EXHIBIT 10.356
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into on January 4,
2001, by and between Pollution Research and Control Corp., 000 Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000 (the "Company"), and Silverline Partners, Inc., 00
Xxxxxxxxxx Xxxx, Xxxx, Xxxxxxx (the "Consultant").
WHEREAS, the Company desires to explore and obtain business opportunities
in the countries of the United Kingdom, France, Germany, Italy and Spain for
purposes, among others, locating strategic partners having industrial companies
capable of assisting in the distribution of products as well as forming
alliances with technology companies having the capacity to improve upon the
Company's existing product line.
WHEREAS, the Company recognizes that the Consultant can contribute to the
expansion, management and development of the Company in the manner described
above.
WHEREAS, the Company believes it to be important, both to the future
prosperity of the business and to the Company's general interest, to retain
Consultant as a consultant to the Company and have Consultant available to the
Company for consulting services in the manner and subject to the terms,
covenants and conditions set forth herein.
WHEREAS, in order to accomplish the foregoing, the Company and Consultant
desire to enter into this Agreement to provide certain assurances as set forth
herein.
NOW, THEREFORE, in view of the foregoing and in consideration of the
premises and mutual representations, warranties, covenants, and promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. Retention. The Company hereby retains the Consultant during the
Consulting Period (as defined in Section 2 below), and Consultant hereby agrees
to be so retained by the Company, all subject to the terms and provisions of
this Agreement.
2. Consulting Period. The Consulting Period shall commence on January 4,
2001, and terminate no earlier than January 3, 2002.
3. Duties of Consultant. During the Consulting Period, the Consultant shall
use reasonable and best efforts to perform those actions and responsibilities
necessary to assist the Company in exploring and obtaining business
opportunities in the countries of the United Kingdom, France, Germany, Italy and
Spain (the "Services"). For purposes of this Section 3, such business
opportunities shall include, but not be limited to, locating strategic partners
having industrial companies capable of assisting in the distribution of products
as well as forming alliances with technology companies having the capacity to
improve upon the Company's existing product line.
Consultant shall render such services diligently and to the best of its
ability. Consultant shall report to the President of the Company. Consultant
shall present various opportunities to the Company; however, the Company shall
be under no obligation to accept such opportunities.
4. Other Activities of Consultant. The Company recognizes that Consultant
shall perform only those services that are reasonably required to accomplish the
goals and objectives set forth herein. The Consultant shall provide services to
other businesses and entities other than the Company. Consultant shall be free
to, directly or indirectly, own, manage, operate, control, finance, acquire, or
invest or participate in (collectively, be "Affiliated" with) any business or
enterprise engaged in any business, including, but not limited to, any business
that is the same as, substantially similar to, or otherwise competitive with,
adverse or otherwise, related to the Company. Consultant may be Affiliated with
any entity that proposes to deal with the Company. In the event Consultant is
Affiliated with any entity that proposes to deal with the Company, Consultant
shall disclose the nature of such relationship to the Company prior to the
Company making any decision, and shall obtain the approval of the Company, which
approval shall be conclusively deemed granted upon written notice from the
President of the Company, or his, or the Company's designated representative.
The Company hereby waives any conflict of interest that may arise from a
relationship between Consultant and any entity with which Consultant is
Affiliated.
5. Compensation. In consideration for Consultant entering into this
Agreement, the Company shall compensate Consultant as follows:
Fees and Benefits.
Expenses. The Company shall pay all such expenses reasonably incurred
during the Consulting Period by the Consultant for business purposes related to,
or in the furtherance of, the goals and objectives of the Company and/or the
provision of the Services (collectively, "Company Purposes"), including expenses
reasonably incurred with respect to the Consultant's travel (including Business
Class travel for flights of less than three hours and First Class for flights of
three hours or more), meals, entertainment, and other customary and reasonable
expenses for Company purposes. The Company shall pay such expenses directly, or
upon submission of bills, receipts, and/or vouchers by the Consultant, by direct
reimbursement to the Consultant. All expenses shall be pre-approved by the
Company prior to their occurrence or such non-approval expenses shall not be
required to be paid by the Company to the Consultant.
Due Diligence Fee. The Company shall transfer, or cause to be transferred,
700,000 shares (the "Shares") of the Company's common stock, no par value per
share, to the Consultant as a due diligence fee for services previously rendered
in the discovery process by the Consultant prior to entering into this
Agreement. This fee is non-refundable for services rendered by Consultant to the
Company in preparation of this Agreement and the Services to be provided herein.
Said Shares shall be issued pursuant to a Registration Statement on Form S-3. If
such Form S-3 Registration Statement is unavailable, then said Shares shall be
restricted and subject to Rule 144 of the General Rules and Regulations
promulgated under the Securities Act of 1933, as amended (the "Act"). In that
event, the Company shall be obligated to prepare and file a Registration
Statement (the "Registration Statement"), and amendments thereto, with the
Securities and Exchange Commission (the "Commission") for the registration of
the Shares under the Act and shall be obligated to cause such Registration
Statement, and amendments thereto, to be declared effective by the Commission as
soon as practicable. The Company shall be obligated to the Consultant to
continually maintain, at the Company's own expense, the currently and
effectiveness of such Registration Statement of the Company, including the
filing of any and all applications and other notifications, filings and
post-effective amendments and supplements as may be necessary so as to permit
the resale of the Shares that are freely-tradable pursuant to a Registration
Statement filed on Form S-3 or otherwise.
