CONSULTING AGREEMENT
Exhibit 10.1
THIS CONSULTING AGREEMENT (the “Agreement”) is entered into effective as of December
1st, 2009 (the “Effective Date”), by and between GENESIS FLUID SOLUTIONS HOLDINGS, INC., a Delaware
corporation (the “Company”), and SHARP RESOURCES, INC. (the “Consultant”).
RECITALS
A. Consultant has expertise in the area of the Company’s business and is willing to provide
consulting services to the Company.
B. The Company is willing to engage Consultant as an independent contractor, and not as an
employee, on the terms and conditions set forth herein.
AGREEMENT
In consideration of the foregoing and of the mutual promises set forth herein, and intending
to be legally bound, the parties hereto agree as follows:
1. Engagement. The Company hereby engages Consultant to render, as an independent
contractor, the consulting services described in Exhibit A hereto and such other services
as may be agreed to in writing by the Company and Consultant from time to time. Consultant hereby
accepts the engagement to provide consulting services to the Company on the terms and conditions
set forth herein. During the term of this Agreement, Xxxxxx Xxxxxx, the Vice President of
Consulting, shall perform the services on behalf of Consultant and shall personally serve as “Chief
Executive Officer” of the Company; and he shall devote such time, attention and energy to the
business and affairs of the Company as shall be necessary to perform the services specified in
Exhibit A hereto. Consultant shall report to the full Board of Directors.
2. Term. This Agreement will commence on the date first written above, and unless
earlier terminated in accordance with the provisions of Section 9, shall continue for a
period of two (2) months; provided however, that Consultant shall have the right to negotiate with
the Board of Directors of the Company for full-time employment status at any time during the
currency of this contract, and provided that the current contract may be extended at the option of
the Company pending agreement on full-time employment status.
3. Compensation.
3.1 Compensation. In consideration of the services to be performed by Consultant, the Company
agrees to pay Consultant in the manner and at the rates set forth in Exhibit A.
3.2 Expenses. Reasonable out-of-pocket expenses incurred by Consultant shall be reimbursed by
Company to Consultant. Such reimbursement shall be made in accordance with policies adopted by the
Company from time to time, including, without limitation, the submission of expense reports with
original receipts for such expenses.
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4. Confidential Information.
4.1 Definitions. For purposes of this Agreement, “Proprietary Information” means all
information and any idea whatever form, tangible or intangible, pertaining in any manner to the
business of the Company, or any of its affiliates, or its employees, clients, consultants, or
business associates, which was produced by any employee or consultant of the Company in the course
of his, her or its employment or consulting relationship, or otherwise produced or acquired by or
on behalf of the Company. All Proprietary Information not generally known outside of the Company’s
organization, and all Proprietary Information so known only through improper means, shall be deemed
“Confidential Information.” By way of example and without limiting the foregoing definition,
Proprietary and Confidential Information shall include, but not be limited to:
(a) formulas, research and development techniques, processes, trade secrets,
copyrights, copyright applications, computer programs, software, electronic codes, mask
works, inventions, innovations, patents, patent applications, patent licenses, discoveries,
improvements, data, know-how, formats, test results, and research projects;
(b) information about costs, profits, markets, sales, contracts and lists of customers,
and distributors;
(c) business, marketing, and strategic plans;
(d) forecasts, unpublished financial information, budgets, projections, and customer
identities, characteristics and agreements; and
(e) employee personnel files and compensation information.
Confidential Information is to be broadly defined, and includes all information that has or
could have commercial value or other utility in the business in which the Company is engaged or
contemplates engaging, and all information of which the unauthorized disclosure could be
detrimental to the interests of the Company, whether or not such information is identified as
Confidential Information by the Company.
4.2 Existence of Confidential Information. The Company owns and has developed and compiled,
and will develop and compile, certain trade secrets, proprietary techniques and other Confidential
Information which have great value to its business. This Confidential Information includes not
only information disclosed by the Company to Consultant, but also information developed or learned
by Consultant during the course of his relationship with the Company.
4.3 Protection of Confidential Information. Consultant will not, directly or indirectly, use,
make available, sell, disclose or otherwise communicate to any third party, other than in Xx.
