Clear Skies Group, Inc. CONTRACT FOR CONSULTING SERVICES
Exhibit 10.30
Clear Skies Group, Inc.
Name of Consultant:
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Xxxxxx Xxxxxx | Dated as of: | November 1, 2007 | |||
Address:
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000 Xxxxxx Xxxxx Xxx. | |||||
| Xxxxxxxxx, XX 00000 | ||||||
Daytime Telephone #:
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000-000-0000 | |||||
Clear Skies Group, Inc., a New York corporation (the “Company”), having an office at 0000 Xxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxx, XX, 00000, and Xxxxxx Xxxxxx, an individual with the business
address set forth above (“Consultant”), hereby agree as follows:
1. Services and Fees: The Description of Work, which is Exhibit A to this Contract for
Consulting Services (“Contract”), describes the services that Consultant will perform and the fees
which the Company will pay in return. If the Company and Consultant anticipate working beyond the
scope of this agreement, additional exhibits may be made a part of this contract for such
additional projects, although each additional exhibit must be approved by each party by signature
on each exhibit. Consultant is an independent contractor, not an employee of the Company. No
employment relationship is created by this Contract. The parties acknowledge that the Company is
contemplating a merger with a wholly owned subsidiary of a yet to be identified publicly traded
company (“Pubco”) and that, as used herein, the “Company” includes Pubco following such merger.
2. Term: Consultant will begin work as of November 1, 2007 and, unless terminated sooner,
the Contract will end November 1, 2008 (such period, the “Term”).
3. Work: The scope of work shall be found in the Description of Work in Exhibit A.
4. Relationship of Parties:
(a) Consultant, as used in this Contract, means Xxxxxx Xxxxxx in his individual capacity.
(b) Consultant shall retain independent professional status throughout this Contract and shall
use its own discretion in performing the tasks assigned.
(c) Consultant has never been an employee of the Company and, in any case, is ineligible for
any of the Company’s employee benefits. As Consultant is not a Company employee, Consultant is
responsible for paying all required state and federal taxes.
(d) The Company shall determine the method, details and means of performing the services
hereunder. Consultant shall remain responsible for performing all tasks contemplated by this
Contract.
(e) Consultant shall perform the services required by this Contract at any place or location
and at such times as Consultant and the Company shall reasonably determine. The Company and
Consultant shall reasonably cooperate to make facilities available to Consultant; in no event shall
the Company’s providing such facilities be used as evidence of an employer/employee relationship.
5. Indemnification: Consultant agrees to be responsible for its own actions. The Company
agrees to be responsible for its own actions. Each of the Company and Consultant (in such capacity,
the “Indemnifying Party”) agrees to indemnify and hold harmless the other party, together with such
other party’s directors, officers, agents and employees (in such capacity, collectively, the
“Indemnified Parties”) from and against any and all claims, causes of action, liabilities,
lawsuits, demands and damages (collectively, “Claims”), including without limitation, any and all
court costs and reasonable attorney’s fees, in any way related to or arising out of or in
connection with this Agreement, including without limitation (i) any negligent act, omission, or
willful misconduct of the Indemnifying Party in the performance of this Contract and (ii) the
Indemnifying Party’s failure to comply with federal, state or local law; provided, however, that
the indemnification provided for in this Section 5 shall not apply to the extent that a Claim is
caused by the Indemnified Parties’ gross negligence or willful misconduct or other material breach
hereof.
6. Confidentiality:
(a) Consultant agrees not to disclose any Clear Skies, Inc Confidential Information and to
take all reasonable precautions to prevent its unauthorized dissemination, both during and after
the Term.
(b) Consultant (i) shall use the Confidential Information solely for the purpose of performing
its consulting services to the Company under this Contract, (ii) shall keep the Confidential
Information confidential, and (iii) shall not disclose or use for purposes other than performing
its consulting services hereunder any of the Confidential Information in any manner whatsoever. In
particular, without limitation, Consultant shall maintain the Confidential Information in
confidence and limit its use to the purposes contemplated by this Contract using at least the same
degree of care as it employs in maintaining as secret its own trade secret, proprietary and
confidential information, but always at least a reasonable degree of care.
(c) Each of the Company and Consultant agrees to keep the terms of this Contract confidential,
except as may be required by law or necessary or appropriate in connection with any due diligence
production or similar exercise where the recipient of such information has entered into a
confidentiality agreement restricting the further disclosure or misuse of such information.
