CONSULTING AGREEMENT
Exhibit
10.1
THIS
CONSULTING AGREEMENT
(this
“Agreement”)
is
entered into and is effective as of April 1, 2004 (the “Effective
Date”)
by and
between Envirosafe
Corporation,
a
Delaware Corporation, with a principal place of business at 0000 Xxxxxxxxxx
Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx (“Company”)
and
MJMM Investments, LLC., a Pennsylvania Limited Liability Company, with principal
offices at 000 Xxxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000
(“Consultant”).
RECITALS:
A. Consultant
represents various financial websites that individuals can access to learn
more
about companies they may not otherwise be exposed to.
B. In
addition, Consultant maintains an extensive database of brokers representing
investors interested in owning stock in companies such as the Company and
employs a stock profiler team which regularly communicates with such
brokers.
C. Company
wishes to promote itself through Consultant’s efforts in the brokerage community
in order to gain as much exposure as possible for Company.
TERMS:
NOW
THEREFORE, in
consideration of the mutual premises and covenants contained herein, and other
good and valuable consideration, the receipt, sufficiency and adequacy of which
is hereby acknowledged, the parties agree as follows:
1.00 Services
to be performed by Consultant
1.01 Consultant
shall access its database of brokers and shall utilize a profiler team
(comparable in size and capability to that currently employed by Consultant)
in
order to contact brokers interested in recommending Company to their investor
clients.
1.02 Consultant
shall diligently market and promote Company to brokers and other investors,
advisors, counselors, trustees, agents and other individuals and entities whom
Consultant is legally permitted to contact (including with the proper
disclosures and disclaimers) and shall introduce Company and its principals
to
Consultant’s current and future network of brokerage firms and market
makers.
1.03 Consultant
shall provide investor lead management services normal and customary in the
industry.
1.04 Consultant
shall organize, initiate, manage and facilitate broker/investor conference
telephone calls and other presentations mutually agreeable to Company and
Consultant. Expenses for broker/investor conference calls and other
presentations are to be paid by the Consultant, and must be pre-approved by
the
Company.
1.05 Consultant
shall review and monitor Company’s stockholder base and all transfer agent and
DTC reports, and shall analyze, present to, and discuss with Company the results
and implications of such reports.
1
|
2.00
|
Terms
& Fees
|
2.01 The
term
of this Agreement shall commence on the Effective Date and shall expire six
(6)
months thereafter. The Company shall have the right to extend this contract
an
additional six (6) months after the first six (6) months expire. However, this
Agreement is expressly conditioned on the fact that the Company must use its
reasonable efforts to successfully reorganize the stock structure of the
Company, so that the Company has the ability to remunerate to the Consultant
the
required compensation.
2.02 As
compensation for Consultant’s services required hereunder, Consultant shall be
entitled to receive:
(a)
Cash
Value:
Cash
value of contract is Two Hundred Forty Thousand ($240,000) Dollars.
(b)
Compensation:
On a
monthly basis Consultant shall be entitled to receive Forty Thousand U.S.
Dollars ($40,000.00) per month due the 1st
of each
month. If payment is made in stock Consultant shall be entitled to receive
Forty
Thousand U.S. Dollars ($40,000.00) per month worth of free trading shares of
Envirosafe Corporation
(EVSA)
504
common stock due the 1st
of each
month based upon the previous ten (10) day average closing bid price. The first
month’s payment of 4,000,000 free trading shares of 504 common stock is due and
payable upon the signing of this Agreement. Commending on May 1, 2005,
subsequent monthly payments will be due and payable on the 1st of each
month.
(c)
Options:
As
compensation, Consultant will have the right to purchase Two Hundred Fifty
Thousand ($250,000) Dollars worth of free trading shares of 504 common stock
at
the price of $0.01 per share. The option described herein shall expire after
six
months.
(d)
Company acknowledges and understands that Consultant can neither purchase nor
accept more than nine (9%) of the outstanding shares of the Company.
(e)
Company agrees that both the compensation and options will properly reflect
any
forward or reverse splits.
|
3.00
|
Termination
|
In
the
event of a breach of this agreement by Company, Company shall be responsible
for
any outstanding fees and expenses. Consultant shall have the right to terminate
this Agreement on the grounds of the Company’s failure to remit the required
monthly payments or in the event of any breach of the Agreement by Company.
