CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") made this 31st day of March 2002, by and
between eSAFETYWORLD, Inc., a public company whose address is 00 Xxxxxxx Xxxxx,
Xxxxxxx, Xxx Xxxx 00000, hereinafter referred to as the "Consultant," and
Business Continuity Services Group, Inc., a Nevada corporation, whose principal
place of business is located at 00 Xxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000,
hereinafter referred to as "Company."
WHEREAS, Consultant and Company were parties to a Consulting Agreement (the
"Prior Consulting Agreement") dated May 31, 2001;
WHEREAS, Consultant and Company rescinded the Prior Consulting Agreement on
March 31, 2002;
WHEREAS, Company hereby acknowledges that Consultant has performed all of its
obligations under the Prior Consulting Agreement as of March 31, 2002 without
consideration being received therefor;
WHEREAS, Consultant has developed expertise and experience in Internet-based
sales and other business applications. It desires to consult with the officers
of the Company, and the administrative staff, and to undertake for the Company
consultation as to the direction of certain functions in said management; and
WHEREAS, the Company desires to engage the services of Consultant as an
independent contractor and not as an employee to perform for the Company
consulting services regarding its business operation;
NOW, THEREFORE, it is agreed as follows:
1. Consultation Service. The Company hereby retains Consultant
to perform services in accordance with the terms and conditions of this
Agreement. Consultant will provide Company with advice regarding a variety
of general business, management, planning and e-commerce applications.
2. Term of Agreement. The respective duties and obligations of the
contracting parties shall be for a period of one year from the date on which
Consultant is paid in full for amounts due it under the Prior Consulting
Agreement. Both parties agree that Consultant is owed 600,000 shares of
Company's common stock under the Prior Consulting Agreement. It is further
agreed that Consultant has no obligation to perform any work under this
agreement until Company has filed a Form 10-B or a Registration Statement on
Form SB-2 and the Securities and Exchange Commission has declared such filing to
be effective.
3. Time Devoted by Consultant. It is anticipated that
Consultant will spend the time necessary to perform the services set forth in
this Agreement. Services have already begun.
4. Place Where Services Are Rendered. Consultant will perform
most of the services in accordance with this Agreement at its offices. In
addition, Consultant may perform services by telephone or at other locations
agreed to by the parties.
5. Liability. With regard to the services to be performed by Consultant
pursuant to the terms of this Agreement, Consultant shall not be liable to the
Company, or to anyone who may claim any right due to any relationship with the
Company, for any acts or omissions in the performance of services on the part of
Consultant or on the part of the agents or employees of Consultant, except when
said acts or omissions of Consultant are due to willful misconduct or gross
negligence. The Company shall hold the Consultant free and harmless from any
obligations, costs, claims, judgments, attorneys' fees, and attachments arising
from or growing out of the services rendered to the Company pursuant to the
terms of this Agreement or in any way connected with the rendering of services,
except when the same shall arise due to the willful misconduct or gross
negligence of Consultant and Consultant is adjudged to be guilty of willful
misconduct or gross negligence by a court of competent jurisdiction.
6. Compensation. The Company shall pay to Consultant a fixed,
one-time fee equal to the number of shares of common stock of the Company
equivalent to 3.5% of the number of the Company's common stock issued and
outstanding as of the date that work commences under this Agreement.
