Ex. 99.1
CONSULTING AGREEMENT
This Consulting Agreement is made and entered into this October 1, 2003,
by Organitech USA, Inc. (the "Company") and Xxxxxx Xxxxx(the "Consultant").
RECITALS
The Company wishes to assure itself of the services of the Consultant and
the Consultant is willing to provide his services to the Company upon the terms,
covenants and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions hereinafter set forth, the parties hereto do hereby agree as follows:
1. Engagement of Consultant. The Company shall use the consulting services
of the Consultant on various matters for the Company as specified in Section 3
below. The Consultant shall be an independent contractor and not an employee of
the Company. The Consultant agrees to hold harmless and indemnify the Company
from any and all actions resulting from work performed by the Consultant on
behalf of the Company.
2. Term. The term of this Agreement shall be for a period of 24 months
commencing on October1, 2003, unless terminated earlier pursuant to Section 6
below; provided, however, that the Consultant's obligations regarding
confidentiality in Section 5 below and Company's obligation to compensate the
Consultant as set forth in Section 4 below shall continue in effect after such
termination.
3. Scope of Duties.
3.1 Assignment of Duties. The Consultant shall perform the following
services:
(a) Develop an in-depth familiarization with the Company's business
objectives and bring to its attention potential or actual
opportunities which meet those objectives or logical extensions
thereof.
(b) Alert the Company to new or emerging potential forms of
production and distribution which could either be acquired or
developed internally
(c) Comment on the Company's corporate development including such
factors as position in competitive environment, financial
performances vs. competition, strategies, operational viability,
etc.
(d) Identify prospective suitable merger or acquisition partners for
the Company, perform appropriate diligence investigations with
respect thereto, advise the Company with respect to the desirability
of pursuing such prospects, and assist the Company in any
negotiations which may ensue therefrom.
(e) Evaluate business strategies and recommend changes where
appropriate.
(f) Critically evaluate the Company's performance in view of its
corporate planning and business objectives.
The services to be rendered by the Consultant to the Company shall under no
circumstance include the following:
1. Any activities which could be deemed by the Securities and
Exchange Commission ("SEC") to constitute investment banking
or any other activities requiring the Consultant to register
as a broker-dealer under the Securities Exchange Act of 1934,
as amended.
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2. Any activities which could be deemed by the SEC to be in
connection with the offer or sale of securities in a
capital-raising transaction.
3. Any activities which directly or indirectly promote or
maintain a market for ORGT's securities
3.2 Consultant's Devotion of Time. The Consultant hereby agrees to provide
sufficient time and effort to complete the prompt and faithful performance of
the duties assigned to him by the Company. The Company acknowledges and agrees
that the Consultant may act as a consultant or in any other capacity with other
firms or business ventures without the consent or approval of the Company,
unless such other persons compete directly or indirectly with the Company, in
which case the Consultant must obtain the prior written consent of the Company.
4. Compensation; As compensation to the Consultant for the services to be
rendered to the Company, the Company agrees to issue to the Consultant 550,000
shares of the Company's common stock pursuant to an S-8 registration statement.
The Consultant acknowledges that there is no market for these shares at this
time and that the dollar value attached may or may not be realized.
5. Confidentiality of Trade Secrets and Other Materials.
5.1 Trade Secrets. Other than in the performance of its duties hereunder,
the Consultant agrees not to disclose, either during the term of this Agreement
with the Company or at any time thereafter, to any person, firm or corporation
any information concerning the business affairs, the trade secrets or customer
lists or similar information of the Company. Any technique, method, process or
technology used by the Company, shall be considered a "trade secret" for the
purposes of this Agreement.
5.2 Ownership of Trade Secrets; Assignment of Rights. The Consultant
hereby agrees that all know-how, documents, reports, plans, proposals, marketing
and sales plans, client lists, client files and materials made by it or the
Company, are the property of the Company, and shall not be used by it in any way
adverse to the Company interests. The Consultant shall not deliver, reproduce or
in any way allow such documents or things to be delivered or used by any third
party without specific direction or consent of the Board of Directors of the
Company, or their respective executive committees.
6. Termination.
6.1 Basis for Termination. This Agreement may be terminated on the
occurrence of any one or more of the following events:
(1) Any material breach of this Agreement, which remains uncured for
a period of 10 days after delivery of notice of default by the
non-defaulting party. The non-defaulting party may decide to
terminate the agreement or to continue it, allowing the other party
to correct its default.
