BUSINESS CONSULTANT SERVICES AGREEMENT
This Agreement is entered into effective as of August 4, 2005 (the
"Effective Date") by and between National Diversified Services, Inc., a Delaware
Company, having its principal office at 0000 Xxxx Xxxx, Xxxxxxxxxxxxx, XX 00000,
(the "Company"), and Xxxxxx Xxxxx, residing at 000 Xxxxxxx Xxxx Xxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000 (the "Consultant").
RECITALS:
WHEREAS, the parties are entering into this Agreement to set forth and
confirm their respective rights and obligations with respect to the retention of
Consultant by the Company;
NOW, THEREFORE, in consideration of the mutual covenants herein described,
the parties hereto mutually agree as follows:
1. SCOPE OF SERVICES TO BE PROVIDED. The Company hereby retains Consultant
to provide from his home or other location chosen by Consultant general business
consulting services regarding all aspects of the business, including, but not
limited to determination of services to be provided and the manner and/or method
of providing those services, product development, product enhancement,
marketing, sales, advertising, employment of others, day-to-day operations,
business development, business growth, and, general business and administrative
procedures and processes. Consultant has advised Company that tax advice is
specifically excluded from the scope of the services Consultant will provide
under this agreement. Consultant will not, without specific approval of
Company's Board of Directors, contractually obligate Company to do or refrain
from any act.
2. DUTIES. The Consultant hereby accepts such retainer, and agrees to
devote sufficient business time, attention, skills and efforts to the business
and affairs of the Company to execute such duties consistent with the
Consultant's position as may be assigned to him from time to time by the
Officers and/or Directors of the Company. However, the Consultant shall not be
required to travel outside of New York City and shall not be required to devote
more than five hours per month to the affairs of the Company and Consultant
shall be given 72 hours written notice in advance of the need for his services.
Notwithstanding the foregoing, the Company acknowledges the Consultant has other
business interests. The Company acknowledges and consents to the continuation of
these interests and relationships.
3. TERM. The term of the Consultant's Agreement will commence on the
Effective Date and will continue for a period of one (1) year from the Effective
Date.
4. COMPENSATION.
Cash Retainer
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As full consideration for Consultant's services hereunder during the
term of this Agreement, Company shall pay Consultant on the Effective Date, a
non-refundable retainer fee of $59,474.16. Consultant shall be entitled to
retain the Retainer fee irrespective of whether Company has required Consultant
to perform any services during the term of this Agreement.
Purchase of Shares
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In the event that during the term hereof Company (i) issues or sells,
pursuant to that certain Standby Equity Distribution Agreement, dated as of
April 28, 2005, by and between Cornell Capital Partners, LP and The Certo Group,
Inc., any common stock or any warrant, option, right, contract, call, or other
security or instrument granting the holder thereof the right to acquire common
stock for a consideration per share less than $.80 per share, or (ii) issues or
sells, to any individual or entity not contemplated by the foregoing subsection
(i), any common stock or any warrant, option, right, contract, call, or other
security or instrument granting the holder thereof the right to acquire common
stock for a consideration per share less than $1.00 per share, Company hereby
grants Consultant an option to purchase such number of shares of common stock of
Company to ensure that Consultant continues to hold the same percentage of
outstanding common stock of Company held by Consultant immediately prior to such
issuance or sale at a purchase price equal to $.001 per share, so long as the
percentage of common stock of the Company held by Consultant subsequent to the
exercise of the option granted herein does not exceed 7.7%. The Company hereby
agrees that in the event that it obtains any material financing it shall file a
Form 8-K or other public filing in accordance with the Securities Exchange Act
of 1934, as amended. In the event that the Company makes a filing in accordance
with the foregoing sentence, and the Consultant sends a subsequent notice to the
Company inquiring as to the status of the option granted in this Section 4, the
Company further agrees that it will provide the Consultant with sufficient
information necessary for him to exercise his option.
