Exhibit 10.1
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CONSULTING AGREEMENT
THE AGREEMENT is made and entered into as of January /s/ 31, 2008 (the
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"Effective Date") by and between, N-Viro International Corp., a Delaware
corporation hereinafter referred to as the "Client" or the "Company", located at
0000 Xxxx Xxxxxxx Xxxxxx Xxxxx 000 Xxxxxx Xxxx 00000, and SLD Capital Corp a
Pennsylvania corporation with its principal place of business at 0000 Xxxxxxxx
Xxxx, Xxxxxxxx Xx 00000, hereinafter referred to as "Consultant."
RECITALS
WHEREAS, the Consultant possesses skills, knowledge and qualifications
beneficial to the Client.
WHEREAS, in the operation of Client's business affairs, the Client is in
need of the services which Consultant provides and wishes to enter into a
business arrangement with Consultant to provide such services.
IN CONSIDERATION of the promises and mutual covenants hereby contained, it
is hereby agreed as follows and will confirm the arrangements, terms and
conditions pursuant to which Consultant has been retained to serve as a business
consultant to Client on a nonexclusive basis as an independent contractor. The
undersigned hereby agree to the following terms and conditions:
AGREEMENTS
1. Terms of Contract. This Agreement will become effective on the Effective
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Date and will continue in effect for a period of twenty four (24) months unless
earlier terminated pursuant to Section 4 of this Agreement.
2. Services to be Performed by Independent Contractor/Consultant
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2.1. Duties of Consultant. Consultant agrees to provide general
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business consulting to Client. The Consultant will provide such consulting
services and advice pertaining to the Client's business affairs as the Client
may from time to time reasonably request (the "Services"). Per the Client's
request, the Consultant will provide Client with the benefits of its reasonable
judgment and efforts regarding the following: corporate structures, general
business policy, joint ventures, lines of credit, factoring facilities,
strategic business planning, including alliance partnerships and acquisitions.
2.2. Independent Contractor Status. It is the express intention of the
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parties that Consultant be an independent contractor and not an employee, agent,
joint venture or partner of Client. Client shall have no right to and shall not
control the manner or prescribe the method by which Consultant performs the
above described services. Consultant shall be entirely and solely responsible
for its own actions and the actions of its agents, employees or partners while
engaged in the performance of services required by this Agreement. Nothing in
this Agreement shall be interpreted or construed as creating or establishing the
relationship of employer and employee
between Client and Consultant or any employee or agent of Consultant. Both
parties acknowledge that Consultant is not an employee for state or federal
income tax purposes and Consultant specifically agrees that is shall be
exclusively liable for the payment of all income taxes, or other state or
Federal taxes that are due as a result of receipt of any consideration for the
performance of services required by this Agreement. Consultant agrees that any
such consideration is not subject to withholding by the Client for payment of
any taxes and Consultant directs Client not to withhold any sums for the
consideration paid to Consultant for the services provided hereunder. Consultant
shall retain the right to perform services for others during the term of this
Agreement. Nothing herein shall constitute Consultant as an employee or agent of
the Client, except to such extent as might hereinafter be agreed, Consultant
shall not have the authority to obligate or commit the Client in any matter
whatsoever.
2.3. Use of Employees of Contractor. Consultant may, at its own
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expense, use any employees or subcontractors, as it deems necessary to perform
the services required by Consultant by this Agreement. Client may hot control,
direct or supervise Consultant and/or its employees or subcontractors in the
performance of those services.
2.4. Expense. Consultant shall bear out-of-pocket costs and expenses
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incident to performing the Consulting Services, without a right of reimbursement
from the Client unless such expenses are pre-approved by the Client.
2.5. Available Time. Consultant shall make available such time as it,
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in its sole discretion, shall deem appropriate for the performance of its
obligation under this Agreement.
2.6. Certain Covenants of the Consultant.
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2.6.1. Consultant will comply with all federal and state laws and
regulations and all applicable requirements of self-regulatory organizations
(securities associations and securities exchanges) relating to the performance
of the Services provided by Consultant and disclosure of the compensation
received by Consultant. Consultant must include an appropriate legend on all
distributed material describing the compensation received and receivable by
Consultant from Client. Consultant will fully disclose on all distributable
material any interest it has in Client. Consultant represents and warrants that
it will not violate any state or federal laws in connection with its work for
the Client under this Agreement. Consultant will not violate any federal or
state laws (including, but not limited to, the CAN-SPAM Act) relating to
delivery of unsolicited information by any means including, but not limited to
fax, email, mail or telephonically.
