Exhibit 10.22
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made and is effective this
July 15, 2004 (the "Effective Date") by and between InteSec Group LLC, a New
Jersey limited liability company, P. X. Xxx 000, Xxxxxxxxx, Xxx Xxxxxx 00000
(the "Consultant") and Sulphco, Inc., a Nevada corporation with offices at 000
Xxxxx Xxxxxxx Xxxxx, Xxxxxx, XX 00000(xxx "Company").
Now, therefore, Consultant and Company agree as follows:
1. ENGAGEMENT.
Company hereby engages Consultant, and Consultant accepts such engagement, to
provide the following services ("Services") to Company pursuant to this
Agreement in connection with Company's efforts to enhance its business with
government customers through the receipt of cash either from a grant awarded by
a government agency or from a congressional plus-up:
o Marketing Consultation Services for the period of the period of the
Term (as defined below). These Services will include the following
specified activities:
o Provide support for the Company in designing a federal
marketing program.
o Provide support in marketing the Company's concepts to listed
federal, state and local government customers and others as
agreed.
o Assist in identifying methods for Company to enhance its
prospects for Congressional and federal agency support.
o Gather proposed congressional and state information.
o Create, in the government space, product and brand recognition
and an awareness of Sulphco, Inc.
o Provide support in developing federal government corporate
relationships.
o Provide strategy and program development with respect to
gaining federal grants and, government support for use of
Sulphco products and services.
o Provide grant bid and proposal strategy support.
o Provide grant and bid development support.
o Provide advice regarding grant or contract negotiation
matters.
o Provide support for grant or contract management activities.
o Provide support for the development of equipment, services or
technology proposals.
o Provide support for the development of "white papers" and
technology status reviews.
2. TERM.
Consultant shall provide Services hereunder to Company for a term of one (1)
year, commencing on the Effective Date (the "Term"), unless sooner terminated as
provided herein.
//
//
//
//
3. PLACE OF WORK.
Consultant shall perform Services primarily at Consultant's facilities or while
traveling away from those facilities, but will, upon request, provide the
Services at Company offices or such other places as reasonably requested by
Company as appropriate for the performance of particular Services. Company will
reimburse pre-approved expenses associated with Consultant travel as set forth
in Section 5.G.
4. TIME.
Consultant's organization, daily schedule and hours worked under this Agreement
on a given day shall generally be subject to Consultant's discretion, provided
that Consultant and Company anticipate that Consultant shall work on average
approximately 40 hours per month in the performance of Services pursuant to this
Agreement. Company relies upon Consultant to devote sufficient time as is
reasonably necessary to fulfill the spirit and purpose of this Agreement.
5. COMPENSATION AND PAYMENT.
Subject to the terms and conditions of this Agreement, Company shall pay
Consultant, in full and complete satisfaction of all of the Services performed
by Consultant, as follows:
A. STOCK PAYMENT. Within ten (10) days of the required approval by
SulphCo's board of this Agreement, the Company shall pay Consultant a total of
forty-five thousand (45,000) shares of SulphCo common stock.
B. REGISTRATION RIGHTS AGREEMENT. The Company and Consultant shall
execute a piggyback Registration Rights Agreement ("Rights Agreement") in form
and substance reasonably satisfactory to Company. Company and Consultant agree
to use their respective best efforts to consummate the Rights Agreement within
ten (10) days after the execution and delivery of this Agreement.
C. COMMISSION PAYMENTS. In addition to the payments set forth above,
and except as otherwise prohibited by law, Consultant shall be eligible to
receive certain cash payments ("Commissions") upon the Company's receipt of
Grants or Congressional Plus-Ups (a "Sale") from a mutually agreed governmental
entity (an "Assigned Account") which results in Actual Cash Collections to the
Company, as further set forth herein. Assigned Accounts are those named Federal,
state and local agencies and departments which are listed in Attachment 1. The
list may be updated from time to time by the mutual agreement of the parties.
For the purposes of this Section, a Sale is made only upon the delivery or
execution of Sale documents which have terms and conditions which are agreed to
by the Company in its sole discretion (i) in the case of a grant, which does not
have any conditions attached to the grant award, (ii) which the Sale document is
delivered to the Company or executed between the Company and an Assigned Account
for a Product within 18 months after termination hereof, (iii) for which
Consultant through its efforts and sales initiative was principally responsible
for securing, (iv) which is fully performed by the parties, and (v) for which
the Company realizes Actual Cash Collections (as defined below).