(d) In the event that Consultant is requested or required (by oral questions, interrogatories,
requests for information or documents pursuant to legal proceedings, subpoena, civil investigative
demand or other similar process) to disclose any of the Confidential Information, Consultant shall
provide the Company with prompt written notice of any such request or requirement so that the
Company may seek a protective order or other appropriate remedy and/or waive compliance with the
provisions of this Contract. If, in the
absence of a protective order or other remedy or the receipt of a waiver by the Company,
Consultant is nonetheless, upon the advice of counsel, required to disclose the Confidential
Information to any tribunal or stand liable for contempt or suffer other censure or penalty, then
Consultant may, without liability hereunder, disclose to such tribunal only that portion of the
Confidential Information which such counsel advises Consultant that it is required to disclose;
provided, that Consultant exercises its best efforts to preserve the confidentiality of the
Confidential Information, including, without limitation, by cooperating with the Company to obtain
an appropriate protective order or other reliable assurance that confidential treatment will be
accorded the Confidential Information by such tribunal.
(e) As used in this Contract, “Confidential Information” means all nonpublic information
concerning the Company’s business or affairs, financial condition, operations, assets and
liabilities, and other matters, including information relating to the research, development,
products, methods of manufacture, trade secrets, business plans, customers, finances, and personnel
data. “Confidential Information” does not include information which (i) is or becomes generally
available to the public other than as a result of a breach of this Contract, (ii) was within the
possession of Consultant prior to its being furnished to Consultant by or on behalf of the Company,
provided that the source of such information was not bound by a confidentiality agreement with or
other contractual, legal or fiduciary obligation of confidentiality to the Company or any other
party with respect to such information, (iii) is or becomes available to Consultant on a
non-confidential basis from a source other than the Company, provided that such source was not
bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of
confidentiality to the Company or any other party with respect to such information, or (iv) is
disclosed by Consultant with the Company’s prior written approval..
(f) All Confidential Information remains the property of the Company and no license or other
rights in the Confidential Information is granted hereby. All information is provided “AS IS” and
without any warranty, express, implied, or otherwise, regarding its accuracy or completeness.
Further, upon the Company’s written request, Consultant agrees to return to the Company all
Confidential Information.
(g) Consultant acknowledges that it is aware that the United States securities laws prohibit
any person who has material, non-public information from purchasing or selling securities (and
options, warrants and rights relating thereto) on the basis of such information and from
communicating such information to any other person under circumstances in which it is reasonably
foreseeable that such person is likely to purchase or sell such securities.
7. No Conflict: Consultant represents and warrants that its performance of this Contract
will not conflict with any other contract to which Consultant is bound, and while working on this
Contract, Consultant will not engage in any such consulting services or enter into any Contract
that would materially interfere with the commitment of time and energy required by Consultant to
timely complete Consultant’s obligations under this Contract. The parties acknowledge that
Consultant is performing certain consulting services for Akeena Solar, Inc. (“Akeena”), a direct
competitor of the Company. Nothing contained in this Section 7 shall be construed as modifying any
of Consultant’s obligations under the other provisions of this Contract. Without limiting the
foregoing, Consultant represents, warrants and covenants
that, in performing his duties under this Contract, he will not breach any agreement with, or other
obligation owed to, Akeena.
8. Miscellaneous:
(a) Assignment. Consultant may not assign or delegate its rights or obligations under this
Contract without the Company’s prior written consent.
(b) Governing Law. This Contract shall be deemed made in New York. This Contract and any
controversies arising from, or relating to performance under, this Contract shall be governed by
and construed in accordance with the internal laws of the State of New York, applicable to
contracts made in, and to be wholly performed within, such State, without giving effect to such
State’s principles of conflicts of laws.
(c) Choice of Venue. Any lawsuits with respect to, in connection with, or arising out of,
this Contract shall be brought in a federal or state court sitting in the State, City and County of
New York, having jurisdiction, and each party hereto hereby irrevocably consents to the personal
jurisdiction and venue of any such court as the sole and exclusive forum for the resolution of any
suit, action or proceeding by the parties arising out of or related to this agreement and the
transactions contemplated herein. The Company and Consultant hereby irrevocably consent to the
service of process of any of the aforementioned courts in any such suit, action or proceeding by
mailing of copies thereof by registered or certified mail, postage prepaid, to each of them at its
address set forth above, such service to become effective ten days after such mailing.
(d) No Jury Trial. EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVES ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING OUT OF OR IN
CONNECTION WITH THIS CONTRACT AND THE TRANSACTIONS CONTEMPLATED HEREBY.
(e) Severability. If any provision of this Contract is found by a court of competent
jurisdiction to be unenforceable for any reason, the remainder of this Contract shall continue in
full force and effect.
(f) Damages Insufficient. The parties understand and agree that money damages would not be a
sufficient remedy for any breach of Section 6 of this Contract and that the enforcing party shall
be entitled to equitable relief, including injunction and specific performance, as a remedy for any
such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of Section
6 of this Contract but shall be in addition to all other remedies available at law or equity.
