[INDIVIDUAL OR COMPANY]
Dear [INDIVIDUAL OR COMPANY]
This letter Consultation Agreement (“Agreement”) confirms the agreement that [INDIVIDUAL OR COMPANY] hereafter referred to as the “Company” has engaged Civil Special Forums (“CSF”), on the terms and conditions set forth herein, to act as a Consultant in connection with possible business opportunities involving any of the Northeastern United States Corporate Energy Companies, other company, partnership, organization, whatsoever, that CSF introduces to Company. Together Company and CSF shall be referred to in the singular as “Party” and in the plural as the “Parties”.
1. Consultant. The Parties agree and understand that CSF is a consultant only, and is not an agent, broker, attorney at law or in fact, partner or in any manner an entity with any obligation other than what the services are contained herein. There is no guaranty of success.
2. Company. The term shall mean the Company as indicated herein to include Company’s
affiliates, businesses or subsidiaries or any employee, member, shareholder or security-holder of the Company, or any interested party in Company’s assets which are invested in, assumed by, transferred to, levered by, or combined with that of any person or one or more persons formed by or affiliated with such person, including, without limitation, a sale or disposition or exchange of capital stock, partnership interest, or assets, an acquisition, a merger or consolidation, a tender or exchange offer, a leveraged buyout, or the formation of a joint venture or partnership or any similar transaction.
3. Services: The Company hereby appoints the CSF, subject to the cooperation of the Company, to act as a Consultant for Company to place Company with certain Northeastern United States Corporate Energy Companies, other company, partnership, organization as well as any other company, partnership, organization, whatsoever, that CSF introduces Company to do any business activity whatsoever. Company agrees CSF has rights of exclusivity only to Northeastern United States Corporate Energy Companies, other company, partnership, organization as well as any other company, partnership, organization, whatsoever, that CSF introduces Company to do any business activity whatsoever.
a. CSF acknowledges that the Company shall have the right, exercisable in its discretion, to accept or reject any potential business clients or partner referred or introduced by the CSF. The Company agrees not to circumvent CSF or behave in any way that might result in the CSF being disadvantage commercially, financially or otherwise during the term of this Agreement.
b. Any additional services required by the Company to be performed by CSF beyond the scope of the services described herein will be provided by CSF only in the event that CSF and the Company enter into a separate engagement agreement for such services, upon mutually agreed terms.
c. It is expressly understood and agreed that CSF is not undertaking to provide any advice relating to legal, regulatory, accounting or tax matters. In furtherance thereof, the Company acknowledges and agrees that (a) it and its affiliates have relied and will continue to rely on the advice of its own legal, regulatory, tax and accounting advisors for all matters relating to the Transaction, and (b) neither it, nor any of its affiliates has relied upon the advice of CSF or any of its affiliates regarding legal, regulatory, tax or accounting matters.
2. Term of Agreement: CSF’ engagement shall terminate twelve (13) months from the date of of full execution of the parties, unless extended in writing by CSF and the Company or terminated earlier by either party. Termination by either party may only be based on a good faith judgment that the other party has failed to adequately perform as contemplated by this Agreement in a timely manner and its failure to remedy same within 30 days of written notice. A “Residual Period” shall extend for thirty-six (36) months from the date of termination or expiration of this Letter Agreement.
a) Anything herein to the contrary notwithstanding, and notwithstanding the expiration or any termination hereof, the liability of the Company to CSF will be as set forth in Paragraph 4 a).
A. Cooperative Party: A Cooperative Party shall mean: Northeastern United States Corporate Energy Companies, other company, partnership, organization or domestic private individual, corporation, partnership or limited liability company where CSF has entered into any agreement, treaty, JV development agreement, memorandum of cooperation or any other arrangement to place on their Web site as a development opportunity or has instructed CSF to publish or make private and confidentially their interest in becoming involved in the CSF Development Program; or any entity or person whatsoever CSF has introduced to Company in conjunction with or during the term of this Agreement.
B. Development Program: The CSF Development Program is part of the CSF initiative to provide a platform establishing a direct link for Governmental needs for new social and economic development to align with Private Organizations changing technologies and institutional requirements. The CSF platform enables applicant institutions and individuals having special competence in the subjects for which arrangements can be made, the opportunity to express their views and participate in socio-economic development and allow multiple participants to enter into transactional, service, development or monetary inclusive or fee based agreement or arrangement as well as to interface with each other and share new technologies and visions of a social and economic character.
C. Transaction. A “Transaction” shall mean one or a series of executed agreements, letter of intent, joint venture, lease, or other activity which is memorialized by a writing whether the writing has conditions precedent, dependent on any payment, activity, further agreement with Cooperative Party or whether the intent of the writing shall occur now or in the future or any condition or variable whatsoever, the only requirement being that there is an executed written document of any kind with a Cooperative Party.
D. Residual Period. The Residual Period shall mean a time period of 36 months from Termination, whereby if Company engages in any agreement, contract, joint venture, partnership or any any other form of business relationship with a Cooperative Party as defined herein, then CSF shall be entitled to fees as per Paragraph 4 a).
