**Exhibit10.22**

 

 

**CONSULTINGAGREEMENT**

 

                **THIS CONSULTING AGREEMENT** (“Agreement”),made effective as of May 1, 2001, by and between VirtualFund.com, Inc., aDelaware corporation (the “Company”), and MSJ & Associates, LLC, aMinnesota corporation (“Consultant”) controlled by Monte Johnson, a Minnesotacorporation (“Principal”).

 

**RECITALS:**

 

                A.            TheCompany and Consultant desire to enter into this Agreement to confirm the termsand conditions of Consultant’s retention as an independent contractor andconsultant.

 

**AGREEMENTS:**

 

                **NOW, THEREFORE**, in consideration of themutual promises, agreements and covenants contained in this Agreement, theparties hereby covenant and agree as follows:

 

                **1.             Engagementof Consultant to Perform Consulting Services.** The Company herebyengages Consultant to provide general and overall managerial and financialadvice and consulting services to the Company as may be requested by theCompany from time to time, and Consultant accepts such engagement and herebyagrees 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 beperformed by Consultant hereunder shall include the services and dutiesgenerally provided by a Chief Executive Officer of a corporation, and suchadditional services as may be reasonably requested from time to time by theCompany (collectively, the “Services”). All of the Services provided by theConsultant shall be provided personally through, and only through, Principal,unless otherwise agreed by the Board of Directors of the Company. TheConsultant shall at all times be and remain subject to the control anddirection of the Board of Directors, and in performing Services the Consultantshall at all times carry out the reasonable directions and instructions of theBoard of Directors (unless contrary to law or regulation).

 

                **2.             Authorityand Title; Performance Standards.** During the Term, thePrincipal, on behalf of the Consultant, shall be designated as the acting ChiefExecutive 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 otherpersons, if any, as may be directed by the Board of Directors. Consultant shallperform the Services as and when requested by the Company during the Term.Consultant may determine the particular hours and days for the performance ofthe Services, provided that the Services are performed on a timely basis, andprovided that Principal is generally available during normal business hours ofthe Company. The parties acknowledge that the Services are not expected to berequired on a full-time basis. Except as otherwise provided herein, Consultantshall not be prohibited from providing services to others during the Term,provided the Consultant is available to the Company to provide Serviceshereunder. In the performance of the Services, Consultant shall act in goodfaith and shall use all reasonable efforts to comply with all reasonablerequests of the Company during the term of this Agreement. Consultant shallperform the Services diligently and to the best of Consultant’s and Principal’sability. Principal shall be 

 

 

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subject to any and allfiduciary duties owed to the Company which are inherent with the office heldhereunder. Consultant represents and warrants to the Company that there are norestraints upon Consultant or Principal which will or could prohibit Consultantfrom fulfilling his obligations hereunder.

 

                **3.             Term.**Subject to the terms and provisions of this Agreement, the term of thisAgreement and Consultant’s engagement hereunder, shall be for an indefiniteterm which shall end on five (5) days written notice by either party, unless terminatedearlier in accordance with the terms and provisions of Section 7 hereof (the“Term”).

 

                **4.             ConsultingFee.** 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 byConsultant during the Term (the “Fee”), including travel time for Companyrequested or required business travel. The Fee shall be payable monthly, inarrears, within five days of Consultant’s submittal of an invoice to theCompany detailing the hours spent and Services performed. Upon the execution ofthis 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. Attermination, Consultant’s final invoice shall be paid from such deposit, andany excess deposit shall be immediately refunded to the Company, or the Companyshall immediately pay any deficiency, as applicable. All fees for Servicesrendered before the effective date of this Agreement shall be paid in full,within two days of the execution hereof. The Consultant acknowledges and agreesthat only the Consultant, and not the Principal, shall be entitled to the Feeor any portion thereof. The Consultant shall be solely responsible for anycompensation or remuneration to the Principal.

 

                **5.             Relationshipof Parties.** Consultant (whether or not acting through thePrincipal) is and shall be deemed to be an independent consultant, and theCompany and Consultant acknowledge and agree that the relationship created bythis 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 beresponsible for any and all taxes associated with the payment of the Fee, andshall 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 theServices. Consultant, through Principal as chief executive officer, shall havethe authority to bind the Company to any contract, agreement or arrangementwithout specific approval or authorization by the Board of Directors, but onlywith respect to transactions in the ordinary course of the business of theCompany. All contracts, agreements, arrangements or other transactions whichare not in the ordinary course of the business of the Company shall require thespecific or general authorization of the Board of Directors. The provisions ofthis Section shall survive the expiration or termination of this Agreement.