2
(1) For cumulative Sales made during the term of this
Agreement, Consultant shall receive a Commission of ten percent (10%) on Actual
Cash Collections (as defined below). The full ten percent commission is earned
at the time of the Sale made during the term of this Agreement even if the
Actual Cash Collection is received by the Company at any time after expiration
of this Agreement according to 5.C.3.
(2) For cumulative Sales which are not made during the term of
this Agreement but which are made within 18 months of termination of this
Agreement, Consultant will receive a Commission equal to five percent (5%) on
Actual Cash Collections received by the Company at any time thereafter for Sales
proposed to Company during the term of the Agreement. The full five percent (5%)
commission is earned at the time of the Sale made during the 18 month period
following the term of this Agreement even if the Actual Cash Collection is
received by the Company at any time after expiration of this Agreement according
to 5.C.3. In no event shall Consultant be entitled to a Commission for a Sale
made after 18 months of termination of this Agreement.
(3) As used in this Agreement, "Actual Cash Collections" means
cash actually received by the Company in respect of Sales made by or to Approved
Accounts for which Consultant was the principal reason. Company shall calculate
Commission earned by Consultant pursuant to this Section 5 and shall pay such
amount to Consultant within sixty (60) days after the end of the month in which
the Company received cash from the Approved Customer.
D. Consultant acknowledges and agrees that the Consultant is solely
responsible for calculating and paying all applicable federal, state and local
income taxes with respect to any and all payments made to it under this
Agreement.
E. To be eligible for a commission, the name of the Assigned Account
must be reflected in Attachment 1 at the time of the Sale. Consultant and
Company may update Attachment 1 from time to time by mutual agreement.
F. Only an authorized officer of the Company is authorized to execute a
Sale document or any other agreement on behalf of the Company, or bind the
Company in any manner. Consultant shall neither represent nor imply that
Consultant has any authority to bind the Company. Consultant will present
Company with Sale documents for signature, it being understood that all
negotiation authority is reserved by Company. Company reserves the right in its
sole discretion to decline to accept or cancel either in whole or in part any
Sale document solicited or obtained by Consultant without incurring any
liability whatsoever to Consultant.
G. Consultant will be reimbursed for reasonable and actual pre-approved
travel and lodging expenses. Pre-approval may be in the form of an email from
the Company to Consultant upon appropriate e-mail request from Consultant.
//
//
//
//
3
6. REPRESENTATIONS AND WARRANTIES.
A. REPRESENTATIONS AND WARRANTIES OF COMPANY. Company hereby represents
and warrants to Consultant:
(1) Company has provided Consultant with copies of the
Company's most recent Annual Report on Form 10-K for the fiscal year ended
December 31, 2003 (the "10-KSB/A"), and all other reports filed by the Company
pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act")
since the filing of the 10-K and prior to the date hereof (collectively, the
"SEC Filings"). Except as described on the Disclosure Schedule attached hereto
as describe herein, the SEC Filings are the only filings required of the Company
pursuant to the 1934 Act for such period. The Company and its Subsidiaries are
engaged only in the business described in the SEC Filings and, except as
described on the Disclosure Schedule or as described herein, the SEC Filings
contain a complete and accurate description in all material respects of the
business of the Company and its Subsidiaries, taken as a whole.
(2) Neither the Company nor any Person acting on its behalf
has provided Consultant or its agents or counsel with any information that
constitutes or might constitute material, non-public information. The Company
has provided Consultant with all the information that Consultant has requested
for deciding whether to accept shares in lieu of cash, including information
that the Company is deferring the release of its third quarter 2003, and fourth
quarter and year end 2003 financial results pending the review of certain
transactions from earlier quarters in fiscal year 2003, and that the Company may
be required to restate revenues from the first and second quarters of fiscal
year 2003, and possibly earlier periods. The written materials delivered to
Consultant in connection with this transactions does not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements contained herein, in light of the circumstances under
which they were made, not misleading.
B. REPRESENTATIONS AND WARRANTIES OF CONSULTANT. Consultant hereby
represents and warrants to the Company that:
(1) ORGANIZATION AND EXISTENCE. Consultant is a validly
existing limited liability company and has all requisite limited liability
company power and authority to accept the restricted common stock in lieu of
cash as contemplated pursuant to this Agreement.
(2) PURCHASE ENTIRELY FOR OWN ACCOUNT. The restricted common
stock to be received by the Consultant hereunder will be acquired for the
Consultant's own account, not as nominee or agent, and not with a view to the
resale or distribution of any part thereof in violation of the 1933 Act, and
Consultant has no present intention of selling, granting any participation in,
or otherwise distributing the same in violation of the 1933 Act. The Consultant
is not a registered broker dealer or an entity engaged in the business of being
a broker dealer.
