Consulting Agreement - AquaCell Technologies Inc. and Excelsior Group I Ltd.
CONSULTING AGREEMENT
This Agreement is effective as of the 6th day of August 2003 by and between
AquaCell Technologies, Inc. (the "Company"), a Delaware corporation with
principal offices at 10410 Trademark Street, Rancho Cucamonga, CA 91730 and
Excelsior Group I, Ltd. (the "Consultant") a New York corporation with
principal offices at 1 Corporate Drive, Suite 103, Bohemia, NY 11716.
WHEREAS, the Company manufactures, markets and sells unique water
filtration products and technologies (the "Products"), and
WHEREAS, the Consultant possesses appropriate knowledge and skill to
promote the Company and the Products and to advise the Company in regard to
marketing the Products, and
WHEREAS, the Company desires to retain Consultant to provide services to
the Company,
NOW, THEREFORE in consideration of the mutual covenants and promises
contained herein, the receipt and sufficiency of which is hereby acknowledged,
the parties hereby agree as follows:
1. The Company hereby engages Consultant to provide assistance in
promotion of the Company and promotion and advice in regard to
marketing of its Products.
2. Duties and Involvement
a. Such services will generally include assistance in promotion of
the Company's name to the public for greater public awareness
and promotion of the Company in the investment community (such
as introductions of the Company to firms such as UBS, Bear
Stearns, Merrill Lynch, and Lehman Bros.). Consultant will make
use of its business network for these purposes and will also
provide promotion of the Products on radio and television.
Consultant will also assist in introductions to distribution
channels and assist in establishing the Products in residential
and corporate environments and provide assistance in setting up
meetings with appropriate parties in various pharmaceutical and
other companies for possible advertising on the Company's water
coolers. In addition, as requested, Consultant will provide
advice to and consulting with the Company's management
concerning the design, structure and manner of presentation of
the Company's Products, and as appropriate, and as requested, to
provide assistance in the negotiation of contracts with the
Company's customers. Consultant shall also assist the Company
in positioning the Company for possible future financings with
companies such as General Electric and others.
b. Consultant acknowledges that neither it nor any of its employees
will make use of Company proprietary data for personal use or
gain, and will not disclose to any third party any confidential
information or materials which it receives as a result of
providing services hereunder.
c. Consultant shall confer with and report directly to the CEO
unless otherwise directed.
3. Term and Termination
a. This Agreement shall begin effective with the execution of this
Agreement and shall terminate 36 months thereafter.
b. This Agreement maybe terminated upon the following events:
(i) Mutual agreement of the parties provided written notice is
given;
(ii) A material breach of any of the covenants or provisions
hereof by either party.
3. Compensation and Expenses
a. The Company agrees to compensate Consultant as follows: Within
ten days of execution of this Agreement, the Company shall
issue warrants to the Consultant, exercisable for 400,000 shares
of the Company's common stock at an exercise price of $0.01 (one
cent) per share. The warrants shall be exercisable immediately
and for a five-year period after the actual warrant issuance
date.
The Company further agrees to include the shares underlying such
warrants in the next registration statement filed by the
Company. Upon exercise of the warrants, the securities issued
shall bear a restrictive legend, whereby 50% of the shares shall
be locked up from sale for a period of one year, and the
remaining 50% shall be locked up for an additional year.
However, at the discretion of the Company's CEO, these lockup
periods may be released at an earlier date. The foregoing lockup
provision shall be deemed null and void in the event of a non-
hostile acquisition of the Company's common stock by a third
party, or in the event of the voluntary termination or
resignation of the current CEO. Consultant agrees to execute
appropriate securities representations documents as reasonably
requested by the Company in conjunction with the issuance of the
warrants (including acknowledgement that the warrants being
issued constitute restricted securities and are subject to the
usual securities law restrictions) and documents as necessary
for the registration of the underlying shares.
b. DELETED
c. Consultant shall be responsible for all of its own expenses
unless otherwise expressly agreed to in writing by the Company.
4. Services
Consultant shall devote such time and effort necessary to discharge
the duties hereunder. The Company acknowledges that Consultant may
engage in other business activities and that it may pursue such
activities during the term of this Agreement so long as such
activities are not inconsistent with the intent and duties
contemplated hereunder.
5. Confidentiality
Consultant acknowledges that it will have access to confidential
information regarding the Company and it business. Consultant agrees
that it will not, during or subsequent to the term of this Agreement
divulge, furnish or make accessible to any person (other than with the
written permission of the Company) any confidential information or
confidential plans of the Company with respect the Company or its
business including but not limited to, the Products of the Company,
whether in the concept or development stage or being marketed by the
Company on the effective date of the Agreement or during the term
hereof.