(2) By mutual agreement of the parties.
7. Miscellaneous.
7.1 Transfer and Assignment. This Agreement is personal as to THE
Consultant and shall not be assigned or transferred by the Consultant without
the prior written consent of the Company. This Agreement shall be binding upon
and inure to the benefit of all of the parties hereto and their respective
permitted heirs, personal representatives, successors and assigns. However, it
is clearly understood that the Company will be hiring other firms and
individuals and consultants from time to time to perform duties associated
herewith.
7.2 Severability. Nothing contained herein shall be construed to require
the commission of any act contrary to law. Should there be any conflict between
any provisions hereof and any present or future statute, law, ordinance,
regulation, or other pronouncement having the force of law, the latter shall
prevail, but the provision of this Agreement affected thereby shall be curtailed
and limited only to the extent necessary to bring it within the requirements of
the law, and the remaining provisions of this Agreement shall remain in full
force and effect.
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7.3 Governing Law. This Agreement is made under and shall be construed
pursuant to the laws of the State of Delaware.
7.4 Counterparts. This Agreement may be executed in several counterparts
and all documents so executed shall constitute one agreement, binding on all of
the parties hereto, notwithstanding that all of the parties did not sign the
original or the same counterparts.
7.5 Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes all prior oral or written agreements, arrangements, and
understandings with respect thereto. No representation, promise, inducement,
statement or intention has been made by any party hereto that is not embodied
herein, and no party shall be bound by or liable for any alleged representation,
promise, inducement, or statement not so set forth herein.
7.6 Modification. This Agreement may be modified, amended, superseded, or
canceled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
party or parties to be bound by any such modification, amendment, supersesions,
cancellation, or waiver.
7.7 Attorneys' Fees and Costs. In the event of any dispute arising out of
the subject matter of this Agreement, the prevailing party shall recover, in
addition to any other damages assessed, its attorneys' fees and court costs
incurred in litigating or otherwise settling or resolving such dispute whether
or not an action is brought or prosecuted to judgment. In construing this
Agreement, none of the parties hereto shall have any term or provision construed
against such party solely by reason of such party having drafted the same.
7.8 Waiver. The waiver by either of the parties, express or implied, of
any right under this Agreement or any failure to perform under this Agreement by
the other party, shall not constitute or be deemed as a waiver of any other
right under this Agreement or of any other failure to perform under this
Agreement by the other party, whether of a similar or dissimilar nature.
7.9 Cumulative Remedies. Each and all of the several rights and remedies
provided in this Agreement, or by law or in equity, shall be cumulative, and no
one of them shall be exclusive of any other right or remedy, and the exercise of
any one or such rights or remedies shall not be deemed a waiver of, or an
election to exercise, any other such right or remedy.
7.10 Headings. The section and other headings contained in this Agreement
are for reference purposes only and shall not in any way affect the meaning and
interpretation of this Agreement.
7.11 Notices. Any notice under this Agreement must be in writing, may be
tele-copied, sent by express 24-hour guaranteed courier, or hand-delivered, or
may be served by depositing the same in the United States mail, addressed to the
party to be notified, postage-prepaid and registered or certified with a return
receipt requested. The addresses of the parties for the receipt of notice shall
be as follows:
If to the Company: OrganiTECH U.S.A. Inc.
X.X. Xxx 000, Xxxxxxx, Xxxxxx 00000
If to Consultant: Xxxxxx Xxxxx
Box 93
00000 Xxxx Xxxx Xxxx.
XX, XX 00000
Each notice given by registered or certified mail shall be deemed
delivered and effective on the date of delivery as shown on the return receipt,
and each notice delivered in any other manner shall be deemed to be effective as
of the time of actual delivery thereof. Each party may change its address for
notice by giving notice thereof in the manner provided above.
7.12 Survival. Any provision of this Agreement, which imposes an
obligation after termination or expiration of this Agreement shall survive the
termination or expiration of this Agreement and be binding on Consultant and the
Company.
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7.13 Effective Date. This Agreement shall become effective as of the date
set forth on page one when signed by the Consultant and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first set forth above.
ORGANITECH USA, INC., Xxxxxx Xxxxx
By Xx. Xxxx Xxxxxx, CEO /s/ Xxxxxx Xxxxx
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/s/ Xxxx Xxxxxx
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