4
(3) INVESTMENT EXPERIENCE. Consultant acknowledges that it can
bear the economic risk and complete loss of its investment in the Securities and
has such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment contemplated
hereby.
(4) DISCLOSURE OF INFORMATION. Consultant has had an
opportunity to receive all additional information related to the Company
requested by it and to ask questions of and receive answers from the Company
regarding the Company, its business and the terms and conditions of the offering
of the restricted common stock. Consultant acknowledges receipt of copies of the
SEC Filings. The Company has provided Consultant with all the information that
the Consultant has requested in order to decide whether to accept the restricted
common stock in lieu of cash hereunder. Neither such inquiries nor any other due
diligence investigation conducted by Consultant shall modify, amend or affect
Consultant's right to rely on the Company's representations and warranties
contained in this Agreement.
(5) RESTRICTED SECURITIES. Consultant understands that the
restricted common stock is characterized as "restricted securities" under the
U.S. federal securities laws inasmuch as they are being acquired from the
Company in a transaction not involving a public offering and that under such
laws and applicable regulations such securities may be resold without
registration under the 1933 Act only in certain limited circumstances. Without
limiting any of the representations contained herein, Consultant further agrees
not to make any disposition of all or any portion of the stock that may be
received pursuant to this Agreement unless and until (i) there is then in effect
a registration statement under the 1933 Act covering such proposed disposition
and such disposition is made in accordance with such registration statement or
(ii) Consultant shall have notified the Company of the proposed disposition,
shall have furnished the Company with a statement surrounding the proposed
disposition and shall have, if reasonably requested by the Company, furnished
the Company with an opinion of counsel, reasonably satisfactory to the Company,
that such disposition will not require registration under the 0000 Xxx.
(6) LEGENDS. It is understood that, except as provided below,
certificates evidencing such restricted common stock shall bear the following or
any similar legend:
(a) "The securities represented hereby may not be
transferred unless (i) such securities have been registered for
sale pursuant to the Securities Act of 1933, as amended, (ii) such securities
may be sold pursuant to Rule 144(k), or (iii) the Company has received an
opinion of counsel reasonably satisfactory to it that such transfer may lawfully
be made without registration under the Securities Act of 1933 or qualification
under applicable state securities laws."
(b) If required by the authorities of any state in
connection with the issuance of sale of the Securities, the legend
required by such state authority.
(c) Upon the earlier of (i) registration for resale
and receipt by the Company of Consultant written confirmation
that such restricted common stock will not be disposed of except in compliance
with the prospectus delivery requirements of the 1933 Act or (ii) Rule 144(k)
becoming available the Company shall, upon Consultant's written request,
promptly cause certificates evidencing the restricted common stock to be
replaced with certificates which do not bear such restrictive legends.
5
(7) SOPHISTICATED INVESTOR. Consultant is a sophisticated
investor as defined in Rule 501(a) of Regulation D, as amended, under the 1933
Act.
7. CONFIDENTIALITY.
The parties acknowledge that they have executed a Non-Disclosure Agreement,
incorporated herein by this reference, and which shall be binding upon the
parties as set forth therein.
8. TERMINATION.
A. This Agreement may be terminated as follows:
(1) upon the breach or default of any obligation of Consultant
pursuant to (a) the Confidentiality provisions set forth in Section 7, or (b)
any of Sections 15 through 19, inclusive.
(2) upon the breach or default by either party of any material
obligation in this Agreement, which breach or default is not cured within
fifteen (15) days of written notice thereof.
(3) if either party files protection under the federal
bankruptcy laws or any bankruptcy petition or petition for receiver is commenced
by a third party, any of the foregoing of which remains undismissed for a period
of ninety (90) days.
9. INDEPENDENT CONTRACTOR.
The Consulting Organization is and throughout this Agreement shall be an
independent contractor and not an employee, partner or agent of Company. The
Consulting Organization shall not be entitled to nor receive any benefit
normally provided to Company's employees such as, but not limited to, vacation
payment, retirement, health care or sick pay. Company shall not be responsible
for withholding income or other taxes from the payments made to Consulting
Organization. The Consulting Organization shall be solely responsible for filing
all returns and paying any income, social security or other tax levied upon or
determined with respect to the payments made to the Consulting Organization
pursuant to this Agreement.
