EXHIBIT 10.41
CONSULTING AGREEMENT
AGREEMENT, effective as of the [ ] day of February, 2008, between
ENVIRONMENTAL SOLUTIONS WORLDWIDE, INC., a Florida Corporation (the "Company"),
with its principal address at 000 Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxx X0X 0X0, and
offices at 000 Xxxxxxxx Xxxxx, Xxxxxxxxxxxxxxx, XX 00000 and Xxxx Xxxxxxxx, c/o
JMC Emerald Corp.; ("Consultant").
W I T N E S S E T H:
WHEREAS, the Company and Consultant desire to enter into a consulting
agreement for certain consulting services.
NOW THEREFORE, IN CONSIDERATION OF THE PREMISES AND THE MUTUAL PROMISES
SET FORTH HEREIN, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Consultant shall provide services to the Company on general corporate
matters, including but not limited to compliance and regulatory matters as well
as due diligence on various Company matters in addition to providing management
consulting services with respect to the Company's organizational and business
structure, and other projects as may be assigned by the Company's Board of
Directors or Chief Executive Officer on an as needed basis The Term of this
Agreement will be month to month and may be terminated upon written notice on
the part of either party subject to the terms herein.
2. (a) The Company shall be entitled to Consultant's services for
reasonable times when and to the extent requested by, and subject to the
direction of either its Chairman of the Board and/or the Company's Chief
Executive Officer. It is expressly understood that Consultant will not perform
services or work with another Company or independently if said services conflict
with the business of the Company. The Board of Directors of the Company will
have sole discretion in determining if any conflict exists. In the event of a
conflict, the Company shall provide notice in accordance with Section 18 of this
Agreement, and Consultant will be required to immediately discontinue any
activities deemed to conflict with this Agreement and the services to be
provided hereunder or the Agreement may be terminated for cause.
(b) All services required to be provided hereunder shall be rendered
exclusively by the Consultant.
3. Consultant shall provide Company periodic written reports as required
concerning the status of various projects assigned to Consultant.
4. Upon written approval by the Company, expenses necessarily incurred by
Consultant to render such services such as reasonable travel, accommodation and
other shall be reimbursed by the Company promptly upon receipt of proper
statements, including appropriate documentation, with regard to the nature and
amount of those expenses. Company shall pay all verified and approved expenses
in the next consulting pay period.
5. In consideration for the services to be performed by Consultant,
Consultant will receive the sum of $12,500 U.S. per month (or prorated amount)
plus GST ("the Monthly Retainer"). The Monthly Retainer will be paid in equal
bi-monthly instalments.
6. (a) Except in cases of this Agreement being terminated by Consultant or
if this Agreement is terminated by the Company for cause including but not
limited to Consultant being convicted of a felony or Consultant's incapacity (as
more fully set forth herein) or death of Consultant, the Company will pay to
Consultant four (4) Monthly Retainers in accordance with Section 5 of this
Agreement or upon terms mutually agreeable in writing to Consultant and Company.
(b) In the event this Agreement is terminated by Consultant or if the
Company terminates this Agreement "for cause", then in that event the Company's
obligation to pay Consultant under this agreement will immediately cease with no
further financial obligation.
(c) In the event that the Company constructively terminates this
Agreement, then the Company will make the payment required under paragraph (a)
above.
7. In the event Consultant should die during the term of this Agreement or
becomes disabled so that he can not perform under this Agreement for a period
exceeding one (1) month, Consultant or the Consultant's estate, as the case may
be, will be entitled to three (3) months of Monthly Retainer payments under this
Agreement in the case of disability and four (4) months of Monthly Retainers
payable as the case may be in accordance with Section 4 of this Agreement upon
occurrence of the applicable event.
8. It is the express intention of the parties that Consultant is an
independent contractor and not an agent of the Company and that Consultant is
not an employee of the Company. The Consultant can not bind the Company. Nothing
in this agreement shall be interpreted or construed as creating or establishing
the relationship of employer and employee between the Consultant and the
Company. All parties acknowledge that the Consultant is not an employee of the
Company for any purpose, including but not limited to tax purposes. In
accordance with the terms of this Agreement, Consultant shall retain the right
to perform services for others during the term of this agreement.
