Financial & Management Accounting Services Project Work Agreement
Financial
& Management Accounting
Services
OPEN
ENERGY, CORPORATION. (the "Company") agrees to engage CUSTOMatrix,INC.
("Consultant") to perform project services according to the following terms
of
this agreement (this "Agreement"), effective as of May l8, 2006 (the
"Effective Date").
| 1. |
Project
Services; Fees
|
| 1.1 |
Consultant
shall perform the services described on Schedule A (attached
hereto), upon request, during the course of this engagement, beginning
on
May 18, 2006 . The Company agrees to pay Consultant a fee of
$125.00 per hour for SEC reporting services performed by ▇▇▇▇
▇▇▇▇▇▇ during the course of this engagement. The fee for additional
services will be based on Consultant's usual hourly rates in effect
at the
time the work is performed. The current rates ("Project Fees")
are shown
on Schedule A; however, they will change periodically. In addition,
the Company shall reimburse Consultant for out-of-pocket expenses
such as
reasonable travel that may be incurred, within seven days after
Consultant
transmits an invoice to the Company. The Company will be billed
monthly
for Project Fees and Consultant's bills are payable upon presentation.
Statements for services rendered or disbursements incurred that
are not
paid in full within 15 days after the date of the statement shall
be
subject to late charges of 1.5% per month (18% annual percentage
rate),
computed from the date of the statement until paid. The Company
must
notify Consultant of a billing dispute within 30 days of the invoice
date
or else the Company will have deemed the invoice to be correct,
due and
owing in all respects.
|
| 1.2 |
Consultant
shall be entitled to receive all reasonable costs and expenses
incidental
to the collection of overdue amounts under this Agreement, including
but
not limited to reasonable attorneys'
fees.
|
| 1.3 |
The
Company agrees to pay Consultant a security deposit of WAIVED for
the Company's future payment obligations to Consultant under this
Agreement (the "Deposit"). If the Company fails to make any payment
due to
Consultant within ten days after notice of such failure to pay
has been
provided to the Company by Consultant, Consultant may apply the
Deposit
against such outstanding amount owed to Consultant. If the Company
otherwise breaches this Agreement and fails to cure such breach
as
provided in Section 3.3, Consultant will be entitled to apply the
Deposit
to its damages resulting from such breach, in addition to availing
itself
of any other available remedies. Upon termination or expiration
of the
term of this Agreement, Consultant shall return to the Company
the balance
of the Deposit remaining after application of any amounts to the
Company's
unfulfilled payment obligations to
Consultant.
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CUSTOMatrix,INC.
Page
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| 2. |
Consultant
Personnel; Relationship of the
Parties
|
| 2.1 |
Consultant
will assign Consultant's employee(s) or independent contractor(s)
to
perform services for the Company.
|
| 2.2 |
The
parties agree that Consultant will be serving the Company as
an
independent contractor for all purposes and not as an employee
or partner
of or joint venture with the Company. Consultant therefore will
have
control over the order and sequence of project work, subject
to prior
approval of the Company over the specific hours worked, will
have the
opportunity for entrepreneurial profit, and will not be subject
to Company
withholding of income or employment
taxes.
|
| 2.3 |
The
Company acknowledges that Consultant's success in performing the
services
depends on the participation, cooperation, and support of the Company's
most senior management.
|
| 2.4 |
Neither
Consultant nor any of its employees or contractors will be or serve
as the
chief financial officer, an employee, a manager, any other officer,
or a
director of the Company unless formally agreed to in a signed agreement.
Accordingly, the Company will not give or require Consultant to
use the
title "Chief Financial Officer" or any other title that suggests
such
individual is an officer, director, employee, or manager of the
Company,
and Consultant will have no authority or control over the employees
of the
Company. Consultant may not sign any documents on behalf of the
Company,
including but not limited to federal or state securities filings,
tax
filings, or representations and warranties on behalf of the Company
unless
formally agreed to in a signed
agreement.
|
| 2.5 |
Consultant's
services are not the services of a certified public accountant
and will
not constitute an audit, review or any other type of financial
statement
reporting engagement that is subject to the rules of the AICPA
or other
similar state or national professional
bodies.
|
| 2.6 |
Neither
party shall use or disclose the trade secrets of the other
party.
|
| 3. |
Termination
|
| 3.1 |
Effective
upon 30 days' advance written notice, either party may terminate
the term
of this Agreement, such termination to be effective on the date
specified
in the notice.
|
| 3.2 |
Consultant
retains the right to terminate the term of this Agreement immediately
(1)
if the Company is engaged in or asks the Consultant to engage in
or to
ignore any illegal or unethical activity, or (2) in the event of
the
death, disability, or dissolution of
Consultant.
