[EXHIBIT 10.3]
CONSULTING AGREEMENT
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THIS CONSULTING AGREEMENT (the "Agreement") is made and entered
into effective January 1, 2003, by and between Xxxx Xxxxxxx
("Xxxxxxx"), and BBJ Environmental Technologies, Inc., a Nevada
corporation whose principal place of business is at 0000 Xxxxxxxx
Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 (the "Company").
WHEREAS, Caillet currently is a member of the Company's Board of
Directors (the "Board") and is familiar with the Company's operations;
and
WHEREAS, the Company desires to retain Caillet as a consultant
and Caillet desires to render services in that capacity under the
terms set forth below.
NOW THEREFORE, in consideration of the mutual promises and
agreements hereinafter set forth, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Term of Agreement. The Term of this Agreement (the "Term")
shall be Fifteen (15) months, commencing as of January 1, 2003, and
ending March 31, 2004.
2. Consulting Services. The Company hereby retains Caillet as
a consultant, and Caillet hereby agrees to provide advice, assistance,
and consultation to the Company including, without limitation,
regarding strategic matters and the Company's operations. Caillet
shall report directly to the Board and shall not be required to report
to any executive officer of the Company. The parties agree that all
services rendered by Caillet shall be performed in the capacity as an
independent contractor, and that this working relationship is not an
employment relationship.
3. Performance of Consulting Services. The parties recognize
and agree that much of Caillet's work may be performed at locations
other than the Company's offices, including his own home. The Company
shall have no obligation to provide or otherwise make available any
office space or other location to Caillet for providing his services
hereunder. Both parties agree to cooperate in good faith regarding
requests for services, so that they can be rendered on a mutually
convenient basis. The Company acknowledges that Caillet has many
other commitments, and will consider those other commitments in making
requests for services.
4. Compensation. In full consideration of the services to be
provided hereunder, and pursuant to the terms of the BBJ Environmental
Technologies, Inc. 2000 Employee Benefit and Consulting Services
Compensation Plan, as amended (the "Plan"), which is incorporated into
this Agreement by reference, the Company agrees to (a) award Caillet
300,000 shares of the Company's common stock (the "Stock") on January
27, 2003; (b) award Caillet 100,000 shares of Stock on October 1,
2003; (c) award Caillet 100,000 shares of Stock on January 1, 2004;
and (d) xxxxx Xxxxxxx an option ("Option") to purchase an aggregate of
1,000,000 shares of Stock (the "Option Shares") on January 27, 2003
("Date of Grant") at an exercise price equal to the Fair Market Value
(as defined in the Plan) of the Stock on the Date of Grant, which may
be exercised by Caillet as follows: (i) during the period commencing
on the Date of Grant and ending on June 30, 2003, the Option may be
exercised up to a cumulative maximum of 60% of the Option
Shares; (ii) during the period commencing on the July 1, 2003 and ending
on December 31, 2003, the Option may be exercised up to a cumulative
maximum of 80% of the Option Shares; and (iii) commencing on January
1, 2004, the Option may be exercised in full. The specific terms and
conditions of each award of Stock described in Sections 4(a), (b) and
(c) shall be as set forth in the form of a Stock Grant Agreement, a
copy of which is attached to this Agreement as Schedule A and is
incorporated herein by reference. The specific terms and conditions
of the Option described in Section 4(d) shall be as set forth in the
form of a Grant of Option, a copy of which is attached to this
Agreement as Schedule B and is incorporated herein by reference.
Notwithstanding anything to the contrary in this Section 4 or
otherwise, Caillet shall not be entitled to an award of shares under
Section 4(b) or Section 4(c) if, on or prior to the date on which
shares are to be awarded, under Section 4(b) or Section 4 (c), as the
case may be, the Company has terminated this Agreement under Section
5.b., or Caillet has terminated this Agreement.