Xxxxxx’x role as CEO (where he will be routinely required to disclose such information in the
ordinary course of performing his duties in such capacity), or other than connection with
Consultant’s assigned duties and for the benefit of the Company, any of the Company’s Confidential
Information, either during or after its relationship with the Company. Consultant acknowledges that
it is aware that the unauthorized disclosure of Confidential Information of the Company may be
highly prejudicial to its interests, an invasion of privacy, and an improper disclosure of trade
secrets.
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4.4 Delivery of Confidential Information. Upon request or when Consultant’s relationship with
the Company terminates, Consultant will immediately deliver to the Company all copies of any and
all materials and writings received from, created for, or belonging to the Company including, but
not limited to, those which relate to or contain Confidential Information.
4.5 Location and Reproduction. Consultant shall maintain at its workplace only such
Confidential Information as Consultant has a current “need to know.” Consultant shall return to
the appropriate person or location or otherwise properly dispose of Confidential Information once
that need to know no longer exists. Consultant shall not make copies of or otherwise reproduce
Confidential Information unless there is a legitimate business need of the Company for
reproduction.
4.6 Prior Actions and Knowledge. Consultant represents and warrants that from the time of its
first contact with the Company, Consultant has held in strict confidence all Confidential
Information and has not disclosed any Confidential Information, directly or indirectly, to anyone
outside the Company, or used, copied, published, or summarized any Confidential information, except
to the extent otherwise permitted in this Agreement.
4.7 Third-Party Information. Consultant acknowledges that the Company has received and in the
future will receive from third parties their confidential information subject to a duty on the
Company’s part to maintain the confidentiality of such information and to use it only for certain
limited purposes. Consultant agrees that it will at all times hold all such confidential
information in the strictest confidence and will not disclose or use it, except as necessary to
perform its obligations hereunder and as is consistent with the Company’s agreement with such third
parties.
4.8 Third Parties. Consultant represents that its relationship with the Company does not and
will not breach any agreements with or duties to a former employer or any other third party.
Consultant will not disclose to the Company or use on its behalf any confidential information
belonging to others and Consultant will not bring onto the premises of the Company any confidential
information belonging to any such party unless consented to in writing by such party.
4.9 Acknowledgment. Consultant acknowledges that there are no currently existing ideas,
processes, inventions, discoveries, marketing or business ideas or improvements which Consultant
desires to exclude from the operation of this Agreement, other than Consultant’s Proprietary
Management Techniques. To the best of Consultant’s knowledge, there is no other contract to assign
inventions, trademarks, copyrights, ideas, processes, discoveries or other intellectual property
that is now in existence between Consultant and any other person (including any business or
governmental entity).
5 No Use of Name. Consultant agrees that he shall not at any time use the Company’s
name or any the Company trademark(s) or trade name(s) in any advertising or publicity without the
prior written consent of the Company.
6. Injunctive Relief. Consultant acknowledges that failure to carry out any
obligation under this Agreement, or a breach by Consultant of any provision herein, will constitute
immediate and irreparable damage to the Company, which cannot be fully and adequately compensated
in money damages and which will warrant preliminary and other injunctive relief, an order for
specific performance, and other equitable relief. Consultant further agrees that no bond or other
security shall be required in obtaining such equitable relief and Consultant hereby consents to the
issuance of such injunction and to the ordering of specific performance. Consultant also
understands that other action may be taken and remedies enforced against Consultant
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7. Indemnification. Except as may be provided otherwise in the Indemnification
Agreement between Consultant and the Company, Consultant hereby indemnifies and agrees to defend
and hold harmless the Company from and against any and all claims, demands and actions, and any
liabilities, damages or expenses resulting therefrom, including court costs and reasonable
attorneys’ fees, arising out of or relating to the gross negligence, willful misconduct or fraud of
Consultant in performing services performed under this Agreement. Consultant’s obligations under
this Section 7 shall survive the termination, for any reason, of this Agreement.
8. Representations and Warranties. Consultant represents and warrants (i) that
Consultant has no obligations, legal or otherwise, inconsistent with the terms of this Agreement or
with Consultant’s undertaking this relationship with the Company, (ii) that the performance of the
services called for by this Agreement do not and will not violate any applicable law, rule or
regulation or any proprietary or other right of any third party, and (iii) that Consultant has not
entered into or will enter into any agreement (whether oral or written) in conflict with this
Agreement.
