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Exhibit 10.3
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this " Agreement "), dated as
of December 19, 2008 is between PetroAlgae Inc., a Delaware
corporation (the " Company "), and Nationwide Solutions
Inc., an Ontario, Canada corporation (the " Consultant
").
W I T N E S S E T H :
WHEREAS, the Company desires to obtain the services of the
Consultant on the terms and conditions set forth in this Agreement;
and
WHEREAS, the Consultant is willing to perform such services on
such terms and conditions.
NOW, THEREFORE, in consideration of these premises and the
mutual agreements hereinafter set forth, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Services . The Consultant shall, while at all times
reporting to the board of directors of the Company (the "
Board "), provide such business consulting and other
services as detailed on Exhibit A hereto and as the Board
may, from time to time, designate for the Company and/or its
subsidiaries and other affiliates (collectively, the " Company
Group ").
The Consultant shall devote such time and attention as necessary
to properly perform its duties and responsibilities hereunder. The
Company hereby acknowledges and recognizes that the Consultant has
other business interests, relationships with and engagements for
other clients (collectively "Other Clients") and may continue to
have and to service Other Clients concurrently with the performance
of this Agreement.
2. Independent Contractor . It is the intention and
agreement of the parties that the Consultant shall be retained by
the Company pursuant to this Agreement, and shall perform its
duties and all services hereunder, as an independent contractor.
Nothing herein shall be deemed to create a partnership, joint
venture or employment relationship between the Consultant and the
Company. The Consultant hereby agrees to perform its services
hereunder based on its independent authority and business judgment,
and in no case shall Consultant act (or be deemed to be acting) in
a manner, express or implied, or on behalf of or as an agent of
Lender (defined in Section 9 below) or its affiliates.
3. Expenses of the Company . During the Term (as defined
below), the Company shall reimburse the Consultant for all
reasonable and necessary out-of-pocket business expenses incurred
by the Consultant in connection with the performance of the
Consultant’s services hereunder. Such reimbursement shall be
made by the Company monthly, after receipt of an invoice from the
Consultant accompanied by receipts or other satisfactory
documentation of such expenses.
4. Consulting Fee . The Company shall pay to the
Consultant and the Consultant shall accept, as compensation for the
services rendered to the Company hereunder, (i) on the date
hereof, 1,000,000 shares of Common Stock and (ii) Expenses as
determined by the
Consultant and agreed by the Company. Payment of
the Consulting Fee for any partial month shall be pro-rated based
upon the number of days in such month in respect of which the
Consultant is engaged by the Company and the Consulting Fee is
payable.
5. Term . The term of this Agreement (the " Initial
Term ") shall commence on the date hereof and shall continue in
full force and effect until December 19, 2010 unless extended
by mutual agreement of the parties (the Initial Term, as so
extended, is herein referred to as the " Term ").
Notwithstanding the foregoing provisions of this Section 5,
the Company or the Consultant may terminate the Consultant’s
engagement at any time during the Term in accordance with
Section 6.
6. Termination of Engagement . The engagement of the
Consultant hereunder and this Agreement may be terminated by either
party, with or without cause, at any time during the Term upon
written notice to the other party. Except as set forth in
Section 7(A), the termination of the Consultant pursuant to
this Section 6 shall not result in any penalty or fee payable
to the Consultant
7. Action upon Termination .
(A) The Company shall, forthwith upon any termination of this
Agreement, pay to the Consultant all amounts payable to the
Consultant hereunder to and including the day immediately preceding
the effective date of termination of this Agreement.
(B) The Consultant shall, forthwith upon any termination of this
Agreement, deliver to the Board and where applicable transfer into
the name of the Company (or such person as the Board may direct in
writing) all property, documents, books and records of the Company
in the name of or in the custody of the Consultant.
