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Exhibit
10.22
CONSULTING
AGREEMENT
This CONSULTING AGREEMENT
(the “ Agreement ”), is made and entered
into as of the 18 th day
of April, 2008 (the “ Effective Date ”),
by and between ClearPoint Resources, Inc., a Delaware corporation
(the “ Company ”) and Chris Ferguson, an
adult individual (the “ Consultant
”).
B A C K G R O U N
D
WHEREAS, on February 28,
2008, Consultant resigned as the President, Secretary and a
director of the Company, its parent and all
subsidiaries;
WHEREAS, on February 28,
2008, the Company and Consultant entered into a Separation of
Employment Agreement and General Release (the “
Separation Agreement ”) which, among other
things, provided for a consulting agreement between the Company and
Consultant; and
WHEREAS, consistent with the
Separation Agreement, the Company desires to engage and retain
Consultant to provide certain consulting services and Consultant is
willing to provide the consulting services to the Company, subject
to the terms and conditions set forth herein.
NOW, THEREFORE, in
consideration of the foregoing premises and the mutual covenants,
promises and agreements herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the
Company and Consultant agree as follows:
Section 1. Services
to be Provided; Consideration; Expenses .
a. Services to be
Provided . Subject to the terms and conditions set forth
herein, the Company hereby engages Consultant and Consultant hereby
accepts the engagement, to consult with the Company and in
particular Consultant shall (i) cooperate fully with any
reasonable request of the Company to provide truthful information
and/or materials to the Company, (ii) provide the Company with
litigation support in accordance with Section 1(b) below,
(iii) assist the Company in matters relating to the
performance of Consultant’s former duties with the Company
and its parent and/or subsidiary companies and affiliates,
(iv) work with the Company to effectively transition
Consultant’s former duties and responsibilities with the
Company and its parent and/or subsidiary companies and affiliates
(the “ Consulting Services ”). Consultant
acknowledges and agrees that he shall perform the Consulting
Services in a manner consistent with instructions received from, or
requirements established by, the Company. Consultant agrees to
devote his best efforts and such time as is necessary to provide
the Consulting Services in a professional manner, consistent with
industry standards. Consultant is not authorized to make any
representation, contract or commitment on behalf of the
Company.
b. Litigation Support
. In the event and for so long as the Company and its parent and/or
subsidiary companies are actively prosecuting, contesting or
defending any action, suit, lawsuit, proceeding, hearing,
investigation, charge, complaint, claim, or demand
(i) existing as of the date hereof, or (ii) in connection
with any fact, situation, circumstance, status, condition,
activity, practice, plan,
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occurrence, event, incident, action,
failure to act, or transaction occurring or existing on or prior to
the date hereof, Consultant shall (x) cooperate with the
Company and its parent and/or subsidiary companies and its or their
respective counsel in the prosecution, contesting or defending,
(y) make himself reasonably available, and (z) provide
such testimony as shall be reasonably necessary in connection with
the prosecution, contesting or defending, all at the sole cost and
expense of the Company.
c. Consideration . In
consideration of the Consulting Services to be provided hereunder,
the Company hereby agrees to pay Consultant Twenty-Five Thousand
U.S. Dollars (US$25,000.00) per month (the “ Consulting
Fees ”) for the Term. The Consulting Fees shall be
due on the first day of each calendar month (unless such day is a
Saturday, Sunday or holiday, in which case the Consulting Fees
shall be due on the next day of such calendar month that is not a
Saturday, Sunday or holiday). The Consulting Fee shall cease prior
to the expiration of the Term if Optos Capital, LLC’s
(“ Optos ”) temporary staffing services
business starts to generate cash flow and is able to pay Consultant
an equivalent salary. In addition, if Optos is able to pay any part
of Consultant’s salary during the Term, then such amount will
be deducted from the monthly Consulting Fees paid by the Company
hereunder.
d. Expenses . Except
as otherwise expressly provided for herein, the Company shall not
be obligated to reimburse Consultant for any out-of-pocket expenses
incurred by Consultant in providing the Consulting Services, except
for those expenses which are approved in advance and in writing by
the Company. Any expenses for which reimbursement is authorized
shall be reimbursed only upon the presentation of documentation
reasonably satisfactory to the Company.
