Advisor Agreement

[company name]

ADVISOR SERVICES AGREEMENT

This Agreement is made by [company name]., its successors and its subsidiaries worldwide (“Company”) and the undersigned (“Advisor”), effective as of the date set forth below, for the purpose of setting forth the exclusive terms and conditions by which Company will acquire Advisor’s services on a temporary basis.

In consideration of the mutual obligations specified in this Agreement, and any compensation paid to Advisor for her or his services, the parties agree to the following:

Work And Payment.  Attached to this Agreement as Exhibit A hereto is a statement of the work to be performed by Advisor, Advisor’s compensation, the maximum price Company shall be obligated to pay under this Agreement and such other terms and conditions as shall be deemed appropriate or necessary for the performance of the work.  All reasonable preapproved expenses incurred by the Advisor on behalf of Company will be paid by Company.

Nondisclosure And Trade Secrets.  

During the term of this Agreement and in the course of Advisor’s performance hereunder, Advisor may receive and otherwise be exposed to confidential and proprietary information relating to Company’s business practices, strategies and technologies.  Such confidential and proprietary information includes, but is not limited to, confidential and proprietary information supplied to Advisor with the legend “Company Confidential and Proprietary,” or equivalent, Company’s marketing and customer support strategies, Company’s financial information, including sales, costs, profits and pricing methods, Company’s internal organization, employee information and customer lists including potential customers, Company’s technology, including discoveries, New Developments (as defined below) inventions, research and development efforts, processes, hardware/software design and maintenance tools, methods, product know-how and show-how, and all derivatives, improvements and enhancements to any of the above which are created or developed by Advisor under this Agreement and information of third parties as to which Company has an obligation of confidentiality (collectively referred to as “Information”).

Notwithstanding the above, the “Information” does not include information which (i) was known to Advisor at the time it was disclosed, other than by previous disclosure by Company, as evidenced by Advisor’s written records at the time of disclosure; (ii) is at the time of disclosure or later becomes publicly known under circumstances involving no breach of this Agreement; or (iii) is lawfully and in good faith made available to Advisor by a third party who did not derive it, directly or indirectly, from Company.

Advisor acknowledges the confidential and secret character of the Information, and agrees that the Information is the sole, exclusive and extremely valuable property of Company. Accordingly, Advisor agrees not to reproduce any of the Information without the applicable prior written consent of Company, not to use the Information except in the performance of this Agreement, and not to disclose all or any part of the Information in any form to any third party, either during or after the term of this Agreement.  Upon termination of this Agreement for any reason, including expiration of term, Advisor agrees to cease using and to return to Company all whole and partial copies and derivatives of the Information, whether in Advisor’s possession or under Advisor’s direct or indirect control, and destroy any electronic version of such information and confirm in writing confirmation of such delivery and destruction.

Advisor shall not disclose or otherwise make available to Company in any manner any confidential information of Advisor or received by Advisor from third parties.

Advisor agrees not to export, directly or indirectly, any U.S. source technical data acquired from Company or any products utilizing such data to any countries outside the United States which export may be in violation of the United States Export Laws or Regulations. Nothing in this section releases Advisor from any obligation stated elsewhere in this Agreement not to disclose such data.

This Section 2 shall survive the termination of this Agreement for any reason, including expiration of term.

Termination.  The term of the services shall be as set forth on Exhibit A.  Either Company or Advisor may terminate this Agreement for convenience with ten (10) days’ written notice.  In such event, Advisor shall cease work immediately after receiving notice from Company, unless otherwise advised by Company, and shall notify Company of costs incurred up to the termination date.  

Independent Contractor.  Advisor is an independent contractor, is not an agent or employee of Company and is not authorized to act on behalf of Company.  Advisor will not be eligible for any employee benefits, nor will Company make deductions from any amounts payable to Advisor for taxes. Taxes shall be the sole responsibility of Advisor.  Advisor acknowledges and agrees that it will use its own discretion in performing the tasks assigned, within the scope of work specified by the Company. Advisor is not authorized to transact business, incur obligations, sell goods, receive payments, solicit orders or assign or create any obligation of any kind, express or implied, on behalf of the Company or any of the Company's related or affiliated entities, or to bind in any way whatsoever, or to make any promise, warranty or representation on behalf of the Company or any of the Company's related or affiliated entities with respect to any matter, except as expressly authorized in writing by the Company.

Ownership Of Work Product.  Advisor agrees that any and all ideas, improvements, inventions and works of authorship conceived, written, created or first reduced to practice in the performance of work under this Agreement shall be the sole and exclusive property of Company and hereby assigns to Company all its right, title and interest in and to any and all such ideas, improvements, inventions and works of authorship.

