CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made and entered into as
of June 12, 2004, between Xx. Xxxxxxxx Madoff, ("Consultant") and Micro
Bio-Medical Waste Systems, Inc. (the "Contractor").
WITNESSETH:
WHEREAS, the Contractor desires to hire Consultant to perform certain
services for the Contractor; and
WHEREAS, Consultant has agreed to perform such services pursuant to the
terms of this Agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
SECTION 1. SERVICES TO BE PERFORMED. Commencing as of June 12, 2004 and
ending as of June 11, 2005, unless this Agreement is earlier terminated pursuant
to the terms hereof (the "Term"), the Contractor shall engage Consultant to
perform on behalf of the Contractor those services listed on Exhibit A, and to
otherwise consult with the Contractor as reasonably requested by the Contractor.
Consultant agrees to use his best efforts to diligently perform such services on
behalf of the Contractor.
SECTION 2. PAYMENT FOR SERVICES. The Contractor shall compensate
Consultant with 550,000 XXXX X-0 shares registered and free trading.
SECTION 3. STATUS AS INDEPENDENT CONTRACTOR. Consultant acknowledges and
agrees that the services hereunder are performed on an independent contractor
basis, and that Consultant is not an employee of the Contractor for any purpose,
including, but not limited to, for purposes of Federal, state or local tax or
other laws, nor shall Consultant hold himself out to be an employee of the
Contractor. Consultant agrees that as an independent contractor, compensation
paid hereunder is not subject to withholdings for social security or Federal,
state or local income taxes, and Consultant expressly acknowledges full
responsibility for reporting of all said compensation and payment of all
applicable taxes, including self-employment taxes, arising therefrom. Consultant
further agrees to indemnify and hold the Contractor harmless to the extent that
the Contractor incurs any liability arising out of, or in any way related to,
the Consultant being classified as an employee for any purpose. Consultant
acknowledges and agrees that where workers compensation coverage is applicable
to services performed hereunder, it shall be his responsibility to provide such
coverage. Consultant acknowledges and agrees that he is in no way entitled to
participate in any employee benefit plans or programs of the Contractor.
SECTION 4. RESTRICTIONS AND LIMITATIONS ON PERFORMANCE. While performing
services under the terms of this Agreement, Consultant:
(a) shall not engage in any business or activities in competition
with the activities of the Contractor contemplated herein;
(b) shall not engage in any business or activity which interferes
with or is in conflict with Consultant's obligations hereunder;
(c) shall comply with the highest standards of practice and ethics;
(d) shall not engage in any conduct that is incompetent, dishonest
or fraudulent; and
(e) shall not advertise or publicize the existence or nature of the
engagement created by this Agreement.
SECTION 5. EXPENSES AND TRAVEL. Consultant shall be responsible for the
arrangement and payment of Consultant's own insurance coverage, training, any
membership or society dues, professional, licensing and registration
requirements, employees and assistants, and any and all overhead costs,
including but not limited to, meals, supplies and materials. Consultant shall,
at the Contractor's expense, travel to such locations as are reasonably
specified by the Contractor for the purposes hereunder; provided, however, that
each such expense for which the Contractor shall be responsible for must be
agreed to by the Contractor prior to the time at which it is incurred. Further,
arrangements for providing Consultant's transportation and lodging for such
trips shall be made by the Contractor in advance. During such trips the
Contractor shall use its commercially reasonable efforts to make key personnel
available to the Consultant.
SECTION 6. INDEPENDENCE OF CONTRACTOR. The Contractor agrees that neither
the Contractor, nor the Contractor's agents or representatives, shall have any
right to control or direct the details, manners or means by which Consultant
performs the services contemplated hereunder.
SECTION 7. AUTHORITY OF CONSULTANT. Consultant has no authority to act on
behalf of the Contractor or to enter into any contract or to incur any liability
on behalf of the Contractor, except with written consent of the Contractor.
SECTION 8. COOPERATION AND COORDINATION. Consultant shall have no
obligation to perform any services other than those set forth herein. The
parties recognize that cooperation and a coordinated effort greatly facilitates
the services to be performed by Consultant and the business of the Contractor,
and the parties agree to cooperate and coordinate their efforts in a reasonable
manner upon request.
SECTION 9. CONDUCT OF OTHER BUSINESS BY CONSULTANT. The parties agree that
at any time, Consultant is free to accept other business or sales opportunities
in so far as it does not breach or otherwise interfere with Consultant's
obligations under this Agreement.
SECTION 10. INDEMNITY PROVISIONS. Consultant agrees to indemnify and hold
Contractor harmless and will defend Contractor against any and all loss,
liability, damage, claims, demands or suits and related costs and expenses,
including attorneys fees, that arise, directly or indirectly, from acts or
omissions of Consultant, or from Consultant's breach of the terms and provisions
of this Agreement.
