CONSULTING AGREEMENT
EXHIBIT
10.90
1. Parties. This
Consulting Agreement (“Agreement”) is made by and between XXXXXXX XXXXXXXXX
(“XXXXXXXXX”) and SURGE GLOBAL ENERGY, INC. and all of its subsidiaries
(“SURGE”) (SURGE and XXXXXXXXX are sometimes collectively referred to as the
“Parties.”)
2. Purpose of
Agreement. The purpose of this Agreement is engage the
consulting services of XXXXXXXXX and confirm the parties’ release of any and all
potential claims against each other and all persons and entities being released
herein after XXXXXXXXX’x resignation from the Surge Board of Directors is
effective. These include, but are not limited to, all claims arising
out of or related to XXXXXXXXX serving as a Director of SURGE and all claims
that have been asserted or could have been asserted by XXXXXXXXX against SURGE
or the officers and directors of SURGE.
3. Agreement Contingent Upon
Financing. This Agreement is contingent upon SURGE obtaining
financing on or before February 20, 2010. If SURGE does not obtain
said financing, this Agreement will be null and void.
4. Agreement Contingent Upon
Other Former Directors. This Agreement is contingent upon the
execution by SURGE and resigning SURGE board members XXX XXXXX and XXXXX
XXXXXXXX of their own versions of this Agreement, with only Paragraph 8 modified
as appropriate, and the payment of the consideration required by Paragraph 8 in
all such Agreements. Concurrent with the execution of this Agreement and the
initial payment due as set forth in Paragraph 8, Xxxxxxx Xxxxxxxxx resigns as a
director of SURGE.
5. Consulting Agreement
Terms. XXXXXXXXX will provide consulting services to SURGE on
as-needed basis for the six month period after this Agreement is
executed. Such services will be provided at the request of a
representative of SURGE board, upon 10 days notice, on a mutually
agreed upon basis. No specific number of hours are required, and
services will be provided on a best-efforts basis. XXXXXXXXX shall
not be required to spend more than 8 hours per month on SURGE matters under this
Agreement.
6. General Release.
SURGE and XXXXXXXXX, for themselves and for their successors, assigns, agents,
spouse, predecessors, transferees, attorneys, heirs, relatives, executors,
administrators and representatives, hereby release and forever discharge each
other and SURGE’s past and present officers, directors, employees, subsidiaries,
agents, predecessors, affiliated entities, successors, assigns, attorneys,
transferees, and representatives from any and all claims and causes of action
which they now have or may have against each other arising through the date of
this Agreement. This general release does not in any way impair,
restrict, discharge or limit XXXXXXXXX’x rights to indemnity, advancement, or
protection under any written indemnity agreements, statutory indemnity
provisions, SURGE corporate documents, and/or applicable insurance policies with
respect to any claim asserted in any action that may arise in the future related
to or arising from XXXXXXXXX’x service as a director of SURGE. With
regard to XXXXXXXXX’x rights to indemnity, advancement, or protection under any
written indemnity agreements, statutory indemnity provisions, SURGE corporate
documents, and/or applicable insurance policies, SURGE’s obligations to
XXXXXXXXX shall continue as if the parties had not entered into this Agreement,
and any XXXXXXXXX obligation to cooperate in any matter in which he seeks such
indemnity, advancement, or protection shall continue as if the parties had not
entered into this Agreement. SURGE and XXXXXXXXX expressly state that
they would not enter into this Agreement but for the representation and warranty
of each of them that they are hereby releasing any and all claims of any nature
whatsoever, whether statutory or common law, which XXXXXXXXX or SURGE has or
could assert directly or indirectly against any of the persons or entities being
released herein.
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7. Waiver. Other than as
set forth in paragraph 5 above, it is the intention of the parties in executing
this instrument that it shall be effective as a bar to each and every claim,
demand and cause of action herein above specified. In the furtherance
of this intention, XXXXXXXXX and SURGE hereby expressly waive any and all rights
and benefits conferred upon them by the provisions of section 1542 of the
California Civil Code or any other equivalent statute or regulation in another
jurisdiction and expressly consent that this Agreement shall be given full force
and effect according to each and all of its express terms and provisions,
including those relating to unknown and unsuspected claims, and causes of
action, if any. Section 1542 of the California Civil Code
provides:
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general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which
if known by him or her must have materially affected his or her settlement with
the debtor.
