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EXHIBIT 10.2
CONSULTING AGREEMENT
THIS AGREEMENT made this 11th day of January, 2001.
BETWEEN:
ENVIRONMENTAL SOLUTIONS WORLDWIDE INC., a corporation
incorporated under the laws of the State of Florida and
having an office at Xxxx #0, 000 Xxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxx X0X 0X0
(hereinafter referred to as "ESWW")
OF THE FIRST PART,
-- and --
XXXXXX XXXXXX, of 0000 Xxxxxx Xxxx Xxxx, Xxx Xxxx,
Xxxxxxxxxxxx, 00000
(hereinafter referred to as "Marino")
OF THE SECOND PART.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of
the respective covenants and agreements of the parties contained
herein and other good and valuable consideration (the receipt and
sufficiency of which is hereby acknowledged by each of the parties
hereto) it is agreed as follows:
ARTICLE ONE -- CONSULTING SERVICES
1.1 Retainer. ESWW hereby agrees to retain Marino to provide ESWW
with consulting services consisting of managerial services, advising
on production, distribution, sales and promotion, labour
negotiations, contract negotiations, financial services, and such
other consulting services as ESWW and Marino may from time to time
agree upon, (the "Services") and Marino hereby agrees to provide such
Services to ESWW.
1.2 Term of Agreement. This Agreement shall remain in full force and
effect from the date hereof to three years from the date hereof,
subject to earlier termination as hereinafter provided, with the said
term being capable of extension by mutual written agreement of the
parties hereto.
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1.3 Provision of Services. The Services to be provided hereunder to
ESWW by Marino shall be provided by Marino personally. Marino shall
devote his full time and attention to managing the affairs of ESWW.
It is agreed and acknowledged that Marino may from time to time
provide services to other persons, firms and corporations, provided
that Marino shall at no time while this agreement remains in force
provide ongoing managerial services to any competitor of ESWW that is
not an affiliate of ESWW.
1.4 Board Policy and Instructions. Marino covenants with ESWW that
he will act in accordance with any policy of and carry out all
reasonable instructions of the board of directors of ESWW. Marino
acknowledges that such policies and instructions may limit, restrict
or remove any power or discretion which might otherwise have been
exercised by Marino.
1.5 Remuneration. In consideration for the services rendered by
Marino hereunder, ESWW shall pay to Marino a consulting fee of
US$75,000 per year, which shall be paid in arrears in equal monthly
installments on the first day of each month.
1.6 Employee Stock Option Scheme. ESWW shall enroll Marino into its
employee stock option scheme pursuant to Regulation S-8. Under such
plan, Marino shall be issued 500,000 ESWW share options at $.01 per
share in the first year of the term of this Consulting Agreement as
follows:
(a) 250,000 share options on or before March 31, 2001; and
(b) 250,000 share options between July 1, 2001 and March 31, 2002,
at the date reasonably requested by Marino.
The ESWW shares into which the employee stock options are
exercisable shall be unrestricted shares and the options will be
exercisable on or before the earlier of one day before any change of
control of ESWW or September 30, 2002.
1.7 Additional Share Options. If the shares of ESWW have not
reached a value of $4 per share at any time on or before December 31,
2001, Marino shall have the option to request the following number of
additional share options from ESWW pursuant to the employee stock
option scheme exercisable at $.01 per share on or before the earlier
of one day before any change of control of ESWW or September 30,
2002:
(a) if the ESWW share value reaches between $3.50 and $3.99 per
share on or before December 31, 2001, Marino may request
250,000 additional options; or
(b) if the ESWW share value does not reach $3.50 per share on
or before December 31, 2001, Marino may request $500,000
additional options.
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ARTICLE TWO -- COVENANTS
2.1 No Delegation of Services. Marino covenants and agrees with ESWW
that he shall not delegate performance of the Services to anyone
without the prior written consent of ESWW.
2.2 Provision of Amenities. ESWW covenants and agrees with Marino to
provide, for the use of Marino, a reasonably furnished office, and
administrative and reception services at the offices of ESWW.
ARTICLE THREE -- CONFIDENTIALITY AND NON-COMPETITION
3.1 Confidential Information. Marino covenants and agrees that he
shall not disclose to anyone any confidential information with
respect to the business or affairs of ESWW except as may be necessary
or desirable to further the business interests of ESWW. This
obligation shall survive the expiry or termination of this Agreement.
