensate StoryCorp as follows:
(i) $9,000 in cash;
paid monthly on the 15th day of each
calendar month, beginning on the first such day following the
consummation of the initial public offering of the Company’s
common stock (“Common
Stock”);
(ii) Upon
the date of this Agreement the Company shall grant to Xxxxx X.
Xxxxx or his designee (“Xxxxx”) a stock option
award covering a total of 15,000 shares of Common Stock under the
Company’s 2016 Omnibus Incentive Plan (the
“Plan”)
with a per share exercise price equal to offering price to the
public for the Company’s initial public offering, exercisable
for a 4-year period from such option’s grant date and vesting
in twelve equal quarterly installments; and
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(iii) On
each annual anniversary of the date of this Agreement, the Company
shall grant to Xxxxx an additional stock option award covering a
total of 15,000 shares of Common Stock under the Plan with a per
share exercise price equal to the closing price of the Common Stock
on the date of grant, or its Fair Market Value, exercisable for a
4-year period from such option’s grant date and vesting in
twelve equal quarterly installments.
(b) If this Agreement
is terminated by the Company without Cause and is not due to
Xxxxx’ death or Disability, the vested portion of the stock
option awards described in this Section 3 will remain exercisable
for sixty (60) days, subject to any outer limits contained in the
Plan or the applicable Award Agreement, and the unvested portion of
such stock option awards will terminate immediately.
(c) If this Agreement
is terminated by the Company with Cause, the unvested and vested
portion of the stock option awards described in this Section 3 will
immediately terminate.
(d) If this Agreement
is terminated by the Company without Cause and is not due to
Xxxxx’ death or Disability, and is within 12 months following
a Change of Control (as defined in the Plan), then all shares
subject to the stock option awards described in this Section 3 will
vest immediately upon such termination.
Monthly
compensation as noted in Section 3(a) is subject to adjustment by
both parties based on several factors including transaction volume,
complexity, internal staffing and changes in reporting
requirements.
4. Termination. This Agreement may
be terminated in any one of the following ways:
(a) By the Company With or Without
Cause. The Company may, with or without Cause, terminate
this Agreement, effective sixty (60) days after written notice is
provided to StoryCorp.
(b) By StoryCorp With or Without
Cause. StoryCorp may, with or without Cause, terminate this
Agreement, effective sixty (60) days after written notice is
provided to the Company.
(c) By StoryCorp, Immediate.
StoryCorp may terminate this Agreement immediately due to the
Company’s non-payment of fees owed to StoryCorp pursuant to
this Agreement if any such fees are not paid within seven (7) days
after the date such fees are due.
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5. Expenses. During the term of
the Agreement, the Company shall pay or promptly reimburse
StoryCorp for reasonable and necessary travel, lodging, meals,
telephone, copying, delivery, and other expenses paid or incurred
by StoryCorp in connection with the direct performance of its
services, activities and responsibilities under this Agreement,
upon presentation of documented expenses, statements, or other
evidences of expenses provided. Any individual expense incurred in
excess of $1,000 requires pre-approval of the Company by
email.
6. Representations and Warranties of the
Company.
(a) The Company hereby
represents and warrants that it has full power and legal right and
authority to execute, deliver, and perform under this Agreement,
and that the officer(s) executing this Agreement on behalf of the
Company has full power of authority to do so.
(b) The Company hereby
represents and warrants that this Agreement has been duly
authorized by all necessary corporate action, has been duly
executed and delivered by the Company and is enforceable against
the Company in accordance with its terms, subject only to the
applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or affecting the rights of creditors generally and
to principles of equity.
(c) The Company hereby
covenants and agrees to indemnify and hold harmless StoryCorp from
and against and in respect of: (i) any and all losses and damages
resulting from any misrepresentations or breaches of any warranty,
covenant or agreement by the Company made or contained in this
Agreement, and (ii) any and all actions, suit, proceedings, claims,
demands, judgments, costs and expenses, including attorney's fees,
incident to the foregoing.
7. Representations, Warranties and
Covenants of StoryCorp.
(a) StoryCorp hereby
represents and warrants that it has full power and legal right and
authority to execute, deliver, and perform under this
Agreement.
(b) StoryCorp hereby
covenants and agrees to indemnify and hold harmless the Company
from and against and in respect of: (i) any and all losses and
damages resulting from any misrepresentation or breach of any
warranty, covenant or agreement by StoryCorp made or contained in
this Agreement, and (ii) any and all actions, suit, proceedings,
claims, demands, judgments, costs and expenses, including
attorney’s fees, incident to the foregoing.
(c) StoryCorp
acknowledges that it has signed a non-disclosure agreement with the
Company and such non-disclosure agreement shall remain in full
force and effect not withstanding the parties’ entry into
this Agreement or Section 10 hereof.
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8. Independent Contractor
Status.
It is
expressly understood and agreed that this is a consulting services
agreement only and does not constitute an employer/employee
relationship. Accordingly, StoryCorp agrees that StoryCorp shall be
solely responsible for the payment of its own taxes or sums due to
the federal, state or local governments, office overhead, workers
compensation, fringe benefits, pension contributions and other
expenses. StoryCorp is an independent contractor and the Company
shall have no right to control the activities of StoryCorp other
than to require StoryCorp to provide its consulting services in a
professional manner pursuant to the terms and conditions of this
Agreement. StoryCorp shall have no authority to bind the Company
except as provided for by Company in writing.
