Exhibit 10.3 - Management Consulting and Business
Development Agreement with Xxxxxxx Xxxx
BBJ ENVIRONMENTAL SOLUTIONS, INC.
AND
XXXXXXX XXXX
MANAGEMENT CONSULTING AND
BUSINESS DEVELOPMENT AGREEMENT
THIS AGREEMENT is made as of the 1st day of November, 2001
BETWEEN
(1) BBJ Environmental Solutions, Inc., whose principal place of business is at
0000 Xxxxxxxx Xxxx., Xxxxx 000, Xxxxx XX 00000 (as used herein, "CLIENT"
shall mean and include BBJ Environmental Technologies, Inc. and its
subsidiaries and affiliates); and
(2) Xxxxxxx Xxxx whose principal address is ____________________, Florida
("NOLE").
NOW IT IS HEREBY AGREED as follows:
1. APPOINTMENT OF AGENCY
1.1 CLIENT hereby appoints NOLE as its agent and consultant in
connection with the development and overseeing of CLIENT's sales
organization and business (such development is hereinafter referred to as
the "BBJ Business Development"). NOLE hereby agrees to act in that
capacity, subject to the terms and conditions of this Agreement.
1.2 The services to be performed by NOLE as set forth above shall
commence from the date of this Agreement and shall continue for the term
of this Agreement as set forth in Section 10 below.
2. THE DUTIES HAVE NOLE
2.1 NOLE will assist CLIENT (eighty (80) hours per month) in managing
the sales organization and obtaining and/or developing information
relating to any potential course for the BBJ Business Development and in
assisting CLIENT in the implementation of each and every course selected
to be pursued as may be directed by CLIENT. In particular, but without
limitation, NOLE undertakes to the extent reasonably necessary for the BBJ
Business Development:
2.1.1 to work jointly with CLIENT to manage the sales efforts and research
and evaluate the various sales alternatives and approaches available
to enhance the businesses of CLIENT;
2.1.2 to work jointly with CLIENT to analyze and consider CLIENT's short
and long-term financial and future business expansion goals toward
the development of a BBJ Business Development sales strategy and
plan;
2.1.3 to assist CLIENT with the development and implementation of
marketing and sales strategies of CLIENT's products;
2.1.4 to assist CLIENT in sales and marketing recruiting and training for
CLIENT's business;
2.1.5 to conduct on CLIENT's behalf strategic development with companies
whose products and services can provide additional value to CLIENT's
business;
2.1.6 to assist CLIENT with implementation of the sales reporting
structure and tools necessary to properly manage the sales
activities, and the associated costs and degrees of success of any
actions taken in the BBJ Business Development in meeting targeted
sales, marketing and financial goals, and to work jointly with
CLIENT to institute changes when required;
2.1.7 to assist CLIENT with developing a sales compensation plan
consistent with sales and financial goals; and
2.1.8 to provide CLIENT with ongoing advice and support in matters of
general business development, marketing and promotion.
In performing his services hereunder, NOLE will be acting in an advisory
capacity to CLIENT and shall utilize his good faith efforts in undertaking such
actions and doing such things as CLIENT shall reasonably deem appropriate under
the circumstances.
2.2 CLIENT hereby authorizes NOLE to use the trademarks and trade names
of CLIENT currently in existence or to be developed on or in relation to
products, services and collateral materials relating to the BBJ Business
Development for the sole purpose of exercising his rights and performing his
obligations under this Agreement.
3. THE DUTIES OF CLIENT
3.1 CLIENT undertakes:
3.1.1 to give NOLE such support as he may reasonably require in pursuing
any course of action taken or to be taken in connection with the
performance of his services under this Agreement;
3.1.2 to provide to NOLE full and complete access to CLIENT's management
and employees and to CLIENT's facilities and records as may be
reasonably required for NOLE to perform his obligations under this
Agreement; and
3.1.3 to give NOLE such support as he may reasonably require in pursuing
any course of action taken or to be taken in connection with the BBJ
Business Development.