5. Termination of the Agreement.
a. Termination of this Agreement by Caillet. Caillet may
terminate this Agreement by written notice to the Company in the event
of a material breach of the Agreement by the Company that is not cured
within a period of fifteen (15) days after written notice by Caillet
to the Company of the alleged breach.
b. Termination of this Agreement by the Company for
Cause. The Company may terminate this Agreement for Cause by giving
Caillet written notice of termination. Advance notice of termination
is not required, when termination is for Cause. For purposes of this
Agreement, "Cause" includes, but is not limited to, the following:
(i) commission of fraud, embezzlement, or an act or omission by
Caillet which would be either a felony under applicable law, or a
misdemeanor involving moral turpitude under applicable law, regardless
of whether or not Caillet is prosecuted for this crime, and if
prosecuted, regardless of the eventual disposition of the case, as
long as there is sufficient evidence of misconduct by Caillet,
admissible in a court of law, to prove, by a preponderance of the
evidence, as determined by the Board, that Caillet committed such
acts; (ii) a serious act of misconduct in connection with Company work
by Caillet, including, but not limited to, falsification of Company
documents, dishonesty in connection with Company business, or
misrepresentations to the Board of Directors; (iii) Caillet's failure
or refusal to render services to the Company pursuant to this
Agreement, where such services are reasonably directed by the Board,
which is not cured within a period of fifteen (15) days after written
notice by the Company to Caillet of the alleged failure or refusal to
render services; and (iv) a material breach of this Agreement by
Caillet, which is not cured within a period of fifteen (15) days after
written notice by the Company to Caillet of the alleged breach. In
the event this Agreement is terminated by the Company for Cause,
Caillet shall have the right, within ten (10) days following notice of
termination, to submit a letter to the Board explaining his position
regarding the termination decision, and in the event such a letter is
received by the Board, the Board shall promptly meet and reconsider
its decision, taking into account any arguments or facts set forth in
Caillet's letter. Caillet would have the right to attend this meeting
together with his counsel.
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c. Termination of this Agreement by the Company without
Cause. The Company may terminate this Agreement without Cause, for
any reason at all, or for no reason, by giving Caillet fifteen (15)
days written notice of termination.
d. Termination of this Agreement by the Company because
of Caillet's Disability. The Company may terminate this Agreement
because of Caillet's Disability by giving Caillet fifteen (15) days
written notice of termination. For purposes of this Agreement,
Caillet shall be deemed to be suffering from a "Disability" if he is
unable to perform work assigned by the Board more than 60 days of the
Term as a result of mental or physical illness or injury, regardless
of whether or not those 60 days are consecutive.
e. Termination of this Agreement in the Event of
Caillet's Death. This Agreement shall terminate automatically in the
event of Caillet's death, as of the date of death.
6. Protective Covenants.
a. Reasons for Protective Covenants. The Company is
engaged in the business of manufacturing and distributing products and
services that inhibit the uncontrolled growth of microorganisms, mold
or mildew in the indoor environment, removing such growths when they
become excessive, and otherwise enhancing the quality of the indoor
environment (the "Company Business"). Over the course of time the
Company has developed goodwill, substantial Customer and Prospective
Customer relationships and Protected Information, as such terms are
defined below, all of which are legitimate business interests worthy
of protection. Caillet acknowledges that the Company's legitimate
business interests justify the following restrictive covenants, and
that each of the following restraints and covenants are reasonably
necessary to protect the Company's legitimate business interests.
These protective covenants are specifically designed to permit Caillet
to engage in work or to render consulting services appropriate for an
individual with Caillet's experience and qualifications outside the
Company Business, while restricting his ability to engage in certain
specific business activities that would or might cause competitive
injury to the Company's goodwill and business relationships, or
compromise trade secrets or confidential proprietary information, or
otherwise damage the business of the Company. Caillet acknowledges
that the protective covenants will not prevent him from obtaining
employment or rendering consulting services. Caillet further agrees
that the protective covenants are neither overbroad, nor overlong, nor
otherwise inappropriate. Caillet acknowledges having received an
opportunity to review these covenants with counsel, that these
covenants were the result of negotiation between the parties, and that
he desires to be bound by the covenants in order to obtain the
compensation provided by this Agreement.
