Exhibit 10.1
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made and entered into as of
this 1st day of February, 2008, by and between American Soil Technologies, Inc.,
a Nevada corporation, (the "Company") and BSW & Associates, located at 0000 Xxxx
Xxxxxx, Xxxxx 000, Xxxxxx XX 00000 (the "Consultant") (individually, a "Party";
collectively, the "Parties").
RECITALS
WHEREAS, Consultant has certain financial consulting experience; and
WHEREAS, the Company wishes to engage the services of Consultant to assist
the Company in its financial reports.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the Parties hereto hereby agree as follows:
1. CONSULTING SERVICES.
Consultant agrees assist the Company in preparing it financial statements
for the fiscal year ended September 30, 2007, as well as to assist the Company
in its responses to a pending comment letter received from the Securities and
Exchange Commission ("SEC") (the "Consulting Services"). Consultant hereby
agrees to perform the Consulting Services in a workmanlike manner.
2. TERM OF AGREEMENT.
This Agreement shall be in full force and effect commencing upon the date
hereof. This Agreement shall terminate upon the Consultant's full completion of
the Consulting Services. Either Party hereto shall have the right to terminate
this Agreement without notice in the event of the death, bankruptcy, insolvency,
or assignment for the benefit of creditors of the other Party. Consultant shall
have the right to terminate this Agreement if Company fails to comply with the
terms of this Agreement, including without limitation its responsibilities for
compensation as set forth in this Agreement, and such failure continues
unremedied for a period of 30 days after written notice to the Company by
Consultant. The Company shall have the right to terminate this Agreement upon
delivery to Consultant of notice setting forth with specificity facts comprising
a material breach of this Agreement by Consultant if such breach shall remain
uncured for more than 30 days.
3. TIME DEVOTED BY CONSULTANT.
It is anticipated that the Consultant shall spend as much time as deemed
necessary by the Consultant in order to perform the obligations of Consultant
hereunder. The Company understands that this amount of time may vary and that
the Consultant may perform Consulting Services for other companies.
4. PLACE WHERE CONSULTING SERVICES WILL BE PERFORMED.
The Consultant will perform most Consulting Services in accordance with
this Agreement at Consultant's offices. In addition, the Consultant will perform
Consulting Services on the telephone and at such other place(s) as necessary to
perform these Consulting Services in accordance with this Agreement.
5. COMPENSATION TO CONSULTANT.
As compensation for the Consulting Services, and subject to the terms and
conditions of this Agreement, Company will, upon entering into this Agreement,
authorize the issuance and delivery of 175,000 shares of the Company's common
stock (the "Compensation Shares") to Xxxxx Xxxxx, an individual designated by
Consultant to perform the Consulting Services. As soon as reasonably practicable
after the full execution of this Agreement, Company agrees to file one or more
Registration Statements on Form S-8 with the SEC registering the Compensation
Shares to permit the public sale by the Consultant, and will use its reasonable
best efforts to maintain the effectiveness of this Registration Statement for so
long as an effective Registration Statement is required for the public sale by
the Consultant of the Compensation Shares.
6. INDEPENDENT CONTRACTOR.
Both Company and the Consultant agree that the Consultant will act as an
independent contractor in the performance of its duties under this Agreement.
Nothing contained in this Agreement shall be construed to imply that Consultant,
or any employee, agent or other authorized representative of Consultant, is a
partner, joint venturer, agent, officer or employee of Company unless such
status shall be agreed upon and set forth in a writing signed by the parties.
7. CONFIDENTIAL INFORMATION.
The Consultant and the Company acknowledge that each will have access to
proprietary information regarding the business operations of the other and agree
to keep all such information secret and confidential and not to use or disclose
any such information to any individual or organization without the
non-disclosing Party's prior written consent. Further, Consultant acknowledges
that it will have access to proprietary information regarding the business
operations of certain clients of the Company and agrees to keep all such
information secret and confidential and not to use or disclose any such
information to any individual or organization without the Company's prior
written consent.
8. INDEMNIFICATION.
Each Party (the "Indemnifying Party") agrees to indemnify, defend, and hold
harmless the other Party (the "Indemnified Party") from and against any and all
claims, damages, and liabilities, including any and all expense and costs, legal
or otherwise, caused by the negligent act or omission of the Indemnifying Party,
its subcontractors, agents, or employees, incurred by the Indemnified Party in
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the investigation and defense of any claim, demand, or action arising out of the
work performed under this Agreement; including breach of the Indemnifying Party
of this Agreement. The Indemnifying Party shall not be liable for any claims,
damages, or liabilities caused by the sole negligence of the Indemnified Party,
its subcontractors, agents, or employees.
The Indemnified Party shall notify promptly the Indemnifying Party of the
existence of any claim, demand, or other matter to which the Indemnifying
Party's indemnification obligations would apply, and shall give them a
reasonable opportunity to settle or defend the same at their own expense and
with counsel of their own selection, provided that the Indemnified Party shall
at all times also have the right to fully participate in the defense. If the
Indemnifying Party, within a reasonable time after this notice, fails to take
appropriate steps to settle or defend the claim, demand, or the matter, the
Indemnified Party shall, upon written notice, have the right, but not the
obligation, to undertake such settlement or defense and to compromise or settle
the claim, demand, or other matter on behalf, for the account, and at the risk,
of the Indemnifying Party.
The rights and obligations of the Parties under this Article shall be
binding upon and inure to the benefit of any successors, assigns, and heirs of
the Parties.
9. MISCELLANEOUS.
(A) The Parties submit to the jurisdiction of the Courts of the County of
Orange, State of California or, if there be subject matter jurisdiction, a
Federal Court empaneled in the State of California for the resolution of all
legal disputes arising under the terms of this Agreement. This provision shall
survive the termination of this Agreement.
(B) If either Party to this Agreement brings an action on this Agreement,
the prevailing Party shall be entitled to reasonable expenses therefore,
including, but not limited to, attorneys' fees and expenses and court costs.
(C) This Agreement shall inure to the benefit of the Parties hereto, their
administrators and successors in interest. This Agreement shall not be
assignable by either Party hereto without the prior written consent of the
other.
(D) This Agreement contains the entire understanding of the Parties and
supersedes all prior agreements between them.
(E) This Agreement shall be constructed and interpreted in accordance with
and governed by the laws of the State of California.
(F) No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by the Parties. No waiver of any of the
provisions of this Agreement shall be deemed, or shall constitute, a waiver of
any other provision, whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed in writing by the
Party making the waiver.
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(G) If any provision hereof is held to be illegal, invalid or unenforceable
under present or future laws effective during the term hereof, such provision
shall be fully severable. This Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part
hereof, and the remaining provisions hereof shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom.
(H) The above recitals are incorporated into this Agreement by this
reference.
IN WITNESS WHEREOF, the Parties hereto have placed their signatures hereon
on the day and year first above written.
COMPANY: CONSULTANT:
AMERICAN SOIL TECHNOLOGIES, INC., BSW & ASSOCIATES,
a Nevada corporation
/s/ Xxxx X. Xxxxx /s/ Xxxxx Xxxxx
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By: Xxxx X. Xxxxx By: Xxxxx Xxxxx
Its: President Its: Managing Director
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