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EXHIBIT 6(vi)
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into as of the
1st day of March, 1999 by and between Enviro-Clean of America, Inc., a Nevada
corporation having its principal place of business at 000 Xxxx Xxx.,
Xxxxxxxxxx, XX 00000 (the "Company") and Xxxxxx Xxxx, an individual residing at
Xxxxxxx Xxxx, Xxxxxxxxxx, XX 00000 (the "Consultant"):
WHEREAS, the Company is a publicly traded company whose common stock,
par value $.001 per share (the "Common Stock"), trades on the NASD OTC Bulletin
Board under the symbol "EVCL"; and
WHEREAS, the Company wishes to engage Consultant to assist the Company
in conducting its public relations activities with the financial community and
Consultant wishes to accept such engagement, all upon the terms and subject to
the conditions contained in this Agreement;
NOW, THEREFORE, the parties hereto, in consideration of the mutual
consideration and promises contained herein and intending to be bound, hereby
agree as follows:
1. Appointment.
The Company hereby appoints Consultant, and Consultant agrees to serve
as, financial public relations consultant to the Company, all upon the terms,
and subject to the conditions of this Agreement. Consultant's appointment shall
be non-exclusive, but the Company undertakes promptly to notify Consultant of
the appointment of any other financial relations consultant or the employment
of any person as an employee of the Company to serve in a similar capacity and
to promptly inform consultant of the duties to be undertaken by any such other
consultant or employee.
2. Term.
The term of this Agreement shall begin on the date first set forth
above and shall continue until the date that is one (1) year from the date of
this Agreement unless earlier terminated by either party hereto pursuant to
Paragraph 11, below. This Agreement shall automatically be renewed for
successive periods of one (1) year unless either party gives written notice to
the other of its intention not to renew this Agreement, which notice must be
given at least sixty (60) days prior to the end of the initial term or any
renewal term thereof.
3. Duties of Consultant.
Consultant shall assist senior management of the Company in
communicating to existing and potential shareholders, market makers, analysts,
stockbrokers, investment bankers, institutional investors and traders, the
various new media and other members of the financial community. Consultant shall
report to Xxxxxxx Xxxxxx, President of the Company and shall
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comply with all Company policies regarding dissemination of financial and
related information to the investment community and to the public at large.
4. Securities Laws, Rules and Regulations.
The Company and Consultant hereby acknowledge that they are aware of
their respective duties and obligations regarding the dissemination of
information to the public under both Federal and State laws, rules and
regulations. To ensure that these duties and obligations are met, the parties
hereto agree that:
(a) The Company shall provide Consultant with true, accurate and
complete copies of all:
(i) materials filed by the Company with the U.S. Securities and
Exchange Commission (the "Commission"), with the securities regulatory
authorities of any State or other jurisdiction and with NASDAQ or any stock
exchange during the term of this Agreement;
(ii) press releases disseminated by the Company;
(iii) written communications by the Company with shareholders,
analysts, market makers, stockbrokers, money managers, traders or other members
of the financial community;
(iv) product and service brochures and marketing or advertising
materials prepared by or on behalf of the Company to promote its products and
services;
(v) news or trade publication articles regarding the Company, its
management or its products and services; and
(vi) a current list of the Company's shareholders, certified by its
transfer agent in each case, whether such materials were prepared by or with
the assistance of Consultant or not.
(b) The Company hereby represents and warrants that any materials
provided to Consultant pursuant to the terms of this Agreement will be true,
accurate and complete and will not contain any misleading statements and will
not fail to contain any statements necessary to ensure that the statements
contained therein are not misleading. Any delivery of materials to Consultant
hereunder shall constitute a separate ongoing representation and warranty by the
Company to this effect. In the absence of notice to the contrary to Consultant
pursuant to Paragraph 4(c), below, Consultant shall be entitled to continue to
rely upon information provided to Consultant by the Company under this
Agreement.
(c) The Company will notify Consultant of any event or state of
affairs that would (1) result in any issuance of securities of the Company, (2)
involve incurrence of any material debt not in the ordinary course of business,
(3) otherwise result in any material change in the
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capitalization of the Company, (4) materially impair or encumber any
substantial portion of its assets, (5) present a special disclosure or
non-disclosure obligation with respect to any information or materials provided
to Consultant hereunder (including, without limitation, information which is of
a sensitive, non-public nature and may be deemed "inside information" or which
the Company is under a duty not to disclose), (7) materially affect the
business or prospects of the Company or (8) result in any information
previously provided to Consultant being misleading or failing to contain
information required to make the information contained therein not misleading.
(d) The Company agrees to make available to Consultant at reasonable
times during regular business hours the Company's counsel and any employee or
outside consultant of the Company responsible for the Company's SEC, NASD and
state Blue Sky compliance policies and procedures to advise Consultant in
carrying out its duties under this Agreement. The Company acknowledges that
Consultant will also be free to consult counsel of its own in determining its
responsibilities under applicable laws, rules and regulations with regard to
its duties under this Agreement and that Consultant shall be justified in
acting, or declining to act, in reliance upon the advice of such counsel.
(e) Consultant agrees that it will not disseminate any materials
regarding the Company that (i) have not been provided to Consultant by the
Company or (ii) if prepared by any person other than the Company, that have not
been approved by management of the Company, nor will Consultant divulge or
disseminate any such information to any party that the Company advises
Consultant in writing should not receive such information.