b. Covenants Relating to Protected Information. During
his consulting relationship, Caillet will have access to Protected
Information. Caillet covenants and agrees to keep all Protected
Information confidential for the benefit of the Company, and as part
of that obligation, shall not at any time, directly or indirectly,
disclose, divulge, reveal, report, publish, transfer or use any
Protected Information, other than in furtherance of his duties. These
covenants and promises shall not apply to any conduct for which the
Company has given prior written consent, or if the conduct is a
disclosure directly pursuant to a valid and existing order of a court
or other governmental body or agency within the United States;
provided, however, that (1) Caillet shall first have given prompt
notice to the Company of any such possible
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or prospective order; (2) the Company shall have been afforded a
reasonable opportunity to prevent or limit any such disclosure; and
(3) Caillet shall use his best efforts to obtain reasonable assurances
that confidential treatment will be accorded to any Protected
Information so disclosed. Both parties further agree that the
consulting relationship between Caillet and the Company is a
confidential and fiduciary relationship, and that as a consequence of
the existence of this relationship, Caillet has a duty neither to use
nor disclose Protected Information independent of any of the
protective covenants set forth in this Agreement.
c. Covenant not to Compete. Caillet agrees that during
the Term of this Agreement, and for a two (2) year period of time
following termination of his consulting relationship with the Company,
he will not engage, either directly or indirectly, in the Company
Business, or in any similar business, within the United States.
"Engaging" in the Company Business involves work relating to the
Company business, and includes, but is not limited to, being employed
by, contracting with, working for, providing services to or for,
lending assistance to or for, or consulting with or for the benefit
of, any legal or natural person that produces, sells, markets,
represents or services any products in the Company Business. It is
the parties' intent that this provision be construed as broadly as
possible during the time period and within the geographic scope of the
covenant. Both parties agree that the two-year period provided in
this covenant shall be extended by any length of time during which
Caillet is in breach of the covenant.
d. Covenants Relating to Customers and Prospective
Customers. Caillet agrees that during the Term of this Agreement, and
for a two (2) year period of time following termination of his
consulting relationship with the Company, he shall not do the
following: (i) solicit (directly or indirectly) any Customer or
Prospective Customer of the Company to do business with a legal or
natural person other than the Company, or (ii) solicit (directly or
indirectly) any Customer of the Company to cease doing business with
the Company; provided, however, that nothing in these covenants is
intended to prohibit Caillet from soliciting business from any Company
Customer or Prospective Customer where such business would not involve
competition with the Company. It is otherwise the parties' intent
that this covenant be construed as broadly as possible to protect and
preserve the Company's Customer and Prospective Customer relationships
within the temporal scope of the covenant. The parties agree that the
two-year period provided in this covenant shall be extended by any
length of time during which Caillet is in breach of the covenant.
e. Covenant not to Solicit Employees. Caillet agrees
that during the Term of this Agreement, and for a two (2) year period
of time following termination of his consulting relationship with the
Company, he will not solicit or attempt to persuade Company employees
to terminate their employment with the Company and accept other
employment with a similar business within the United States. This
covenant specifically prohibits solicitation of employees, in the
event of termination of Caillet's employment, to work with or for
Caillet in a business competing with the Company in the United States
during the two-year period of the covenant. Caillet acknowledges that
this covenant is appropriate in view of the specialized training
provided by the Company to its employees, and the fact that the
covenant is limited to solicitation of employees to terminate their
employment and work for competitors or similar businesses. Both
parties agree that the two-year period provided in this Section shall
be extended by any length of time during which Caillet is in breach of
the covenant.