E. Gross Transaction Value. For purposes hereof, the term “Gross Transaction Value” means the total amount of cash, Securities and the Fair Value (on the date of execution of agreement or letter of intent for a transaction, service, development, construction, renovation, restoration or payment) paid or payable in the future (including amounts paid into escrow) by Company or for the benefit of the Company (including any affiliates, businesses or subsidiaries or any employee, member, shareholder or security-holder of the Company) with CSF Cooperative Party, regardless of partial or total completion or attainment of Transaction.
F. Securities: The term Securities shall include amounts paid or payable in respect to common equity, preferred equity, equity-linked securities, convertible securities, options, warrants, stock appreciation rights, options or similar rights, whether or not vested, and any liability of the Company or its affiliates or subsidiaries that is forgiven by a creditor, or repaid or assumed by an Investor, on behalf of Company in connection with a Transaction.
G. Fair Value. The fair value of any Transaction as defined herein or Securities (whether debt or equity) or other property or assets shall be determined as follows:
i. total compensation, property, equipment, cash Securities or equity interest paid or to be paid in the future included in a Transaction as defined herein, and
ii. the value of securities that are freely tradable in an established public market will be determined on the basis of the average closing market prices on the fifteen trading days prior to the closing of the Transaction; it being understood that for the purposes herein, restricted securities for which there is a public market for the underlying security shall be deemed to be valued at the public market price of such securities without applying any type of discount; and
iii. the value of securities that are not freely tradable or have no established public market, and the value of other property or assets, shall be the fair value thereof as determined in good faith by CSF.
E. Foreign Currency. If any consideration is to be paid or computed in any foreign currency, the value of such foreign currency shall be converted into U.S. dollars at the prevailing rate on the dates on which such consideration is paid.
4. Fees: The Company agrees to pay CSF as compensation for Transaction as defined herein, the following fees:
a) CSF Transaction Fee. If a Transaction is occurs, during the term of this Agreement or during the Residual Period with any Cooperative Party; the Company shall pay (3%) of the Gross Transaction Value (determined with the Fair Value as defined herein). CSF reserves the right to take all or any part of the CSF Transaction Fee in Securities of the type, and valued on the same terms, as issued in connection with the applicable Transaction.
b) CSF Execution Fee. The CSF Execution Fee of $500.00 is non-refundable payment in cash or cleared as sufficient check which is due upon execution of this Agreement regardless of non-activity, termination, abandonment or failure to occur of any proposed Transaction.
5. Out-of-Pocket Expenses: The Company agrees the Parties shall pay all of their own costs and expenses of (including, without limitation, | fees and disbursements of counsel) incurred in connection with this Agreement.
6. Information: The Company will promptly furnish, or cause to be furnished, to CSF such information, documents, and other materials as CSF believes appropriate to its engagement hereunder (all such information, whether written or oral, “Information”), and the Company represents, warrants and covenants that all such Information is or will be, when furnished, accurate and complete in all material respects and does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which such statements are made, not misleading. It is understood that CSF will be entitled to rely on and use the Information and other information that is publicly available (collectively with Information, “Materials”) without independent verification, and is authorized to transmit to any Cooperative Party a copy or copies of such Information and Materials on behalf of the Company, and will not be responsible in any respect for the accuracy, completeness or reasonableness of all such Materials or to conduct any independent verification or any appraisal or physical inspection of properties or assets.
a) The Company recognizes that in order for CSF to perform properly its obligations in a professional manner, the Company will keep CSF informed of and permit CSF to participate in meetings and discussions between the Company and Cooperative Party. The Company shall give CSF a copy of any fully executed written document whatsoever between Company and Cooperative Party. In addition, the Company will notify CSF promptly of any change that may be material in any Materials previously furnished, supplied, discussed with or otherwise made available to CSF or made publicly available by the Company. It is understood that, in the event that the Company receives information with respect to any of their products, services or prospects therefore that could be interpreted as likely to have a material adverse affect on the Company’s financial or operating condition, the Company will inform CSF.
7. Disclosure. The Company acknowledges that all advice given by CSF in connection with its engagement hereunder is solely for the benefit and use of the Company in considering a Transaction. The Company agrees that no such advice shall be used for any other purpose or be disclosed, reproduced, disseminated, quoted or referred to at any time, in any manner or for any purpose, nor shall any public references to CSF be made by or on behalf of the Company, in each case without CSF’ prior written consent.
8. No Third Party Beneficiaries. The Company acknowledges and agrees that CSF has been retained to act as an CSF for the Company, and not as an advisor to or agent of the Company or any other person, and that the Company’s engagement of CSF is not intended to confer rights upon any person not a party to this Letter Agreement (including shareholders, employees or creditors of the Company) as against CSF or its affiliates, or their respective directors, officers, employees or agents.