Company has the right to terminate this agreement with sixty (60) days written
notice. The parties agree that written notice will be deemed accepted and
received by the parties via certified mail delivered to the address above or
fax
notification.
|
4.00
|
Representation
|
Company
represents and warrants that it is in compliance with all required filings
and
regulations of NASD, the SEC and/or any other governmental agencies, and that
the Company’s stock is not suspended from trading for any reason whatsoever.
Company further represents and warrants that during the term of this agreement,
it will continue to file all required reports with the SEC, NASD and/or any
other governmental agencies and will continue to adhere to SEC, NASD, and/or
any
other governmental agency’s requirements, and that it will take whatever steps
are deemed necessary to keep its shares listed and “fully reporting.” The
Company’s failure to comply with the provisions of this paragraph shall
constitute a material breach of the parties’ agreement. Since Consultant has
agreed to accept payment for services, in part, in the form of shares of the
Company, the Company agrees that the value of the shares at the time of this
agreement will be adversely affected and impacted if the promotion of the
Company to the financial community and others is suspended due to a breach
of
the representations and warranties contained herein. Further, in the event
of a
breach of the representations and warranties contained herein the Company agrees
to continue to make any payments due and the Company agrees to pay Consultant
one and a half (1.5) times the cash value for any shares Consultant holds or
is
due and payable (as part of its compensation for this agreement) at the time
of
the Company’s breach of this paragraph. This “make whole payment” shall be made
within five (5) business days of the date of the breach.
2
|
5.00
|
Miscellaneous
Terms
|
|
5.01
|
Anti-dilution
Clause:
The company must notify the Consultant in writing at least 30 days
prior
to any new shares being added to the Company’s outstanding share total;
including notifying the Consultant if any new shares are being added
to
the company’s float. Officers of the company must notify the Consultant of
any transactions regarding the company’s security. If dilution occurs, the
Consultant’s compensation must be adjusted proportionately. If company
violates the anti-dilution clause, then company must pay Consultant
1.5
times cash value for any shares the Consultant holds as part of its
compensation for this agreement.
|
5.02 Successors:
The
provisions of this Agreement shall be deemed to obligate, extend to and inure
to
the benefit of the successors, assigns, transferees, grantees, and indemnities
of each of the parties of this Agreement.
|
5.03
|
Governing
Law:
This Agreement and the interpretation and enforcement of the terms
of this
Agreement shall be governed under and subject to the laws of the
State of
New York.
|
|
5.04
|
Jurisdiction:
Jurisdiction for court action, court and authorities in the State
of New
York or the Federal District Court having venue for the State of
New York
should have jurisdiction over all controversies that may arise with
respect to this Agreement. Company hereby waives any other venue
to which
it might be entitled to by virtue of domicile or
otherwise.
|
|
5.05
|
Integration:
This Agreement, after full execution, acknowledgment and delivery,
memorializes and constitutes the entire agreement and understanding
between the parties and supersedes and replaces all prior negotiations
and
agreements of the parties, whether written or unwritten. Each of
the
parties to this Agreement acknowledges that no other party, nor any
agent
or attorney of any other party has made any promises, representation,
or
warranty whatsoever, express or implied, which is not expressly contained
in this Agreement; and each party further acknowledges that he or
it has
not executed this Agreement in reliance upon any belief as to any
fact not
expressly recited herein above.
|
|
5.06
|
Attorneys
Fees:
In
the event of a dispute between the parties concerning the enforcement
or
interpretation of this Agreement, the prevailing party in such dispute,
whether by legal proceedings or otherwise, shall be reimbursed immediately
for the reasonably incurred attorneys’ fees and other costs and expenses
by the other parties to the dispute.
|
|
5.07
|
Context:
Wherever the context so requires, the singular number shall include
the
plural and the plural shall include the
singular.
|
|
5.08
|
Captions:
The captions by which the sections and subsections of this Agreement
are
identified are for convenience only, and shall have no effect whatsoever
upon its interpretation.
|
|
5.09
|
Severance:
If
any provision of this Agreement is held to be illegal or invalid
by a
court of competent jurisdiction, such provision shall be deemed to
be
severed and deleted and neither such provision, nor its severance
and
deletion, shall affect the validity of the remaining
provisions.
|
|
5.10
|
Counterparts:
This Agreement may be executed in any number of counterparts, each
of
which shall be deemed an original and, when taken together shall
constitute one and the same
instrument.
|
3
|
5.11
|
Expenses
Associated With The Agreement:
Each of the parties hereto agrees to bear its own costs, attorney’s fees
and related expenses associated with this
Agreement.