Advisor further agrees that except for Advisor’s rights in Background Technology (as defined below), Company is and shall be vested with all rights, title and interests including patent, copyright, trade secret and trademark rights in all of Advisor’s work product under this Agreement and Company shall have the exclusive right to make, have made, use, sell, license, disclose, publish, produce derivative works of or otherwise disseminate or transfer rights in such work product. Advisor hereby grants to Company a nonexclusive, royalty free and worldwide right to use and sublicense the use of Background Technology for the purpose of developing and marketing Company products, but not for the purpose of marketing Background Technology separate from Company products. Background Technology shall include all technology which Advisor uses in performing under this Agreement which is either owned solely by Advisor or licensed to Advisor with a right to sublicense, and which is in existence in the form of a writing or working prototype prior to the date of use.  In all cases, such technology shall only be considered Background Technology to the extent that Advisor notifies Company in writing as to its status as Background Technology simultaneously upon delivery of such Work Product or within ten (10) days thereafter.

Advisor shall execute all papers, including patent applications, invention assignments and copyright assignments, and otherwise shall assist Company as reasonably required to perfect in Company the rights, title and other interests in Advisor’s work product expressly granted to Company under this Agreement.  Costs related to such assistance, if required, shall be paid by Company.

The Company acknowledges that Advisor is in the business of providing management-related advice to emerging companies (the “Advice”).  As a result, notwithstanding the above, for the purpose of this Agreement and without any further notices to the Company being required, the Background Technology shall include such Advice so long as such advice (1) is not uniquely applicable to the particular specifications, characteristics or functions of the Company’s products or service offerings, or (2) generic in nature or usable generally by emerging companies without regard to the Company’s specific business. 

This Section 6 shall survive the termination of this Agreement for any reason, including expiration of term.

Non-Solicitation; Full Disclosure.  Advisor further agrees that, while an advisor to Company and for a period of eighteen (18) months after the termination or cessation of my affiliation with Company, Advisor will not, directly or indirectly recruit, solicit or induce, or attempt to induce, any employee or employees of Company to terminate their employment with, or otherwise cease their relationship with, Company; or solicit, divert or take away, or attempt to divert or to take away, or contact for the purpose of diverting or taking away the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of Company.  Further, during the term hereof, Advisor shall notify the President of Company in writing within two weeks of establishing a business relationship with or otherwise advising any company or business that sells products or services that compete with the products or services being sold or contemplated by the Company during the term.  The parties agree that the foregoing restrictions are reasonable and necessary to protect Company’s interests in the Confidential Information and the Developments, and that the Company would not be willing to engage the Advisor in the absence of such agreement.  The Advisor’s obligations under this Section 6 shall survive the termination or cessation of his affiliation.  

Legal And Equitable Remedies.  Advisor hereby acknowledges and agrees that in the event of any breach of sections 2, 5 or 6 of this Agreement by Advisor, Company will suffer an irreparable injury, such that no remedy at law will afford it adequate protection against, or appropriate compensation for, such injury.  Accordingly, Advisor hereby agrees that Company shall be entitled to specific performance of Advisor’s obligations under this Agreement, as well as such further relief as may be granted in accordance with the terms hereunder.  Except in the case of willful misconduct or gross negligence of the Advisor, in no event shall the liability of Advisor for any loss or damages directly or indirectly suffered by the Company as a result of the services provided under this Agreement exceed the aggregate compensation paid by the Company to the Advisor pursuant to this Agreement.

Arbitration.  The parties agree that any and all legal disputes regarding this Agreement, which cannot be resolved through negotiations between the designated representatives from each party within thirty (30) days of the date the dispute arose, shall be submitted to binding arbitration conducted by the American Arbitration Association (“AAA”).  Any such arbitration will be conducted in accordance with Commercial Arbitration Rules of the AAA.  Any such arbitration will be conducted by a three-person arbitration panel, and the arbitrators will issue their award in writing with findings.  Judgment on awards rendered by the arbitrators may be entered in any court having jurisdiction thereof.  The decision of the AAA shall be binding as between the parties and shall not be subject to appeal.