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f. Related Provisions. Caillet agrees that the rights of
the Company provided by this Section 6 of this Agreement are special,
unique and of extraordinary character and that the Company will be
without an adequate remedy at law if Caillet violates any of those
covenants. Accordingly, Caillet agrees that the Company shall be
entitled to injunctive relief to enforce such covenants. It is also
agreed that each of the covenants set forth in Section 6 of this
Agreement is an agreement independent of any other provisions in this
Agreement. If any such covenant is held invalid, void or
unenforceable by a court of competent jurisdiction, such invalidity,
voidness or unenforceability shall not render any other provision of
this Agreement unenforceable. It is the parties' intent that any
covenant held overbroad by any court be enforced to the maximum extent
deemed reasonable by that court. The existence of any claim or cause
of action of Caillet against the Company, whether based on this
Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of such covenants.
g. Definitions. For purposes of this Section:
(1) Customer and Prospective Customer. The term
"Customer" shall mean any legal or natural person who purchased goods
or services from the Company, or who was a referral source for such a
purchase, during the two years preceding the date of Caillet's
termination, and the term "Prospective Customer" shall mean any legal
or natural person from whom the Company solicited business, either
directly or as a referral source, during the two years preceding the
date of Caillet's termination. The terms "Customer" and "Prospective
Customer" shall not include Xxxxxxx X'Xxxxxx and any affiliates of the
Company, including but not limited to a new subsidiary that may be
formed named BBJ International.
(2) Company. The term "Company" shall mean,
individually and collectively, the Company (as defined in the first
paragraph of this Agreement) and each of the Company's Affiliates.
(3) Affiliate. The term "Affiliate" shall mean any
corporation or other entity that, directly or indirectly, controls, is
controlled by, or is under common control with, the Company (as
defined in the first paragraph of this Agreement).
(4) Protected Information. The term "Protected
Information" shall mean any and all information and materials, in
whatever form, whether or not reduced to writing and whether or not
registerable, recordable or otherwise protected under applicable
patent, copyright, trade secret, trademark or other form of
intellectual property law, that Caillet has received, received access
to, conceived or developed, in whole or in part, directly or
indirectly, in connection with rendition of services to the Company,
or through the use of any of the Company's facilities or resources,
and regardless of how such information was communicated, disclosed,
created or discovered, including both trade secrets and "know-how."
Protected Information includes, but is not limited to, the following:
(i) Company marketing plans, techniques and arrangements, sales plans,
techniques and arrangements, customer lists, parts lists, budgets,
projections, cost analyses and data, sales data, value data, prospect
lists (including, without limitation, prospects and non-prospects, and
ratings of potential), pricing and xxxx-up information, customer
service plans and techniques, vendor data and lists, other mailing
lists having business value, purchasing information, pricing policies,
quoting procedures, and other materials or information relating to the
Company's business and activities and the manner in
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which the Company does business; (ii) application, operating system,
database, communication and other computer software, developed for
use on any operating system, all modifications, enhancements and
versions and all options available with respect thereto, all future
products developed or derived therefrom, and all source and object
codes, algorithms, and any related documentation or manuals; (iii)
financial information of the Company, including, without limitation,
information relating to profits and losses; (iv) any information or
materials received by the Company from third parties in confidence or
subject to non-disclosure or similar covenants; and (v) any notes,
tapes, reference items, sketches, drawings, memoranda, analyses,
compilations, studies, summaries and other material relating to other
Protected Information, however documented. Notwithstanding the
foregoing, Protected Information shall not include information that
becomes publicly available, or is made available to Caillet by
unaffiliated third parties, without breach of (1) this Agreement,
(2) any other agreement or instrument to which the Company is a party
or a beneficiary or to which such third party is a party or by which
it is bound, or (3) any duty owed to the Company by Caillet or any
third party, whether by contractual, legal, fiduciary or other
obligation.
7. No Company Employee Benefits. Caillet shall not be
employed by the Company during the term of this Agreement, unless
otherwise decided by the Board of Directors, and accordingly will not
be entitled to any employee benefits offered by the Company, including
but not limited to group insurance benefits, paid vacation, retirement
benefits, FICA or workers compensation benefits; provided, however,
that nothing in this Section is intended to affect Caillet's rights or
benefits under Section 4 of this Agreement.
8. Indemnification. If Caillet should become a party to any
pending, threatened or completed action, suit or proceeding by reason
of the services he renders hereunder, he shall be indemnified by the
Company to the maximum extent permitted by law.