 

                **6.             Reimbursementfor Expenses.** Consultant shall be promptly reimbursed by theCompany for all reasonable travel (including transportation, meals, lodgingother reasonable travel costs) and other expenses actually and properlyincurred in the performance of the Services hereunder; provided, however, thatany individual expense in excess or $500 must be approved in advance by amember of the Company’s Executive Committee. For all expenses in 

 

 

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excess of $25, Consultantshall furnish to the Company applicable statements, receipts and vouchers andotherwise comply with the substantiation and documentation provisions of theapplicable Internal Revenue Service Regulations. Consultant shall endeavor tomitigate its travel costs and time to the extent feasible. Consultant shall beentitled to a cell phone allowance of $150.00 per month (without requiredsubstantiation) and applicable mileage reimbursement for business travel beyondnormal commuting. Company shall provide Consultant with necessary officeequipment sufficient to permit Consultant to provide Services, without chargeto Consultant.

 

                **7.             Termination.**Notwithstanding any provisions of this Agreement to the contrary, thisAgreement and Consultant’s retention hereunder may be terminated by the Companyimmediately and without prior notice for cause. As used in this Section 7, theterm “cause” shall mean: (i) gross negligence of Consultant or Principal in theperformance of the Services; (ii) willful neglect of Consultant’s orPrincipal’s duties or willful refusal to comply with the reasonable requestsfor Services by the Company; or (iii) dishonesty, theft, fraud or othercriminal act on the part of Consultant or Principal.

 

                **8.             Limitsof Liability and Indemnity.** In connection with the performanceof Services, the Consultant shall not be liable to the Company, or to anyonewho is entitled to any right due to any relationship with the Company, for anyacts or omissions in the performance of Services on the part of the Consultantor the Principal, except when said acts or omission of the Consultant orPrincipal are due to willful misconduct or gross negligence. The Company shallhold the Consultant free and harmless from any obligations, costs, claims,judgments, attorneys’ fees, and attachments arising from or growing out of theServices or in any way connected with the rendering of Services, except whenthe same shall arise due to the willful misconduct or gross negligence of theConsultant. The Company shall cause the Consultant to be covered by itsliability and directors’ and officers’ insurance coverage to the extentpermissible. Subject to the foregoing limitations, the Company shall beobligated to indemnify Consultant to the full extent permitted in MinnesotaStatutes, Section 302A.521, subject to the provisions of such statute.

 

                **9.             ConfidentialInformation.** Consultant acknowledges that the confidential andproprietary information and data (which shall mean information or data notknown or generally available to the public) obtained by Consultant andPrincipal during the course of performing Services under this Agreementconcerning the Company’s business, affairs, products, inventions, processes,techniques, equipment, machinery, apparatus, business operations, technicalinformation, drawings, specifications, materials, know how, and the like, andany knowledge or information developed by Consultant or Principal as a resultof performing Services hereunder (collectively referred to as the “ConfidentialInformation”), are all the sole property of the Company. Consultant agrees tohold (and shall cause Principal to hold) all Confidential Information inconfidence and not to disclose the same, without the prior written consent ofthe Company, to anyone for any reason at any time (unless so required by law orlegal process, and then only after written notice to the Company and areasonable opportunity for the Company to challenge, at its cost, suchdisclosure). Consultant shall not (and shall cause Principal to not), directlyor indirectly, use or permit the use of any Confidential Information for anypurpose, other than performing the Services hereunder, without the writtenconsent of Company. Consultant shall use (and cause Principal to use) its bestefforts to prevent publication, disclosure 

 

 

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or other use ortransmission of any Confidential Information. Upon the termination orexpiration of this Agreement, or earlier if requested by the Company,Consultant agrees to return (and cause Principal to return) to the Company allConfidential Information in the possession of Consultant or Principal ,regardless of the form of such Confidential Information. The provisions of thisSection shall survive the expiration or termination of this Agreement.

 

                **10.          IntellectualProperty Rights.**

 

(a)           Without limiting theCompany’s rights arising by law or custom, Consultant acknowledges that theCompany shall exclusively own, and Consultant hereby assigns, transfers, andconveys to the Company, all discoveries, work product, trademarks, servicemarks, 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 thisAgreement, whether registered or unregistered, which relate to the Company’sbusiness (collectively, the “Intellectual Property Rights”). Consultant shalldisclose all such Intellectual Property Rights to the Company, and Consultantagrees to execute and deliver all documents required by the Company to documentor perfect the Company’s exclusive ownership of the Intellectual PropertyRights.

 

(b)           Consultant furtheragrees that all copyrightable works developed by the Consultant or thePrincipal, either alone or with others, prior to or during the Term of thisAgreement, which relate in any way to the Company’s business, shall beconsidered to be works made for hire and the ownership of and the copyrights tosuch works shall be the exclusive property of the Company. Consultant shall discloseall such works to the Company, and Consultant agrees to execute and deliver alldocuments required by the Company to document or perfect the Company’sexclusive ownership of such works.