(g) Survival of Terms. The provisions of paragraphs 5, 6, 7, and 8, hereof shall survive
termination of this Contract.
(h) Complete Understanding; Modification. This Contract and the attached exhibit or exhibits
constitute the full and complete understanding and Contract of the parties relating to the subject
matter hereof and supersede all prior understandings and Contracts
relating to such subject matter. Any waiver, modification, or amendment of any provision of
this Contract shall be effective only if in writing and signed by both parties. The provisions of
this Contract shall prevail over any conflicting provisions in a purchase order, invoice,
acceptance notice or other document. Each party understands and agrees that no failure or delay by
the other in exercising any right, power or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise thereof preclude any other or future exercise thereof or
the exercise of any other right, power or privilege hereunder.
(i) Signature. This Contract may be executed in several counterparts, each of which will be
deemed to be an original, and each of which alone and all of which together, shall constitute one
and the same instrument, but in making proof of this Contract it shall not be necessary to produce
or account for each copy of any counterpart other than the counterpart signed by the party against
whom this Contract is to be enforced. This Contract may be transmitted by facsimile, and it is the
intent of the parties for the facsimile (or a photocopy thereof) of any autograph printed by a
receiving facsimile machine to be an original signature and for the facsimile (or a photocopy
thereof) and any complete photocopy of the Contract to be deemed an original counterpart.
(j) Limitation of Liability. Neither party shall under any circumstances be liable for any
consequential, indirect, special, incidental or exemplary damages, including without limitation,
any toss of revenues, profits, or business or other economic loss arising out of or in connection
with the services provided hereunder. Consultant’s liability to the Company for any breach of this
Contract, other than a breach of Section 6 or Section 7 hereof, shall be limited to the value of
Consultant’s compensation under this Contract. Similarly, the Company’s liability shall be limited
to its contractual obligation under this agreement.
[Signature page follows immediately]
IN WITNESS WHEREOF, each of the undersigned has caused this Contract for Consulting Services
to be executed on its behalf as of the date first above written.
| CLEAR SKIES GROUP, INC. | CONSULTANT | |||||
By:
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/s/ Xxxx X. Xxxxx | /s/ Xxxxxx Xxxxxx | ||||
| signature | Xxxxxx Xxxxxx | |||||
Name:
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XXXX X. XXXXX | |||||
Title:
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CEO | |||||
EXHIBIT A
DESCRIPTION OF WORK
(Consulting Services between Clear Skies Group, Inc. and/or a publicly traded company that will acquire Clear Skies Group, Inc. (collectively, the “Company”) pursuant to a reverse merger transaction (the “Merger”) and Xxxxxx Xxxxxx, Consultant.)
| 1. | Services to be provided: Consultant shall render such services to the Company as may be necessary to complete in a professional manner the project described as follows: |
| a) | Help in defining and communication the Company message | |
| b) | Identification of Strategic Growth Areas | |
| c) | Identification of Potential Merger and acquisition candidates. | |
| d) | Identify Potential Exit Strategies | |
| e) | Help introduce the Company to potential business development partners | |
| f) | Help with due diligence and negotiations with potential M & A candidates. | |
| g) | Introduce the Company to potential Capital partners | |
| h) | Help in defining marketing and sales opportunities |
| 2. | Compensation: |
| i) | Immediately upon the execution of the Contract of which the Exhibit A is a part, Consultant shall be entitled to receive warrants to purchase 500,000 shares of the Company immediately following the Merger. | |
| j) | Warrants shall have a strike price of .50 per share. | |
| k) | Warrants shall be in effect for a period of three years. | |
| l) | Shares underlying the warrants shall be included the Company’s resale registration statement filed in connection with the PIPE transaction dosing simultaneously with the Merger. | |
| m) | Warrants shall be either cashless or exercised at the option of the Consultant. |
| 3. | Expenses: Although the above fees constitute Consultant’s entire remuneration for the services under this Contract, Consultant will be reimbursed for any expenses incurred in connection with this Contract with prior approval of the Company. If a change in the scope of the work results in a material increase or decrease in the cost or time for completion of the services, the fees and schedule may, upon the mutual written agreement of the parties, be renegotiated. | |
| 4. | It is understood that should the contemplated Merger not take place, all obligations under this Contract, other than obligations under Sections 5, 6, 7 and 8 of the Contract (which shall survive any termination of the Contract), shall be null and void. | |
| CLEAR SKIES GROUP, INC | CONSULTANT | ||
| By: |
Xxxxxx Xxxxxx |
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| Name: | |
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| Title: | |||
