Exhibit

10.22




 




 




CONSULTING

AGREEMENT




 




                THIS CONSULTING AGREEMENT (“Agreement”),

made effective as of May 1, 2001, by and between VirtualFund.com, Inc., a

Delaware corporation (the “Company”), and MSJ & Associates, LLC, a

Minnesota corporation (“Consultant”) controlled by Monte Johnson, a Minnesota

corporation (“Principal”).




 




RECITALS:




 




                A.            The

Company and Consultant desire to enter into this Agreement to confirm the terms

and conditions of Consultant’s retention as an independent contractor and

consultant.




 




AGREEMENTS:




 




                NOW, THEREFORE, in consideration of the

mutual promises, agreements and covenants contained in this Agreement, the

parties hereby covenant and agree as follows:




 




                1.             Engagement

of Consultant to Perform Consulting Services. The Company hereby

engages Consultant to provide general and overall managerial and financial

advice and consulting services to the Company as may be requested by the

Company from time to time, and Consultant accepts such engagement and hereby

agrees to perform such services for the Company, as an independent contractor,

and not as an employee, during the Term of this Agreement. The services to be

performed by Consultant hereunder shall include the services and duties

generally provided by a Chief Executive Officer of a corporation, and such

additional services as may be reasonably requested from time to time by the

Company (collectively, the “Services”). All of the Services provided by the

Consultant shall be provided personally through, and only through, Principal,

unless otherwise agreed by the Board of Directors of the Company. The

Consultant shall at all times be and remain subject to the control and

direction of the Board of Directors, and in performing Services the Consultant

shall at all times carry out the reasonable directions and instructions of the

Board of Directors (unless contrary to law or regulation).




 




                2.             Authority

and Title; Performance Standards. During the Term, the

Principal, on behalf of the Consultant, shall be designated as the acting Chief

Executive Officer of the Company, and shall have the powers and authorities,

and shall be subject to the duties and obligations, inherent in such office.

The Principal shall report directly to the Board of Directors and such other

persons, if any, as may be directed by the Board of Directors. Consultant shall

perform the Services as and when requested by the Company during the Term.

Consultant may determine the particular hours and days for the performance of

the Services, provided that the Services are performed on a timely basis, and

provided that Principal is generally available during normal business hours of

the Company. The parties acknowledge that the Services are not expected to be

required on a full-time basis. Except as otherwise provided herein, Consultant

shall not be prohibited from providing services to others during the Term,

provided the Consultant is available to the Company to provide Services

hereunder. In the performance of the Services, Consultant shall act in good

faith and shall use all reasonable efforts to comply with all reasonable

requests of the Company during the term of this Agreement. Consultant shall

perform the Services diligently and to the best of Consultant’s and Principal’s

ability. Principal shall be 




 




 





























 




subject to any and all

fiduciary duties owed to the Company which are inherent with the office held

hereunder. Consultant represents and warrants to the Company that there are no

restraints upon Consultant or Principal which will or could prohibit Consultant

from fulfilling his obligations hereunder.




 




                3.             Term.

Subject to the terms and provisions of this Agreement, the term of this

Agreement and Consultant’s engagement hereunder, shall be for an indefinite

term which shall end on five (5) days written notice by either party, unless terminated

earlier in accordance with the terms and provisions of Section 7 hereof (the

“Term”).




 




                4.             Consulting

Fee. In consideration for the Services rendered hereunder,

Consultant shall receive a fee of One Hundred Seventy-five Dollars ($175.00)

per hour for Services requested by the Company and actually rendered by

Consultant during the Term (the “Fee”), including travel time for Company

requested or required business travel. The Fee shall be payable monthly, in

arrears, within five days of Consultant’s submittal of an invoice to the

Company detailing the hours spent and Services performed. Upon the execution of

this agreement, the Company shall deposit with the Consultant the amount of

$15,000.00 to be held as a deposit until the termination of this Agreement. At

termination, Consultant’s final invoice shall be paid from such deposit, and

any excess deposit shall be immediately refunded to the Company, or the Company

shall immediately pay any deficiency, as applicable. All fees for Services

rendered before the effective date of this Agreement shall be paid in full,

within two days of the execution hereof. The Consultant acknowledges and agrees

that only the Consultant, and not the Principal, shall be entitled to the Fee

or any portion thereof. The Consultant shall be solely responsible for any

compensation or remuneration to the Principal.