5. Representations and Warranties of the Company.
The Company hereby represents and warrants to Consultant that the
Company:
(a) is a corporation duly organized and validly existing under the
laws of the State of Nevada;
(b) has the power and authority, and that all necessary corporate
action has been taken to empower the Company, to enter into this Agreement and
to carry out its obligations hereunder.
6. Compensation.
As compensation to the Consultant for the services to be rendered
under this Agreement, the Company agrees to pay to Consultant a monthly fee of
Two Thousand Dollars ($2,000) throughout the term of this Agreement, which fee
shall be paid on or before the tenth day of every calendar month for services
rendered in the immediately preceding month; and
The Company also agrees to reimburse Consultant for any out-of-pocket
expenses incurred by Consultant in rendering the services contemplated under
this Agreement.
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7. Status as Independent Contractor.
The parties intend and acknowledge that Consultant is acting as an
independent contractor and not as an employee of the Company. Consultant shall
have full discretion in determining the amount of time and activity to be
devoted to rendering the services contemplated under this Agreement and the
level of compensation to Consultant is not dependent upon any preordained time
commitment or level of activity. The Company acknowledges that Consultant shall
remain free to accept other consulting engagements of a like nature to the
engagement under this Agreement. Consultant, however, hereby undertakes to
notify the Company in writing of any engagement undertaken by Consultant that,
in the view of Consultant, creates a conflict of interest with the Company's
engagement of Consultant. The Company shall not be responsible for any
withholding in respect of taxes or any other deductions in respect of the fees
to be paid to Consultant and all such amounts shall be paid without any
deduction or withholding. Nothing in this Agreement shall be construed to
create any partnership, joint venture or similar arrangement between the
Company and Consultant or to render either party responsible for any debts or
liabilities of the other (except as specifically set forth in Paragraph 9,
below).
8. Confidentiality.
(a) Consultant acknowledges that in connection with the services to be
rendered under this Agreement, Consultant may be provided with confidential
business information of the Company. Consultant agrees to keep any information
or materials specifically designated in writing by a responsible officer of the
Company as confidential (the "Confidential Information") in the strictest
confidence and not to disclose or disseminate any such Confidential Information
to any person, firm or other business entity except to those employees,
consultants or other independent contractors of the Company or Consultant as
shall be necessary or advisable for the carrying out of the purposes of this
Agreement and who are under a similar obligation of confidentiality.
(b) The Company acknowledges that Consultant will, in rendering the
services to be rendered hereunder, be employing lists and other materials that
are proprietary to Consultant. The Company acknowledges that any such materials
that are specifically designated in writing to the Company to be proprietary to
Consultant will remain the property of Consultant and the Company will treat
such materials as confidential information of Consultant and will not disclose
or disseminate any such confidential information to any person, firm or other
business entity except to those employees, consultants or other independent
contractors of the Company or Consultant as shall be necessary or advisable for
the carrying out of the purposes of this Agreement and who are under a similar
obligation of confidentiality.
9. Indemnification.
The Company shall indemnify Consultant for any loss, damage, expenses,
claims or other liabilities (including, without limitation, attorneys' fees)
resulting from a breach or alleged
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breach of any of the representations and warranties of the Company, or the
failure of the Company to perform any of its obligations, contained in this
Agreement.
10. Termination.
(a) This Agreement may be terminated at any time by either party upon
sixty (60) days' prior written notice to the other.
(b) Either party may terminate this Agreement immediately upon the
occurrence of any of the following:
(i) the other party shall become party to any proceeding,
whether voluntary or involuntary, seeking the dissolution, winding up or
liquidation of the party or substantially all of its assets, or seeking the
protection of any bankruptcy or insolvency laws, or seeking to have a trustee,
receiver, conservator or like party appointed to take control over the party or
substantially all of its assets, and such proceeding shall not be dismissed for
a period of sixty (60) days; or
(ii) the non-payment by the other party of any amounts due
hereunder, or any other material breach by such party of any of the terms of
this Agreement, and such non-payment or other breach shall remain uncured for a
period of sixty (60) days.
(c) No termination pursuant to this Paragraph 10 shall relieve the
Company for responsibility for any payments to be made in respect of all
periods up to, and including, the date of termination or for the payment of any
amounts pursuant to the indemnities contained in Paragraph 9, above.
11. Amendments, Modifications, Waivers, Etc.
No amendment or modification to this Agreement, nor any waiver of any
term or provision hereof, shall be effective unless it shall be in a writing
signed by the party against whom such amendment, modification or waiver shall
be sought to be enforced. No waiver of any term or provision shall be construed
as a waiver of any other term or condition of this Agreement, nor shall it be
effective as to any other instance unless specifically stated in a writing
conforming with the provisions of this Paragraph 11.
12. Successors and Assigns.
This Agreement shall be enforceable against any successors in
interest, if any, to the Company and Consultant. Neither the Company nor
Consultant shall assign any of their respective rights or obligations hereunder
without the written consent of the other in each instance.
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13. Notices.
Any notices required or permitted to be given under this Agreement
shall be effective upon receipt at the respective addresses (or if by e-mail or
fax at the numbers set forth) in the recitals to this Agreement unless the
address for notice to either party shall have been changed by a notice given in
accordance with this Paragraph 13.
14. Governing Law.
This Agreement shall be governed by, and construed in accordance with,
the substantive laws of the State of New York for contracts executed and to be
performed wholly within such state, without regard for principals of conflicts
of laws.
IN WITNESS WHEREOF, the parties hereto have set their respective hands
as of the date first above written.
ENVIRO-CLEAN OF AMERICA, INC.
By: /s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx
President
/s/ XXXXXX XXXX
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Xxxxxx Xxxx
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