Exhibit 10.6
EXECUTIVE CONSULTANT AGREEMENT
This Executive Consultant Agreement (the "Agreement") is made and entered into
effective as of the 1st day of December, 2002 (the "Effective Date"), between
SOUTHBORROUGH TECHNOLOGY CORPORATION., a Nevada corporation, (the "Company") and
XXXX XXXXXX (the "Consultant").
WHEREAS:
A. The Company is engaged in the business of mineral exploration.
B. The Company desires to retain the Consultant to act as President and Chief
Executive Officer of the Company and to provide consultant services to the
Company on the terms and subject to the conditions of this Agreement.
C. The Consultant has agreed to act as President and Chief Executive Officer of
the Company and to provide consultant services to the Company on the terms and
subject to the conditions of this Agreement.
THIS AGREEMENT WITNESSES THAT in consideration of the premises and mutual
covenants contained in this Agreement and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties,
intending to be legally bound hereby, agree as follows:
1. DEFINITIONS
1.1 The following terms used in this Agreement shall have the meaning specified
below unless the context clearly indicates the contrary:
(a) "Consultant Fee" shall mean the consultant fee payable to the Consultant
at the rate set forth in Section 5.1;
(b) "Board" shall mean the Board of Directors of the Company;
(c) "Term" shall mean the term of this Agreement beginning on the Effective
Date and ending on the close of business on the effective date of the
termination of this Agreement.
2. ENGAGEMENT AS A CONSULTANT
2.1 The Company hereby engages the Consultant as a consultant to provide the
services of the Consultant in accordance with the terms and conditions of this
Agreement and the Consultant hereby accepts such engagement.
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3. TERM OF THIS AGREEMENT
3.1 The term of this Agreement shall become effective and begin as of the
Effective Date, and shall continue until the close of business on November 30,
2004 unless this Agreement is earlier terminated in accordance with the terms of
this Agreement.
4. CONSULTANT SERVICES
4.1 The Consultant agrees to act as President and Chief Executive Officer of the
Company and to perform the following services and undertake the following
responsibilities and duties to the Company to be provided by the Consultant to
the Company as consulting services (the "Consulting Services"):
(a) exercising general direction and supervision over the business and
financial affairs of the Company;
(b) providing overall direction to the management of the Company;
(c) reporting directly to board of directors of Company;
(d) performing such other duties and observing such instructions as may be
reasonably assigned from time to time by or on behalf of the board of
directors of the Company in the Consultant's capacity as President and
Chief Executive Officer, provided such duties are within the scope of
the Company's business and implementation of the Company's business
plan.
(e) Providing offices and administrative services for the Company.
4.2 Throughout the Term of this Agreement, the Company shall also nominate the
Consultant to serve as a member of the Board and upon such nomination Consultant
shall agree to so serve.
4.3 The Consultant initially shall be based in Parksville, British Columbia.
4.4 The Consultant shall devote his attention and energies to the business
affairs of the Company on a part-time basis as may be reasonably necessary for
the discharge of his duties as President and Chief Executive Officer, provided,
however, the Consultant may engage in reasonable business, investment and other
personal activities that do not interfere with the Consultant's obligations
hereunder.
4.5 The Consultant will at all times be an independent contractor and the
Consultant will not be deemed to be an employee of the Company.
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5. CONSULTANT FEE
5.1 During the term of this Agreement and subject to Section 5.2, the Company
shall pay the Consultant a consultant fee in consideration for the provision of
the Consulting Services equal $1,000 US month (the "Consultant Fee").
5.2 The Consultant Fee will increase to $5,000 US per month upon the Company
achieving sufficient financing for advanced exploration activities requiring the
Consultant to spend 50% or more of his time performing the duties outlined in
this agreement.
