CONSULTING SERVICES AGREEMENT
Exhibit 10.1
THIS
AGREEMENT is made this 1st day
of January,
2010 (the "Effective Date") by and
between Global Resource Corporation, a Nevada corporation with address being
0000 Xxxxxx Xxx, Xxxxxx Xxx, Xxxxx 000, Xxxxx Xxxxxx, XX 00000 ("GBRC") and
Xxxxx Xxxxxxxx, Individually ("Ettinger) with address being 0000 Xxxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxx 00000.
BACKGROUND
GBRC
wishes to engage Ettinger to provide general consulting services promoting the
commercialization of the company's technology, identify business opportunities
utilizing the company's patented technologies in the private and public sectors,
including but not limited to obtaining public funds for R&D research,
grants, loan guarantees available to GBRC or other specific tasks requested by
GBRC of Xxxxxxxx outside his duties as COB.
Xxxxxxxx
wishes to accept such engagement on the terms and conditions set forth
herein.
NOW
THEREFORE, in consideration of the mutual agreements contained herein, the
parties agree as follows:
1. Services
Provided. Xxxxxxxx shall assist GBRC in developing their technology and
products for business opportunities in the U.S. as well as internationally such
as U.S. and NATO military bases, other governmental agencies, Indian Tribe
reservation public lands, as recognized under the Department of Interior Bureau
of Indian Affairs as landfills, as well as internationally with foreign
governments and foreign entities.
If
the CEO determines that it is in the best interest of the company to retain
Xxxxxxxx as in-house legal counsel, it will be handled under a separate legal
fee agreement approved by the CEO
of GBRC.
Xxxxxxxx
shall provide priority services under the terms of the contract for an expected
minimum of 40 hours per month and additionally as directed from time to time by
the Executive Management team of GBRC during the Term of this Agreement
(collectively, the "Services").
2. Consideration:
Compensation: The fair market value
established by GBRC on the effective date of execution of this agreement for the
services to be performed by Xxxxxxxx are agreed to be valued at 375,000 shares
of GBRC common stock based the effective date of December 15, 2009 approved by
the Board of Directors of which is $0.58 per share, designated during the term
of this agreement. The vesting date established under this agreement based on
market risk factors shall be January 1, 2010, even though the shares will be
issued on a subsequent date. GBRC will issue these Rule 144 restricted shares in
the amount of 375,000 shares on the date of execution of this agreement. GBRC
will issue shares in compliance with SEC Rules and Regulations governing
consulting agreements. GBRC and Xxxxxxxx agree that upon mutual agreement they
can extend this agreement for another 12 month term under the same terms and
conditions. Under Section 8 of this Agreement, either party may terminate the
agreement after six months by giving notice to the other party. In addition GBRC
gants Xxxxxxxx the right to acquire shares under a stock option of 500,000
shares at a designated price of $0.58 per share which Xxxxxxxx can exercise a
portion or the
full amount of the stock option within 24 months under the following vesting
stock option schedule. The fair market date for the stock options is considered
January 1, 2010, and is vested and available to be exercised on the dates
reflected below.
|
250,000
shares
|
July
1, 2010
|
|
250,000
shares
|
January
1, 2011
|
Under
Xxxxxxxx'x past Consulting Agreement dated October 1, 2008 and Addendum to
Consulting Agreement entered into April 1, 2008, Xxxxxxxx received 500,000 stock
options as follows:
|
100,000
shares
|
Vested
June 10, 2009 at $2.00 per share
|
|
100,000
shares
|
To
be vested January 10, 2010 at $2.00 per
share
|
|
100,000
shares
|
To
be vested June 10, 2010 at $2.00 per
share
|
|
100,000
shares
|
To
be vested Janury 10, 2010 at $1.10 per
share
|
|
100,000
shares
|
To
be vested June 10, 2010 at $1.10 per
share
|
All
these stock options have a 24 month period following the vesting
dates.
This
represents the total compensation GBRC will owe Xxxxxxxx. GBRC will issue the
share option in compliance with the SEC rules and regulations.
3.
Additional
Reimbursement. GBRC agrees to reimburse Xxxxxxxx for travel and lodging
incurred on behalf of GBRC, both domestically and internationally. Xxxxxxxx will
submit these proposed expenses for pre-approval by GBRC before they are
incurred. GBRC will pay Xxxxxxxx within 10 working days after receipt of these
expenses.
4.
Term. This
Agreement shall commence on the Effective Date and shall continue until December
31, 2010 (the 'Term"), or unless otherwise terminated in accordance with the
provisions set forth in Section 8.
5.
Proprietary
Rights; Disclosures of Intellectual Property. All work performed under
this Agreement, and all Services, materials, products, deliverables developed or
prepared for GBRC by Xxxxxxxx under this Agreement, are the property of GBRC and
all title and interest therein shall vest in GBRC and shall be deemed to be a
Work Made for Hire and made in the course of performing the Services. To the
extent that title to any such works may not, by operation of law, vest in GBRC
or such works may not be considered Works Made for Hire under applicable law,
all rights, title and interest therein are hereby irrevocably assigned to GBRC.
