EXHIBIT 10.17
CONSULTING AGREEMENT
This Consulting Agreement made this 25th day of April, 2006 by and
between Neah Power Systems, Inc. (the "Company"), a corporation located at 00000
00xx Xxx XX, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000 and APEX Strategies, Inc. (the
"Consultant"), a management consulting company with offices located at 00000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000.
The Company is engaged in the business of researching and developing
fuel-cell-based electrical power solutions, with the objective of eventually
manufacturing and marketing such solutions to customers, and, in furtherance of
that business, desires to engage the Consultant, which is engaged in the
business of assisting companies in establishing and growing a Public Sector
customer base.
In consideration of the mutual terms, conditions and covenants
hereinafter set forth, the parties agree as follows:
1. The Company engages the Consultant to perform the following:
A. Assisting the Company in strategic and tactical planning in
establishing and growing a Public Sector (United States (U.S.)
Government (Federal) / State / Local) customer base.
B. Assisting the Company in preparing proposals to obtain Public Sector
contracts for the Company; PROVIDED that the Consultant is not
required to continually expend more than 60 hours per week in
preparing such proposals.
C. Assist the Company as needed in establishing, implementing, maintaining
and performing security, contract management and operational
procedures for the award, implementation and ongoing administration
of Public Sector contracts.
2. Unless sooner terminated in the manner set forth below, this Agreement
will continue in full force and effect for twelve (12) months from the date
hereof and may be renewed by the Company for an additional twelve (12) month
period on the terms stated herein.
3. For the services performed hereunder, the Company will pay the
Consultant compensation limited to the following amounts:
A. An immediate retainer in the amount of Five Thousand Dollars
($5,000.00). This payment covers the period from April 25th, 2006
through May 31St, 2006.
B. During the term of this Agreement, equal semi-monthly payments of Two
Thousand Five Hundred Dollars ($2,500.00) for a total of Five Thousand
Dollars ($5,000.00) per month. Each such semi-monthly payment will be
due on the
1St and 16TH of each month starting June 1St, 2006 and continuing
throughout the term of this Agreement.
C. A reasonable commission in an amount to be negotiated on a
contract-by-contract basis but not to exceed five (5) percent, based on
revenues received by the Company under Public Sector contracts, task
orders or purchase orders awarded to the Company during the term of
this Agreement as a result of Consultant's first identifying the
specific contracting opportunity to the Company and contributing in a
direct, substantive and substantial way to capturing the contract, task
order or delivery order, such as by materially assisting in preparing
any written proposal or oral presentation that the Company submits or
presents to the Public Sector customer; PROVIDED that the commission
payments are reimbursable to the Company under such contract, task
order or purchase order; PROVIDED FURTHER that no commissions are
payable beyond the earlier of three years following the award of such
contract, task order or purchase order or the expiration, termination
or cancellation of this Agreement. Commission payments are payable
fifteen (15) days following the date on which the Company receives
payment from the Public Sector customer. Notwithstanding the foregoing,
the Consultant is not entitled to any commission on revenues resulting,
directly or indirectly, from (i) any and all past, present or future
contracts, task orders or purchase orders with the Office of Naval
Research ("ONR"); (ii) any and all past, present or future contracts or
grants attributable to congressionally directed funding ("earmarks");
or (iii) the Company's pre-existing relationships with Thales and
General Dynamics.
D. Reimbursement of reasonable and pre-approved out-of-pocket expenses
directly incurred in performing the work hereunder.
4. The Consultant shall not represent any Company engaged in bidding on
the same proposals as the Company engages the Consultant to assist with during
the lifetime of this Agreement and for twelve (12) months thereafter, unless the
Company otherwise specifically authorizes the Consultant in writing.
5. Nothing contained in this Agreement shall be construed to constitute
the Consultant as a partner, principal or employee of the Company, it being
intended that the Consultant is an independent contractor.
6. The Company shall be responsible for all material submitted to the
Customer. Except for claims, liability and damages for infringement of
intellectual property rights resulting from materials that the Consultant
provides to the Company, the Consultant shall not be held liable for any of the
material or content thereof that the Company submits to the Customer or for any
actions by the Customer in regard to the submitted material. Where failure to
perform under this Agreement is due to Consultant's own gross negligence, then
the Consultant shall be liable for such failure. Consultant shall not be liable
to the Company for any indirect or consequential damages under this Agreement.