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3.3
|
In
the event that either party commits a breach of this Agreement
and fails
to cure the same within ten (10) days following delivery by
the
non-breaching party of written notice specifying the nature
of the breach,
the non-breaching party will have the right to terminate the
term of this
Agreement immediately effective upon written notice of such
termination.
|
|
3.4
|
Consultant
shall be entitled to payment of any fees for services rendered
up to the
effective date of termination of the
term.
|
|
4.
|
Standard
Disclaimers & Limitations of
Liability
|
|
4.1
|
The
Company acknowledges that any information, including any
resources
delivered through Consultant's proprietary information
and technology
system, will be provided by Consultant merely as a tool
to be used in the
discretion of the Company. The Company agrees that reports,
projections,
or forecasts may be prepared only at the Company's direction
and will
reflect the Company's own judgment. Consultant makes no
representation or
warranty as to the accuracy or reliability of reports,
projections, or
forecasts derived from use of the information it provides,
and Consultant
shall not be liable for any claims of reliance on such
reports,
projections, forecasts, or information. Consultant disclaims
all
warranties, either express or implied, including, but not
limited to,
implied warranties of merchantability and fitness for a
particular
purpose, with regard to all information, applications,
and services that
it may provide pursuant to this Agreement. Consultant shall
not be liable
for any non-compliance of reports, projections, forecasts,
or information
or services with federal, state, or local laws or
regulations.
|
|
4.2
|
The
Company agrees that, with respect to any claims or liabilities
that the
Company or anyone else may assert against Consultant in
connection with
this Agreement or the relationship arising hereunder, Consultant's
total
liability shall not exceed an amount equal to the Project
Fees actually
received by Consultant for the immediate two months preceding
the
applicable claim.
|
|
4.3
|
As
a condition for recovery of any liability or claim, the
Company must give
Consultant written notice of the alleged basis for liability
within thirty
(30) days of discovering the circumstances giving rise
thereto, in order
that Consultant will have the opportunity to investigate
in a timely
manner and, where possible, correct or rectify the alleged
basis for
liability.
|
|
4.4
|
Neither
Consultant nor the Company will be liable in any event
for incidental,
consequential, punitive, or special damages, including
without limitation,
any interruption of business or loss of business, profit,
or
goodwill.
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| 5. |
Indemnity;
Joint Defense;
Arbitration
|
|
5.1
|
The
Company agrees to indemnify, defend and hold harmless Consultant
to the
full extent permitted by law for any liabilities, losses,
costs, damages,
and expenses, including reasonable attorneys' fees, as
they are incurred,
in connection with (1) any cause of action, suit, or other
proceeding
arising from or relating to Consultant's engagement by
the Company under
this Agreement, Consultant's provision of services to the
Company, or the
Company's use of any analyses or information provided by
Consultant, and
(2) any legal proceeding in which Consultant may be required
or agree to
participate for reasons other than fulfilling the indemnity
obligations described in this sentence. This indemnity
will not apply to
Consultant's willful
misconduct.
|
|
5.2
|
If
the Company and Consultant are defendants in any action,
suit, or other
proceeding, the defense of Consultant will be conducted
by counsel
selected by the Company, unless, upon advice of Consultant's
counsel,
Consultant would not be adequately represented by the Company's
counsel
because of a conflict of interest or inability to present
a defense that
would otherwise be available to Consultant if separately
represented, in
which case Consultant may be represented by counsel of
its own choosing,
at its sole cost Without the written consent of Consultant,
the Company
may not consent to the entry of any judgment with respect
to the matter or
enter into any settlement that does not include a provision
by which the
plaintiff or claimant in the matter releases Consultant
from all liability
with respect to the
matter.
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|
5.3
|
If
the parties are unable to resolve any dispute between them
arising out of
or in connection with this Agreement, either party may
refer the dispute
to arbitration by a single arbitrator selected by the parties
according to
the commercial arbitration rules of the American Arbitration
Association
("AAA"), and the decision of the arbitrator will be final
and binding on
both parties. Such arbitration shall be conducted in San
Diego, California
by the San Diego, California office of the AAA and governed
by internal
California law. In the event that the parties fail to agree
on the
selection of the arbitrator within thirty (30) days after
either party's
request for arbitration under this Section 5.3, the arbitrator
shall be
chosen by AAA. The arbitrator may in the arbitrator's discretion
order
documentary discovery, but in no event may depositions
be taken. The
arbitrator will have no authority to award punitive damages.
Judgment on
the award of the arbitrator may be entered in and enforced
by any court of
competent jurisdiction. The arbitrator will have no authority
to award
damages in excess or in contravention of Section 4.2 or
4.4 or this
Section 5.3 and may not amend or disregard any provision
of Section 4.2 or
4.4 or this Section
5.3.
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INC.
