CONSULTING AGREEMENT
Exhibit
10.2
This
CONSULTING AGREEMENT (this “Agreement”) is entered into as
of May 8, 2009, by and between Clear Skies Solar, Inc., a Delaware corporation
(the “Company”) and
Xxxxx Xxxxx, an individual (the “Consultant”).
WHEREAS,
the Company desires to engage Consultant to provide certain Services (as defined
in Section 3 below) for
compensation, and Consultant desires to provide the Services to the Company,
upon the terms and subject to the conditions set forth below.
NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Engagement. The
Company hereby engages Consultant to provide the Services during the Term (as
defined below), and Consultant hereby accepts such engagement to provide the
Services during the Term (the “Engagement”).
2. Term of Engagement;
Termination.
a. Term. The
Engagement shall commence on the date hereof and shall terminate on the first
anniversary of the date hereof, unless earlier terminated in accordance with
Section 2(b) below (the
“Term”).
b. Termination. This
Agreement may be terminated by Consultant or the Company at any time upon thirty
(30) days prior written notice of such termination to the other
party.
c. Effect of
Termination. In the event of a termination of this Agreement,
(i) Consultant shall still be entitled to receive all of the Consulting Shares
(as defined in Section
4) and (ii) the Company shall reimburse Consultant for all expenses
previously approved by the Company incurred by Consultant in connection with
Consultant’s Engagement.
3. Services to be Provided by
Consultant. During the Term, Consultant shall provide services
to the Company as set forth on Exhibit A, as well as any
other services that are mutually agreed between the parties hereto
(collectively, the “Services”). The
parties hereto acknowledge and agree that the Services to be provided are in the
nature of advisory services only, and Consultant shall have no responsibility or
obligation for execution of the Company’s business or any aspect thereof nor
shall Consultant have any ability to obligate or bind the Company in any
respect. Consultant shall have control over the time, method and
manner of performing the Services. Consultant shall render such services as are
from time to time requested by the Chief Executive Officer of the Company, Xxxx
Xxxxx.
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4. Compensation. In
consideration for the Services to be provided hereunder, Consultant shall
receive, promptly after the execution of this Agreement, as a consulting fee,
4,000,000 shares of the Company’s common stock, par value $0.001 per share (the
“Consulting
Shares”).
5. Registration
Rights.
a. Promptly
following the filing by the Company of their Annual Report on Form 10K for the
year ended December 31, 2008, but in no event greater than 15 days thereafter,
the Company shall file a registration statement on Form S-8 under the Securities
Act of 1933, as amended (the “Securities Act”), which
registration statement shall include the Consulting Shares (the “Registration
Statement”).
b. As
a condition to the inclusion of his Consulting Shares,
Consultant shall furnish to the Company such information regarding
Consultant and his affiliates and the distribution proposed by
Consultant as the Company may request in writing or as shall be required in
connection with any registration, qualification or compliance referred to in
this Agreement.
c. Consultant hereby
covenants with the Company not to make any sale of Consulting Shares
without effectively causing the prospectus delivery requirements under the
Securities Act to be satisfied.
d. Consultant acknowledges
and agrees that the Consulting Shares sold pursuant to the
Registration Statement are not transferable on the books of the Company unless
the stock certificate submitted to the transfer agent evidencing
such Consulting Shares is accompanied by a certificate reasonably
satisfactory to the Company to the effect that (x)
the Consulting Shares have been sold in accordance with such
Registration Statement and (y) the requirement of delivering a current
Prospectus has been satisfied.
e. Consultant shall
not take any action with respect to any distribution deemed to be made pursuant
to such Registration Statement, which would constitute a violation of Regulation
M under the Securities Exchange Act of 1934, as amended, or any other applicable
rule, regulation or law.
6. Expenses. The
Company shall reimburse Consultant for all reasonable expenses incurred by
Consultant in providing the Services hereunder no later than thirty (30) days
after the submission of an invoice evidencing such expenses in a form reasonably
satisfactory to the Company; provided that the Company shall not be obligated to
reimburse Consultant for expenses if incurred without the Company’s prior
written approval.
7. No Exclusivity. The
Company hereby acknowledges and agrees that nothing in this Agreement shall
prohibit Consultant from continuing to provide services similar to the Services
to other companies or otherwise engaging in Consultant’s business
activities.
8. Independent Contractor
Status. It is understood and agreed that in the performance of
the Services hereunder, Consultant is acting as an independent contractor and
not as an agent or employee of, or partner, joint venturer or in any other
relationship with, the Company. Consultant acknowledges that no
income, social security or other taxes will be withheld or accrued by the
Company, on Consultant’s behalf. Neither the Company nor Consultant
has the authority to bind the other in any agreement without the prior written
consent of the entity to be bound.
