Exhibit 4.49
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, Ltd., 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 may provide services to 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:
a. Fees and Benefits.
i. 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-approved expenses shall not be
required to be paid by the Company to the Consultant.
ii. 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
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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 currency 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.
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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, LTD.
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 context 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.
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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 courts 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/Modifications. 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 against the parties hereto. 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.
16. Severability. If any term, covenant, or provision, or any part thereof,
is found by any court of competent jurisdiction to be invalid, illegal, or
unenforceable in any respect, the same shall not affect the remainder of such
term, covenant, provision, any other terms, covenants or provisions, or any
subsequent application of such term, covenant, or provision, or portion thereof.
In lieu of any such invalid, illegal, or unenforceable provision, the parties
hereto intend that there shall be added, as part of this Agreement, a term,
covenant, or provision, as similar in terms to such invalid, illegal, or
unenforceable term, covenant, or provision, or part thereof, as may be possible,
and such similar term, covenant, or provision shall be valid, legal, and
enforceable.
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, LTD.
By: /s/ Xxxxxx X. Xxxxxxxx, Xx. By: /s/ Parratt for Iona Limited,
------------------------------- Director of Silverline
Xxxxxx X. Xxxxxxxx, Xx., Partners, Ltd.
President --------------------------------
(Authorized Officer)
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