Any party(ies) to whom warrants or their underlying shares are
assigned shall be bound by this confidentiality section.
6. Covenant not to Compete
Consultant warrants, represents and agrees that it will not directly
or indirectly compete with, or represent third parties which may
directly or indirectly compete with, the Company in the Company's
primary industry or related fields, during the term of this Agreement
and for a period of two years thereafter.
Any party(ies) to whom warrants or their underlying shares are
assigned shall be bound by this Covenant not to compete.
7. Assignment
This Agreement may not be assigned by either party hereto without the
written consent of the other but shall be binding upon the successors
of the parties.
8. Arbitration
Any claim or controversy among or between the parties hereto arising
out of or pertaining to any matter contained in this Agreement, or any
difference as to the interpretation or performance of any of the
provisions of this Agreement shall be settled by arbitration in Los
Angeles, California, before three (3) arbitrators of the American
Arbitration Association under its then prevailing rules. The
arbitrators sitting in any such controversy shall not have the
authority or power to modify or alter any express condition or
provision of this Agreement, or any modification thereof, or to render
any award which, by its terms, has the effect of altering or modifying
any express condition or provision of this Agreement or modification
thereof. It shall be a condition precedent to the institution of said
arbitration proceedings that the proceedings be commenced within one
(1) year from (i) the date the claim or controversy arises; or (ii)
the date of termination of the consultant's services or, whichever is
first to occur, and the failure to institute arbitration proceedings
within such period shall constitute an absolute bar to the institution
of any proceedings and a waiver of all claims. The award of the
arbitrators shall be final and binding, and judgment may be entered
thereon in any court of competent jurisdiction.
The parties consent to the jurisdiction of the Superior Court of San
Bernardino, California and the United States District Court for the
Central District of California for all purposes in connection with
arbitration, including the entry of judgment on any award. The
parties consent that any process or motion or other application to
either of said courts, and any paper in connection with the
arbitration may be served by certified mail, return receipt requested,
or by personal service, or in such other manner as may be permissible
under the rules of the applicable court or arbitration tribunal
provided a reasonable time for appearance is allowed.
Notwithstanding the foregoing and without intending to limit the
remedies available to the Company, including the right to recover
damages, the Consultant further agrees and acknowledges that the
unauthorized disclosure or use of the Company's trade secrets and
confidential information pursuant to paragraphs 6 and/or 7 hereunder
could cause irreparable harm and significant injury to the Company
that may be difficult to ascertain and that damages at law will be an
insufficient remedy to the Company in the event that the consultant
violate the terms hereof, and that the Company may apply for and
obtain injunctive relief, without bond or security, in any court of
competent jurisdiction to restrain the breach or threatened breach of
those provisions of this Agreement.
9. Notices
All notices required or permitted to be given under with Agreement
shall be in writing and shall be deemed to have been duly given: (i)
two (2) hours after delivered personally to the party to be notified;
or (ii) five (5) business day after deposited in the US mail postage
paid via registered or certified mail, return receipt requested.
Notices to the Company shall be addressed to its president at her
principal executive office an to the Consultant at the address on
record with the Company, or to such other addresses as either party
may designate upon at least ten day's notice to the other party.
10. Governing Law
This Agreement shall be constructed by and enforced in accordance with
the laws of the State of Delaware.
11. Entire Agreement
This Agreement contains the entire understanding and agreement between
the parties. There are no other agreements, conditions or
representation, oral or written, express or implied, with regard
hereto. This Agreement may be amended only in writing signed by both
parties.
12. Non-waiver
A delay or failure by either party to exercise a right under this
Agreement, or a partial or single exercise of that right shall not
constitute a waiver of that or any other right.
13. Headings
Headings in this Agreement are for convenience only and shall not e
used to interpret or construe these provisions.
14. Counterparts
This Agreement may be executed in counterparts, each of which shall be
deemed an original but all of which together shall constitute one and
the same agreement.
15. Binding Effect
The provisions of the Agreement shall be binding upon the parties,
their successors and assigns.
16. Execution and Exchange of Fax Copies
The parties agree that the Agreement shall be binding upon receipt by
each party of faxed copies of the executed Agreement signature page.
Following transmittal of fax copies, the originals shall be delivered
by mail or courier service.
17. Severability
If any provisions of this Agreement, or application thereof to any
person or circumstance shall be deemed or held to be invalid, illegal
or unenforceable to any extent, the remainder of this Agreement shall
not be affected and the application of such affected provision shall
be enforced to the greatest extend possible under law.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement to be effective as of the day and year first above written.
COMPANY CONSULTANT
AquaCell Technologies, Inc. Excelsior Group I, Ltd.
BY: /s/ James C. Witham BY: /s/ Daniel Del Giorno
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James C. Witham, CEO Daniel Del Giorno, President