6. STOCK OPTIONS
6.1 The Consultant may be granted, subject to the approval of the Company's
board of directors, incentive stock options to purchase shares of the Company's
common stock in such amounts and at such times as the Board of Directors of the
Company, in their absolute discretion, may from time to time determine. Such
options will be in an amount and of a nature similar to those granted by the
Company to other directors and senior officers of the Company, with adjustment
for the merit and performance of the Consultant. All Stock Options will be
subject to the terms and conditions of the Company's Stock Option Plan, a copy
of which has been delivered to the Consultant. The Consultant acknowledges and
agrees that (i) the Consultant will only sell any shares issued by the Company
on exercise of any Stock Options in accordance with all applicable securities
laws, including the Securities Act of 1933; and (ii) the shares issued upon
exercise of any Stock Options may be subject to restrictions on resale imposed
by applicable securities law; and (iii) the Company may legend all stock
certificates representing the shares issued upon exercise of any Stock Options
with applicable resale restrictions, as reasonably advised by the Company's
legal counsel; (iv) the Consultant has received and reviewed a copy of the Stock
Option Plan.
7. REIMBURSEMENT OF EXPENSES
7.1 The Company will pay to the Consultant, in addition to the Consultant Fee,
the reasonable travel and promotional expenses and other specific expenses
incurred by the Consultant in provision of the Consulting Services, provided the
Consultant has obtained the prior written approval of the Company.
8. TERMINATION
8.1 The Company may terminate this Agreement at any time upon the occurrence of
any of the following events of default (each an "Event of Default"):
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(a) the Consultant's commission of an act of fraud, theft or embezzlement or
other similar willful misconduct;
(b) the neglect or breach by the Consultant of his material obligations or
agreements under this Agreement; or
(c) the Consultant's refusal to follow lawful directives of the Board,
provided that notice of the Event of Default has been delivered to the
Consultant and provided the Consultant have failed to remedy the default within
thirty days of the date of delivery of notice of the Event of Default.
8.2 The Company may terminate this Agreement in the absence of an Event of
Default by delivering notice of termination to the Consultant and paying to the
Consultant an amount equal to six months of the Consultant Fee in a lump sum as
full and final payment of all amount payable under this Agreement, including
damages for wrongful termination, within 30 days of delivery of the notice of
termination. Such payments shall be conditioned on the Consultant giving a
general release to the Company and its affiliates in the form reasonably
satisfactory to the Company, but the general release shall not be required to
include a release of any the Consultant's claims with regard to any payment or
other benefit due to him under this Agreement where the payment or other benefit
has not been received by the Consultant.
8.3 The Consultant may terminate this Agreement at any time in the event of any
breach of any material term of this Agreement by the Company, provided that
written notice of default has been delivered to the Company and the Company has
failed to remedy the default within thirty days of the date of delivery of
notice of default.
8.4 On termination of this Agreement for any reason, all rights and obligations
of each party that are expressly stated to survive termination or continue after
termination will survive termination and continue in full force and effect as
contemplated in this Agreement.
9. PROPRIETARY INFORMATION
9.1 The Consultant will not at any time, whether during or after the termination
of this Agreement for any reason, reveal to any person or entity any of the
trade secrets or confidential information concerning the organization, business
or finances of the Company or of any third party which the Company is under an
obligation to keep confidential, except as may be required in the ordinary
course of performing the Consultant Services to the Company, and the Consultant
shall keep secret such trade secrets and confidential information and shall not
use or attempt to use any such secrets or information in any manner which is
designed to injure or cause loss to the Company. Trade secrets or confidential
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information shall include, but not be limited to, the Company's financial
statements and projections, expansion proposals, customer lists and details of
its Internet web site or business relationships with banks, lenders and other
parties not otherwise publicly available. The obligations of the Consultant set
forth in this Section 9.1 and will survive termination of this Agreement.
10. NON-COMPETE
10.1 The Consultant agrees that, in the event of termination of this Agreement,
for a period of six (6) months following the termination of this Agreement, the
Consultant will not, without the Company's consent, directly or alone or as a
partner, joint venturer, officer, director employee, consultant, agent,
independent contractor or stockholder or other owner of any entity or business,
engage in any business which is directly competitive with the business of the
Company in any territory in which the Company is engaged in business at the date
of termination, including (i) any line of business that is engaged in by the
Company and its subsidiaries as of the Effective Date; or (ii) any other line of
business that is engaged in by the Company (or with respect to which the Company
has made preparations to engage) as of the date of such termination of this
Agreement; provided, however, that the ownership by the Consultant of not more
than five percent (5%) of the shares of any publicly traded class of stock of
any corporation shall not be deemed, in and of itself, to violate the
prohibitions of this Section 10.1.
10.2 The restrictions in this Section 10, to the extent applicable, shall be in
addition to any restrictions imposed upon the Consultant by statute or at common
law.