9. Termination.
9.1 Termination. The Consultant’s engagement with the Company pursuant to this Agreement
shall terminate:
| (a) | automatically upon notice for Cause (as defined
below); |
|
| (b) | automatically upon the death of
Consultant; or |
|
| (c) | upon expiration of the term of this
Agreement |
9.2 Definition. For Purposes of this Agreement, “Cause” shall include (i) the conviction of
the Consultant of a fraudulent act or a felony, (ii) willful misfeasance, illegal, dishonest or
grossly negligent conduct which constitutes a breach of the Consultant’s covenants and obligations
under this Agreement, or which involve funds or other assets of the Company, (iii) any conduct
which is likely to have a material adverse effect upon the goodwill or business position of the
Company, (iv) the Consultant’s failure to carry out his duties to the Company hereunder, or (v)
unsatisfactory work as determined by the Board of Directors of the Company.
9.3 Termination Obligations.
(a) Except as specifically provided otherwise in this Agreement, upon termination of this
Agreement, neither the Consultant nor the Company shall have any further obligations under this
Agreement, except as to liabilities accrued through the date of termination.
(b) Upon the termination of this Agreement or promptly upon the Company’s request, Consultant
shall surrender to the Company all equipment, tangible Proprietary Information, documents, books,
notebooks, records, reports, notes, memoranda, drawings, sketches, models, maps, contracts, lists,
computer disks (and other computer-generated files and data), any other data and records of any
kind, and copies thereof (collectively, “Company Records”), created on any medium and furnished to,
obtained by, or prepared by Consultant in the course of or incident to his relationship with the
Company, that are in Consultant’s possession or under its control.
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(c) Consultant’s representations, warranties, covenants and obligations contained in this
Agreement shall survive the termination of Consultant’s relationship with the Company.
(d) Following any termination of this Agreement, Consultant will fully cooperate with the
Company in all matters relating to Consultant’s continuing obligations under this Agreement.
(e) Consultant agrees and acknowledges that (i) the Confidential Information that the
Consultant has already received and will receive is valuable to the Company and that its protection
and maintenance constitutes a legitimate business interest of the Company, to be protected by the
non-competition restrictions set forth herein, (ii) the non-competition restrictions set forth
herein are reasonable and necessary and do not impose undue hardship or burdens on the Consultant,
(iii) the products and services developed or provided by the Company, its affiliates and/or its
clients or customers are or are intended to be sold, provided, licensed and/or distributed to
customers and clients in and throughout the United States (the “Territory”) (to the extent
the Company comes to operate, either directly or through the engagement of a distributor or joint
or co-venturer, or sell a significant amount of its products and services to customers located in
areas other than the United States during the term of this Agreement, the definition of Territory
shall be automatically expanded to cover such other areas), and (iv) the Territory, scope of
prohibited competition, and time duration set forth in the non-competition restrictions set forth
below are reasonable and necessary to maintain the value of the Confidential Information of, and to
protect the goodwill and other legitimate business interests of, the Company, its affiliates and/or
its clients or customers.