9. Miscellaneous
Provisions.
(a) Notices. Any notice, request,
demand or other communications required or permitted pursuant to
this Agreement shall be in writing and shall be deemed to have been
properly given if delivered in person or by courier or other
overnight carrier, by facsimile transmission or by certified or
registered mail, postage prepaid and return receipt requested, to
each party hereto at the address indicated below or at any other
address as may be designated from time to time by written notice to
each party. Such notice shall be deemed given upon
delivery.
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If to
StoryCorp:
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StoryCorp
Consulting
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0000 Xxxxxxxx Xxxx
#00000
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Xxx Xxxxxxx XX
00000
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Fax (000)
000-0000
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If to the
Company:
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0000 Xxxxx Xxxxx,
Xxxxx 000
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Xxx Xxxxx, XX,
00000
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(b)
Certain
Definitions. Capitalized terms used but not otherwise
defined herein shall have the respective meanings given to such
terms in the Plan.
10. Entire Agreement. This
Agreement constitutes the entire agreement between the parties
hereto relating to the subject matter hereof, and supersedes all
prior written or oral agreements, commitments or understandings
with respect to the matters provided for herein, including that
certain Consulting Agreement dated July 23, 2014 by and between the
Company and StoryCorp, and no modification shall be binding unless
set forth in writing and duly executed by each party
hereto.
11. Binding Effects. This Agreement
shall be binding upon and inure to the benefit of the parties
hereto their respective heirs, executors, administrators and
successors, including any corporation with which or into which the
Company may be merged or which may succeed to its assets or
business.
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12. Headings. The headings or
captions of this Agreement are inserted only as a matter of
convenience and for reference and in no way define, limit, extend
or scope of this Agreement or the intent of any provisions
hereof.
13. Identification. Whenever
required by the context of this Agreement, the singular number
shall include the plural, and the word “person” or
“party" shall include a corporation, limited liability
company, firm, partnership, or other form of
association.
14. Waiver. The waiver by any party
to this Agreement of a breach of any provision of this Agreement
shall not be deemed a continuing waiver or a waiver of any
subsequent breach of that or any other provision of this
Agreement.
15. Arbitration. In the event of
any dispute between the parties which arises under this Agreement,
such dispute shall be settled by arbitration in accordance with the
rules for commercial arbitration of the American Arbitration
Association (or a similar organization) in effect at the time such
arbitration is initiated. A list of arbitrators shall be presented
to the claimant and respondent from which one will be chosen using
the applicable rules. The hearing shall be conducted in the City of
Los Angeles, California, unless both parties consent to a different
location. The decision of the arbitrator shall be final and binding
upon all parties.
The
prevailing party shall be awarded all of the filing fees and
related administrative costs. Administrative and other costs of
enforcing an arbitration award, including the costs of subpoenas,
depositions, transcripts and the like, witness fees, payment of
reasonable attorney's fees, and similar costs related to collecting
an arbitrator's award, will be added to, and become a part of, the
amount due pursuant to this Agreement. Any questions involving
contract interpretation shall use the laws of state of the venue as
described above. An arbitrator's decision may be entered in any
jurisdiction in which the party has assets in order to collect any
amounts due hereunder.
16. Counterparts. For the
convenience of the parties hereto, this Agreement may be executed
in one or more counterparts, which shall each be considered an
original.
17. Severability. If any provision
of this Agreement shall be declared invalid or unenforceable, the
remainder of this Agreement will continue in full force and effect
so far as the intent of the parties hereto can be carried
out.
18. Construction. Should any
provision of this Agreement require judicial interpretation, it is
agreed that the court interpreting or construing the same shall not
be apply a presumption that the terms hereof shall be more strictly
construed or strictly against the party who itself or through its
agent prepared the same, it being agreed that the agents of all
parties have participated in the preparation hereof.
19. Recitals. The recitals set
forth at the beginning of this Agreement are incorporated by
reference in, and made a part of this Agreement.
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20. Governing Law. This Agreement
shall be governed by and construed under the laws of the State of
California (irrespective of its choice of law principles). Each
party hereby consents to the exclusive jurisdiction of the state
and federal courts sitting in Los Angeles County, California, in
any action on a claim arising out of, under or in connection with
this Agreement or the transactions contemplated by this Agreement.
Each party further agrees that personal jurisdiction over such
party may be effected by service of process by registered or
certified mail addressed as provided in Section 9(a) of this
Agreement, and that when so made shall be as if served upon such
party personally within the State of California.
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ENDRA Life Sciences,
Inc.
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StoryCorp
Consulting
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By: /s/ Xxxxxxxx
Xxxxxxxx
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By: /s/ Xxxxx X.
Xxxxx
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Name: Xxxxxxxx Xxxxxxxx
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Name: Xxxxx X. Xxxxx
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Title: Chief Executive
Officer
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Title: Chief Executive
Officer
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Date:May 12, 2017
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Date: May 12, 2017
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