|
|
5.12
|
Arbitration:
Any dispute or claim arising from or in any way related to this agreement
shall be settled by arbitration in New York at the option of the
Consultant. All arbitration shall be conducted in accordance with
the
rules and regulations with the rules and regulations of the American
Arbitration Association (“AAA”). AAA shall designate a panel of three
arbitrators from an approved list of arbitrators following both parties’
review and deletion of those arbitrators on the approved list having
a
conflict of interest with either party. Each party shall pay its
own
expenses associated with such arbitration. A demand for arbitration
shall
be made within a reasonable time after the claim, dispute or other
matter
has arisen and in no event shall such demand be made after the date
when
institution of legal or equitable proceedings based on such claim,
dispute
or other matter in question would be barred by the applicable statutes
of
limitations. The decision of the arbitrators shall be rendered within
sixty (60) days of submission of any claim or dispute, shall be in
writing
and mailed to all the parties and judgment in accordance with that
decision may be entered in any court having jurisdiction thereof.
|
|
5.13
|
Assignment:
Neither Company, nor Consultant, shall have the right to assign or
delegate this Agreement nor any rights or obligations crested hereby
unless the non-assigning party expressly approves the assignment
in
writing.
|
|
5.14
|
Authority
to Bind:
A
responsible officer of each party has read and understands the contents
of
this Agreement and is empowered and duly authorized on behalf of
that
party to execute it.
|
|
5.15
|
Continuing
Obligations:
Both Company and Consultant shall hereafter execute all documents
and do
all acts necessary to effect the provisions of this Agreement.
|
|
5.16
|
Reversion
of Payment:
If
at any time, Company shall be in default of the payment provisions
of this
contract for a period greater than seven (7) days, then the Consultant
shall no longer be obligated to accept payment in the form of free
trading
shares of stock and the balance due, and any payments due thereafter,
shall be paid only in cash, certified check, cashiers check or money
order, unless Company is advised otherwise by Consultant in writing.
Further, if at any time, Company shall be in default of the payment
provisions of this contract for a period greater than five (5) days,
all
services provided by Consultant under this Agreement shall be suspended
until such time as payment in full of any outstanding balance is
made and
services under the Agreement shall be reinstated on the after the
day on
which payment is received. Consultant reserves the right, at Consultant’s
sole option, to submit and assign any outstanding balance to an
independent third party for the purpose of collecting any outstanding
balance owed Consultant.
|
|
5.17
|
Notices:
All notices must be in writing and sent to the appropriate address
listed
above, or to such other address as either party may designate in
writing,
by first class mail and either certified mail return receipt requested
or
overnight courier service. In the case of certified mail, notice
shall be
deemed given as of the date of deposit with the United States Postal
Service, and in case of overnight courier service, notice shall be
deemed
given as of the date of deposit with such overnight courier
service.
|
|
5.18
|
Confidentiality:
Both Consultant and Company agree that it will not at any time, or
in any
fashion or manner divulge, disclose or otherwise communicate to any
person
or corporation, in any manner whatsoever, any information or any
kind,
nature or description concerning any matters affecting or relating
to the
business of each others company. This includes its method or operation,
or
its plans, its processes, or other data of any kind or nature that
they
know, or should have known is confidential and not already information
that resides in the public domain. Both the Consultant and Company
expressly agree that confidentiality of those matters is extremely
important and gravely affect the successful conduct of business of
each
company, and its goodwill, and that any breach of the terms of this
section is a material breach of this Agreement. The provisions of
this
section shall survive termination of the
Agreement.
|
|
6.00
|
Enforceability
of Agreement:
This Agreement shall neither be deemed to be nor be enforceable until
executed by Consultant. Further, should the aprties fail to execute
this
Agreement within thirty (30) days from the date of delivery of this
Agreement, then this Agreement and all the terms and conditions contained
herein shall become and be deemed null and void and neither party
named
herein shall be bound hereby. Consultant, without the consent of
Company,
shall have the sole option to extend the time requirements set forth
within this section 6.00, and any request by Company to extend time
requirements set forth in section 6.00 must be approved by Consultant
in
writing.
|
4
IN
WITNESS THEREOF,
the
parties have executed this Agreement as of the date set forth
above.
COMPANY:
Envirosafe
Corporation
A
Delaware Corporation
By:
/s/
Xxxxx Xxxxxx
Xxxxx
Xxxxxx, President
CONSULTANT:
MJMM
Investments, LLC
A
Pennsylvania Limited Liability Company
By:
/s/
Xxxx X. Xxxxx
Xxxx
X.
Xxxxx, Managing Member
5