5. EXPENSES.
Reimbursement for Expenses. The Company will promptly reimburse the
Consultant in accordance with the Company's policies and practices for all
expenses reasonably incurred by the Consultant in performance of the
Consultant's duties under this Agreement. All expenses shall be pre-approved in
writing by the Company.
6. TERMINATION.
During the one-year term of this Agreement, this Agreement may not be
terminated by either party for any reason whatsoever.
7. PRESERVATION OF CERTAIN PROVISIONS. Not withstanding provisions of this
Agreement to the contrary, Sections 8 through 16 hereof shall survive the
termination of this Agreement as necessary to give full enforcement of all of
the provisions of this Agreement.
8. AGENCY. It is understood and agreed that the Consultant is an
independent contractor in respect to Consultant's relationship to Company, and
that Consultant is not and should not be considered an agent or employee of the
Company for any purpose. Consultant agrees not to represent himself as an agent
or employee of the Company at any time.
Nothing in this Agreement will be construed or implied to create a
relationship of partners, agency, joint venturers, or of employer and employee
between Consultant and Company.
9. INDEPENDENT CONTRACTOR STATUS. Consultant will have full control and
discretion as to the ways and means of performing any and all services to be
provided under this Agreement. It is understood that in the performance of this
Agreement Consultant is not in any way acting as an employee of Company, and
Consultant will be responsible for all taxes, social security payments, and
other similar payments or contributions due as a result of any payments made
pursuant to the terms of this Agreement.
As an independent contractor, Consultant agrees that Company has no
obligation under the state or federal laws regarding employee liability, and
that Company's total commitment and liability under this arrangement is the
performance and the fees limited as described herein.
10. CONFIDENTIAL INFORMATION. The Consultant recognizes and acknowledges he
will have access to certain information of the Company which is confidential,
including, but not limited to financial, personnel, sales, scientific, technical
and other information regarding formulas, patterns, compilations, programs,
devices, methods, techniques, operations, trade secrets, plans and processes
that are owned by Company, actually or potentially used in the operation of
Company's business, or obtained from third parties under an agreement of
confidentiality, and that such information constitutes Company's "confidential
information."
Consultant agrees that the Company has a legitimate interest in protecting
Confidential Information. The parties agree that the Company is entitled to
protection of its interests and Consultant shall at no time, either during or
subsequent to the term of this Agreement disclose to others, except as pursuant
of his duties, any Confidential Information without prior Consent of the Company
and Consultant agrees to execute a Confidentiality/Non-Disclosure Agreement.
The Company will own any and all Confidential Information, inventions or
other proprietary rights, created or discovered by Consultant in connection with
Consultant's performance of his duties under this Agreement, as set forth in the
Company's standard Proprietary Information Agreement, which Consultant agrees to
execute as a condition of retention by the Company. The term "Confidential
Information" with respect to Consultant is further defined in the Company's
standard Proprietary Information Agreement. Consultant also agrees to cooperate
with Company in executing any other documents necessary to convey or establish
title in such Confidential Information, inventions or other proprietary rights
to the Company.
Consultant specifically agrees that he will not misuse, misappropriate, or
disclose in writing, orally, or by electronic means, any trade secrets, directly
or indirectly, to any other person or use them in any way, either during the
term of this Agreement or at any other time thereafter, except as is required in
the course of Consultant's engagement.
Consultant acknowledges and agrees that the sale or unauthorized use or
disclosure in writing, orally, or by electronic means, of any of Company's trade
secrets obtained by Consultant during the course of Consultant's engagement
under this Agreement, including information concerning Company's actual or
potential work, services, or products, the facts that any such work, services,
or products are planned, under consideration, or in production, as well as any
descriptions thereof, constitute unfair competition. Consultant promises and
agrees not to engage in any unfair competition with Company, either during the
term of this Agreement or at any other time thereafter.
The restrictions against disclosure and/or use of Confidential Information
does not apply to information which the Consultant can demonstrate was at the
time of the execution of this Agreement:
(a) In the public domain; or
(b) Part of Consultant's prior knowledge; or
(c) Learned from a third party without the breach of a confidential
relationship with Company.
