EXECUTIVE CONSULTANT AGREEMENT
This Executive Consultant Agreement (the "Agreement") is made and entered
into effective as of the 1st day of November, 2000 (the "Effective Date"),
between CYBAR TECHNOLOGIES, INC., a Nevada corporation, (the "Company")
and XXXXXX XXXXXXX (the "Consultant").
WHEREAS:
A. The Company is engaged in the business of developing and operating an
Internet based computer software business.
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 October 31,
2001 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.
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 Vancouver, 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 to $500 US per month (the
"Consultant Fee").
5.2 The Consultant Fee will increase to $5,000 US per month upon the
Company achieving aggregate financing, calculated from the Effective Date,
in the amount of $1,000,000 US.
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"):
(a) the Consultant's commission of an act of fraud, theft or
embezzlement or other similar willful misconduct;
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(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 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
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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.
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
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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.
16.2 This Agreement supersedes any prior written or oral agreements or
understandings between the parties relating to the subject matter hereof.
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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 X'Xxxxx & Company 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.
CYBAR TECHNOLOGIES, INC.
by its authorized signatory:
/s/Xxxxxx Xxxxxx
---------------------------------
Signature of Authorized Signatory
Xxxxxx Xxxxxx
---------------------------------
Name of Authorized Signatory
Director
---------------------------------
Position of Authorized Signatory
SIGNED, SEALED AND DELIVERED
BY XXXXXX XXXXXXX
in the presence of:
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Signature of Witness
/s/ Xxxxxx Xxxxxxx
--------------------------------- ----------------------------
Address of Witness XXXXXX XXXXXXX
