CONSULTING AGREEMENT
Exhibit
10.11
From
the Desk of
Xxxxx
X. Xxxxx
THIS CONSULTING AGREEMENT (the
“Agreement”) is entered into as of July 23, 2014, by and between
Endra, Inc., a Michigan
corporation (the “Company”), and StoryCorp Consulting, a Nevada
corporation (“StoryCorp”).
RECITALS
WHEREAS, 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 they
have 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. Company
hereby engages StoryCorp and StoryCorp hereby accepts such
engagement by 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 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 they are 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 Company, StoryCorp
assumes that activities are accepted by the Company.
3. Compensation.
In consideration of the consulting services to be rendered as set
forth herein, Company shall compensate StoryCorp as
follows:
(a)
$8,000
payable upon execution of this Agreement. The fee will be payable
in cash;
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(b)
$8,000
payable on August 1, 2014. The fee will be payable in
cash;
(c)
$8,000
payable on September 1, 2014 per month, and for each month
thereafter. The fee will be payable in $5,000 cash and $3,000 in
restricted common stock of the Company. The number of shares issued
will be based on a share price equal to the price of the APO
transaction once consummated; and
(d)
For
services outside of those described in Exhibit A, StoryCorp will
issue monthly invoices at a xxxx rate of $250 per hour, payable in
cash.
Monthly
compensation as noted in 3(c) is subject to adjustment by both
parties based on several factors including transaction volume,
complexity, internal staffing and changes in reporting
requirements. Services rendered under 3(d) require prior approval
from the Company, verbal approval is considered
acceptable.
4. Termination.
This Agreement may be terminated in any one of the following
ways:
(a) By
Company With or Without Cause.
The Company may, with or without cause, terminate this Agreement
immediately without prior notice.
(b) By
StoryCorp With or Without Cause. At any time after the commencement of this
Agreement, StoryCorp may, with or without cause, terminate this
Agreement, effective thirty (30) days after written notice is
provided to Company.
(c) By
StoryCorp, Immediate. At any
time after the commencement of this Agreement, StoryCorp may
terminate this Agreement immediately for reasons of non-payment of
fees.
5. Expenses.
During the term of the Agreement, 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. Amounts incurred in excess of $500
require pre-approval by email.
6. Representations
and Warranties of the Company.
(a) 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 officers executing this Agreement on behalf
of Company have full power of authority to do so.
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(b) Company
hereby represents and warrants that this Agreement has been duly
authorized by all necessary corporate action, has been duly
executed and delivered by Company and is enforceable against
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) 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 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 he 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 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.
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:
StoryCorp
Consulting
0000
Xxxxx Xxxx Xxxx. Xxxxx 000
Xxxxx
Xxxxxx, XX 00000
Fax
(000) 000-0000
If to
Company:
Endra,
Inc.
00
Xxxxxxxx Xx. Xxxxx 000
Xxx
Xxxxx, XX, 00000
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, 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 Company may be
merged or which may succeed to its assets or
business.
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.
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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.
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,
Inc.
StoryCorp Consulting
By:
/s/ Xxxxxxx
Xxxxxxxx
By:
/s/ Xxxxx
Xxxxx
Name:
Xxxxxxx Xxxxxxxx
Name: Xxxxx X. Xxxxx
Title:
President
Title: President
Date:
August 28,
2014
Date: August 28,
2014
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SCHEDULE A
Services
for Phase 1
1.
Preparation of December 31, 2012 and December 31, 2013 Financial
Statements, and related disclosures
a)
In
conjunction with existing Company staffing, prepare all work
papers, calculations and entries to be consistent and in compliance
with Generally Accepted Accounting Principals (GAAP) for the
periods ended December 31, 2012 and December 31, 2013;
b)
In
conjunction with existing Company staffing, prepare quarterly
closings and financial statements for the 3 quarterly periods in
fiscal 2013;
c)
Assist
in the filing of the required forms with the SEC, in collaboration
with the Chairman, the Chairman’s designees, the
Company’s audit committee, the Company’s audit firm and
securities counsel, as necessary;
d)
Assist
with ‘cleaning up’ Balance Sheet as currently presented
and in connection with the proposed APO transaction;
e)
Develop
and install a process for variance reporting against the approved
budget; and
f)
Model
scenarios and analysis for reverse split to accommodate all issued,
outstanding and derivative securities.
2.
CFO services
a)
Act
as a liaison with lawyers, auditors, transfer agent and other
professionals;
b)
Manage
issuance new securities and certificates (stock, warrant), and the
exchange or recall of previously issued warrants;
c)
Prepare
a Capitalization Table that is acceptable to
management;
d)
Manage
APO process with legal counsel; and
e)
Prepare
Form S-1 related to APO transaction.
(Remainder of this
page intentionally blank)
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Company
acknowledges that StoryCorp and/or its affiliates are not
registered Broker/ Dealers and therefore are unable to accept
payment for fund raising as a percentage of the amount raised. As
well, Company receiving funding is not a criterion for continued
engagement and StoryCorp makes no promises as to its ability to
arrange funding in any form for Company.
Company
and StoryCorp agree to periodically review and amend, if necessary,
Schedule A items.
____________________________
_______________________________________
Company
(Initial) StoryCorp
(Initial)
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