Consultant acknowledges that Company regards its mere interest in the
subject matter discussed with Consultant to be a matter of strict
confidentiality. Consultant therefore agrees that Consultant will not disclose
to any third party, at any time, any of the subject matter of this Agreement.
Consultant agrees that all files, records, documents, drawings,
specifications, equipment, software, and similar items, whether maintained in
hard copy or in electronic form, relating to Company's business, whether
prepared by Consultant or others, are and will remain exclusively the property
of Company and that they will not be removed from Company's premises or, if kept
in electronic form, from Company's computer systems without the express prior
written consent of Company's Board of Directors.
11. DELIVERY OF DOCUMENTS UPON TERMINATION. The Consultant shall deliver to
the Company at the termination of his services copies of all Company documents,
materials and information in his possession at time of termination.
12. INDEMNIFICATION. Consultant agrees to indemnify Company against all
federal, state, and local tax liability (including penalties and interest) which
may result from any federal, state, or local tax audit (including, but not
limited to, income, social security, disability, and unemployment taxes) that
deems Consultant to be an employee rather than an independent contractor of
Company.
13. AGREEMENT BINDING ON SUCCESSORS. The Company shall require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of the Company
to expressly assume and agree in writing to perform this Agreement in the manner
and to the same extent that the Company would be required to perform if no such
succession had taken place. As used in the Agreement, "Company" shall mean the
Company herein before defined and any successor to its business or assets
aforementioned which assumes and agrees to perform this Agreement by operation
of law, or otherwise.
14. ASSIGNMENT. The Company may not assign this Agreement, (i) except in
concert with, and to the acquiror of, all or substantially all of the business
assets of the Company, provided such acquiror expressly assumes and agrees in
writing to perform this Agreement as provided in this Section. The Consultant
may not assign his rights or delegate his duties or obligations under this
Agreement.
15. NOTICE. Any notices or other communication required hereunder shall be
in writing and shall be deemed to have been delivered or given when hand
delivered, one (1) business day after being sent by fax (confirmed by mail) or
sent by overnight courier five (5) days after being mailed by registered or
certified mail, postage prepaid, return receipt requested, to the party to whom
such communication was given at the address set forth below, which address may
be changed by notice given in accordance with this Section.
If to the Company: To the address set forth on page 1.
If to the Consultant: To the address set forth on page 1.
16. MISCELLANEOUS:
(a) SEVERABILITY. If any provision of the Agreement shall be held to be
invalid or unenforceable, in whole or in part, such invalid or
unenforceability shall not affect the remaining provisions of which
shall remain in full force and effect.
(b) NO ORAL MODIFICATION, WAIVER, OR DISCHARGE. No provisions to this
Agreement may be modified, waived or discharged orally, but only by
waiver, modification or discharge in writing signed by Consultant and
such officer as may be designated by the Board of Directors of the
Company to execute such a waiver, modification or discharge.
(c) INVALID PROVISIONS. Should any portion of this Agreement be adjudged
or held to be invalid, unenforceable or void, the parties hereby agree
that the portion deemed invalid, enforceable or void shall, if possible,
be reduced in scope, or otherwise be stricken from this Agreement to the
extent required for the purpose of validity and enforcement thereof.
(d) ENTIRE AGREEMENT. This agreement represents the entire Agreement of
the parties and shall supersede all previous contracts, arrangements or
understandings, express or implied, between the Consultant and the
Company with respect to the subject matter hereof.
(e) EXECUTION IN COUNTERPARTS. The parties may sign this Agreement in
counterparts, all of which shall be considered one and the same
instrument.
(f) GOVERNING LAW. This Agreement shall be governed by the laws of the
State of New York.
The parties hereby execute this Agreement as of the Effective Date.
COMPANY: CONSULTANT:
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxx Xxxxx
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Authorized Officer Xxxxxx Xxxxx