Notwithstanding
the provisions of section 1542 or any other equivalent statute or regulation in
another jurisdiction, this Agreement shall be in full settlement of all claims
and disputes being released herein, including unknown
claims. XXXXXXXXX and SURGE expressly waive all rights under section
1542 or any other equivalent statute or regulation in another jurisdiction,
which they fully understand.
8. Consideration. In
consideration of the consulting services, covenants, and releases given herein,
SURGE shall pay XXXXXXXXX a total of Thirty Four Thousand and
Forty-three Dollars ($34,043.00) as follows: $17,021.50 upon execution of this
agreement and the balance payable in five monthly installments of $2,837.00 and
a sixth payment of $2,836.50 commencing on or before April 16, 2010 and monthly
thereafter; in addition, SURGE and XXXXXXXXX agree to cancel one-half (400,000)
of the 2008 and 2009 stock options granted previously, beginning first with the
2008 options and then canceling options from 2009 until a total of 400,000 have
been cancelled. The remaining 400,000 options (which are deemed here in as fully
vested) that are not cancelled will remain valid and exercisable until all
payments due under the terms set forth above are paid in full. XXXXXXXXX agrees
not to exercise any of these options so long as all monthly payments are made
when due. Should SURGE default on any of the payments, XXXXXXXXX may retain the
400,000 options then held by XXXXXXXXX, and the six month period for the
exercise of such options will begin to run on the date of such default. Should
XXXXXXXXX subsequently wish to exercise any or all of the remaining 400,000
options, SURGE will allow for a cashless exercise(s) upon written request from
XXXXXXXXX. Stock purchase warrants issued previously to XXXXXXXXX prior to 2008
shall survive this agreement.
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9. Tax
Treatment/Indemnification. SURGE makes no representation as to
the tax treatment or legal effect of the payments described herein, and
XXXXXXXXX is not relying on any statement or representation of SURGE or its
attorneys in that regard. XXXXXXXXX agrees that he will be furnished
with an IRS 1099 tax information form or forms and he shall pay and be liable
for the payment of all federal, state, and local taxes and penalties that may be
due as a result of this payment. Further, XXXXXXXXX shall defend,
indemnify and hold SURGE harmless from any loss, claim or demand by any taxing
authority for any taxes, penalties, or interest thereon, due on the payments
identified herein. XXXXXXXXX shall have the right to receive payments in such
form and timeframe as he decides. All correspondence in that regard shall be
writing by Federal Express, Express mail or email.
10. Confidentiality. It
is expressly agreed that confidentiality of the terms of this Agreement is of
material importance to the parties and was a material inducement to the
execution of this Agreement. Therefore, the parties agree that the
terms of this Agreement shall remain strictly confidential and that they shall
make no disclosure to any third person of the terms of this Agreement, except
that they may advise their attorneys, tax advisor, and immediate family of the
terms of the Agreement and may make any disclosure required by law. In addition,
all material non-public information obtained by XXXXXXXXX while on SURGE’s board
will remain confidential and will not be disclosed Each party agrees
that a breach of this provision will cause irreparable damage and injury to the
other party. The non-breaching party will be entitled to seek any and all legal
and/or equitable remedies against the breaching party in the event of a breach
of this provision, including damages and injunctive relief.
11. Non-Disparagement. The
parties agrees to refrain from any disparagement, defamation, libel, or slander,
or interference, tortious or otherwise, with the contracts and relationships of
each other, as well as SURGE’s officers, directors and employees. Each party
agrees that a breach of this provision will cause irreparable damage and injury
to the other party. The non-breaching party will be entitled to seek any and all
legal and/or equitable remedies against the breaching party in the event of a
breach of this provision, including damages and injunctive relief.
12. No Admission of
Liability. This Agreement is a compromise and settlement of
disputed claims being released herein, and therefore this Agreement does not
constitute an admission of liability on the part of XXXXXXXXX or SURGE or its
officers, directors, parent companies, subsidiaries, agents, affiliated
entities, successors, assignees, employees, insurers, attorneys or
representatives, or an admission, directly or by implication, that any of them
have violated any law, rule, regulation, policy or any contractual right or
other obligation owed to any other party. The parties specifically by
this Agreement deny all allegations of improper or unlawful conduct made by each
other. The parties merely intend, by entering into this Agreement, to
avoid any further dispute or possible litigation.