9. Notices. In the case of any notice required or permitted
to be given to Caillet under this Agreement, it shall be sufficient if
the notice is personally given to Caillet, in writing, or if it is
mailed to Caillet's last known principal address, as set forth in the
Company's records. In the case of any notice required or permitted to
be given to the Company under this Agreement, it shall be sufficient
if the notice is personally given to the President of the Company, in
writing, or if it is delivered by mail or other means to the office of
the President. Mailing of any notice must be by facsimile
transmission, e-mail, or overnight courier. In the event notice is
sent by overnight courier, it will be effective on the next business
day after mailing. A copy of any notice from the Company to Caillet
should be provided to Xxxxx X. Xxxxx, Esq., Xxxx Xxxxxxx, LLP, 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and a copy of any notice from
Caillet to the Company should be provided to Xxxxxxx X. Xxxxxx, Esq.,
Xxxxxxx Xxxxxx, 000 X. Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx
00000.
10. Waiver. Any waiver by either party of a breach of any
provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by any party. To be
effective, any waiver must be in writing and signed by the applicable
party (with the same formalities as this Agreement).
11. Binding Effect. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and be binding upon
the successors and assigns of the Company.
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More specifically, the Company's rights set forth in Section 6 of this
Agreement may be assigned to a purchaser or successor of the Company.
The rights of Caillet under this Agreement may not be assigned without
the prior written consent of the Company.
12. Governing Law. This Agreement shall be interpreted,
construed and governed according to the law of the State of Florida
without regard to conflicts of laws principles that would result in
the application of the laws of any other jurisdiction.
13. Submission to Jurisdiction. Both parties agree that all
disputes, claims, actions or lawsuits between them, arising out of or
relating to this Agreement, or for alleged breach of this Agreement,
shall be heard and determined by a state court sitting in Hillsborough
County, Florida, or by the United States District Court for the Middle
District of Florida, or by any appellate courts which review decisions
of those courts ("the Florida Courts"). The parties expressly submit
to the jurisdiction of the Florida Courts for adjudication of all such
disputes, claims, actions and lawsuits arising out of or relating to
this Agreement, or for alleged breach of this Agreement, and agree not
to bring any such action or proceeding in any other court. Both
parties waive any defense of inconvenient forum as to the maintenance
of any action or proceeding brought pursuant to this section of the
Agreement in the Florida Courts, and waive any bond, surety, or other
security that might be required of the other party with respect to any
aspect of such action, to the extent permitted by law. Provided,
however, that either party may bring a proceeding in a different
court, jurisdiction or forum to obtain collection of any judgment, or
to obtain enforcement of any injunction or order, entered against the
other party by the Florida Courts.
14. Severability. All agreements and covenants contained
herein are severable, and in the event any of them shall be held to be
prohibited or invalid under applicable law, the Agreement shall be
interpreted as if such invalid covenants were not contained herein.
15. Other Agreements. This Agreement is the only consulting
agreement between the parties, and supersedes any prior oral or
written consulting contracts. This Agreement may not be amended
except in writing signed by the party to the Agreement against whom
the change is being asserted.
16. Counterparts and Facsimile Signatures. This Agreement may
be executed in two or more copies, each of which shall be deemed an
original, and it shall not be necessary in making proof of this
Agreement or its terms to produce or account for more than one of such
copies. Execution and delivery of this Agreement by exchange of
facsimile copies bearing the facsimile signature of a party hereto
shall constitute a valid and binding execution and delivery of this
Agreement by such party. Such facsimile copies shall constitute
enforceable original documents.
17. Waiver of Jury Trial. THE PARTIES WAIVE ANY RIGHT TO JURY
TRIAL IN CONNECTION WITH ANY LAWSUIT BROUGHT BY EITHER PARTY UNDER OR
PURSUANT TO THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties have executed this Agreement on
the dates set forth beneath their signatures.
BBJ Environmental Technologies, Inc.
/s/ Xxxx Xxxxxxx By:/s/ Xxxxxx X. Xxxxx
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Xxxx Xxxxxxx Name: Xxxxxx X. Xxxxx
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Title: Chairman & CEO
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1-27-03 1-27-03
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Date Date
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