4. REMUNERATION
4.1 For his services hereunder, CLIENT shall pay to NOLE
4.1.1 Commencing November 1, 2001, and continuing thereafter during the
term of this Agreement, CLIENT shall pay to NOLE a monthly fee of
$6,000 payable in advance on the first day of each month of the term
of this Agreement.
4.1.2 On the execution of this Agreement, NOLE shall be granted an amount
of stock options on terms and conditions outlined below.
4.2 In addition to the foregoing, CLIENT will reimburse NOLE for the
out-of-pocket expenses incurred by NOLE in connection with and/or relating
to the BBJ Business Development including telephone, travel expenses as
shall have been previously approved by CLIENT and such other expenses as
NOLE shall apprise CLIENT of from time to time.
4.3 As further compensation for the services rendered, the Company shall
grant to the employee non-qualified options to purchase an equal number of
series 1 options and series 2 options for 700,000 shares. Each series 1
option and series 2 option is exercisable to purchase one share of BBJ
Environmental Technologies, Inc.'s common stock at an exercise price of
$0.375 per share. The exercise price of all Options granted shall be paid
at the time of exercise in cash, check or money order, or a full recourse
note in form satisfactory to the Company. The series 1 options are
exercisable at anytime between the date of issuance and December 31, 2001.
Upon the exercise of series 1 options, an equal number of series 2 options
shall vest and become exercisable at anytime between January 1, 2002 and
December 31, 2002 (whereupon the Option shall expire and shall thereafter
be null and void and be of no further force or effect).
5. CONFIDENTIAL INFORMATION
5.1 In the performance of the services by NOLE under the terms of this
Agreement, each party may be exposed to confidential information and
materials of the other party. Both parties agree that they shall treat as
confidential and shall not disclose to any third party all information in
whatever form, whether written or oral, received from the other party and
shall use such information only in connection with the transactions set
forth in this Agreement.
5.2 The obligation of confidentiality and the obligation to refrain from
unauthorized use undertaken by the parties under Paragraph 5.1 shall not
be applicable to any information which is (i) in such party's possession
prior to receipt thereof from the other party; (ii) is or hereafter
becomes part of the public domain through no fault of the receiving party;
or (iii) is received as a matter of right from a third party not subject
to a confidentiality obligation to the disclosing party.
5.3 All written information of the disclosing party, including, without
limitation, any samples or materials, furnished to the receiving party by
or on behalf of the disclosing party, and all copies, reproductions and
portions thereof, and all written data and information based on or derived
therefrom and all documents or media containing any such Information shall
be and remain the exclusive property of the disclosing party, and the
receiving party agrees promptly to deliver same to the disclosing party
immediately upon the disclosing party's request.
5.4 Notwithstanding anything contained in this Agreement to the
contrary, CLIENT hereby covenants and agrees with NOLE to carefully guard
and keep confidential, and shall not disclose to any third
party, any and all reports, materials and studies prepared by NOLE,
whether solely by NOLE or jointly by NOLE and CLIENT and/or any other
party, and furnished by NOLE to CLIENT under this Agreement.
5.5 Each party shall treat the specific provisions of this Agreement as
confidential information subject to the provisions of this Section 5.
5.6 This Section 5 shall survive any termination of this Agreement.
6. NOLE PROPRIETARY INFORMATION AND METHODOLOGIES.
6.1 Notwithstanding anything contained in this Agreement to the
contrary, in performing the services described in this Agreement, NOLE may
use certain proprietary information, analytical processes, approaches,
frameworks, methodologies, software and documentation (the "NOLE
Proprietary Information and Methodologies"). The NOLE Proprietary
Information and Methodologies are owned by NOLE, who shall at all times
retain all rights, title and interest therein and CLIENT shall not have
any license, right, title and/or interest therein. CLIENT agrees (i) not
to use the NOLE Proprietary Information and Methodologies for any purpose
other than as expressly authorized by NOLE in writing, (ii) not to
disclose or make available to any third party in any way any of the NOLE
Proprietary Information and Methodologies and (iii) not to copy in whole
or in part (except for an archival copy or copies of software made in the
course of automatic backups), modify, reverse engineer, decompile or
disassemble any of the NOLE Proprietary Information and Methodologies.