Section 2. Term;
Termination .
a. Term . The term of
this Agreement shall commence on the Effective Date and continue,
unless terminated earlier as provided herein, until March 1,
2009 (the “ Term ”).
b. Termination . The
Company shall have the right to terminate this Agreement
immediately and without prior notice (A) for Cause,
(B) if Consultant, due to illness, physical or mental
disability or other incapacity, fails to perform, for a period of
twenty (20) consecutive days or for thirty (30) days
during any six (6) month period, the principal duties required
by this Agreement, or (C) upon Consultant’s death. For
purposes of this Agreement, the term “ Cause
” shall mean the following: (1) conviction of Consultant
for any felony, fraud, embezzlement or crime of moral turpitude, or
(2) the breach of any provision of this Agreement or of
Consultant’s continuing obligations under that Employment
Agreement, dated February 12, 2007 or of the Separation
Agreement, which breach shall remain uncured for five
(5) calendar days after written notice of such failure shall
have been given to Consultant.
c. Duties Upon Expiration
or Termination . Upon expiration or termination of this
Agreement pursuant to Sections 2(a) or 2(b), Consultant shall
(i) deliver to the Company all work product developed or
created as a result of the Consulting Services performed as of the
date of expiration or termination of this Agreement,
(ii) deliver to the Company all diskettes, CD-Rom or
other
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media containing any Confidential
Information (as defined below) and all other physical copies of the
Confidential Information, (iii) destroy the Confidential
Information contained in any computer memory or data storage
apparatus, and (iv) certify in writing to the Company within
one week after the expiration or termination of this Agreement that
he has delivered to the Company, or destroyed, the Confidential
Information and all copies of the Confidential
Information.
d. Effect of Expiration or
Termination . Upon termination of this Agreement, neither
Consultant nor the Company shall have any further rights or
obligations hereunder except for (i) Company’s
obligation to pay Consultant the Consulting Fees due and payable as
of the date of expiration or termination of this Agreement, and
(ii) the parties’ respective obligations under Sections
2 through and including 12 hereof.
Section 3.
Independent Contractor Status . The relationship of
Consultant to the Company shall be that of an independent
contractor, and nothing in this Agreement is intended to, or should
be construed to, create a partnership, agency, joint venture or
employment relationship. Consultant agrees that he shall be solely
responsible for paying any and all federal, state and local taxes,
as well as any Social Security tax, which may become due and
payable as a result of the compensation to be received by
Consultant from the Company for performing any Consulting Services
hereunder. No part of Consultant’s compensation will be
subject to withholding by Company for the payment of any social
security, federal, state or any other employee payroll taxes.
Company will regularly report amounts paid to Consultant by filing
Form 1099-MISC with the Internal Revenue Service as required by
law. Consultant shall, at his sole expense, reimburse, indemnify,
defend and hold harmless the Company, its parent and subsidiary
companies and their respective directors, officers, employees,
consultants, shareholders, representatives, agents and successors
and assigns (each, a “ Company Indemnified
Party ”) from any loss, liability, claim, suit, cause
of action, damage, cost or expense (including, without limitation,
reasonably attorneys’ fees) and other amounts (collectively,
“ Liabilities ”) which any Company
Indemnified Party may suffer or incur by reason of
Consultant’s failure to pay any taxes which may become
payable as a result of the compensation to be received by the
Consultant from the Company for performing any Consulting Services
hereunder.
Section 4. Ownership
of Works; Infringement Indemnity .
a. Assignment of Works
. Consultant agrees to promptly make full written disclosure to the
Company, to hold in trust for the sole right and benefit of the
Company, and hereby assigns, transfers, grants and conveys to the
Company, all of his worldwide right, title, ownership and interest
in and to any and all designs, trademarks, inventions,
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