General.  The parties’ rights and obligations under this Agreement will bind and inure to the benefit of their respective successors, heirs, executors, and administrators and permitted assigns.  This Agreement and its Exhibits attached hereto and hereby incorporated herein constitute the parties’ final, exclusive and complete understanding and agreement with respect to the subject matter hereof, and supersede all prior and contemporaneous understandings and agreements relating to its subject matter.  This Agreement may not be waived, modified, amended or assigned unless mutually agreed upon in writing by both parties.  In the event any provision of this Agreement is found to be legally unenforceable, such unenforceability shall not prevent enforcement of any other provision of the Agreement.  This Agreement shall be governed by the [laws of State of Delaware LOCATION OF COMPANY], excluding its conflicts of laws principles.  Any notices required or permitted hereunder shall be given to the appropriate party at the address specified below or at such other address as the party shall specify in writing. Such notice shall be deemed given upon personal delivery, or sent by certified or registered mail, postage prepaid, three (3) days after the date of mailing.  Notwithstanding the foregoing, either party may, in its sole discretion, decide to deliver any documents or notices related to this Agreement by email or any other electronic means and the parties agree to receive such documents and notices by such electronic delivery and agree to participate through an on-line or electronic system established and maintained by either party for such purpose.

                *

In Witness Whereof, the parties hereto have executed this Agreement as of the date first set forth below.

[company name]

[signature]

[name of signer]

[title]

[date of signature]

Advisor

[signature]

[name of signer]

[title]

[date of signature]

Exhibit A

Work to be performed:

Commencing on [commence date] and ending on [ending date] Advisor shall provide the Company with [service description]  executive level services, support and guidance, including, without limitation, assisting management with strategic planning and preparation of marketing plans, forecasting, funding plan, business plan materials, presentation slides and other similar issues as needed. The parties expect that the services shall include approximately [amount of hours] hours per month of services at mutually agreed upon intervals. OR

providing general advice regarding the content of the Company’s customer communications, making professional introductions as necessary, and being reasonably available for phone and video communication for a minimum of [amount of hours] hours a month.  Additionally, we may request reasonable access for specific questions from the CEO and the BOD for meetings from time to time.

Compensation:

As full and complete payment for the services to be provided by the Advisor under the Agreement, the Advisor shall receive the compensation set forth below.  

Cash Payments:  The Company shall pay the Advisor the following amount in cash:  $[amount of cash] per month.  All amounts payable hereunder shall be payable in gross amounts (unless the Company determines that withholdings are required by law) and Advisor shall be solely responsible for taxes due as a result of such payments.

Equity:  

[Option 1:  Non-Qualified Stock Options]

Subject to the approval of the Company’s Board of Directors, Advisor shall be granted an option under the Company’s _______ Stock Incentive Plan, as amended (the “Plan”), to purchase up to [________] shares of the Company’s common stock, vesting in equal increments over one year on the day preceding each monthly anniversary of Advisor start date commencing [ ] and ending [ ], at an exercise price equal to the fair market value at the time the stock option is approved by the Board of Directors.  The stock option shall be subject to the terms of the Plan and a stock option agreement to be entered into between Advisor and the Company.  [Subject to the provisions of the Plan and notwithstanding the foregoing vesting schedule, the option will become exercisable with respect to 100% of the unvested shares underlying the option immediately prior to the consummation of a Change of Control (as defined below).  THIS IS OFTEN BUT NOT ALWAYS ADDED] In addition, in accordance with the terms of the stock option agreement, the Company shall retain a right of first refusal to purchase any shares issued upon exercise of the option that Advisor wishes to transfer to a third party.

OR

[Option 2:  Restricted Stock]

Subject to the approval of the Company’s Board of Directors, Advisor shall be granted [number of shares] shares of restricted common stock under the Company’s 2009 Stock Incentive Plan, as amended (the “Plan”), which shares shall vest in equal increments over one year on the day preceding each monthly anniversary of Advisor’s start date [commence date] and [ending date].  The restricted stock shall be subject to the terms of the Plan and a restricted stock agreement to be entered into between Advisor and the Company.  [Subject to the provisions of the Plan and notwithstanding the foregoing vesting schedule, 100% of the unvested shares of restricted stock shall vest immediately prior to the consummation of a Change of Control (as defined below). In addition, in accordance with the terms of the restricted stock agreement, the Company shall retain a right of first refusal to purchase any shares that Advisor wishes to transfer to a third party.

For purposes of this Agreement, “Change of Control” means the sale of all or substantially all of the capital stock (other than the sale of capital stock to a venture capitalist or other institutional investor pursuant to an equity financing of the Company), assets or business of the Company, or the merger or consolidation of the Company into or with another entity which results in the exchange of outstanding shares of the Company for securities or other consideration issued or paid or to be issued or paid by such other entity (other than a transaction in which all or substantially all of the individuals and entities who were beneficial owners of the Common Stock immediately prior to such transaction beneficially own, directly or indirectly, more than 50% of the outstanding securities entitled to vote generally in the election of directors of the resulting, surviving or acquiring entity following such transaction).

Reimbursement:  The Advisor shall be reimbursed for all reasonable business expenses (including air travel) incurred in connection with the services performed hereunder and upon compliance with the Company’s standard reimbursement policies.

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