6.2 It is understood and agreed that NOLE and CLIENT will jointly own
all discoveries, inventions, works of authorship, documents, reports and
materials (including copyrights and patents and patent applications) which
are conceived, originated or prepared by NOLE during the performance of
the aforesaid services ("work product"), whether or not (i) prepared on or
off CLIENT's premises and/or (ii) solely by NOLE or jointly by NOLE and
CLIENT and/or any other party and/or (iii) they are "works for hire" under
the U.S. Copyright Act.
6.3 This Section 6 shall survive any termination of this Agreement.
7. NOLE CONTACTS
7.1 It is hereby expressly understood and acknowledged that during the
term of this Agreement, NOLE and CLIENT will be revealing and making
available to each other key contacts and relationships. Accordingly,
notwithstanding anything in this Agreement to the contrary, NOLE and
CLIENT agree that during and after the term of this Agreement (i) each of
these contacts and/or relationships shall jointly remain the property of
NOLE and Client.
7.2 This Section 7 shall survive any termination of this Agreement.
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10. DURATION AND TERMINATION
10.0 This Agreement shall come into force on the date set forth above and
shall continue in effect for an initial period ending October 31, 2002 and
thereafter shall be renewed automatically for additional periods of one
year each, unless and until terminated at the end of the initial period or
any such additional one-year period by either party giving to the other
party written notice of termination at least 30 days prior to the end of
such period. In the event of renewal or renewals, no additional options
shall be granted to Note pursuant to Section 4.1.2 unless otherwise agreed
to by the parties in writing.
10.1.1 The Client reserves the right to terminate this agreement on
March 1, 2002, should NOLE fail to perform said services and achieve
results that are mutually defined and agreed upon in Section 2.
10.1.2 Client agrees to provide 30 day written notification to NOLE of
intention to terminate this Agreement and allow NOLE up to 30 days to
remedy to the satisfaction of the Client.
10.2 Upon the termination of this Agreement for any reason:
10.2.1 NOLE shall cease to perform any further services under this
Agreement.
10.2.2 NOLE shall be entitled to receive and continue to receive, and shall
be paid by CLIENT, fees and reimbursement of expenses due NOLE under
Section 4 in connection with the period up to the termination date;
however, all previously granted stock options to the extent not exercised
on or before the termination date shall expire on the close of business on
the Termination Date.
10.3 The termination of this Agreement and/or of the performance by NOLE
of services under this Agreement for any reason whatsoever shall not
release the parties from their respective covenants and obligations under
this Agreement which by their nature contemplate the continuance of such
covenants or obligations beyond such termination, including, without
limitation, the covenants and obligations under Sections 4, 5, 6, 7 and
this Section 10.
11.GENERAL
11.1 Neither CLIENT nor NOLE shall have the right to assign, sell, pledge
or otherwise dispose of their respective rights and obligations under this
Agreement without the other party's prior
written consent and then only in accordance with the terms of such
consent.
11.2 This Agreement constitutes the sole, entire and exclusive agreement
between NOLE and CLIENT relating to services to be performed by NOLE in
connection with the BBJ Business Development and supersedes any and all
prior and contemporaneous discussions, proposals, negotiations,
representations, understandings, arrangements and agreements. Any
additional or conflicting terms, whether or not material, shall not, in
any manner, by implication, by waiver, or otherwise, govern the
relationship between CLIENT and NOLE. Any waiver of any term of this
Agreement shall only be effective as against any party hereto if such
waiver is contained in a written instrument duly executed by or on behalf
of such party and no failure or delay by any party hereto to enforce the
terms of this Agreement shall not be deemed a waiver of such term.
11.3 This Agreement may not be amended, modified or changed except by an
instrument in writing executed by both CLIENT and NOLE.
AGREED AND ACCEPTED BBJ ENVIRONMENTAL SOLUTIONS, INC.
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------- --------------------------------
Name: Xxxxxxx Xxxx Name/Title:
Xxxxx X. Xxxxxxxxx/President
The undersigned executive officer of BBJ Environmental Technologies, Inc. is
authorized by Board of Directors to grant the options referenced in this
agreement on the terms provided herein.