 

(c)           Upon the terminationor expiration of this Agreement, or earlier if requested by the Company,Consultant agrees to return to the Company all tangible (including electronicstorage) elements of the Intellectual Property Rights and works in thepossession of Consultant, regardless of the form of such Intellectual PropertyRights and works.

 

(d)           The provisions ofthis Section shall survive the expiration or termination of this Agreement.

 

                **11.          Consideration;Remedies.** Consultant acknowledges and agrees that the covenantsset forth in Sections 9 and 10 above are conditions to the offer of retentionby the Company on the terms and for the compensation provided hereunder andthat a portion of the consideration paid to Consultant hereunder is being paidby the Company in consideration for such covenants. Consultant further acknowledgesand agrees that any breach of any of the covenants set forth in Sections 9 or10 above would result in immediate and irreparable injury to the Company forwhich money damages would be an inadequate remedy. Accordingly, Consultantagrees that the Company will have the right to obtain equitable reliefincluding an injunction to enforce the terms of Sections 9 or 10 of thisAgreement in addition to any other 

 

 

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legal or equitableremedies that may be available to the Company. In the event of any violation byConsultant of the terms of Sections 9 or 10 of this Agreement or any action orproceeding brought in connection with such violation, the losing party (ifthere be a losing party) shall be required to pay the reasonable costs andlegal fees of the other party in pursuing any of its rights with respect tothis Agreement, in addition to the damages actually sustained. The provisionsof this Section shall survive the expiration or termination of this Agreement.

 

                **12.          Notices.**Except as otherwise specifically provided, any notice in writing required orpermitted to be given in respect of this Agreement shall be sufficiently givenif delivered to the party by hand, by Federal Express or similar overnightcarrier 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 bythe party to whom it is addressed if mailed as aforesaid on the third businessday following the date of mailing, or if sent by facsimile transmission asaforesaid on the first business day following the date of transmission.Consultant shall be required to inform the Company of any change of address assoon as it occurs.

 

                **13.          NoWaiver.** The failure or delay on the part of any party inexercising any right, power or remedies under this Agreement or available tosuch party at law or in equity, shall not operate or be construed as a waiverof such right, power or remedy. Any waiver of a right, power or remedy underthis 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 anyimplied obligation to give a waiver in another instance or for another purpose.

 

                **14.          GoverningLaw.** This Agreement shall be governed by and construed inaccordance with the laws of the State of Minnesota, without giving effect tochoice of law principle thereof.

 

                **15.          EntireAgreement.** The parties hereto agree that this Agreementconstitutes the entire understanding of the parties and supersedes and replacesall oral or written representations 

 

 

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and that this Agreementshall not be amended, modified or supplemented in any respect except by asubsequent written Agreement signed by both parties hereto.

 

                **16.          Successorsand Assigns.** The rights and obligations of the parties underthis Agreement may not be assigned by either party without the written consentof the other, which consent shall not be unreasonably withheld. The Agreementshall inure to the benefit of and be binding upon the parties hereto and uponthe heirs, executors, administrators and personal representatives of Consultantand the successors and permitted assigns of the Company.

 

                **17.          Severability.**Subject to the provisions of applicable law, in the event that any term orprovision of this Agreement, or any part or aspect thereof, shall be deemed bya court of competent jurisdiction to be overly broad in scope or duration orboth, the court considering the same shall have the power and authority, andthe parties hereby direct such court to exercise such power and authority, tomodify such term or provision to limit such scope and duration so that suchterm or provision is no longer overly broad and to enforce the same as solimited. Subject to the foregoing sentence, in the event that any provisions ofthis Agreement shall be held to be invalid or unenforceable for any reason,such invalidity or unenforceability shall attach only to such provisions andshall not affect or render invalid or unenforceable any other provision of thisAgreement, it being the intent of the parties that the terms and provisions ofthis Agreement shall be deemed to be severable into separate and independentcovenants.

 

                **18.          Counterparts.**This Agreement may be executed in any number of counterparts each of which whenexecuted shall be deemed to be an original and one and the same instrument.

 

                **IN WITNESS WHEREOF**, the parties hereto haveexecuted 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 Principalwill receive personal benefit from the Consultant entering into this Agreement.As an inducement to the Company to enter into this Agreement, the Principalhereby agrees to be personally bound to all of the covenants, restrictions andobligations of the Company contained in Sections 9, 10 and 11 of thisAgreement.

 

 
| /s/ Monte Johnson |
|-------------------|
| Monte Johnson     |

 

 

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