3.2 Return of Property. Upon expiry or termination of this Agreement
Marino shall return to ESWW any property, documentation, or
confidential information which is the property of ESWW.
3.3 Promotion of Corporation's Interests. Marino shall and will
faithfully serve and use his best efforts to promote the interests of
ESWW, shall not use any information he may acquire with respect to
the business and affairs of ESWW or its affiliates for his own
purposes or for any purposes other than those of ESWW or its
affiliates.
3.4 Non-Competition. In consideration for the remuneration paid to
Marino hereunder, Marino expressly agrees that he will not, during
the term of this Agreement or for two (2) years thereafter, either
individually or in partnership or jointly or in conjunction with any
other person or persons, firm or association, syndicate, company or
corporation as principal, agent, shareholder or in any manner
whatsoever, directly or indirectly carry on or be engaged in or
connected with or interested in a business competitive to that
carried on by ESWW in any geographic location in which ESWW carries
on business.
3.5 Non-Solicitation. For the term of this Consulting Agreement and
for a period of two (2) years thereafter, Marino will not, either
directly or indirectly, through any individual, person or entity,
induce or attempt to induce, or aid, assist or abet any other party
or individual, person or entity in inducing or attempting to induce,
any employee, consultant or agent of ESWW who is or was associated
with ESWW at any time during Marino's term as a consultant with ESWW
to alter or terminate his or her employment or other relationship
with ESWW.
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3.6 Reasonableness and Survival. The parties acknowledge and agree
that the restrictions contained herein are reasonable in the
circumstances and hereby waive all defences to the strict enforcement
thereof. If any covenant or provision herein is determined to be
void or unenforceable in whole or in part, it shall not affect or be
deemed to effect or impair the validity of any other covenant or
provision hereof. The parties further agree that this Article shall
survive the expiration or termination of this Agreement.
ARTICLE FOUR -- TERMINATION
4.1 Termination by Mutual Consent. The parties may terminate the
consulting arrangement provided for herein by mutual consent in
writing.
4.2 Termination for Cause. In addition and without limiting or
otherwise affecting any other remedies which ESWW may have hereunder
or applicable law, ESWW may terminate the services of Marino for
cause without notice or payment in lieu of notice thereof. For
purposes of this section "cause" shall mean:
(a) failure of Marino to perform his duties or to make himself
available to ESWW in a manner consistent with his
responsibilities;
(b) any violation of a material provision of this Agreement
detrimental to ESWW; or
(c) the conviction of Marino for any crime which, in ESWW's
opinion, would negatively impact on ESWW.
ARTICLE FIVE -- CAPACITY
5.1 Capacity of Consultant. It is acknowledged by the parties hereto
that Marino is being retained by ESWW in the capacity of independent
contractor and not as an employee of ESWW. Marino and ESWW
acknowledge and agree that this Agreement does not create a
partnership or joint venture between them. Accordingly, Marino shall
be responsible for payment of all taxes and remittances arising out
of the Services and remuneration provided for herein. In no way is
Marino authorized to bind ESWW and under no circumstances shall ESWW
be liable for any act, omission or obligations of Marino.
ARTICLE SIX -- GENERAL CONTRACT PROVISIONS
6.1 Remedies. Marino acknowledges and agrees that the covenants and
undertakings contained in this Agreement relate to matters which are
of a special, unique and extraordinary character and that a violation
of any of the terms of Article Three hereof will cause irreparable
injury to ESWW and ESWW's business, and that the amount of such
injury will be difficult, if not impossible, to estimate or determine
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and cannot be adequately compensated by monetary damages. Therefore,
Marino acknowledges that ESWW shall be entitled, in addition to all
other rights and remedies available under this Agreement and
applicable law, as a matter of course, to an injunction, restraining
order or other equitable relief from any court of competent
jurisdiction, restraining a violation or threatened violation of any
such terms by Marino or by other persons as the court shall order.
If Marino violates Article Three, Marino shall reimburse ESWW for its
actual costs, expenses and solicitor's fees in any type of legal
proceeding brought by ESWW to enforce its rights under such Article
and such remedy shall be in addition to any other remedies available
under this Agreement and applicable law.