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SECTION 11. TRADE SECRETS AND CONFIDENTIAL INFORMATION. During the course
of Consultant's engagement with the Contractor, the Contractor may disclose
Trade Secrets and Confidential Information (defined below) to Consultant. The
Trade Secrets and the Confidential Information of the Contractor are the sole
and exclusive property of the Contractor (or a third party providing such
information to the Contractor). The disclosure of the Trade Secrets and the
Confidential Information of the Contractor to Consultant does not give the
Consultant any license, interest or rights of any kind in or to the Trade
Secrets or Confidential Information.
(a) Consultant may use the Trade Secrets and Confidential
Information solely for the benefit of the Contractor while Consultant is engaged
as a Consultant for the Contractor. Consultant shall hold in confidence the
existence of this Agreement and the Contractor's engagement of Consultant, the
Trade Secrets and Confidential Information of the Contractor. Except in the
performance of services for the Contractor, Consultant shall not use, disclose,
reproduce, distribute, transmit, reverse engineer, decompile, disassemble, or
transfer the Trade Secrets or the Confidential Information of the Contractor or
any portion thereof.
(b) Consultant represents that Consultant is not presently under any
contract or agreement with any party that would prevent Consultant from
performing his duties under this Agreement, and that Consultant is not subject
to or in breach of any agreement, including any agreements concerning Trade
Secrets or Confidential Information owned by any other party. Consultant also
agrees that during the course of Consultant's engagement, Consultant will not
use or disclose any confidential information or trade secrets of any other
entity or third-party unless authorized in writing by that entity or
third-party.
(c) The obligations under this Agreement with regard to the Trade
Secrets of the Contractor remain in effect as long as the information
constitutes a trade secret under applicable law. The obligations with regard to
the Confidential Information of the Contractor shall remain in effect while
Consultant is engaged by the Contractor in any capacity and for a period of
three (3) years thereafter.
(d) Consultant agrees to return to the Contractor, upon the
termination of Consultant's engagement (for any reason), or upon request by the
Contractor, the Trade Secrets and Confidential Information of the Contractor and
all materials relating thereto.
(e) As used herein, "Trade Secrets" means information of the
Contractor, and its licensors, suppliers, clients and customers, without regard
to form, including, but not limited to, technical or nontechnical data,
formulas, patterns, compilations, programs, devices, methods, techniques,
drawings, processes, financial data, financial plans, product plans, or a list
of actual or potential customers or suppliers, which is not commonly known by or
available to the public and which information (i) derives economic value, actual
or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use and (ii) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy. Trade Secrets also
include any information described in this paragraph which the Contractor obtains
from another party and which the Contractor treats as proprietary or designates
as trade secrets, whether or not owned or developed by the Contractor. As used
herein, "Confidential Information" means information, other than Trade Secrets,
that possesses an element of value to the Contractor, that is treated as
confidential, and that would potentially damage the Contractor if disclosed.
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Confidential Information includes, but is not limited to, (i) future business
plans, (ii) the composition, description, schematic or design of products,
future products or equipment of the Contractor, (iii) communication systems,
system designs and related documentation, (iv) advertising or marketing plans,
(v) information regarding employees, independent contractors, clients and
customers of the Contractor, (vi) information concerning the Contractor's
financial structure and methods and procedures of operation, and (vii) the terms
and conditions of this Agreement. Confidential Information also includes any
information described in this paragraph which the Contractor obtains from
another party and which the Contractor treats as proprietary, whether or not
owned or developed by the Contractor. Confidential Information need not be
marked or stamped "confidential" to qualify as such under this Agreement.
SECTION 12. WORK PRODUCT. All Work Product (defined below) shall be the
exclusive property of the Contractor. If any of the Work Product may not, by
operation of law or otherwise, be considered the exclusive property of the
Contractor, or if ownership of all right, title, and interest to the legal
rights therein shall not otherwise vest exclusively in the Contractor,
Consultant hereby assigns to the Contractor, and upon the future creation
thereof automatically assigns to the Contractor, without further consideration,
the ownership of all Work Product. The Contractor shall have the right to obtain
and hold in its own name copyrights, patents, registrations, and any other
protection available in the Work Product. Consultant will promptly disclose any
and all such Work Product to Contractor. Consultant agrees to perform, during or
after termination of Consultant's engagement by the Contractor, and without
requiring Contractor to provide any further consideration therefore, such
further acts as may be necessary or desirable to transfer, perfect and defend
the Contractor's ownership of the Work Product as requested by the Contractor.
For purposes of this Agreement, "Work Product" shall mean all discoveries,
designs, Trade Secrets, Confidential Information, trademarks, data, materials,
formulas, research, documentation, computer programs, communication systems,
audio systems, system designs, inventions (whether or not patentable),
copyrightable subject matter, works of authorship, and other proprietary
information or work product (including all worldwide rights therein under
patent, copyright, trademark, trade secret, confidential information, moral
rights and other property rights), which Consultant has made or conceived, or
may make or conceive, either solely or jointly with others, while providing
services to Contractor or with the use of the time, material or facilities of
Contractor or relating to any of Contractor's actual or anticipated business
known to Consultant while engaged by the Contractor, or suggested by or
resulting from any task assigned to Consultant or work performed by Consultant
for or on behalf of Contractor.