 




                5.             Relationship

of Parties. Consultant (whether or not acting through the

Principal) is and shall be deemed to be an independent consultant, and the

Company and Consultant acknowledge and agree that the relationship created by

this Agreement is not that of joint venturers or of employer and employee.

Consultant and Principal shall not be entitled to participate in any life,

disability, accident and health insurance, hospitalization, pension,

retirement, or any other employee benefits of the Company. Consultant shall be

responsible for any and all taxes associated with the payment of the Fee, and

shall report and pay such taxes consistent with the provisions of this Agreement.

The Company shall not be entitled to direct the method of performance of the

Services. Consultant, through Principal as chief executive officer, shall have

the authority to bind the Company to any contract, agreement or arrangement

without specific approval or authorization by the Board of Directors, but only

with respect to transactions in the ordinary course of the business of the

Company. All contracts, agreements, arrangements or other transactions which

are not in the ordinary course of the business of the Company shall require the

specific or general authorization of the Board of Directors. The provisions of

this Section shall survive the expiration or termination of this Agreement.




 




                6.             Reimbursement

for Expenses. Consultant shall be promptly reimbursed by the

Company for all reasonable travel (including transportation, meals, lodging

other reasonable travel costs) and other expenses actually and properly

incurred in the performance of the Services hereunder; provided, however, that

any individual expense in excess or $500 must be approved in advance by a

member of the Company’s Executive Committee. For all expenses in 




 




 




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excess of $25, Consultant

shall furnish to the Company applicable statements, receipts and vouchers and

otherwise comply with the substantiation and documentation provisions of the

applicable Internal Revenue Service Regulations. Consultant shall endeavor to

mitigate its travel costs and time to the extent feasible. Consultant shall be

entitled to a cell phone allowance of $150.00 per month (without required

substantiation) and applicable mileage reimbursement for business travel beyond

normal commuting. Company shall provide Consultant with necessary office

equipment sufficient to permit Consultant to provide Services, without charge

to Consultant.




 




                7.             Termination.

Notwithstanding any provisions of this Agreement to the contrary, this

Agreement and Consultant’s retention hereunder may be terminated by the Company

immediately and without prior notice for cause. As used in this Section 7, the

term “cause” shall mean: (i) gross negligence of Consultant or Principal in the

performance of the Services; (ii) willful neglect of Consultant’s or

Principal’s duties or willful refusal to comply with the reasonable requests

for Services by the Company; or (iii) dishonesty, theft, fraud or other

criminal act on the part of Consultant or Principal.




 




                8.             Limits

of Liability and Indemnity. In connection with the performance

of Services, the Consultant shall not be liable to the Company, or to anyone

who is entitled to any right due to any relationship with the Company, for any

acts or omissions in the performance of Services on the part of the Consultant

or the Principal, except when said acts or omission of the Consultant or

Principal are due to willful misconduct or gross negligence. The Company shall

hold the Consultant free and harmless from any obligations, costs, claims,

judgments, attorneys’ fees, and attachments arising from or growing out of the

Services or in any way connected with the rendering of Services, except when

the same shall arise due to the willful misconduct or gross negligence of the

Consultant. The Company shall cause the Consultant to be covered by its

liability and directors’ and officers’ insurance coverage to the extent

permissible. Subject to the foregoing limitations, the Company shall be

obligated to indemnify Consultant to the full extent permitted in Minnesota

Statutes, Section 302A.521, subject to the provisions of such statute.