The Company shall, at no expense to Consultant, either (i) register the
public resale of such common stock under the Securities Act of 1933, as amended;
or (ii) satisfy the applicable requirements, including the preparation and
filing of an Information Statement and Form 10 or Form 10-SB under the
Securities Exchange Act of 1934 registering the issuance of the shares to
Consultant and to enable the Consultant to distribute such shares of common
stock to the stockholders of the Consultant. Such shares shall be distributed by
Company to Consultant within 24 hours after the applicable registration
statement or information statement becomes effective. Company shall only issue
the number of shares that has been earned pursuant to Paragraph 2 of this
Agreement at the time that payment is made. Thereafter shares shall be issued on
a monthly basis on the last business day of the month and the Consultant. Such
shares will be restricted and be subject to piggyback registration rights with
respect to such shares. Company shall file the necessary Form 211 so as to list
the Company's shares on the OTC Bulletin Board or other exchange. Consultant
will assist Company in satisfying the foregoing requirements at no additional
cost to the Company. Consultant shall execute and deliver to the Company the
Consultant's representation letter setting forth relevant facts on which the
Company may rely in issuing the shares in reliance on exemptions from
registration under applicable federal and state securities laws
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Company and Consultant agree that, if Company pays the consulting fee
specified herein in the form of shares of common stock, the Consultant may, at
its discretion, distribute some or all such shares of common stock to its
shareholders. If Consultant elects to make such a distribution to its
shareholders, that fact will be disclosed in and covered by Company's
registration statement.
7. Reimbursement of Expenses. In addition, the Company shall reimburse
Consultant for any reasonable out-of-pocket expenses incurred by Consultant
pursuant to the terms of this Agreement. Such expenses must receive prior
approval from Company and will be paid as the expenses are incurred. It is
understood that Company will pay all costs and fees related to its obtaining
certified audits and filing fees relating to filings of documents with the
Securities and Exchange Commission, state securities agencies, NASDAQ or any
similar regulatory agency.
8. Company Information. In connection with Consultant's engagement, the
Company will furnish Consultant with any information concerning the Company that
Consultant reasonably deems appropriate. Company will pay the costs of producing
the information required herein including the cost of an audit by auditors
authorized to practice before the Securities and Exchange Commission. Company
will provide Consultant with access to the Company's officers, directors,
accountants, counsel, and other advisors. In order to facilitate the foregoing,
the parties agree as follows:
(a) The Company represents and warrants to Consultant that all
such information concerning the Company will be true and accurate in
all material respects and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in light of the
circumstances under which such statements are made. The Company
acknowledges and agrees that Consultant will be using and relying upon
such information supplied by the Company and its officers, agents, and
others and any other publicly available information concerning the
Company without any independent investigation or verification thereof
or independent appraisal by Consultant of the Company or its business
or assets.
(b) Consultant understands that certain information to be
provided by the Company concerning the business and operations of the
Company, its subsidiaries, and affiliates will be confidential
information and will be treated by Consultant as such. Consultant will
not, directly or indirectly, make use of such information or divulge
any such information to others except as authorized by the Company. For
purposes of this Agreement, information about the business and
operations of the Company, its subsidiaries, and affiliates shall be
treated as confidential if such information is conspicuously marked on
its face by the Company as "limited," "private," "confidential," or
similarly marked to indicate its confidential nature.
(c) Upon termination of this Agreement, Consultant will
surrender to the Company all records obtained by Consultant from the
Company or entrusted to Consultant during the course of this Agreement
(together with all copies thereof) that are conspicuously marked on
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their face by the Company as "limited," "private," "confidential," or
similarly to indicate their confidential nature.
9. Consultant Independent Contractor. Consultant is engaged under the
terms of this Agreement as an independent contractor, and nothing herein shall
be construed as creating an employer/employee relationship between the parties.
Consultant shall not have the authority to make any decisions with respect to
any matter as to which Consultant renders consulting services or to enter into
agreements or contracts on behalf of the Company or otherwise bind the Company.
Consultant shall be solely liable for the payment of any taxes imposed or
arising out of the payment of compensation to Consultant under this Agreement.
10. Assignment/Benefits. The benefits of this Agreement shall inure to
the benefit of the respective successors and assigns of the parties hereto and
of the indemnified parties hereunder and their successors and assigns and
representatives, and the obligations and liabilities assumed in this Agreement
by the parties hereto shall be binding upon their respective successors and
assigns, provided, however, that Consultant shall not assign or permit any other
person or entity to assume its obligations hereunder without the prior written
approval of the Company. The Company shall provide Consultant with notice of its
consent or withholding of such consent within ten days after approval has been
requested.