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| 6. |
Miscellaneous
Provisions
|
|
6.1
|
The
provisions concerning payment of the Project Fees, indemnification,
limitation of liability, nonsolicitation, and arbitration will survive
the
expiration of the term or any termination of the term of this
Agreement.
|
|
6.2
|
Neither
the Company nor Consultant will be deemed to have waived any rights
or
remedies accruing under this Agreement unless such waiver is in writing
and signed by the party electing to waive the right or
remedy.
|
|
6.3
|
This
Agreement will be governed by and construed in all respects in accordance
with the internal laws of the State of California, without giving
effect
to conflicts-of-laws principles.
|
|
6.4
|
The
terms of this Agreement are severable, and they may not be amended
except
in writing signed by Consultant and the Company. If any portion of
this
Agreement is found to be unenforceable, the rest of the Agreement
will be
enforceable except to the extent that the severed provision deprives
either party of a substantial portion of its bargain. This agreement
binds
and benefits the successors of Consultant and the
Company.
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|
6.5
|
This
Agreement contains the entire agreement between Consultant and the
Company, superseding any prior oral or written statements or
agreements.
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6.6
|
Each
person signing below is authorized to sign on behalf of the party
indicated, and in each case such signature is the only one
necessary.
|
| 6.7 |
The
mailing address for payments by the Company
is:
|
Customatrix,
Inc.
Attn:
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
| 6.8 |
This
Agreement is effective as of the Effective Date and may be signed
in
original or faxed
counterparts.
|
| COMPANY NAME | CONSULTANT | |||
| Customatrix, Inc., a Delaware Corporation | ||||
| By: |  |
By: |  |
|
|
Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇▇ |
Name: |
▇▇▇▇ ▇▇▇▇▇▇ |
|
|
Title:
|
|
Title:
|
CEO |
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CUSTOMatrix,INC.
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Schedule
A
2006
Fee Schedule
Level
I Services: Various Accounting Activities
$40 to $80 per hour, based on the skill level required
$40 to $80 per hour, based on the skill level required
| 1. |
Enter
transactions into accounting software: deposits, checks, invoices,
A/R,
A/P, credit cards, etc.
|
| 2. |
Reconcile
bank statements and credit card
statements.
|
| 3. |
Maintenance
of fixed asset register and depreciation
schedules.
|
| 4. |
Maintenance
of amortization schedules for notes
payable.
|
| 5. |
Preparation
of general ledger.
|
| 6. |
Accounts
Payable and Accounts Receivable,
etc.
|
Level
II Services: Management Accounting Services
$90 per hour
$90 per hour
| 7. |
Provide
controller services.
|
| 8. |
Inventory
management
|
| 9. |
Cash
flow management.
|
| 10. |
Set-up
initial accounting system and
procedures.
|
| 11. |
Enter
initial transactions: deposits, checks, invoices, A/R, A/P, credit
cards,
etc.
|
| 12. |
Compilation
of periodic financial statements and close
books.
|
| 13. |
Set
up payroll with major payroll provider and manage
process.
|
| 14. |
Provide
financials and other data to tax accountant and/or auditor, and
make
adjustments to financials as
needed.
|
Level
III Services: Financial Modeling, Due Diligence
&SEC Reporting
$125 per hour
$125 per hour
| 1. |
Assist
in the preparation of 10K's and
10Q's.
|
| 2. |
Spearhead
M&A due diligence activities, excluding
valuation.
|
| 3. |
Prepare
projections according to management's
assumptions.
|
| 4. |
Prepare
and analyze key financial ratios and performance
indicators.
|
| 5. |
Implement
one or two year budget.
|
| 6. |
Prepare
financial projections for the purchase of a business or
merger, or bank
financing according to management's
assumptions.
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7.
|
Model
new lines of business according to management's
assumptions.
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Level
IV Services: CFO Functions
$170
per hour
| 1. |
Interface
with investors, banks, etc.
|
| 2. |
Oversee
regulatory compliance and
reporting.
|
| 3. |
Business
plan assistance and evaluation, based on management's
assumptions.
|
| 4. |
Arrange
new finance facilities and banking
arrangements.
|
| 5. |
Assist
in creating convincing presentations to
investors.
|
| 6. |
Evaluate
and advise regarding the Company's capital
structure.
|
| 7. |
Board
of Directors meetings and
presentations.
|
| 8. |
Provide
controllership oversight functions regarding proper staffing,
organization, and
productivity.
|
|
9.
|
Evaluate
buy or lease decisions.
|
| 10. |
Implement
and oversee internal controls and prevent the possibility of
fraud.
|
| 11. |
Assist
with establishing stock options programs and compensation
plans.
|
| 12. |
Spearhead
initial public offerings.
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| 13. |
Business
valuation analysis and consulting.
|
Level
V Services: Placement Services
| 1. |
Recruitment
fees equivalent to 15% of the first year salary for the
new-hire.
|
| 2. |
Yearly
management membership fee of $500.
|