10.3 The parties hereby acknowledge that the restrictions in this Section 10
have been specifically negotiated and agreed to by the parties hereto and are
limited only to those restrictions reasonably necessary to protect the Company
from unfair competition. The parties hereby agree that if the scope or
enforceability of any provision, paragraph or subparagraph of this Section 10 is
in any way disputed at any time, and should a court find that such restrictions
are overly broad, the court may modify and enforce the covenant to the extent
that it believes to be reasonable under the circumstances. Each provision,
paragraph and subparagraph of this Section 10 is separable from every other
provision, paragraph and subparagraph and constitutes a separate and distinct
covenant.
10.4 The obligations and agreements of the Consultant set forth in Sections
10.1, 10.2, and 10.3 will survive termination of this Agreement for the periods
specified in Section 10.1.
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11. RELIEF
11.1 The Consultant hereby expressly acknowledges that any breach or threatened
breach by the Consultant of any of the terms set forth in Section 9 or 10 of
this Agreement may result in significant and continuing injury to the Company,
the monetary value of which would be impossible to establish, and any such
breach or threatened breach will provide the Company with any and all rights and
remedies to which it may be entitled under the law, including but not limited to
injunctive relief or other equitable remedies.
12. PARTIES BENEFITED; ASSIGNMENTS
12.1 This Agreement shall be binding upon, and inure to the benefit of, the
Consultant, his heirs and his personal representative or representatives, and
upon the Company and its successors and assigns. Neither this Agreement nor any
rights or obligations hereunder may be assigned by the Consultant.
13. NOTICES
13.1 Any notice required or permitted by this Agreement shall be in writing,
sent by registered or certified mail, return receipt requested, or by overnight
courier, addressed to the Board and the Company at its then principal office, or
to the Consultant at the address set forth in the preamble, as the case may be,
or to such other address or addresses as any party hereto may from time to time
specify in writing for the purpose in a notice given to the other parties in
compliance with this Section 13. Notices shall be deemed given when delivered.
14. GOVERNING LAW
14.1 This Agreement shall be governed by and construed in accordance with the
laws of the State of Nevada and each party hereto adjourns to the jurisdiction
of the courts of the State of Nevada.
15. REPRESENTATIONS AND WARRANTIES
15.1 The Consultant represent and warrant to the Company that (a) the Consultant
is under no contractual or other restriction which is inconsistent with the
execution of this Agreement, the performance of his duties hereunder or other
rights of Company hereunder, and (b) the Consultant is under no physical or
mental disability that would hinder the performance of his duties under this
Agreement.
16. MISCELLANEOUS
16.1 This Agreement contains the entire agreement of the parties relating to the
subject matter hereof.
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16.2 This Agreement supersedes any prior written or oral agreements or
understandings between the parties relating to the subject matter hereof.
16.3 No modification or amendment of this Agreement shall be valid unless in
writing and signed by or on behalf of the parties hereto.
16.4 A waiver of the breach of any term or condition of this Agreement shall not
be deemed to constitute a waiver of any subsequent breach of the same or any
other term or condition.
16.5 This Agreement is intended to be performed in accordance with, and only to
the extent permitted by, all applicable laws, ordinances, rules and regulations.
If any provision of this Agreement, or the application thereof to any person or
circumstance, shall, for any reason and to any extent, be held invalid or
unenforceable, such invalidity and unenforceability shall not affect the
remaining provisions hereof and the application of such provisions to other
persons or circumstances, all of which shall be enforced to the greatest extent
permitted by law.
16.6 The headings in this Agreement are inserted for convenience of reference
only and shall not be a part of or control or affect the meaning of any
provision hereof.
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16.7 The Consultant acknowledges and agrees that Ort Law Corporation has acted
solely as legal counsel for the Company and that the Consultant has been
recommended to obtain independent legal advice prior to execution of this
Agreement.
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the date first written above.
SOUTHBORROUGH TECHNOLOGY CORPORATION
by its authorized signatory:
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Signature of Authorized Signatory
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Name of Authorized Signatory
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Position of Authorized Signatory
SIGNED, SEALED AND DELIVERED
BY XXXX XXXXXX
in the presence of:
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Signature of Witness
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Address of Witness XXXX XXXXXX
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