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EXHIBIT 10.147
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made and entered into
this 19th day of November, 1996, by and between Fenway Advisory Group (the
"Consultant") and Pollution Research and Control Corp., a California corporation
(the "Client").
WHEREAS:
1. The Consultant is willing and capable of providing on a "best
efforts" basis various consulting services to the Client including, but not
limited to, the identification and evaluation of potential sources of financing
and possible merger and/or acquisition candidates.
2. The Client desires to retain the Consultant as an independent
consultant and the Consultant desires to be retained in that capacity upon the
terms and conditions hereinafter set forth.
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. Consulting Services. The Client hereby retains the Consultant as an
independent consultant to the Client and the Consultant hereby accepts and
agrees to such retention. The Consultant shall render to the Client such
services of an advisory or consultative nature in order to identify and evaluate
potential sources of financing and possible merger and/or acquisition candidates
for the Client. Performance of the consulting services described herein shall be
accomplished exclusively by the Consultant. The Client agrees to inform the
Consultant of any financing or merger and/or acquisition transactions which it
intends to pursue.
2. Time, Place and Manner of Performance. The Consultant shall be
available for advice and counsel to the officers and directors of the Client at
such reasonable and convenient times and places as may be mutually agreed upon.
Except as aforesaid, the time, place and manner of performance of the services
hereunder, including the amount of time to be allocated by the Consultant to any
specific service, shall be determined in the sole discretion of the Consultant.
The Client acknowledges and understands that neither the Consultant nor its
representatives shall participate in any negotiations between the Client and any
financing, merger and/or acquisition candidate.
3. Term of Agreement. The term of this Agreement shall be a period of
twelve (12) months, commencing November 5, 1996, and terminating November 4,
1997.
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4. Compensation. In consideration of the services to be provided for
the Client by the Consultant, the Client hereby agrees to compensate the
Consultant as follows:
a. Upon execution of this Agreement, the Client agrees to
issue to the Consultant non-qualified stock options exercisable to purchase an
aggregate of 400,000 shares of the no par value common stock (the "Common
Stock") of the Client at an exercise price of $1.12 per share at any time during
the period commencing June 4, 1997 through November 4, 1999.
b. In the event, during the period commencing on the date
hereof and expiring two years from the last date of the issuance of any shares
of the Client's Common Stock upon the exercise by the Consultant of any of the
stock options issued pursuant to this Agreement (the "Option Stock"), the
Company shall register any primary or secondary offering of any debt or equity
security issued or to be issued by it pursuant to a registration statement under
the Securities Act of 1933, as amended, pursuant to which the Option Stock can
be registered., the Company shall in each such event notify the Consultant in
writing not less than thirty (30) days prior to filing such registration
statement with the Commission, and the Consultant shall have the right to
register all of the Option Shares therewith by notifying the Company in writing,
within fifteen (15) days of receipt of the Company's notice, requesting
registration of the Option Shares and setting forth the intended method of
distribution and such other data or information as the Company or its counsel
reasonably shall require. Such registration shall be without cost to the
Consultant except for sales commissions and related fees and/or transfer taxes
incurred if the Option Shares are subsequently sold.
5. Expenses. The Client shall reimburse the Consultant for all expenses
and other disbursements incurred by the Consultant on behalf of the Client in
the amount of $2,500.00 per month in connection with the performance of the
consulting services pursuant to this Agreement. This $2,500.00 sum shall be
payable quarterly on February 4, May 4, August 4 and November 4, 1997.
6. Disclosure of Information. The Consultant recognizes and
acknowledges that it has and will have access to certain confidential
information of the Client and its affiliates that are valuable, special and
unique assets and property of the Client and such affiliates. The Consultant
will not, during or after the term of this Agreement, disclose, without the
prior written consent or authorization of the Client, any of such information to
any person, except to authorized representatives of the Consultant or its
affiliates, for any reason or purpose whatsoever. In this regard, the Client
agrees that such authorization or consent to disclosure may be conditioned upon
the disclosure being made pursuant to a secrecy agreement, protective order,
provision of statute, rule, regulation or procedure under which the
confidentiality of the information is maintained in the hands of the person to
whom the information is to be disclosed or in compliance with the terms of a
judicial order or administrative process.
7. Nature of Relationship. It is understood and acknowledged by the
parties that the Consultant is being retained by the Client in an independent
capacity and that, in this connection, the Consultant hereby agrees, except as
provided in paragraph 4. hereinabove or unless the Client shall
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have otherwise consented in writing, not to enter into any agreement or incur
any obligation on behalf of the Client.
8. Conflict of Interest. The Consultant shall be free to perform
services for other persons. The Consultant will notify the Company if its
performance of consulting services for any other person could conflict with its
obligations under this Agreement. Upon receiving such notice, the Client may
terminate this Agreement or consent to the Consultant's outside consulting
activities; failure to terminate this Agreement shall constitute the Client's
ongoing consent to the Consultant's outside consulting activities.
9. Notices. Any notices required or permitted to be given under this
Agreement shall be sufficient if in writing and delivered or sent by registered
or certified mail to the principal office of each party.
10. Waiver of Breach. Any waiver by the Consultant of a breach of any
provision of this Agreement by the Client shall not operate or be construed as a
waiver of any subsequent breach by the Client.
11. Assignment. This Agreement and the rights and obligations of the
parties hereunder shall inure to the benefit of and shall be binding upon their
successors and assigns.
12. Applicable Law. It is the intention of the parties hereto that this
Agreement and the performance hereunder and all suits and special proceedings
hereunder be construed in accordance with and under and pursuant to the laws of
the State of California and that in any action, special proceeding or other
proceeding that may be brought arising out of, in connection with or by reason
of this Agreement, the laws of the State of California shall be applicable and
shall govern to the exclusion of the law of any other forum, without regard to
the jurisdiction in which any action or special proceeding may be instituted.
13. Severability. All agreements and covenants contained herein are
severable, and in the event any of them shall be held to be invalid by any
competent court, this Agreement shall be interpreted as if such invalid
agreements or covenants were not contained herein.
14. Entire Agreement. This Agreement constitutes and embodies the
entire understanding and agreement of the parties and supersedes and replaces
all prior understandings, agreements and negotiations between the parties.
15. Waiver and Modification. Any waiver, alteration or modification of
any of the provisions of this Agreement shall be valid only if made in writing
and signed by the parties hereto. Each party hereto, from time to time, may
waive any of its rights hereunder without effecting a waiver with respect to any
subsequent occurrences or transactions hereof.
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16. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original but both of which taken together shall
constitute but one and the same document.
IN WITNESS WHEREOF, the parties here to have duly executed and
delivered this Agreement as of the day and year first above written.
CONSULTANT: CLIENT:
FENWAY ADVISORY GROUP POLLUTION RESEARCH AND
CONTROL CORP.
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
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Xxxx X. Xxxxxxxx, President Xxxxxx X. Xxxxxxxx, Xx.,
President