9. Independent Contractor. CSF is an independent contractor under this Agreement, and any duties arising out of its engagement shall be owed solely to the Company. It is understood that CSF’ responsibility to the Company is solely contractual in nature and CSF does not owe the Company, its shareholders, its board of directors, or any other party, any fiduciary duty as a result of this Agreement.
10. Reasonable Efforts; Good Faith. The Company and CSF shall each use their reasonable efforts and act in good faith to consummate the transactions contemplated by this Agreement in a timely manner.
11. Other Activities. The Company acknowledges that CSF has been, and may in the future be, engaged to provide services similar to those provided for herein to third parties. as an CSF, referral agent, underwriter, placement agent, finder, advisor and investment banker to other companies in the industry in which the Company is involved. Subject to the confidentiality provisions of CSF contained in Section 7 hereof, the Company acknowledges and agrees that nothing contained in this Letter Agreement shall limit or restrict the right of CSF or of any member, manager, officer, employee, agent or representative of CSF, to be a member, manager, partner, officer, director, employee, agent or representative of, investor in, or to engage in, any other business, whether or not of a similar nature to the Company’s business, nor to limit or restrict the right of CSF to render services of any kind to any other corporation, firm, individual or association; provided that CSF and any of its member, manager, officer, employee, agent or representative shall not use the Information to the detriment of the Company. CSF may, but shall not be required to, present opportunities to the Company.
12. Notices. All notices will be in writing and will be effective when delivered in person, by express mail, recognized national courier service, or via facsimile, not email, to the party to whom it is addressed at the following addresses or such other address as such party may advise the other in writing, it is the responsibility of each Party to notify the other of any change in address.
To CSF: Civil Special Forums
To Company [NAME OF COMPANY]
[ADDRESS OF COMPANY]
13. Amendments and Successors. This Agreement may not be waived, amended, modified or assigned, in any way, in whole or in part, including by operation of law, without the prior written consent of the Company and CSF. The provisions of this Agreement shall inure to the benefit of and be binding upon the successors and assigns of the Company and CSF.
14. Entire Agreement. This Agreement constitutes the entire agreement between CSF and the Company, and supersedes any prior agreements and understandings, with respect to the subject matter of this Agreement. The Company acknowledges that the execution of this Agreement or any act of CSF under this Agreement does not constitute a commitment or guaranty of success.
15. No Brokers. The Company acknowledges and agrees that there are no brokers, agents, representatives or other parties that have an interest in compensation paid or payable to CSF hereunder.
16. Termination & Expiration, Upon termination or expiration, this Letter Agreement shall have no further force or effect, except all provisions of Exhibit A Mutual Non-Disclosure, Non-Circumvention and Confidentiality Agreement shall survive Termination & Expiration for a period of seven (7) years. Further, provisions concerning the Company’s obligations to CSF and certain related persons provided in herein in Paragraph 4 a), the status of CSF as an independent contractor, the limitation on to whom CSF shall owe any duties, governing law, choice of forum and venue, successors and assigns, and arbitration agreement and waiver of the right to litigate and right to trial by jury shall survive any such termination or expiration of this Agreement for a period of seven (7) years.
17. No Waiver. The failure or delay by CSF in exercising any right under this Letter Agreement will not operate as a waiver of such right. The single or partial exercise of any right by CSF will not prevent any other or further exercise of such a right or any other right. No breach of any provision of this Agreement by the Company will be waived except with the express written consent of CSF.
18. Representations and Warranties. The Company and CSF each respectively represent and warrant that it has full right, power and authority to enter into this Agreement and to perform all of its obligations hereunder.
19. Confidentiality: The Parties agree to be bound by Exhibit A – Mutual Non-Disclosure, Non-Circumvention and Confidentiality Agreement: attached hereto which is an integral part of this Agreement, without execution renders this Agreement invalid The Parties agree not to circumvent each other or behave in any way that might result in the other party being disadvantaged commercially, financially or otherwise.
20. Attorney Fees. In the event CSF files any litigation to enforce its rights to fees or any other right with regard to this Agreement, then, if CSF prevails in Court, CSF shall be entitled to reimbursement of all attorney fees t a rate of $600.00 per hour plus Costs of Suit. Costs of suit shall include but not be limited to all all costs associated with the litigation, deposition fees, all discovery fees, expert fees, travel and hotel expenses.
21. Venue, Governing Law and Jurisdiction: This Agreement and any claim or dispute of any kind or nature whatsoever arising out of or in any way relating to this Agreement, directly or indirectly shall be held in a Court, governed by and construed in accordance with the laws of the State of New Jersey. Venue shall be New jersey and the Parties agree to New Jersey Jurisdiction.
We are pleased to accept this consulting Agreement engagement and look forward to working with the Company. Please confirm that the foregoing is in accordance with your understanding by executing and returning to us the enclosed duplicate of this letter.
Very truly yours,
Civil Special Forums, LLC
By:____________________________ Dated: __________
President & Managing Member
Agreed as of the date of execution by:
[NAME OF ENTITY], COMPANY
By: ___________________________ Dated: __________