11. Equitable Relief. Consultant acknowledges that any breach or
threatened breach or alleged breach or threatened alleged breach by Consultant
of any of the provisions of this Agreement can cause irreparable harm to the
Company or its subsidiaries or affiliates, for which the Company would have no
adequate remedy at law. In the event of a breach or threatened breach or an
alleged breach or alleged threatened breach by Consultant of any of the
provisions of this Agreement, the Company, in addition to any and all other
rights and remedies it may have under this Agreement or otherwise, may
immediately seek any judicial action which the Company may deem necessary or
advisable including, without limitation, the obtaining of temporary and
preliminary injunctive relief.
12. Notice. Any notice, demand, request, or other communication
permitted or required under this Agreement shall be in writing and shall be
deemed to have been given if personally served; if transmitted by facsimile if
receipt is confirmed by the facsimile operator of the recipient; if sent by
electronic mail if receipt is acknowledged by the recipient; if delivered by
overnight courier service; or if mailed by certified mail, return receipt
requested, addressed as set forth in the first paragraph of this Agreement or
such other addresses, facsimile numbers, or electronic mail address as shall be
furnished in writing by any party in the manner for giving notices hereunder,
and any such notice, demand, request, or other communication shall be deemed to
have been given as of the date so delivered or sent by facsimile transmission or
electronic mail, one day after the date so sent by overnight delivery, or three
days after the date so mailed.
Either party may change its address for notice purposes by giving notice to the
other party pursuant to the above provision.
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13. Headings. The headings of the paragraphs herein have been
inserted for ease of reference only and shall not control or affect the meaning
or interpretation of any of the terms and provisions hereof.
14. Governing Law. This Agreement is entered into under and
shall be governed by the laws of the state of New York, excluding law
respecting the choice or conflicts of law.
15. Further Action. The parties hereby agree to execute and
deliver such additional documents and to take such further action as may become
necessary or desirable to fully carry out the provisions and intent of this
Agreement.
16. Form of Execution. A valid and binding signature hereto or any
notice, demand, request, or other communication required or permitted hereunder
may be in the form of a manual execution of a document or a true copy made by
photographic, xerographic, or other electronic process that provides similar
copy accuracy of a document that has been manually executed.
17. Enforcement. In the event of a dispute between the parties
arising under this Agreement, the prevailing party in such dispute shall be
entitled to recover its costs, including reasonable attorneys' fees, from the
other party.
18. Nonwaiver. The failure of any party to exercise its rights in
the event of a breach of any of the terms and provisions of this Agreement by
the other party shall not constitute a waiver of any damages attributable to
such breach nor a waiver of any such rights with respect to future, similar
breaches.
19. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be resolved by arbitration in
accordance of the rules of the American Arbitration Association , and judgment
upon the award rendered by the arbitrator(s) shall be entered in any court
having jurisdiction thereof. For that purpose, the parties hereto consent to the
jurisdiction and venue of an appropriate court located in Suffolk County, State
of New York. In the event that arbitration results from or arises out of this
Agreement or the performance thereof or litigation to enforce any award entered
therein, the parties agree to reimburse the prevailing party's reasonable
attorney's fees, court costs, and all other expenses, whether or not taxable by
the court as costs, in addition to any other relief to which the prevailing
party may be entitled. In the event of any such claim or controversy, no action
shall be entertained by said arbitration if initiated more than one year
subsequent to the date the cause(s) of action actually accrued regardless of
whether damages were otherwise as of said time calculable.
20. Entire Agreement. This Agreement contains the entire
agreement of the Parties and may be modified or amended only by agreement in
writing, signed by the Parties. This Agreement supersedes all previous
agreements between the Parties.
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IN WITNESS WHEREOF, the parties have hereunto executed this Agreement on the
31st day of March, 2002
eSAFETYWORLD, Inc.:
By: ____________________
Its: ____________________
Business Continuity Services Group, Inc.:
By: ___________________
Its: ___________________