All such materials shall belong exclusively to GBRC, with GBRC having the right
to obtain and to hold in its own name, copyrights, registrations or such other
protection as may be appropriate to the subject matter, and any extensions and
renewals thereof. Xxxxxxxx agrees to give GBRC and any person designated by
GBRC, reasonable assistance required to perfect the rights defmed in this
Paragraph without further payment or compensation.
Unless
otherwise requested by GBRC, upon the completion of the Services to be performed
under this Agreement or upon the earlier termination of this Agreement (other
than upon default for non-payment by GBRC that is not later cured either through
written agreement of the parties hereto or through satisfaction by GBRC of a
judgment against it to make such payments), Xxxxxxxx shall immediately turn over
to GBRC all materials and deliverables acquired or developed by Xxxxxxxx
pursuant to this Agreement.
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6. Confidential
Information. GBRC and Xxxxxxxx each acknowledge the sensitivity of the
subject
matter of this Agreement. Any specifications, drawings, sketches, models,
samples, data, computer programs (including all source code and object code) or
documentation, technical information, methods of operation, GBRC client
information or other business information or confidential information of either
GBRC or Xxxxxxxx (the "Confidential Information") and furnished or disclosed by
one party to the other hereunder shall be deemed the property of and, when in
tangible form, shall be returned to the providing party upon completion or
termination of this Agreement. Unless such information was previously known to
the receiving party free of any obligation to keep it confidential, or has been
or is subsequently made public by the providing party or a third party with a
right to disclose such information, it shall be held in confidence by the
receiving party, shall not be disclosed to any third party by the receiving
party, shall be used only for the purposes hereunder, and may be used for other
purposes only upon such terms and conditions as may be mutually agreed upon in
writing; provided,
however, that the receiving party may disclose the Confidential
Information as may be required by law, rule, regulation or court order or
decree, or if the receiving party reasonably determines (following advance
notice to and opportunity to comment by the other party) that such disclosure is
necessary in order to comply with applicable law.
Both
parties acknowledge that disclosure of any Confidential Information by the
receiving party will give rise to irreparable injury to the providing party,
inadequately compensable in damages. Accordingly, the providing party may seek
and obtain injunctive relief against the breach or threatened breach of the
foregoing undertakings, in addition to any other legal remedies which may be
available. Both parties acknowledge and agree that the covenants contained
herein are necessary for the protection of legitimate business interests of the
providing party and are reasonable in scope and content.
Notwithstanding
anything to the contrary, in the event that Xxxxxxxx incorporates any of its
Confidential Information into the Services, GBRC shall have the right to use,
disclose and sublicense such Confidential Information.
7.
Warranty.
The Services provided by Xxxxxxxx shall be produced in a workmanlike manner and
shall be rendered by qualified personnel who will perform the tasks assigned
consistent with good professional practice and the state of the art involved.
Xxxxxxxx warrants and represents that he has not and shall not grant any rights
to any third parties inconsistent with the provisions of this
Agreement.
EXCEPT
FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 8, XXXXXXXX MAKES NO
ADDITIONAL WARRANTIES.
8. Termination
and Cancellation.
Either party may terminate this Agreement anytime
after six months from the effective date of this Agreement with or without cause
or
reason. In the event either party elects to terminate this agreement,
they must give the other party written notice by facsimile or registered mail 30
days before the effective date of termination. In the event of such termination
by GBRC, Xxxxxxxx shall retain all Shares previously issued or earned by
Xxxxxxxx up to the date of termination. In the event of such termination by
Xxxxxxxx, Xxxxxxxx shall retain such number of Shares as are pro-rated for such
12 month period to the date of termination. Xxxxxxxx must assign all other
Shares to GBRC within 10 days of termination. GBRC grants Xxxxxxxx the right to
keep his stock option under this agreement regardless of which party
terminates.
9. Limitation
of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY
FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH
OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
The parties have agreed that the
limitations specified in this Section 10 will survive and apply even if any
limited remedy specified in this Agreement is found to have failed of its
essential purpose.
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10. Compliance
with Laws. Xxxxxxxx shall comply with all applicable federal and state
laws
and regulations relating in any way to its performance or compensation under
this Agreement.
11. Applicable
Law. This Agreement shall be deemed to be a contract made under the laws
of
Nevada and for all purposes it, plus any related or supplemental documents and
notices, shall be construed in accordance with and governed by the laws of the
Nevada exclusive of its choice of law rules. Any dispute by either party arising
out of or relating to this Agreement shall be finally settled by binding
arbitration in the State of Delaware or such other place as the parties may
mutually agree, under the Rules of the American Arbitration Association (the
"AAA"), by one (1) or more arbitrators reasonably familiar with the technology
and business covered by this Agreement, appointed by mutual agreement of the
parties. If the parties cannot agree upon an arbitrator, then each shall appoint
one (1) arbitrator and the two (2) arbitrators shall select a third (3rd)
arbitrator. If the arbitrators selected by the parties cannot agree upon the
choice of
a third (3rd) arbitrator within ten (10) days after their nomination,
then the third (3rd) arbitrator shall be appointed by the AAA. The arbitrators
shall apply Nevada law to the merits of
any dispute or claim. No depositions or discovery request shall be
allowed and all parties may make one submission only before a hearing, if one is
requested. The decision of the arbitrators shall be final and binding upon the
parties, shall not be subject to appeal, and shall address the issues of costs
of the arbitration and all matters relating to such arbitration. Judgment on the
award entered by the arbitrators may be entered in any court having jurisdiction
thereof and neither party shall xxx the other party except for enforcement of
the arbitrator's decision.