(f) Consultant hereby agrees and covenants that it shall not, without the prior written
consent of the Company, directly or indirectly, in any capacity whatsoever, including, without
limitation, as an employee, employer, consultant, principal, partner, shareholder, officer,
director or any other individual or representative capacity (other than a holder of less than two
percent (2%) of the outstanding voting shares of any publicly held company), or whether on
Consultant’s own behalf or on behalf of any other person or entity or otherwise howsoever, during
the term of this Agreement and thereafter to the extent described below, within the Territory:
(i) For a period of five (5) years from the date of termination, engage, own, manage,
operate, control, be employed by, consult for, participate in, or be connected in any manner
with the ownership, management, operation or control of any business in competition with the
business of the Company;
(ii) For a period of three (3) years from the date of termination, recruit, solicit or
hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the
Company to leave the employment (or independent contractor relationship) thereof, whether or
not any such employee or independent contractor is party to an employment agreement;
(iii) For a period of three (3) years from the date of termination, attempt in any
manner to solicit or accept from any customer of the Company, with whom the Company had
significant contact during Consultant’s employment by the Company (whether under this
Agreement or otherwise), business of the kind or competitive with the business done by the
Company with such customer or to persuade or attempt to persuade any such customer to cease
to do business or to reduce the amount of business which such customer has customarily done
or might do with the Company, or if any such customer elects to move its business to a
person other than the Company, provide any services (of the kind or competitive with the
business of the Company) for such customer, or have any discussions regarding any such service with
such customer, on behalf of such other person; or
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(iv) For a period of three (3) years from the date of termination, interfere with any
relationship, contractual or otherwise, between the Company and any other party, including,
without limitation, any supplier, distributor, co-venturer or joint venturer of the Company
to discontinue or reduce its business with the Company or otherwise interfere in any way
with the business of the Company.
(g) For purposes of Section 9.3(e) and 9.3(f), the term “Consultant” includes Xxxxxx Xxxxxx
personally.
10. Notices. Any notice or other communication which is required or permitted hereunder shall
be deemed to have been delivered and received on the day of (or, if not a business day, the first
business day after) its having been personally delivered or telecopied to the following address or
telecopy number, on the first business day after its having been sent by overnight delivery service
to the following address, or if sent by regular, registered or certified mail, when actually
received at the following address:
If to Company:
Genesis Fluid Solutions Holdings, Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000-X
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx, Member of the Board
Genesis Fluid Solutions Holdings, Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000-X
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx, Member of the Board
If to Consultant:
Sharp Resources, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000 0000
Sharp Resources, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000 0000
11. Attorney’s Fees. Should either party hereto, or any heir, personal representative,
successor or assign of either party hereto, resort to litigation to enforce this Agreement, the
party or parties prevailing in such litigation shall be entitled, in addition to such other relief
as may be granted, to recover its or their reasonable attorneys’ fees and costs in such litigation
from the party or parties against whom enforcement was sought.
12. Entire Agreement. This Agreement, and Exhibit A attached hereto, sets forth the
parties’ mutual rights and obligations with respect to the subject matter hereof. It is intended
to be the final, complete, and exclusive statement of the terms of the parties’ agreements
regarding these subjects. This Agreement supersedes all other prior and contemporaneous agreements
and statements on these subjects, and it may not be contradicted by evidence of any prior or
contemporaneous statements or agreements. To the extent that the practices, policies, or
procedures of the Company, now or in the future, apply to Consultant and are inconsistent with the
terms of this Agreement, the provisions of this Agreement shall control unless changed in writing
by the Company.
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13. Amendment. This Agreement may be amended only by a writing signed by Consultant and by
the Chairman of the Board of the Company.
14. Severability. If any term, provision, covenant or condition of this Agreement, or the
application thereof to any person, place or circumstance, shall be held by a court of competent
jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement and such term,
provision, covenant or condition as applied to other persons, places and circumstances shall remain
in full force and effect.
15. Rights Cumulative. The rights and remedies provided by this Agreement are cumulative, and
the exercise of any right or remedy by either party hereto (or by its successors), whether pursuant
to this Agreement, to any other agreement, or to law, shall not preclude or waive its right to
exercise any or all other rights and remedies.
16. Nonwaiver. No failure or neglect of either party hereto in any instance to exercise any
right, power or privilege hereunder or under law shall constitute a waiver of any other right,
power or privilege or of the same right, power or privilege in any other instance. All waivers by
either party hereto must be contained in a written instrument signed by the party to be charged
and, in the case of the Company, by an executive officer of the Company or other person duly
authorized by the Company.
17. Assignment. This Agreement may not be assigned by Consultant without the Company’s prior
written consent. This Agreement may be assigned by the Company in connection with a merger or sale
of all or substantially all of its assets, and in other instances with the Consultant’s consent
which consent shall not be unreasonably withheld or delayed.
18. Compliance with Law. In connection with his services rendered hereunder, Consultant
agrees to abide by all federal, state, and local laws, ordinances and regulations.
