CONSULTING SERVICES AGREEMENT
Exhibit
10.1
This
Consulting Services Agreement (“Agreement”),
dated
September 6, 2007, is made by and between Xxx Xxx of Ladco
Electric, Inc.
(“Consultant”),
and
ECO2
Plastics, Inc.,
a
Delaware corporation (“Company”).
Collectively referred to herein as the “Parties.”
WHEREAS,
Consultant has extensive background in the area of electrical
programming;
WHEREAS,
Consultant desires to be engaged by Company to provide consulting services
to
Company subject to the conditions set forth herein;
WHEREAS,
Company is a publicly held corporation with its common stock shares trading
on
the Over the Counter Bulletin Board under the ticker symbol ECOO and desires
to
further develop its business process; and
WHEREAS,
Company desires to engage Consultant to provide the Services, as defined below,
in his area of knowledge and expertise on the terms and subject to the
conditions set forth herein.
NOW,
THEREFORE, in consideration for those services, Consultant provides to Company,
the Parties agree as follows:
| 1. |
Services
of Consultant
|
Consultant
agrees to perform for Company the Services defined below during
the term of this Agreement, upon such terms and to the extent the Parties agree
from time to time. The nature of the Services to be provided shall include,
but
are
not limited to: (i) electrical operations and controls (ii) electrical
programming, and (iii) any other services as mutually agreed upon by the Parties
(collectively referred to herein as the “Services”).
| 2. |
Consideration
|
(a) Consideration
for Services
Company
agrees to pay Consultant, as Consultant’s fee and as consideration for the
Services, two hundred thousand (200,000) shares of common stock, par value
$0.001 per share, with an exercise price $0.125 per share (the “Shares”),
to be
filed on Form S-8 under the Securities Act of 1933 with the Securities and
Exchange Commission. The Shares, when issued, sold and delivered shall be duly
and validly issued, fully paid and nonassessable shares of the
Company.
(b) Expenses
The
Parties agree that the Company will be responsible for paying any reasonable
out
of pocket expenses incurred by the Consultant in the performance of the
Services.
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(c) Payment
All
compensation payable to Consultant hereunder shall be subject to the Company’s
rules and regulations, and shall also be subject to all applicable State and
federal employment law(s); it being understood that Consultant shall be
responsible for the payment of all taxes resulting from a determination that
any
portion of the compensation and/or benefits paid/received hereunder is a taxable
event to Consultant; it being further understood that Consultant shall hold
the
Company harmless from any governmental claim(s) for Consultant’s personal tax
liabilities, including interest or penalties, arising from any failure by
Consultant to pay his individual taxes when due.
| 3. |
Confidentiality
|
Each
party agrees that during the course of this Agreement, information that is
confidential or of a proprietary nature may be disclosed to the other party,
including, but not limited to, product and business plans, software, technical
processes and formulas, source codes, product designs, sales, costs and other
unpublished financial information, advertising revenues, usage rates,
advertising relationships, projections, and marketing data (“Confidential
Information”).
Confidential Information shall not include information that the receiving party
can demonstrate (a) is, as of the time of its disclosure, or thereafter becomes
part of the public domain through a source other than the receiving party,
(b)
was known to the receiving party as of the time of its disclosure, (c) is
independently developed by the receiving party, or (d) is subsequently learned
from a third party not under a confidentiality obligation to the providing
party. Confidential Information need not be marked as confidential at the time
of disclosure to receive “Confidential Information” protection as required
herein, rather all information disclosed that, given the nature of the
information or the circumstances surrounding its disclosure reasonably should
be
considered as confidential, shall receive “Confidential Information” protection.
| 4. |
Non-Competition,
Non-Solicitation.
|
Consultant
agrees
that he shall not, during the term of this Agreement and for one
(1) year
subsequent thereto, without both the disclosure to and the written approval
of
the Board of Directors of the Company, directly or indirectly, engage or be
interested in (whether as a principal, lender, employee, officer, director,
partner, venturer, consultant or otherwise) any business(es) that is
competitive
with the business
being
conducted by the Company through the termination date, without the express
written approval of the Board of Directors.
Consultant
agrees
that he will not, without the prior written consent of the Company’s Board of
Directors, for a period of one
(1)
year
after the termination date, directly or indirectly disturb, entice, or in any
other manner persuade, any employee(s) or consultant(s) of the Company to
discontinue that person’s or firm’s relationship with the Company if the
employee(s) and/or consultant(s) were employed by the Company at any time during
the one (1) year period after the termination date.