 




                9.             Confidential

Information. Consultant acknowledges that the confidential and

proprietary information and data (which shall mean information or data not

known or generally available to the public) obtained by Consultant and

Principal during the course of performing Services under this Agreement

concerning the Company’s business, affairs, products, inventions, processes,

techniques, equipment, machinery, apparatus, business operations, technical

information, drawings, specifications, materials, know how, and the like, and

any knowledge or information developed by Consultant or Principal as a result

of performing Services hereunder (collectively referred to as the “Confidential

Information”), are all the sole property of the Company. Consultant agrees to

hold (and shall cause Principal to hold) all Confidential Information in

confidence and not to disclose the same, without the prior written consent of

the Company, to anyone for any reason at any time (unless so required by law or

legal process, and then only after written notice to the Company and a

reasonable opportunity for the Company to challenge, at its cost, such

disclosure). Consultant shall not (and shall cause Principal to not), directly

or indirectly, use or permit the use of any Confidential Information for any

purpose, other than performing the Services hereunder, without the written

consent of Company. Consultant shall use (and cause Principal to use) its best

efforts to prevent publication, disclosure 




 




 




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or other use or

transmission of any Confidential Information. Upon the termination or

expiration of this Agreement, or earlier if requested by the Company,

Consultant agrees to return (and cause Principal to return) to the Company all

Confidential Information in the possession of Consultant or Principal ,

regardless of the form of such Confidential Information. The provisions of this

Section shall survive the expiration or termination of this Agreement.




 




                10.          Intellectual

Property Rights.




 




(a)           Without limiting the

Company’s rights arising by law or custom, Consultant acknowledges that the

Company shall exclusively own, and Consultant hereby assigns, transfers, and

conveys to the Company, all discoveries, work product, trademarks, service

marks, trade names, brand names, software, copyrights, inventions,

improvements, patents and other intellectual property rights produced, created,

developed or conceived by Consultant or Principal during the Term of this

Agreement, whether registered or unregistered, which relate to the Company’s

business (collectively, the “Intellectual Property Rights”). Consultant shall

disclose all such Intellectual Property Rights to the Company, and Consultant

agrees to execute and deliver all documents required by the Company to document

or perfect the Company’s exclusive ownership of the Intellectual Property

Rights.




 




(b)           Consultant further

agrees that all copyrightable works developed by the Consultant or the

Principal, either alone or with others, prior to or during the Term of this

Agreement, which relate in any way to the Company’s business, shall be

considered to be works made for hire and the ownership of and the copyrights to

such works shall be the exclusive property of the Company. Consultant shall disclose

all such works to the Company, and Consultant agrees to execute and deliver all

documents required by the Company to document or perfect the Company’s

exclusive ownership of such works.




 




(c)           Upon the termination

or expiration of this Agreement, or earlier if requested by the Company,

Consultant agrees to return to the Company all tangible (including electronic

storage) elements of the Intellectual Property Rights and works in the

possession of Consultant, regardless of the form of such Intellectual Property

Rights and works.




 




(d)           The provisions of

this Section shall survive the expiration or termination of this Agreement.




 




                11.          Consideration;

Remedies. Consultant acknowledges and agrees that the covenants

set forth in Sections 9 and 10 above are conditions to the offer of retention

by the Company on the terms and for the compensation provided hereunder and

that a portion of the consideration paid to Consultant hereunder is being paid

by the Company in consideration for such covenants. Consultant further acknowledges

and agrees that any breach of any of the covenants set forth in Sections 9 or

10 above would result in immediate and irreparable injury to the Company for

which money damages would be an inadequate remedy. Accordingly, Consultant

agrees that the Company will have the right to obtain equitable relief

including an injunction to enforce the terms of Sections 9 or 10 of this

Agreement in addition to any other 




 




 




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legal or equitable

remedies that may be available to the Company. In the event of any violation by

Consultant of the terms of Sections 9 or 10 of this Agreement or any action or

proceeding brought in connection with such violation, the losing party (if

there be a losing party) shall be required to pay the reasonable costs and

legal fees of the other party in pursuing any of its rights with respect to

this Agreement, in addition to the damages actually sustained. The provisions

of this Section shall survive the expiration or termination of this Agreement.




 




                12.          Notices.

Except as otherwise specifically provided, any notice in writing required or

permitted to be given in respect of this Agreement shall be sufficiently given

if delivered to the party by hand, by Federal Express or similar overnight

carrier service or mailed by registered or certified mail, postage pre-paid,

return receipt requested to the following addresses:




 




	

  Company:


  	

  VirtualFund.com, Inc.