SECTION 13. TERMINATION OF ENGAGEMENT.
(a) This Agreement shall terminate (i) immediately upon the death of
Consultant, (ii) at the option of either party hereto without cause upon thirty
(30) days advance written notice from the terminating party to the other party,
or (iii) upon the termination of this Agreement by the Contractor for "cause."
For the purposes of this Agreement, "cause" shall mean (i) any act by Consultant
of fraud or dishonesty (whether or not against or involving the Contractor),
(ii) Consultant's competing with the business of the Contractor either directly
or indirectly, (iii) Consultant's breach of any material provision of this
Agreement, (iv) Consultant's failure to devote his best efforts to his duties
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under this Agreement or to perform such duties diligently and efficiently and in
accordance with the directions of the Contractor or to otherwise fulfill his
obligations under this Agreement, (v) Consultant's failure to comply with the
decisions or policies of the Contractor, (vi) any act of moral turpitude by
Consultant or (vii) any other matter constituting "cause" under applicable law.
(b) This Agreement shall terminate immediately upon written notice
to Consultant if Consultant shall at any time be incapacitated by reason of
physical or mental illness or otherwise incapable of performing the duties under
this Agreement for a continuous period of sixty (60) days.
(c) The Contractor's obligation to pay compensation to Consultant
under Section 2 of this Agreement shall terminate immediately upon the
termination of this Agreement for any reason.
SECTION 14. INJUNCTIVE RELIEF. Consultant acknowledges that breach of the
provisions of Sections 12 or 13 of this Agreement would result in irreparable
injury and permanent damage to the Contractor, which prohibitions or
restrictions Consultant acknowledges are both reasonable and necessary under the
circumstances, singularly and in the aggregate, to protect the interests of the
Contractor. Consultant recognizes and agrees that the ascertainment of damages
in the event of a breach of the provisions of this Agreement would be difficult,
and that money damages alone would be an inadequate remedy for the injuries and
damages which would be suffered by the Contractor from breach of Sections 12 or
13 of this Agreement by Consultant. Consultant therefore agrees: (i) that, in
the event of a breach of the provisions of Sections 12 or 13 of this Agreement,
the Contractor, in addition to and without limiting any of the remedies or
rights which it may have at law or in equity or pursuant to this Agreement,
shall have the right to injunctive relief or other similar remedy in order to
specifically enforce the provisions hereof; and (ii) to waive and not to (A)
assert any defense to the effect that the Contractor has an adequate remedy at
law with respect to any such breach, (B) require that the Contractor submit
proof of the economic value of any Trade Secret, or (C) require that the
Contractor post a bond or any other security. Nothing contained herein shall
preclude the Contractor from seeking monetary damages of any kind, including
reasonable fees and expenses of counsel and other expenses, in a court of law.
SECTION 15. NOTICES. All notices required and given herewith shall be
addressed to the Contractor or Consultant at the designated address as shown
below, and shall be effective when personally delivered by courier (including
overnight carriers) or otherwise to the party to be given such notice or other
communication. The addresses for such notices shall be as follows:
To Contractor:
Micro Bio-Medical Waste Systems, Inc.
0000 XXXX XXXXXX XXXXXX
XXXXX 000
XXX XXXXX, XX 00000
To Consultant:
Xx. Xxxxxxxx Madoff
_______________________
_______________________
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SECTION 16. MISCELLANEOUS.
(a) This Agreement shall be governed by, construed under, and
enforced and interpreted in accordance with the laws of the State of Nevada.
(b) This Agreement constitutes the entire agreement between the
parties and supersedes any prior understanding or agreement among them
respecting the subject matter hereof.
(c) This Agreement may not be modified or amended except by
subsequent instrument in writing signed by the parties hereto. No term or
condition of this Agreement shall be deemed to have been waived, nor shall there
be any estoppel against the enforcement of any provision of this Agreement,
except by written instrument of the party charged with such waiver or estoppel.
(d) If any term or provision of this Agreement is held illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability will
not affect the legality, validity or enforceability of the remainder of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
CONTRACTOR:
Micro Bio-Medical Waste Systems, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X Xxxxxxx, CEO/President
CONSULTANT:
Xx. Xxxxxxxx Madoff
By: /s/ Xx. Xxxxxxxx Madoff
-----------------------------------------
Xx. Xxxxxxxx Madoff
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EXHIBIT A
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Detail of Services to be Provided
---------------------------------
Consultant shall
Assist the companies in business development activities including but not
limited to the following:
Identifying, qualifying and securing:
Strategic acquisitions
Partners
Joint Venture Partners, and
Merger candidates
Providing resources to assist the companies in acquiring technologies
which may improve or augment the existing technologies.