19. Independent Contractor. The relationship between Consultant and the Company is that of
independent contractor under a “work for hire” arrangement. All work product developed by
Consultant shall be deemed owned and assigned to Company, other than Consultant’s Proprietary
Management Techniques. This Agreement is not authority for Consultant to act for the Company as
its agent or make commitments for the Company; provided, however, it is acknowledged that Xx.
Xxxxxx, in his personal role as Chief Executive Officer, will have the authority to make
commitments for and to bind the Company to contracts, leases and other agreements. Consultant will
not be eligible for any employee benefits, nor will the Company make deductions from fees to
Consultant for taxes, insurance, bonds or the like. Consultant retains the discretion in
performing the tasks assigned, within the scope of work specified.
20. Taxes. Consultant agrees to pay all appropriate local, state and federal taxes.
21. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware, without regard to its conflicts of laws principles. Any claim,
action, suit or other proceeding initiated by either of the parties under or in connection with
this Agreement shall exclusively be asserted, brought, prosecuted and maintained in any federal or
state court in the State of Colorado, as the party bringing such action, suit or proceeding shall
elect, having jurisdiction over the subject matter thereof, and each of the parties hereby
irrevocably (i) submits to the jurisdiction of such courts, (ii) waives any and all rights to
object to the laying of venue in any such court, (iii) waives any and all rights to claim that such
court may be an inconvenient forum, and (iv) agrees that service of process on them in any such
action, suit or proceeding may be effected by the means by which notices may given to it under this
Agreement.
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22. Counterparts. This Agreement may be executed in any number of counterparts, each of which
as so executed shall be deemed to be an original, but all of which together shall constitute one
and the same agreement.
23. Acknowledgment. Consultant acknowledges that it has had the opportunity to consult legal
counsel in regard to this Agreement, that Consultant has read and understands this Agreement, that
Consultant is fully aware of its legal effect, and that Consultant has entered into it freely and
voluntarily and based on Consultant’s own judgment and not on any representations or promises other
than those contained in this Agreement.
In Witness Whereof, the parties hereto have caused this Consulting Agreement to be executed as of
the date first above written.
| COMPANY: | GENESIS FLUID SOLUTIONS HOLDINGS, INC. |
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| By: | /s/ Xxxxxxx Xxxxxx | |||
| Xxxxxxx Xxxxxx, Chairman of the Board | ||||
| CONSULTANT: | SHARP RESOURCES, INC. |
|||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Xxxxxx Xxxxxx, Vice-President | ||||
| ACCEPTED AND AGREED this 14th day of December, 2009 |
||||
| /s/ Xxxxxx Xxxxxx | ||||
| Xxxxxx Xxxxxx, in his individual capacity | ||||
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APPENDIX A
| 1. | Description of Services to be Rendered: |
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Xx. Xxxxxx will serve individually as “Chief Executive Officer” of the Company. In
such capacity, Consultant, acting through Xx. Xxxxxx, shall have the following
responsibilities and duties: |
| • | Strategic Plan: To assist the Company in strategic planning, in
developing its customer base, and by meeting with senior executives at targeted
entities with the intent to develop interest within these organizations to use
the Company’s technology and services. The targeted customers will include, but
not be limited to, entities operating in the dewatering, major construction,
environmental remediation, public utility and power generation industry and
others. |
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| • | Business Model: To assist the Company in establishing a consistent
operational and business focus, to include but not be limited to, primary target
market sales plans, operational processes, product integrity and support
processes, sound business practices, the corporate handbook, corporate support
services, policies and others. |
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| • | Team Members: To assist the Company in evaluating the human resource
needs of the Company, modifying or terminating existing employees and/or
contracts, identifying and hiring new employees and developing consulting support
agreements if necessary with key providers, marketing support consultants and
project related staff. |
| 2. | Time Devoted to Duties: Full Time. |
|
| 3. | Compensation: |
| • | Initial Per Diem: The Company initially will pay Consultant the
amount of $875 per day. Invoices shall be submitted no more than twice per month
and payment will be made no more than ten (10) days from receipt of invoice. |
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| • | Expense Reimbursement: Consultant’s expenses shall be reimbursed by
the Company in accordance with the provisions of Section 3.2 of this
Agreement. |
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