2.6.2. During the term of this Agreement, neither the Consultant nor
any affiliate (as defined under the Securities Act of 1933, as amended) of the
Consultant shall not, without the prior written consent of the Client, purchase
or sell, directly or indirectly, or otherwise acquire or dispose of any
beneficial ownership of, any shares of Common Stock of the Client.
3. Compensation.
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3.1. Consideration. In consideration for providing the Services during
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the term of this Agreement, the Consultant shall receive a total of Fifty
Thousand (50,000) shares (the "Shares")
of common stock, par value $0.01 per share, of N-Viro International Corporation,
which Shares have not been registered under the Securities Act of 1933, as
amended (the "Act"), or any state securities laws. As promptly as practical
following the execution of this Agreement, the Client shall deliver (or have
delivered) to the Consultant a stock certificate representing the Shares issued
in the name of "SLD Capital Corp." Upon issuance, the Shares shall be considered
fully paid and non-assessable.
3.2. Representations and Warranties Regarding the Shares. In connection
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with the issuance of the Shares, the Consultant makes the following
representations and warranties to the Client:
3.2.1. The Shares have not been, and will not be, registered under the
Act or under any applicable state securities laws, and that the Client is
issuing the Shares in a transaction exempt from the registration requirements
thereof. The Shares will be characterized as "restricted securities" under Act,
and the Shares may not be offered, sold or otherwise transferred by Consultant
unless such disposition is registered under the Act and applicable state
securities laws or is exempt from registration thereunder.
3.2.2. The Shares are being issued by the Client in reliance upon
Consultant's representation and warranty to the Client that Consultant is
acquiring the Shares for his or her own account, not as a nominee or agent, for
investment and not with a view to the resale or distribution of all or any part
thereof within the meaning of the Act. Consultant has no present intention of
selling, granting any participation in, or otherwise distributing the Shares, or
any of them.
3.2.3. All certificates evidencing ownership of the Shares, or
replacement or new certificates evidencing same, in the absence of registration
under the Act shall bear a legend substantially in the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE (THE "SHARES") HAVE NOT BEEN
REGISTERED TINDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
SECURITIES LAWS OF ANY STATE, AND HAVE BEEN ISSUED OR SOLD IN RELIANCE UPON
EXEMPTIONS FROM REGISTRATION THEREUNDER. THE SHARES MAY NOT BE OFFERED FOR SALE,
PLEDGED, HYPOTHECATED, SOLD, ASSIGNED OR TRANSFERRED AT ANY TIME EXCEPT (1) AS
PERMITTED UNDER THE ACT AND APPLICABLE STATE LAWS, PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR IN A TRANSACTION WHICH IS EXEMPT FROM REGISTRATION
THEREUNDER AND (2) UPON RECEIPT BY THE COMPANY OF EVIDENCE SATISFACTORY TO IT OF
COMPLIANCE WITH THE ACT AND ALL APPLICABLE STATE SECURITIES LAWS."
3.2.4. The Consultant has been furnished with or has obtained from the
XXXXX Website of the Securities and Exchange Commission all filings made by the
Client with the Commission available at the XXXXX website (hereinafter referred
to collectively as the
"Reports"). In addition, the Consultant has received from the Client such other
information concerning its operations, financial condition and other matters as
the Consultant has requested in writing, and considered all factors the
Consultant deems material in deciding on the advisability of accepting the
Common Stock as compensation.
3.2.5. The Consultant is an "accredited investor", as such term is
defined in Regulation D promulgated by the Commission under the Act, is
experienced in investments and business matters, has made investments of a
speculative nature and has purchased securities of United States, publicly-owned
companies in private placements in the past and, with its representatives, has
such knowledge and experience in financial, tax and other business matters as to
enable the Consultant to utilize the information made available by the Client to
evaluate the merits and risks of and to make an informed investment decision
with respect to the Shares, which represents a speculative investment. The
Consultant has the authority and is duly and legally qualified to purchase and
own the Shares. The Consultant is able to bear the risk of such investment for
an indefinite period and to afford a complete loss thereof.