8. Confidential Material . The Consultant shall, during
the Term and for a period of three years thereafter, not disclose
confidential material (as defined below) and shall take all
reasonable measures to maintain the confidentiality of the
confidential material, except as required in the performance of the
Consultant’s duties and responsibilities under this
Agreement. The Consultant agrees that all confidential material,
together with all notes and records of the Consultant relating
thereto, and all copies or facsimiles thereof in the possession or
control of the Consultant (whether made by the foregoing or other
means) are the exclusive property of the Company. The Consultant
shall not in any manner use any confidential material, or any other
property of the Company, in any way which is or could reasonably be
expected to be materially detrimental to the Company. Promptly upon
the request of the Company, the Consultant shall deliver to the
Board or a person designated by the Board or destroy all
confidential material in the possession of the Consultant, provided
that the Consultant may retain a file copy thereof.
For the purposes hereof, the term " confidential material
" shall mean all information and/or material acquired in the course
of the engagement of the Consultant hereunder concerning the
projects, activities, business or affairs (financial or otherwise)
of the Company or any other member of the Company Group, as the
case may be, or any of the customers or suppliers of the Company or
any other member of the Company Group, whether or
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not provided by or on behalf of the Company,
including, without limitation, information concerning the past,
present or future customers, suppliers, business, proprietary
matters, trade secrets, products or projects, sales and other
financial information and development projects or marketing plans
of the Company or any of the other members of the Company Group;
provided, however, that the term "confidential material" shall not
include information which (i) becomes generally available to
the public other than as a result of a disclosure by the Consultant
(but only after it enters the public domain), (ii) was
available to the Consultant on a non confidential basis prior to
the engagement of the Consultant hereunder, (iii) becomes
available to the Consultant on a non confidential basis from a
source other than the Company or any other member of the Company
Group or any of their respective agents, customers, suppliers or
clients; provided that the Consultant does not know that such
source is bound by a confidentiality obligation to the Company or
any other member of the Company Group or any of such agents,
customers, suppliers or clients, or (iv) information which is
independently developed by the Consultant without use of
confidential material of the Company or any of its
affiliates.
In the event that the Consultant is required in the context of
any civil or criminal proceeding or regulatory action or
investigation, by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or
similar process, to disclose any confidential material, the
Consultant shall provide the Company with prompt notice thereof,
including copies of all relevant documents and information, so that
the Company may seek an appropriate protective order and/or waive
compliance by the Consultant with the provisions hereof; provided,
however, that if in the absence of a protective order or the
receipt of such a waiver, the Consultant is compelled to disclose
confidential material not otherwise disclosable hereunder to any
legislative, judicial or regulatory body, agency or authority, or
else be exposed to liability for contempt, fine or penalty or to
other censure, such confidential material may be so disclosed,
provided that the Consultant has provided the Company with prior
written notice and copies of all relevant documents.
9. Disclosures and Acknowledgments .
(A) Any engagements or relationships between Consultant and
Other Clients (including the Company’s lender (the "Lender"))
of which Consultant is aware, are generally set forth on Schedule
9(A) attached hereto. While not acknowledging that such engagements
or relationships constitute a conflict of interest, during the
Term, Consultant shall timely notify the Company if it learns of
any conflicts not previously known or which may arise in the future
and which may reasonably be expected to affect or influence the
performance of Consultant’s services hereunder.
(B) Consultant has previously been and continues to be retained
by Other Clients. For many or all Other Clients, including Lender,
Consultant has confidentiality obligations which require Consultant
to maintain the confidentiality of information pertaining to such
Other Clients. Consultant covenants and warrants that it shall not
knowingly violate such confidentiality restrictions in the
performance of its duties hereunder. The Company covenants and
warrants that it shall not expect or demand that the Consultant
violate or attempt to violate such confidentiality
restrictions.
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(C) Consultant covenants and warrants that
Consultant’s engagements by Other Clients do not prohibit or
restrict its ability to enter into this Agreement.
(D) Consultant covenants and warrants that it has not acted at
any time, nor will it act d
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