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9. Confidentiality. In
connection with Consultant’s Engagement, it is contemplated that the Company
will not supply Consultant with non-public or proprietary information concerning
the Company and its business and operations and affiliates without the prior
written agreement of Consultant to receive such Confidential Information (“Confidential
Information”).
10. Publicity. No party
hereto shall disclose the existence or terms of this Agreement to any person or
entity without the prior written consent of the other party hereto.
11. Legal
Representation. Each party hereto acknowledges that it has
been represented by independent legal counsel in the preparation of the
Agreement. Each party
recognizes and acknowledges that counsel to the Company has represented
Consultant in connection with various legal matters and each party waives any
conflicts of interest or other allegations that it has not been represented by
its own counsel.
12. Consultant
Representations. In connection with the Consulting Shares to
be acquired by Consultant hereunder, Consultant represents and warrants to the
Company that:
a. Consultant
acknowledges that Consultant has been afforded the opportunity to ask questions
of and receive answers from duly authorized officers to other representatives of
the Company concerning an investment in the Consulting Shares, and any
additional information which Consultant has requested.
b. Consultant
has had experience in investments in restricted and publicly traded securities,
and has had experience in investments in speculative securities and other
investments which involved the risk of loss of investment. Consultant
acknowledges that an investment in the Consulting Shares is speculative and
involves the risk of loss. Consultant has the requisite knowledge to
assess the relative merits and risks of this investment and Consultant can
afford the risk of loss of his entire investment in the Consulting
Shares.
c. Consultant
is an accredited investor, as that term is defined in Regulation D promulgated
under the Securities Act of 1933.
d. Consultant
is acquiring the Consulting Shares for Consultant’s own account for investment
and not with a view toward resale or distribution thereof except in accordance
with applicable securities laws.
13. General Terms.
a. Any
notice to be given hereunder by a party to any other party hereto may be
effectuated in writing by personal delivery, by mail, registered or certified,
postage prepaid, with return receipt requested, or by facsimile or other
electronic transmission and addressed to such party at the address set forth on
the signature page below.
b. If
any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable, that provision shall be deemed
modified to the extent necessary to make it valid or enforceable, or if it
cannot be so modified, then severed, and the remainder of the Agreement shall
continue in full force and effect.
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c. All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of Delaware, without regard to the principles of
conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations and enforcement of this Agreement
(whether brought against a party hereto or its respective affiliates, directors,
officers, shareholders, employees or agents) shall be commenced exclusively in
the state and federal courts sitting in the City of New York. Each party hereto
hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the City of New York for the adjudication of any
dispute hereunder or in connection herewith or with respect to the enforcement
of this Agreement, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court. Each party hereto hereby irrevocably waives
personal service of process and consents to process being served in any such
suit, action or proceeding by delivering a copy thereof via overnight delivery
(with evidence of delivery) to such party at the address in effect for notices
to it under this Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof.
d. This
Agreement embodies the entire understanding of the parties hereto with respect
to the subject matter hereof, and supersedes all prior or contemporaneous
agreements, arrangements or understandings with respect to the subject matter
hereof, whether oral or written.
e. This
Agreement may not be modified, and no except in a writing signed by
the parties hereto.
f. No
term of this Agreement may be waived, except in a writing signed by the party
hereto entitled to the benefit of such term.
g. Each
party hereto represents and agrees that such party is authorized to enter into
this Agreement and this Agreement constitutes a legal, valid and binding
obligation of such party, enforceable in accordance with its
terms. This Agreement may not be assigned by any party.
h. This
Agreement may be executed in one or more counterparts each of which shall be
deemed an original and all of which counterparts, taken together, shall
constitute one and the same Agreement.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
first above written.
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/s/ Xxxxx Xxxxx
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/s/
Xxxx Xxxxx
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Xxxxx
Xxxxx
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Name: Xxxx
Xxxxx
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Title: Chief
Executive Officer
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Address
for Notice:
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Address
for Notice:
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Xxxxx
Xxxxx
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Xxxx
Xxxxx, Chief Executive Officer
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000
X. Xxxxxxx Xxx.
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Suite
600
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000
Xxx Xxxxxxx Xxxx, Xxxxx 000
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Xxxx
Xxxxx, XX 00000
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Xxxxxxx,
XX 00000
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EXHIBIT
A
Services
Responsibilities
will be to consult with the Company with regards to the Xtrax business, advise
on the development of the Xtrax business generally, including the possible
merger, sale, divestiture or other disposition of the business and seeking joint
venture partners and the like.
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