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| 5. |
Indemnification
|
(a) Company
Company
agrees to indemnify, defend, and shall hold harmless Consultant and/or its
agents, and to defend any action brought against said Parties with respect
to
any claim, demand, cause of action, debt or liability, including reasonable
attorneys' fees to the extent that such action is based upon a claim that:
(i)
is true, (ii) would constitute a breach of any of Company's representations,
warranties, or agreements hereunder, or (iii) arises out of the negligence
or
willful misconduct of Company.
(b) Consultant
Consultant
agrees to indemnify, defend, and shall hold harmless Company, its directors,
employees and agents, and defend any action brought against same with respect
to
any claim, demand, cause of action, debt or liability, including reasonable
attorneys' fees, to the extent that such an action arises out of the gross
negligence or willful misconduct of Consultant.
(c) Notice
In
claiming any indemnification hereunder, the indemnified party shall promptly
provide the indemnifying party with written notice of any claim, which the
indemnified party believes falls within the scope of the foregoing paragraphs.
The indemnified party may, at its expense, assist in the defense if it so
chooses, provided that the indemnifying party shall control such defense, and
all negotiations relative to the settlement of any such claim. Any settlement
intended to bind the indemnified party shall not be final without the
indemnified party's written consent, which shall not be unreasonably
withheld.
| 6. |
Termination
and Renewal
|
(a) Term
This
Agreement shall become effective on the date first written above and terminate
on upon completion of the Services or until mutually agreed upon by the Parties
(the “Term”).
(b) Termination
Either
party may terminate this Agreement on thirty (30) calendar days written notice,
or if prior to such action, the other party materially breaches any of its
representations, warranties or obligations under this Agreement. Except as
may
be otherwise provided in this Agreement, such breach by either party will result
in the other party being responsible to reimburse the non-defaulting party
for
all costs incurred directly as a result of the breach of this Agreement, and
shall be subject to such damages as may be allowed by law including all
attorneys' fees and costs of enforcing this Agreement.
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(c) Termination
Due to Death or Disability
This
Agreement (except as otherwise provided hereunder) shall terminate immediately
upon the death of Consultant or after fourteen (14) days of Consultant’s
inability to perform the essential functions of his duties, with or without
reasonable accommodation (defined under
applicable law),
due to
a mental or physical illness or incapacity. Cash payments and medical insurance,
following Consultant’s death or disability, will continue to inure to the
benefit of his spouse or estate.
(d) Termination
and Payment
Upon
any
termination or expiration of this Agreement, Company shall pay all unpaid and
outstanding fees through the effective date of termination or expiration of
this
Agreement. And upon such termination, Consultant shall provide and deliver
to
Company any and all outstanding services due through the effective date of
this
Agreement.
| 7. |
Remedies
|
Should
Consultant at anytime materially breach any of terms outlined in this Agreement,
Company shall have the right to seek remedies, including but not limited to:
i)
a temporary restraining order and permanent injunction; ii) liquidated damages;
(iii) cancellation of the interests underlying the stock
certificates.
| 8. |
Miscellaneous
|
(a) Independent
Contractor
Consultant
shall render all services hereunder as an independent contractor and shall
not
hold itself out as an agent of Company. Nothing herein shall be construed to
create or confer upon Consultant the right to make contracts or commitments
for
or on behalf of Company.
(b) Negative
Covenants
Consultant
hereby covenants that at no time will they provide any service that directly
or
indirectly promotes or maintains a market for the Company’s securities nor act
as a conduit for distributing securities to the general public. Moreover,
Consultant will not provide certain services including but not limited to:
acting as a broker, dealer or person who finds investors, arranging financing,
providing investor relations or shareholder communications services, arrange
or
effect mergers or circulate research to broaden or sustain a market
price.
(c) Rights
Cumulative; Waivers
The
rights of each of the Parties under this Agreement are cumulative. The rights
of
each of the Parties hereunder shall not be capable of being waived or varied
other than by an express waiver or variation in writing. Any failure to exercise
or any delay in exercising any of such rights shall not operate as a waiver
or
variation of that or any other such right. Any defective or partial exercise
of
any of such rights shall not preclude any other or further exercise of that
or
any other such right. No act or course of conduct or negotiation on the part
of
any party shall in any way preclude such party from exercising any such right
or
constitute a suspension or any variation of any such right.
