1
---------------------------
CONSULTANT AGREEMENT
---------------------------
CONSULTANT AGREEMENT, made as of January 1, 1998 between Weststar
Environmental, Inc. (the "Corporation"), and Xxxxxx X. Xxxxxx (the
"Consultant").
WHEREAS, the Corporation wishes to assure itself of the services of the
Consultant for the period provided in this Agreement, and the Consultant is
willing to provide its services to the Corporation for the said period under the
terms and conditions hereinafter provided.
NOW, THEREFORE, WITNESSETH, that for and in consideration of the
premises and of the mutual promises and covenants herein contained, the parties
hereto agree as follows:
1. ENGAGEMENT
The Corporation agrees to and does hereby engage the Consultant, and
the Consultant agrees to and does hereby accept engagement by the Corporation in
connection with the operation of the business and affairs of the Corporation,
for the three-year period commencing on January 1, 1998 and ending on December
31, 2000. The three-year period during which Consultant shall serve in such
capacity shall be deemed the "Engagement Period" and shall hereinafter be
referred to as such.
2. SERVICES
2.1 The Consultant shall render to the Corporation the services
described below, with respect to which the Consultant shall apply his best
efforts and devote such time as shall be reasonably necessary to perform its
duties hereunder and advance the interests of the Corporation. The Consultant
shall report to the chief executive officer of the Corporation and to such
persons as the chief executive officer shall direct.
2.2 The services rendered by the Consultant to the Corporation, for
which he shall be compensated hereunder, shall under no circumstances include
the following:
a. Any activities which could be deemed by the Securities and
Exchange Commission to constitute investment banking or any
other activities requiring the Consultant to register as a
broker-dealer under the Securities Exchange Act of 1934.
b. Any activities which could be deemed to be in connection
with the offer or sale of securities in a capital-raising
transaction.
2.3 The services to be rendered by the Consultant to the Corporation
shall consist of the following:
2
2.3.1 Corporate Planning
a. Develop an in-depth familiarization with the
Corporation's business objectives and bring to its
attention potential or actual opportunities which
meet those objectives or logical extensions thereof.
b. Alert the Corporation to new or emerging high
potential forms of marketing and distribution of its
services which could either be acquired or developed
internally.
c. Comment on the Corporation's commercial development
including such factors as its position in its
competitive environment, its financial performance as
compared to that of its competition, financing
impacts of its alternative strategies, its
maximization of its operational viability, etc.
d. Identify prospective suitable merger or acquisition
partners for the Corporation, perform appropriate
diligence investigations with respect thereto, advise
the Corporation with respect to the desirability of
pursuing such prospects, and assist the Corporation
in any negotiations which may ensue therefrom.
2.3.2 Business Strategies
a. Evaluate business strategies and recommend changes
where appropriate.
b. Critically evaluate the Corporation's performance in
view of its corporate planning and business
objectives.
2.3.3 Commercial Financing
a. Review and comment upon the Corporation's annual and
quarterly financial statements and reports and other
financial disclosures and publications.
b. Develop, in conjunction with the Corporation's
financial personnel and advisers, periodic
projections of its cash needs commensurate with its
projected growth in operations and revenues.
c. Attempt to arrange for commercial financing to meet
the Corporation's projected cash needs by way of
accounts receivable financing and/or factoring,
purchase order financing, equipment financing,
equipment lease financing (closed-end option), sale
and leaseback transactions, institutional commercial
financing (business finance plans, bank letters of
credit [standby], lines of credit, and other
institutional financial accommodation), governmental
financing (US Small Business Administration, State
Economic Authorities, etc.).
2
3
3. COMPENSATION
3.1 In consideration of the Consultant's having entered into this
agreement, the Corporation agrees to sell to the Consultant 100,000 shares of
common stock of the Corporation, $.001 par value (the "Consulting Stock"). The
price shall be at the per share rate of the par value of the Consulting Stock.
The said price shall be paid and the certificates for the Consulting Stock shall
be delivered as soon as possible, and in all events promptly, following the date
hereof. The terms of the Consulting Stock shall be as follows:
a. The Consulting Stock shall be issued in the name of
the Consultant.
b. The Consultant warrants and represents that he is
knowledgeable concerning the business, financial
condition and prospects of the Corporation and that
he is acquiring the Consulting Stock solely for the
purposes of investment and without a view toward the
resale or distribution thereof.
c. The Corporation warrants and represents that the
Consulting Stock, at the time of its issuance by the
Corporation to the present holders thereof, was duly
and validly issued, fully paid and non-assessable.
3.2 The Corporation shall reimburse Consultant for those expenses,
incurred in connection with its engagement by the Corporation, which shall have
been previously approved by the Corporation in writing, which approval shall not
be unreasonably withheld.