10. SIMILAR SERVICES.
Consultant may perform similar services for other parties, but in no event shall
Consultant perform any services whatsoever for a competitor of Sulphco. Sulphco
shall have the right to identify, in its reasonable judgment, such competitors.
Consultant acknowledges and agrees to this limitation, and represents and
warrants to Company that no agreement exists with any Named Competitor that
would violate this provision.
6
11. INSURANCE.
Consultant shall, at its expense, carry worker's compensation and any other
insurance that may be required by statute, in such amounts and coverages as
comply with such statutory requirements. Consultant, by agreement, instruction
or otherwise, shall ensure that its employees and agents performing services
under this Agreement at any Company facility shall comply with all applicable
Company rules and regulations.
12. TOOLS AND SUPPLIES.
Unless otherwise agreed to by Company in advance, Consultant shall be solely
responsible for procuring, paying for and maintaining any computer equipment,
software, paper, tools or supplies necessary or appropriate for the performance
of Consultant's services hereunder.
13. CONTROLLING LAW AND JURISDICTION.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New Jersey, without giving effect to its conflict of laws rules or
principles.
14. HEADINGS.
The headings in this Agreement are inserted for convenience only and shall not
be used to define, limit or describe the scope of this Agreement or any of the
obligations herein.
15. TRUTH IN LOBBYING ACT COMPLIANCE.
The Consultant shall report the details to the Company required by the Truth in
Lobbying Law (I.E., Section 310 of the Interior Appropriations Act for Fiscal
Year 1990; Pub. L. 101-121).
16. ESPIONAGE ACT.
If any information or material acquired or developed by the Consultant in
performance under this Agreement is, or becomes, classified within the meaning
of the Espionage Act (18 U.S.C. xx.xx. 792-799) and Executive Order 12356 (April
1982), Consultant agrees to preserve the security of such work in compliance
with all applicable laws and regulations of the United States. Any data or
information of any type acquired or generated by the Consultant in the
performance of services under this Agreement shall be submitted to Company for
security review before publication or dissemination.
17. IMPROPER PAYMENTS.
Consultant represents and warrants that (a) it will comply fully with all
applicable law and regulation in the performance of services hereunder; (b) it
understands and will comply with Consultant's policy prohibiting (i) any illegal
or improper influence or payment in connection with Consultant's promotion of
the sale of Company's products pursuant to this Agreement and (ii) the sharing,
7
directly or indirectly, of any fees which are paid to Consultant with anyone
acting for or on behalf of, or having a position of influence over any such
customers, and prohibits the utilization of said fees in any illegal or improper
manner in connection with the promotion of the sale of Company's products
pursuant to this Agreement, and Consultant confirms that it will retain all
payments made by Company as compensation for the services rendered hereunder.
Consultant further agrees that Company and its subsidiary and affiliated
corporations may disclose the amount of fees paid to Consultant to the U. S
government. Nothing in this Agreement shall obligate Company to pay compensation
that, in Company's reasonable opinion, doing so would violate any applicable
law. Notwithstanding any provision of this Agreement to the contrary, any breach
of this provision shall be conclusively deemed a material breach that cannot be
cured.
18. FINAL AGREEMENT.
This Agreement constitutes the final understanding and agreement between the
parties with respect to the subject matter hereof and supersedes all prior
negotiations, understandings and agreements between the parties, whether written
or oral. This Agreement may be amended, supplemented or changed only by an
agreement in writing signed by both of the parties.
19. NOTICES.
Any notice required to be given or otherwise given pursuant to this Agreement
shall be in writing and shall be hand delivered, mailed by certified mail,
return receipt requested or sent by recognized overnight courier service as
follows:
If to Consultant:
InteSec Group LLC
XX Xxx 000
Xxxxxxxxx XX 00000
Attention: Xxxx X Xxxxxxx, Managing Member
If to Company:
SulphCo, Inc.
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx, CEO
20. SEVERABILITY.
If any term of this Agreement is held by a court of competent jurisdiction to be
invalid or unenforceable, then this Agreement, including all of the remaining
terms, will remain in full force and effect as if such invalid or unenforceable
term had never been included.
//
//
//
//
8
IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the
date first above written.
InteSec Group LLC SulphCo, Inc.
By: /S/ XXXX X. XXXXXXX By: /S/ XXXXXX XXXXXXXXX
----------------------------- ------------------------
Xxxx X. Xxxxxxx Xxxxxx Xxxxxxxxx
Managing Member Chief Executive Officer
9
ATTACHMENT 1
ASSIGNED ACCOUNTS (OR THEIR SUCCESSORS IN INTEREST)
1. U.S. Government
10