  
	

   


  	

  Tim Duoos c/o Equity

  Securities


  
	

   


  	

  701 Xenia Ave. So.


  
	

   


  	

  Golden Valley, MN  55416


  
	

   


  	

  Attn:  Chairman of the Board


  
	

   


  	

  Phone:  (763) 923-2261


  
	

   


  	

  Telecopy:  (763) 923-2267


  
	

   


  	

   


  
	

  Consultant:


  	

  MSJ &

  Associates, LLC


  
	

   


  	

  Monte Johnson


  
	

   


  	

  1033 Brooks Ave. W


  
	

   


  	

  Roseville, MN


  
	

   


  	

  Phone:  (612) 803-3869


  
	

   


  	

  Telecopy:  (651) 490-9411


  





 




                Any notices shall be deemed to have been received by

the party to whom it is addressed if mailed as aforesaid on the third business

day following the date of mailing, or if sent by facsimile transmission as

aforesaid on the first business day following the date of transmission.

Consultant shall be required to inform the Company of any change of address as

soon as it occurs.




 




                13.          No

Waiver. The failure or delay on the part of any party in

exercising any right, power or remedies under this Agreement or available to

such party at law or in equity, shall not operate or be construed as a waiver

of such right, power or remedy. Any waiver of a right, power or remedy under

this Agreement must be in writing and signed by the party granting the waiver.

The giving of a waiver in one instance or for one purpose shall not create any

implied obligation to give a waiver in another instance or for another purpose.




 




                14.          Governing

Law. This Agreement shall be governed by and construed in

accordance with the laws of the State of Minnesota, without giving effect to

choice of law principle thereof.




 




                15.          Entire

Agreement. The parties hereto agree that this Agreement

constitutes the entire understanding of the parties and supersedes and replaces

all oral or written representations 




 




 




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and that this Agreement

shall not be amended, modified or supplemented in any respect except by a

subsequent written Agreement signed by both parties hereto.




 




                16.          Successors

and Assigns. The rights and obligations of the parties under

this Agreement may not be assigned by either party without the written consent

of the other, which consent shall not be unreasonably withheld. The Agreement

shall inure to the benefit of and be binding upon the parties hereto and upon

the heirs, executors, administrators and personal representatives of Consultant

and the successors and permitted assigns of the Company.




 




                17.          Severability.

Subject to the provisions of applicable law, in the event that any term or

provision of this Agreement, or any part or aspect thereof, shall be deemed by

a court of competent jurisdiction to be overly broad in scope or duration or

both, the court considering the same shall have the power and authority, and

the parties hereby direct such court to exercise such power and authority, to

modify such term or provision to limit such scope and duration so that such

term or provision is no longer overly broad and to enforce the same as so

limited. Subject to the foregoing sentence, in the event that any provisions of

this Agreement shall be held to be invalid or unenforceable for any reason,

such invalidity or unenforceability shall attach only to such provisions and

shall not affect or render invalid or unenforceable any other provision of this

Agreement, it being the intent of the parties that the terms and provisions of

this Agreement shall be deemed to be severable into separate and independent

covenants.




 




                18.          Counterparts.

This Agreement may be executed in any number of counterparts each of which when

executed shall be deemed to be an original and one and the same instrument.




 




                IN WITNESS WHEREOF, the parties hereto have

executed this Consulting Agreement as of the date and year first above written.




 




	

  VIRTUALFUND.COM, INC.


  	

   


  	

  MSJ & ASSOCIATES,

  LLC


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  By


  	

  /s/ Timothy R. Duoos


  	

   


  	

  By


  	

  /s/ Monte Johnson


  
	

  Its


  	

  Chairman


  	

   


  	

  Its


  	

  President


  





 




 




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Principal Joining Restrictions




 




                The Principal hereby acknowledges that the Principal

will receive personal benefit from the Consultant entering into this Agreement.

As an inducement to the Company to enter into this Agreement, the Principal

hereby agrees to be personally bound to all of the covenants, restrictions and

obligations of the Company contained in Sections 9, 10 and 11 of this

Agreement.




 




 




	

  /s/ Monte Johnson


  
	

  Monte Johnson


  





 




 




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