9. For purposes of this Agreement, Intellectual Property will mean (i)
works, ideas, discoveries, or inventions eligible for copyright, trademark,
patent or trade secret protection; and (ii) any applications for trademarks or
patents, issued trademarks or patents, or copyright registrations regarding such
items. Any items of Intellectual Property discovered or developed by Consultant
during the term of this Agreement and with respect to the services provided
hereunder will be the property of the Company. Any and all textual and/or
graphic content of materials created by Consultant under this Agreement (as
opposed to the form or format of such materials) will be, and hereby are, deemed
to be "works made for hire" and will be the exclusive property of the Company.
Each party agrees to execute such documents as may be necessary to perfect and
preserve the rights of either party with respect to such Intellectual Property.
10. This agreement supersedes any and all agreements, either oral or
written, between Consultant, Company and any of Company's subsidiaries with
respect to the rendering of services by Consultant for the Company and or its
subsidiaries and contains all the covenants and agreements between the parties
with respect to the rendering of such services in any manner whatsoever. For the
avoidance of doubt, it is agreed and understood that Consultant releases any and
all claims Consultant may have against the Company and its affiliates that may
be asserted or be connected with any prior agreements between the Consultant and
or the Company or its affiliates. Each party to this agreement acknowledges that
no representations, inducements, promises, or agreements, orally or otherwise,
have been made by any party, or anyone acting on behalf of any party, which is
not embodied herein, and that no other agreement, statement, or promise not
contained in this Agreement shall be valid or binding. Any modification of this
Agreement will be effective only if it is in writing signed by the party to be
charged.
11. The written, printed, graphic, or electronically recorded materials
furnished by the Company for use by the Consultant are Proprietary Information
and are the property of the Company. Proprietary Information includes, but is
not limited to, product specifications and/or designs, pricing information,
specific customer requirements, customer and potential customer lists, and
information on Company's employees, agent, or divisions. The Consultant shall
maintain in confidence and shall not, directly or indirectly, disclose or use,
either during or after the term of this agreement, any Proprietary Information,
confidential information, or know-how belonging to the Company, whether or not
is in written form, except to the extent necessary to perform services under
this agreement. On termination of Consultant's services to the Company, or at
the request of the Company before termination, the Consultant shall deliver to
the Company all material in Consultant's possession relating to the Company's
business.
12. The obligations regarding Proprietary Information extend to
information belonging to customers and suppliers of the Company about which
Consultant may have gained knowledge as a result of performing services
hereunder.
13. The Company will indemnify and hold harmless Consultant from any
claims or damages, legal costs or other financial liability consistent with the
indemnification granted to officers and directors of the Company under the
Company's by-law in this regard as amended from time to time.
14. Monthly Retainer payments to Consultant under this Agreement may be
assigned by Consultant subject to the prior written consent of the Company which
will not be unreasonably withheld provided that services hereunder shall still
be rendered exclusively by the Consultant.
15. Consultant and Company have each had an opportunity to consult with
legal and or financial advisors prior to entering into this Agreement.
16. The within Agreement has been approved by the Board of Directors of
the Company.
17. Any notices to be given hereunder by either party to the other may be
given either by personal delivery in writing or by mail, registered or
certified, postage prepaid with return receipt requested. Mailed notices shall
be addressed to the parties at the addresses appearing in the introductory
paragraph of this agreement, but each party may change the address by written
notice in accordance with the paragraph. Notices delivered personally will be
deemed communicated as of actual receipt; mailed notices will be deemed
communicated as of two business days after mailing.
18. This agreement will be governed by and construed in accordance with
the laws of the State of New York, without regard to its conflicts of laws
provisions; and the parties agree that the proper venue for the resolution of
any disputes will be the American Arbitration Association in the City of New
York.
Company:
ENVIRONMENTAL SOLUTIONS WORLDWIDE, INC.
By:
---------------------------------
Xxxxx Xxxxxxx, Chairman of Board and Compensation Committee
Consultant:
-------------------------
XXXX XXXXXXXX