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13. No Assignment or Transfer of
Claims. The parties represent and warrant that they have not
heretofore assigned, transferred or purported to assign or transfer to any other
person or entity any rights, claims or causes of action herein released and
discharged and no other person or entity has any interest in the matters herein
released and discharged, except as disclosed by the terms of this
Agreement.
14. No External or Prior
Representations. Each party represents and warrants that such
party is not relying, and has not relied, on any representations or statements,
verbal or written, made by any other party with regard to the facts involved in
this controversy or with regard to such party's rights or asserted rights
arising out of the parties' claims or the execution and terms of this Agreement,
except as provided herein. Each party has consulted with an attorney
regarding the terms of this Agreement and has entered into this Agreement
freely, willingly and without any coercion or duress.
15. Governing
Law. This Agreement shall be construed in accordance with, and
be deemed governed by, the laws of the State of California.
16. Attorneys'
Fees. The parties to this Agreement expressly agree that no
party shall be liable to any other party, person or entity for costs and/or
attorneys’ fees relating to the released claims or this Agreement, including any
provided for by statute. The parties also expressly agree that,
should any proceeding be commenced for breach of this Agreement, the prevailing
party shall be awarded reasonable attorneys’ fees and costs. The
parties further agree that, in the event any party commences any sort of legal
proceeding or action in any court or before any tribunal alleging a claim or
cause of action that is released, waived, or barred under the general release
provisions of section 6 of this Agreement, the other party shall be awarded its
attorneys’ fees and costs in defending against such action or proceeding upon
dismissal of or judgment for the party on the barred claim or cause of
action.
17. Cooperation in Executing
Settlement Documentation. The parties to this Agreement shall
execute any and all further documents that may be required to effectuate the
purposes of this Agreement. XXXXXXXXX shall have the right to approve the
wording of any SEC filing or press release.
18. Arbitration of Disputes
Regarding Compliance with this Agreement. Any dispute as to
implementation of the terms of this Agreement, and any claim of breach of this
Agreement by any party will be resolved solely by binding arbitration in San
Diego County, California.
19. Binding on
Successors. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and to their respective
representatives, successors, spouses, heirs, agents and assigns.
20. Counterparts. This
Agreement may be executed in counterparts and, if so executed, each such
counterpart shall have the force and effect of an original. A
facsimile signature shall have the same force and effect as an original
signature.
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21. Severability. The
invalidity of any provision of this Agreement as determined by a court of
competent jurisdiction shall in no way affect the validity of any other
provision hereof.
22. Modification. No
breach of any provision of this Agreement can be waived unless in
writing. Waiver of any one breach shall not be deemed to be a waiver
of any other breach of the same or any other provision of this
Agreement.
23. Construction. This
Agreement shall not be interpreted for or against any party on the basis that
such party or its legal representative caused part or all of this Agreement to
be drafted.
24. Section Headings. The
section headings of this Agreement are intended solely for convenience of
reference and shall not in any manner amplify, limit, modify or otherwise be
used in the interpretation of any of the provisions hereof.
25. Entire
Agreement. This Agreement constitutes the entire agreement
between the parties. There are no other agreements, whether oral or
written, modifying its terms. This Agreement supersedes any and all
prior written or oral agreements (including oral settlement agreements) between
any of the parties. The terms of this Agreement can only be modified
by a writing signed by the parties expressly stating that such modification is
intended.
26. Other
Provisions: XXXXXXXXX hereby agrees that he will not file a
proxy statement nor will he name, serve or propose to serve on a new Board of
Directors of SURGE until after January 1, 2011.
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WE, THE
UNDERSIGNED, HAVE READ THE FOREGOING AND FULLY UNDERSTAND AND AGREE TO ITS
TERMS.
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/s/ Xxxxxxx
Xxxxxxxxx
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Dated: February 19,
2010
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XXXXXXX
XXXXXXXXX
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Dated: February 19,
2010
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By:
E. Xxxxx
Xxxxxxx
Name:
E. Xxxxx
Xxxxxxx
Title:
CEO
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