6. Termination.
a. Subject to the cure provisions contained herein, the Company may
terminate the Consulting Period upon written notice. Termination shall not occur
for a period of one year except for cause. Cause shall be defined as the
Consultant failing to perform the duties outlined in the Agreement in good faith
and failing to properly service the Company's needs as reasonably expected under
the implied "good faith" provisions herein. Thirty days' written notice (the
"Notice of Intended Termination") shall be given to the Consultant with the
opportunity to cure within 30 days. Such Notice of Intended Termination shall
state specifically the facts and circumstances claimed as the basis for said
termination of the Consulting Agreement. Such notice must be approved by a
majority of the Board of Directors of the Company.
b. Not less than 15 days after receipt of the Notice of Intended
Termination, Consultant shall have the opportunity for a full, complete, and
fair hearing in the presence of the majority of the Board of Directors (the
"Board"). The Board shall present to Consultant its reasons for the termination,
including the specific actions, inactions, omissions, or other facts relied upon
by the Board in making its determination. Consultant shall have the right to
rebut any evidence or allegations of wrongdoing and shall have the right to be
represented by counsel of Consultant's choice at such hearing. After such
hearing, should the Board determine that this Agreement shall be terminated for
Cause, it shall issue a written final notice of termination (the "Final Notice
of Termination") to Consultant, approved by a majority of the Board of
Directors, setting forth in detail the specific facts, conclusions and findings
of the Board in determining that cause exists for their termination of this
Agreement. The Final Notice of Termination shall be effective 30 days from the
original Notice of Intended Termination unless otherwise ordered by a majority
of the Board of Directors of the Company.
7. Notice. Any notice required, permitted or desired to be given, pursuant
to any of the provisions of this Agreement, shall be deemed to have been
sufficiently given or served for all purposes if delivered in person or sent via
certified mail, return receipt requested, postage and fees prepaid, or by
national overnight delivery prepaid service to the parties at their addresses
set forth below. Any party hereto may, at any time and from time to time
hereafter, change the address to which notice shall be sent hereunder by notice
to the other party given under this paragraph. The date of the giving of any
notice sent via mail, shall be the day two days after the posting of the mail,
except that notice of an address change shall be deemed given when received. The
addresses of the parties are as follows:
TO THE COMPANY: TO THE CONSULTANT:
POLLUTION RESEARCH AND CONTROL SILVERLINE PARTNERS, INC.
000 Xxxxx Xxxxxx 00 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000 Cork, Ireland
8. Waiver. No course of dealing, nor any delay on the part of either party
in exercising any rights hereunder, will operate as a waiver of any rights of
such party. No waiver of any default or breach of this Agreement or application
of any term, covenant or provision hereof, shall be deemed a continuing waiver,
or a waiver of any other breach or default or the waiver of any other
application of any term, covenant or provision.
9. Successors; Binding Agreements. Prior to the effectiveness of any
succession (whether direct or indirect, by purchase, merger, consolidation, or
otherwise) to all, or substantially all, of the business and/or assets of the
Company, the Company will require the successor to expressly assume and agree to
perform this Agreement in the same manner, and to the same extent, that the
Company would be required to perform it if no such succession had occurred. As
used in this Agreement, "Company" shall mean the Company as defined above and
any successor to its business and/or assets that executes and delivers the
Agreement provided for in this Section 10, or that otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law. This
Agreement is not transferable by Consultant, since it requires the specific
services of Consultant, without the prior written approval of the Board of
Directors and the President of the Company.
10. Survival of Terms. Notwithstanding the termination of this Agreement
for whatever reason, the provisions hereof shall survive such termination,
unless the contract requires otherwise.
11. Counterparts. This Agreement may be executed in two counterparts, each
of which, shall be deemed to be an original, but both of which together, shall
constitute one and the same instrument. Any signature by facsimile, shall be
valid and binding, as if an original signature were delivered.
12. Captions. The caption headings in this Agreement are for convenience of
reference only, and are not intended, and shall not be construed, as having any
substantive effect.
13. Governing Law. This Agreement shall be governed, interpreted, and
construed in accordance with the laws of the State of California applicable to
agreements entered into and to be performed entirely therein. Any suit, action,
or proceeding with respect to this Agreement, shall be brought exclusively in
the state courts of the State of California, or in the federal court of the
United States, which are located in Los Angeles, California. The parties hereto,
hereby agree to submit to the jurisdiction and venue of such courts for the
purposes hereof. Each party agrees that, to the extent permitted by law, the
losing party in a suit, action, or proceeding in connection herewith shall pay
the prevailing party its or his reasonable attorney's fees incurred in
connection therewith.
14. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior understandings and agreements,
whether oral or written, regarding Consultant's retention by the Company. This
Agreement shall not be altered or modified, except in writing, duly executed by
the parties hereto.
15. Warranty. The Company and Consultant each hereby warrant and agree that
each is free to enter into this Agreement, that the parties signing below are
duly authorized and directed to execute this Agreement, and that this Agreement
is valid, binding, and enforceable. The parties further agree that they shall
both use good faith efforts in their performance of the covenants, conditions
and obligations stated herein and any failure to do so shall be a material
breach of this Agreement.
IN WITNESS HEREOF, the parties hereto have duly executed and delivered this
Agreement as of the day and year first written above.
POLLUTION RESEARCH AND CONTROL SILVERLINE PARTNERS, INC. LTD.
By: /s/ Xxxxxx X. Xxxxxxxx, Xx. By: /s/ Director of Silverline Products
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Xxxxxx X. Xxxxxxxx, Xx. President (Authorized Officer)