4. Termination Agreement
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4.1. Termination on Notice. Notwithstanding any other provisions of
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this Agreement, Client may terminate this Agreement at any time by giving thirty
(30) days written notice to the Consultant. Upon Consultant receiving 30 days
written notification of termination of this Agreement by Client, it is to
receive full payment for services and expenses as stated in item 3.1 and 3.2 of
this Agreement.
4.2. Termination on Occurrence of Stated Events.
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(a) This Agreement will terminate automatically if the Client (i) is
generally not paying, or admits in writing its inability to pay, its debts as
they become due, (ii) files, or consents by answer or otherwise to the filing
against it of, a petition for relief or reorganization or arrangement or any
other petition in bankruptcy, for liquidation or to. take advantage of any
bankruptcy, insolvency, reorganization, moratorium or other similar law of any
jurisdiction, (iii) makes an assignment for the benefit of its creditors, (iv)
consents to the appointment of a custodian, receiver, trustee or other officer
with similar powers with respect to it or with respect to any substantial part
of its property, or (v) is adjudicated as insolvent or to be liquidated.
(b) This Agreement will terminate automatically if Client shall fail to
pay the compensation to Consultant as contemplated by Section 3.1.
(c) This Agreement may be terminated by either party upon giving
written notice to the other party if the other party is in default hereunder and
such default is not cured within fifteen (15) days of receipt of written notice
of such default.
(d) . Consultant and Client shall have the right to terminate this
agreement effective immediately should the other party in performing its duties
hereunder, violate any law, ordinance, permit or regulation of any governmental
entity.
6. Confidentiality. The Consultant recognizes and acknowledges that it has
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and will have access to certain confidential information of the Client and its
affiliates that are valuable, special and unique assets and property of the
Client and such affiliates. During the Term of this Agreement and thereafter,
the Consultant shall keep confidential the Client's trade secrets, information,
ideas, knowledge and papers pertaining to the affairs of the Client, and any
other material non-public information provided to the Consultant. Without
limiting the generality of the foregoing, such confidential information shall
include: the identity of the Client's customers, suppliers and prospective
customers and suppliers; the identity of the Client's creditors and other
sources of financing; any information about the Client's existing or proposed
strategic partnerships and joint ventures, including the identity of any
strategic partners or joint venturers; the Client's estimating and costing
procedures and the cost and gross prices charged by the Client for its products
and services; the prices or other consideration charged to or required of the
Client by any of its suppliers or potential suppliers; the Client's sales and
promotional policies; and all information relating to Client's proprietary
technology. The Consultant shall not reveal said confidential information to
others except in the proper exercise of its~ duties for the Client (and with the
prior written consent of the Client), or use its knowledge thereof in any way
that would be detrimental to the interest of the Client or in violation of this
Agreement, unless compelled to disclose such information by judicial or
administrative process; provided, however, that the divulging of information
shall not be a breach of this Agreement only to the extent that such information
was (i) previously known by the party to which it is divulged, which knowledge
was not obtained by such party from Consultant in violation of this Agreement,
(ii) already in the public domain, through no fault of the Consultant, or (iii)
required to be disclosed by Consultant pursuant to judicial or governmental
order. The Consultant shall also treat all information pertaining to the affairs
of the Client's suppliers and customers and prospective customers and suppliers
as confidential trade secrets of such customers and suppliers and prospective
customers.
7. Work Product It is agreed that all information and materials produced for
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the Client shall be deemed "work for hire," and shall be the property of the
Client, free and clear of all claims thereto by the Consultant, and the
Consultant shall retain no claim of authorship therein.
8. Consultant's Liability and Indemnification. In the absence of gross
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negligence or willful misconduct on the part of the Consultant or the
Consultant's breach of any terms of this Agreement, the Consultant shall not be
liable to the Client or to any officer, director, employee, stockholder or
creditor of the Client, for any act or omission in the course of or in
connection with the rendering or providing of services hereunder. Except in
those cases where the gross negligence or willful misconduct of the Consultant
or the breach by the Consultant of any terms of this Agreement is alleged and
proven, the Client agrees to defend, indemnify, and hold the Consultant harmless
from and against any and all reasonable costs, expenses and liability (including
reasonable attorney's fees paid in the defense of the Consultant) which may in
any way result from services rendered by the Consultant pursuant to or in any
connection with this Agreement. This indemnification expressly excludes any and
all damages as a result of any actions or statements, on behalf
of the Client, made by the Consultant without the prior approval or
authorization of the Client.