3.3 In the event that the Corporation shall hereafter complete a
merger, acquisition, sale, financing, or similar activity by reason of the
introduction, negotiation, or other assistance rendered by the Consultant under
Sections 2.3.1.d or Section 2.3.2.c hereof, which assistance is material to the
completion of such activity, the Corporation shall compensate the Consultant by
way of consideration which shall have been theretofore negotiated and agreed to
between them, which compensation shall be separate and unrelated to the
Consultant Stock for which provision is made hereunder.
3.4 In the event that the Consultant shall request that the Corporation
file and bring to effectiveness, and the Corporation is eligible to file and
bring to effectiveness, a registration statement (including a reoffer
prospectus) on Form S-8 under the Securities Act of 1933, as amended, with
respect to the Consulting Stock, the Corporation shall forthwith do so at its
expense.
4. SECRETS
Consultant agrees that any trade secrets or any other like information
of value relating to the business and/or filed of interest of the Corporation or
any of its affiliates, or of any corporation or other legal entity in which the
Corporation or any of its affiliates has an ownership interest of more than
twenty-five percent (25%), including but not limited to, information relating to
inventions, disclosures, processes, systems, methods, formulae, patents, patent
applications, machinery, materials, research activities and plans, costs of
production, contract forms, prices volume of sales, promotional methods, list of
names or classes of customers, which it has heretofore acquired during its
engagement by the Corporation or any of its affiliates or which it may hereafter
acquire during the Engagement Period as the result of any disclosures to it, or
in any other way, shall be
3
4
regarded as held by the Consultant and it personnel in a fiduciary capacity
solely for the benefit of the Corporation, its successors or assigns, and shall
not at any time, either during the term of this Agreement or thereafter, be
disclosed, divulged, furnished, or made accessible by the Consultant and it
personnel to anyone, or be otherwise used by them, except in the regular course
of business of the Corporation or its affiliates. Information shall for the
purposes of this Agreement be considered to be secret if not by trade generally,
even though such information may be disclosed to one or more third parties
pursuant to distribution agreements, joint venture agreements and other
agreements entered into by the Corporation or any of its affiliates.
5. ASSIGNMENT
This Agreement may be assigned by the Corporation as part of the sale
of substantially all of its business, provided, however, that the purchaser
shall expressly assume all obligations of the Corporation under this Agreement.
Further, this Agreement may be assigned by the Corporation to an affiliate,
provided that any such affiliate shall expressly assume all obligations of the
Corporation's under this Agreement, and provided further that the Corporation
shall then fully guarantee the performance of the Agreement by such affiliate.
Consultant agrees that if this Agreement is so assigned, all the terms and
conditions of this Agreement shall obtain between assignee and himself with the
same force and effect as if said Agreement had been made with such assignee in
the first instance. This Agreement shall not be assigned by the Consultant
without the express written consent of the Corporation.
6. SURVIVAL OF CERTAIN AGREEMENTS
The covenants and agreements set forth in Article 4 and Article 5 shall
survive the expiration of the Engagement Period and shall all survive
termination of this Agreement and remain in full force and effect regardless of
the cause of such termination.
7. NOTICES
7.1 All notices or permitted to be given hereunder shall be delivered
by hand, telecopier, or recognized courier service to the party to whom such
notice is required or permitted to be given hereunder. Any delivered to the
address designated for such delivery by such party, notwithstanding the refusal
of such party or other person to accept such delivery.
7.2 Any notice to the Corporation or to any assignee of the Corporation
shall be addressed as follows:
Weststar Environmental, Inc.
0000 Xxxxxxx Xxxxxx Xxxx., Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Telecopier: 000-000-0000
7.3 Any notice to Consultant shall be addressed as follows:
Xxxxxx X. Xxxxxx
Xxx Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Telecopier: 000-000-0000
4
5
7.4 Either party may change the address to which notice to it is to be
addressed, by notice as provided herein.
8. APPLICABLE LAW
This Agreement shall be interpreted and enforced in accordance with the
laws of New Jersey and all disputes arising hereunder shall be settled by
arbitration before the American Arbitration Association.
9. INTERPRETATION
Whenever possible, each Article of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
Article is unenforceable or invalid under such law, such Article shall be
ineffective only to the extent of such unenforceability or invalidity, and the
remainder of such Article and the balance of this Agreement shall in such event
continue to be binding and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed the above
Agreement as of the day and year first above written.
WITNESS: WESTSTAR ENVIRONMENTAL, INC.
/s/ Xxxxxxx Xxxxx By /s/ Xxxxxxx Xxxxx
------------------------- -----------------------------
XXXXXXX XXXXX, President
/s/ Xxxx X. Xxxxxxx /s/Xxxxxx X. Xxxxxx
------------------------- -----------------------------
XXXXXX X XXXXXX
5