Except for claims or liability relating to infringement of intellectual property
rights, the total liability, in the aggregate, of Consultant to the Company for
any and all claims, liability and damages related to this Agreement is limited
to the total compensation
received by Consultant under this Agreement.
7. Confidential Information consists of any and all information that the
Company provides to the Consultant that is marked as proprietary or
confidential, is identified orally or in writing as proprietary or confidential,
or that a reasonable person would understand in the circumstances to be
proprietary or confidential. Additionally, all Company-specific materials and
finished work product (as distinguished from generic market research products
independently developed by the Consultant) that the Consultant prepares for or
delivers to the Company are "work for hire," become the property of the Company,
and shall be treated as Confidential Information of the Company. Except for work
for the Company, the Consultant is strictly prohibited from reproducing,
disclosing or using such Confidential Information. The confidentiality
obligations of this section survive the expiration, termination or cancellation
of this Agreement for a period of five (5) years.
8. Either Party may terminate this Agreement, and all of the party's
non-surviving obligations under it, at any time by providing thirty (30) days
written notification to the other Party.
9. In performing this Agreement, Consultant shall comply with all
applicable state, federal and local laws; all executive orders and regulations;
and all other standards of business conduct generally applicable to federal
government contractors. Consultant represents and warrants that neither it, nor
its principal officers, have been suspended or debarred by any Public Sector
entity, and that Consultant will immediately notify the Company if it, or any of
its principal officers, becomes the subject of a government audit or
investigation, or is indicted, suspended or debarred. Consultant represents and
warrants that it is aware of and will comply with the requirements of the Xxxx
Amendment and the Covenant Against Contingent Fees (FAR 52.203-5).
10. The Consultant may not subcontract or otherwise assign any of its
rights or duties under this Agreement without the prior written consent of the
Company, and any attempt to do so is null and void AB INITIO as between the
Consultant and the Company.
11. Any notice, request, claim, demand, waiver, consent, or other
communication which is required or permitted hereunder shall be in writing and
shall be deemed given upon actual receipt if delivered personally, sent by
facsimile transmission or electronic mail with receipt of delivery, sent by
registered or certified mail (postage prepaid, return receipt requested), or by
nationally recognized overnight courier service, as follows:
If to the Company:
NEAH POWER SYSTEMS. INC.
00000 00XX XXX XX, XXXXX 000
XXXXXXX, XX 00000
If to the Consultant:
APEX STRATEGIES, INC.
00000 XXXXXXXX XXXXXX, XXXXX 000
XXXXXX, XX 00000
or to such other address as the Person to who notice is to be given may have
specified in a notice duly given to the sender as provided herein. Such notice,
request, claim, demand, waiver, consent, or other communication shall be deemed
to have been given as of the date so delivered, sent by facsimile, sent by
electronic mail, mailed or dispatched and, if given by any other means, shall be
deemed given only when actually received by the addressees.
12. This Agreement shall be- governed and -construed in accordance with the
laws of the Commonwealth of Virginia. Exclusive jurisdiction and venue shall be
in the United States District Court for the Eastern District of Virginia,
Alexandria Division, or the Circuit Court of Fairfax County, Virginia.
13. This Agreement sets forth the complete agreement and understanding
between the Company and the Consultant relating to the subject matter hereof and
supersedes all prior and contemporaneous understandings and agreements, written
or oral, relating to its subject matter. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, will be effective
unless agreed to in writing by a duly authorized official of the Party sought to
be bound thereby.
14. This Agreement may be executed in counterparts, each of which shall
constitute an original and all of which, when taken together, shall constitute
one agreement. Each Party represents to the other that this Agreement has been
duly executed by it or its duly authorized officers or Consultants and
constitutes a valid, binding and enforceable obligation of such Party.
15. The parties, by signing this Consulting Agreement below, represent they
have the authority and capacity to agree to the above terms and conditions.
NEAH POWER SYSTEMS, INC. APEX STRATEGIES, INC.
BY: /s/ Xxxx Xxxxxxxxxx BY: /s/ Xxxxxxx Xxxxxxx
------------------- -------------------
(Company) (Consultant)
Printed name: Xxxx Xxxxxxxxxx Printed name: Xxxxxxx Xxxxxxx
Title: President & CEO Title: President
Date: April 25, 2006 Date: May 1, 2006