12. Assignment
and Delegation.
(a) By
Xxxxxxxx: Xxxxxxxx may not sell, transfer, assign or otherwise convey any
of its rights or obligations under this Agreement to any other person without
the express prior written consent of GBRC. Any such assignment without such
consent shall be null and void.3
(b) By
GBRC: GBRC may not sell, transfer, assign or otherwise convey any of its
rights or obligations under this Agreement to any other person without the
express prior written consent of Xxxxxxxx. Any such assignment without such
consent shall be null and void.
13. Sub-Contractors.
Xxxxxxxx may engage or make use of subcontractors for the purpose
of
providing the Services. If GBRC requests these sub-contractors to perform
separate or distinct services in addition to what Xxxxxxxx is performing, then
GBRC will enter into an agreement with them directly. If these sub-contractors
are only assisting Xxxxxxxx in performing services to GBRC, then Xxxxxxxx will
pay them out of his earned compensation.
14. Notices.
All notices to either party shall be in writing and shall be directed to
the address
stated below (unless notice of an address change is given). Any notices or other
communications so addressed shall be deemed duly served if delivered in person
or sent by certified mail or facsimile, confirmed by certified mail, return
receipt requested.
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| If to GBRC: |
GBRC
INC.
0000
Xxxxxx Xxx
Xxxxxx
Xxx, Xxxxx 000 Xxxxx Xxxxxx XX 00000
Attn:
Xxxx Xxxxxxx, CFO
|
|
If
to Xxxxxxxx:
|
Xxxxx
Xxxxxxxx
0000
Xxxxxxx Xxxxx, Xxxxx 0000 Xxxxxxx, Xxxxx 00000
713.266.1112
Office
713.266.8243
Telefax
|
15. No
Waiver. No failure on the part of either party to exercise, and no delay
in exercising, any right or remedy hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right or remedy hereunder
preclude any other or further exercise thereof or the exercise of any other
right or remedy granted hereby or by any related document or by
law.
16. Entire
Agreement. This Agreement, including any Schedules hereto and made a part
hereof, constitutes and expresses the entire agreement and understanding between
the parties, on the subject matter herein. All previous discussions, promises,
representations and understandings between the parties relative to this
Agreement, if any, have been merged into this document.
17. Independent
Contractors. The relationship of the parties is that of independent
contractors. Nothing in the Agreement shall be construed to mean that the
parties are members of any partnership, joint venture, association, syndicate or
other entity or to confer on either party any express, implied or apparent
authority to incur any obligation or liability on behalf of the other
party.
18. Severability.
In the event that any term or provision of this Agreement is determined to be
unlawful or unenforceable, such term or provision shall be deemed severed from
this Agreement and all remaining terms and provisions of this Agreement shall
remain in full force and effect.
19. Disclosure.
Both parties acknowledge and agree that it may be necessary for one party to
disclose the fact of the Xxxxxxxx'x retention, the duties performed and the
compensation paid, should there be proper inquiry from such a source as an
authorized U.S. or state government agency or should either party believe it has
a legal obligation to disclose such information and each party hereby authorizes
any such disclosures.
20. Amendments.
This Agreement may not be and shall not be deemed or construed to have been
modified, amended, rescinded, canceled or waived in whole or in part, except by
written instrument signed by the parties hereto.
21. Force
Maieure. Neither party shall be liable to the other party for any delay
in performance or nonperformance of any provision of this Agreement resulting
from state or governmental action; riots, war, acts of terrorism, sabotage,
strikes, lock-outs, prolonged shortage of energy, fire, flood, hurricane,
earthquakes, lightning, and explosion, provided that each party shall promptly
notify the other party of the occurrence of such event and shall estimate the
probable delay resulting therefrom.
22. Headings.
The headings in this Agreement are inserted for convenience and identification
only and are not intended to describe, interpret, define, or limit the scope,
extent, or intent of this Agreement or any other provision
hereof.
23. Authority
to Execute. Each party represents and warrants that it has the legal
power and authority
to enter into this Agreement and that it has not made and will not make any
commitments to the other inconsistent with such rights.
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XXXXXXXX
ACKNOWLEDGES AND UNDERSTANDS THAT THIS CONSULTING AGREEMENT MAY REQUIRE APPROVAL
BY THE BOARD OF DIRECTORS.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
| GLOBAL RESOURCE CORPORATION | XXXXX XXXXXXXX |
| By: /s/ Xxxx Xxxxxxx | By: /s/ Xxxxx Xxxxxxxx |
| Name: Mr. Xxxx Xxxxxxx | Name: Xxxxx Xxxxxxxx |
| Title: CFO |
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