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(d) Benefit;
Successors Bound
This
Agreement and the terms, covenants, conditions, provisions, obligations,
undertakings, rights, and benefits hereof, shall be binding upon, and shall
inure to the benefit of, the undersigned Parties and their heirs, executors,
administrators, representatives, successors, and permitted assigns.
(e) Entire
Agreement
This
Agreement contains the entire agreement between the Parties with respect to
the
subject matter hereof. There are no promises, agreements, conditions,
undertakings, understandings, warranties, covenants or representa-tions, oral
or
written, express or implied, between them with respect to this Agreement or
the
matters described in this Agreement, except as set forth in this Agreement.
Any
such negotiations, promises, or understandings shall not be used to interpret
or
constitute this Agreement.
(f) Assignment
Neither
this Agreement nor any other benefit to accrue hereunder shall be assigned
or
transferred by either party, either in whole or in part, without the written
consent of the other party and any purported assignment in violation hereof
shall be void.
(g) Amendment
This
Agreement may be amended only by an instrument in writing executed by all the
Parties hereto.
(h) Severability
Each
part
of this Agreement is intended to be severable. In the event that any provision
of this Agreement is found by any court or other authority of competent
jurisdiction to be illegal or unenforceable, such provision shall be severed
or
modified to the extent necessary to render it enforceable and as so severed
or
modified, this Agreement shall continue in full force and effect.
(i) Section
Headings
The
Section headings in this Agreement are for reference purposes only and shall
not
affect in any way the meaning or interpretation of this Agreement.
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(j) Construction
Unless
the context otherwise requires, when used herein, the singular shall be deemed
to include the plural, the plural shall be deemed to include each of the
singular, and pronouns of one or no gender shall be deemed to include the
equivalent pronoun of the other or no gender.
(k) Further
Assurances
In
addition to the instruments and documents to be made, executed and delivered
pursuant to this Agreement, the Parties hereto agree to make, execute and
deliver or cause to be made, executed and delivered, to the requesting party
such other instruments and to take such other actions as the requesting party
may reasonably require to carry out the terms of this Agreement and the
transactions contemplated hereby.
(l) Notices
Any
notice which is required or desired under this Agreement shall be given in
writing and may be sent by personal delivery or by mail (either (i) United
States mail, postage prepaid, or (ii) Federal Express or similar generally
recognized overnight carrier), addressed as follows (subject to the right to
designate a different address by notice similarly given):
If
to
Company:
ECO2
Plastics, Inc.
000
Xxxxxx Xxxxxx, Xxxxx 000
Xxx
Xxxxxxxxx, XX 00000
Attn:
Xxxxxx X. Xxxxxxxx
With
a
copy (which shall not constitute notice) to:
The
Xxxx
Law Group, PLLC
000
Xxxxx
Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Attn:
Xxxxx X. Xxxx
If
to
Consultant:
Ladco
Electric, Inc.
___________________________
___________________________
___________________________
___________________________
(m) Governing
Law
This
Agreement shall be governed by the interpreted in accordance with the laws
of
the State of California without reference to its conflicts of laws rules or
principles. Each of the Parties consents to the exclusive jurisdiction of the
federal courts of the State of California in connection with any dispute arising
under this Agreement and hereby waives, to the maximum extent permitted by
law,
any objection, including any objection based on forum
non coveniens,
to the
bringing of any such proceeding in such jurisdictions.
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(n) Consents
The
person signing this Agreement on behalf of each party hereby represents and
warrants that he has the necessary power, consent and authority to execute
and
deliver this Agreement on behalf of such party.
(o) Independent
Counsel
All
Parties have retained independent legal counsel to advise them with respect
to
this Agreement and are not relying on the Company or its counsel for legal
or
tax advice.
(p) Survival
of Provisions
The
provisions contained in paragraphs 3, 4, 7 and 8(b) of this Agreement shall
survive the termination of this Agreement.
(q) Execution
in Counterparts
This
Agreement may be executed via facsimile and in any number of counterparts,
each
of which shall be deemed an original and all of which together shall constitute
one and the same agreement.
[Signature
page to follow]
7
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be executed and
have
agreed to and accepted the terms herein on the date written above.
| ECO2 PLASTICS, INC. | ||
|
By:
Xxxxxx X. Xxxxxxxx
Its:
Director & CEO
|
||
|
XXX
XXX
LADCO
ELECTRIC, INC.
|
||
|
By:
Xxx Xxx
|
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