9. Client's Liability and Indemnification. The Consultant agrees to defend,
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indemnify, and hold the Client harmless from and against any and all reasonable
costs, expenses and liability (including reasonable attorney's fees paid in
defense of the Client) which may in any way result pursuant to its gross
negligence or willful misconduct or in any connection with any actions taken or
statements made, on behalf of the Client, without the prior approval or
authorization of the Client or which are otherwise in violation of this
Agreement or applicable law.
10. Remedies For Breach. Consultant and the Client mutually agree that any
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breach of Sections 2, 3, or 6 of this Agreement may cause irreparable damage to
the other party and/or their affiliates, and that monetary damages alone would
not be adequate and, in the event of such breach or threat of breach, the
damaged party shall have, in ~addition to any and all remedies at law and
without the posting of a bond or other security, the right to an injunction,
specific performance or other equitable relief necessary to prevent or redress
the violation of either party's obligations under such Sections. In the event
that an actual proceeding is brought in equity to enforce such Sections, the
offending party shall not urge as a defense that there is an adequate remedy at
law nor shall the damaged party be prevented from seeking any other remedies
that may be available to it. Should a party. default in its performance under
this Agreement and suit or other action is filed as a result of such default,
the prevailing party shall be entitled to recover all costs incurred as a result
of such default, including attorney's fees, expenses and court costs incurred by
such party in enforcing this Agreement.
11. Notices. All notices provided for under this Agreement will be in
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writing and will be deemed given: (a) when delivered on a business day if
delivered personally or by confirmed facsimile transmission during normal
business hours at the place of receipt; or (b) the date of receipt if delivered
by certified mail, return receipt requested, postage prepaid, or by nationally
recognized courier service.
12. Entire Agreement. This Agreement embodies the entire agreement and
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understanding between the Client and the Consultant and supersedes any and all
negotiations, prior discussions and preliminary and prior agreements and
understandings related to the primary subject matter hereof. This Agreement
shall not be modified except by written instrument duly executed by each of the
parties hereto.
13. Waiver. No waiver of any of the provisions of this Agreement shall be
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deemed, or shall constitute a waiver of any other provisions, nor shall any
waiver constitute a continuing wavier. No waiver shall be binding unless
executed in writing by the party making the waiver.
14. Assignment and Binding Effect. This Agreement and the rights hereunder
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may not be assigned by the parties (except by operation of law, merger,
consolidation and sale of
assets) and shall be binding upon and inure to the benefit of the parties and
their respective successors, assigns and legal representatives.
15. Severability. Every provision of this Agreement is intended to be
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severable. If any term or provision hereof is deemed unlawful or invalid for any
reason whatsoever, such unlawfulness or invalidity shall not affect the validity
of this Agreement.
16. Governing Law. This Agreement shall be construed and interpreted in
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accordance with the laws of the State of Ohio.
17. Headings. The headings of this Agreement are inserted solely for the
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convenience of reference and are not part of, and are not intended to govern,
limit or aid in the construction of any term or provision hereof.
18. Further Acts. Each party agrees to perform any further acts and execute
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and deliver any further documents that may be reasonably necessary to carry out
the provisions and intent of this Agreement.
19. Acknowledgment Concerning Counsel. Each party acknowledges that it had
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the opportunity to employ separate and independent counsel of its own choosing
in connection with this Agreement. This Agreement shall not be construed against
either party hereto in the event of any ambiguities
20. Independent Contractor Status. There is no relationship, partnership,
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employment, franchise or joint venture between the parties. The parties have no
authority to bind the other or incur any obligations on their behalf.
21. Counterparts. This Agreement may be executed simultaneously in two or
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more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first written above.
N-Viro International Corporation
BY: /s/ Xxxxxxx Xxxxxxx DATE: /s/ 2/1/08
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Xxxxxxx Xxxxxxx CEO
SLD CAPITAL CORP.
BY: /s/ Xxxxxx X. Xxxxxx DATE: /s/ 2/1/08
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Xxxxxx Xxxxxx, President