6.2 Further Assurances. All notices, requests, demands or other
communications (collectively, "Notices") by the terms hereof required
or permitted to be given by one party to any other party, or to any
other person shall be given in writing by personal delivery or by
registered mail, postage prepaid, or by facsimile transmission to
such other party as follows:
(a) To ESWW at: Xxxx #0, 000 Xxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxx X0X 0X0
Facsimile: 905-947-9924
(b) To Marino at: 0000 Xxxxxx Xxxx Xxxx, Xxx Xxxx,
Xxxxxxxxxxxx, 00000
Facsimile: 000-000-0000
or at such other address as may be given by such person to the other
parties hereto in writing from time to time.
All such Notices shall be deemed to have been received when
delivered or transmitted, or, if mailed, 48 hours after 12:01 a.m. on
the day following the day of the mailing thereof. If any Notice shall
have been mailed and if regular mail service shall be interrupted by
strikes or other irregularities, such Notice shall be deemed to have
been received 48 hours after 12:01 a.m. on the day following the
resumption of normal mail service, provided that during the period
that regular mail service shall be interrupted all Notices shall be
given by personal delivery or by facsimile transmission.
6.3 Additional Conditions. The parties shall sign such further and
other documents, cause such meetings to be held, resolutions passed
and by-laws enacted, exercise their vote and influence, do and
perform and cause to be done and performed such further and other
acts and things as may be necessary or desirable in order to give
full effect to this Agreement and every part thereof.
6.4 Counterparts. This Agreement may be executed in several
counterparts, each of which so executed shall be deemed to be an
original and such counterparts together shall be but one and the same
instrument.
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6.5 Time of the Essence. Time shall be of the essence of this
Agreement and of every part hereof and no extension or variation of
this Agreement shall operate as a waiver of this provision.
6.6 Entire Agreement. This Agreement constitutes the entire
Agreement between the parties with respect to all of the matters
herein and its execution has not been induced by, nor do any of the
parties rely upon or regard as material, any representations or
writings whatever not incorporated herein and made a part hereof and
may not be amended or modified in any respect except by written
instrument signed by the parties hereto. Any schedules referred to
herein are incorporated herein by reference and form part of the
Agreement.
6.7 Enurement. This Agreement shall enure to the benefit of and be
binding upon the parties and their respective legal personal
representatives, heirs, executors, administrators or successors.
6.8 Assignment. This Agreement is personal to Marino and may not be
assigned by Marino.
6.9 Independent Legal Advice. Marino acknowledges that he has
obtained or has had an opportunity to obtain independent legal advice
in connection with this Agreement and further acknowledges that he
has read, understands and agrees to be bound by all of the terms and
conditions contained here.
6.10 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania and
each of the parties hereto agrees irrevocably to conform to the
non-exclusive jurisdiction of the Courts of such Commonwealth.
6.11 Gender. In this Agreement, words importing the singular number
shall include the plural and vice versa, and words importing the use
of any gender shall include the masculine, feminine and neuter
genders and the word "person" shall include an individual, a trust, a
partnership, a body corporate, an association or other incorporated
or unincorporated organization or entity.
6.12 Severability. If any Article, Section or any portion of any
Section of this Agreement is determined to be unenforceable or
invalid for any reason whatsoever that unenforceability or invalidity
shall not affect the enforceability or validity of the remaining
portions of this Agreement and such unenforceable or invalid Article,
Section or portion thereof shall be severed from the remainder of
this Agreement.
6.13 Transmission by Facsimile. The parties hereto agree that this
Agreement may be transmitted by facsimile or such similar device and
that the reproduction of signatures by facsimile or such similar
device will be treated as binding as if originals and each party
hereto undertakes to provide each and every other party hereto with a
copy of the Agreement bearing original signatures forthwith upon
demand.
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IN WITNESS WHEREOF the parties have duly executed this
Consulting Agreement this 11th day of January, 2001.
SIGNED,
SEALED AND DELIVERED )
in the presence of )
)
)
)
X. X. Xxxxx ) /s/ Xxxxxx Xxxxxx
Witness ) XXXXXX XXXXXX
ENVIRONMENTAL SOLUTIONS
WORLDWIDE INC.
Per: /s/ Xxxxx Xxxxx
Duly Authorized Officer
