CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is made and entered into as of the 12th day
of June, 1997 by and between PowerTrader Software, Inc., a British Columbia
corporation (the "Company"), and Xxxxxx X. XxXxxx ("Consultant").
W I T N E S S E T H:
WHEREAS, Consultant possesscertain specialized skills and expertise in
the fields of Finance and Information Technology.
WHEREAS, the Company desires to engage Consultant to perform certain
consulting services, and Consultant desires to be engaged by the Company to
perform such services, all upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements herein contained and for other good and valuable consideration
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
mutually agree as follows:
1. Recitals. The above recitals are, and shall be construed to be,
incorporated into and made an integral part of this Agreement.
2. Engagement. The Company hereby engages Consultant as consultant to
provide advice and counsel and Consultant hereby accept such engagement, upon
the terms and conditions provided for in this Agreement.
3. Basic Services. During each calendar year of Consultant's Period of
Engagement (as hereinafter defined) pursuant to the terms of this Agreement,
Consultant shall make available the services of Xxxxxx X. XxXxxx to provide the
Company with an aggregate of up to one hundred twenty (120) hours per month of
telephonic or other advice and counsel regarding the Company's business. Such
advice and counsel shall be rendered only during normal business hours upon
reasonable notice and request of the Company. In providing such advice and
counsel, Consultant shall exercise such degree of care and diligence as is
consistent with the professional standards prevailing in Canada and all of such
advice and counsel shall be provided as expeditiously as is consistent with said
standards.
4. Compensation for Services. As compensation for the advice and
counsel to be provided by Consultant under this Agreement during the Period of
Engagement (as hereinafter defined), the Company agrees to pay to Consultant,
and Consultant agrees to accept, the aggregate sum of One Hundred Twenty
Thousand Canadian Dollars (CDN $120,000) per year (the "Consulting Fee").
Commencing on July 1st, 1997, the Consulting Fee shall accrue semi-monthly at a
rate of Two Thousand Five Hundred Canadian Dollars (CDN $2,500), and shall be
payable on the 15th and last day (each of which is hereinafter referred to as a
"Payment Date") of each calendar month thereafter during the Period of
Engagement.
In addition, on the first annual anniversary of the date of this
Agreement and on each such anniversary thereof during the Period of Engagement,
the Company shall cause to be issued to Consultant a number of shares of the
common stock of Power Trader, Inc., a Delaware corporation having an aggregate
market value (as determined by the Board of Directors of PowerTrader, Inc.) of
Sixty Thousand Canadian Dollars (CDN $60,000).
5. Period of Engagement. The initial Period of Engagement under this
Agreement shall commence on the date hereof and expire on July 1st, 1998. The
Period of Engagement shall be extended automatically from year to year
thereafter (each an "Extended Period of Engagement"), provided however that
either party may terminate the Period of Engagement under this Agreement at the
end of the initial Period of Engagement or any Extended Period of Engagement by
providing the other party with written notice of termination not less than
thirty nor more than sixty days prior to the expiration of the then current
Period of Engagement. Notwithstanding anything to the contrary contained in this
Agreement, the applicable provisions of this Agreement, including, without
limitation, the provisions of Sections 8, (a) and (b), shall survive the
expiration of the Period of Engagement under this Agreement.
6. Legal Status of Consultant. The Company and Consultant acknowledge
and agree that it is the intention of each of them that the relationship herein
created is that of independent contractors. Nothing contained in this Agreement
shall be construed to constitute Consultant as a partner or joint venturer of
the Company, it being intended that Consultant shall remain an independent
contractor and shall be responsible for its actions and those of any of its
agents, employees and servants. The Company shall have the right to control and
direct the results to be accomplished pursuant to this Agreement, but shall have
no right to control and direct the means or methods by which such results are to
be accomplished. The Company shall have no right to control or direct the place
or time at which the performance of Consultant's obligations under this
Agreement are to be fulfilled.
7. Taxes. Consultant hereby agrees and acknowledges that, as an
independent contractor, it is responsible for payment of any and all taxes
imposed upon it by any governmental entity or agency thereof, including, without
limitation, income and self- employment taxes. Consultant hereby agrees to
indemnify and hold the Company harmless from and against any claim, loss,
damage, liability, cost or expense including, without limitation, reasonable
attorneys' fees, incurred by the Company by reason of Consultant's willful
failure to comply with this section.
8. Competition; Confidentiality; Solicitation of Employees.
(a) Competition. Consultant acknowledges and agrees that the
market in which the Company operates includes the entire North American
continent (the "Territory") and that the Company has given valuable
consideration, the adequacy of which is hereby acknowledged, to conduct its
business free of competition from Consultant. Accordingly, Consultant agrees
that it shall not and none of its agents (including Xxxxxx XxXxxx) shall, during
the Period of Engagement hereunder, engage directly of indirectly, either
personally or as an employee, partner, associate partner, officer, manager,
agent, advisor, consultant, or otherwise, or by means of any corporate or other
entity or device, in any business which is competitive with the business of the
Company.
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(b) Confidentiality. Consultant acknowledges and agrees that as
a result of its engagement under this Agreement, it will obtain, be entrusted
with, have access to and develop for and on behalf of the Company, certain
Confidential Information (as defined below). Consultant further acknowledges and
agrees that the Company made and will make a substantial investment of labor and
capital in the development and use of such Confidential Information which has
enabled and will enable it to acquire a competitive advantage in the highly
competitive industry in which it operates and establish and maintain valuable
business relationships. Accordingly, Consultant shall not, unless the
Confidential Information becomes publicly known through legitimate means not
involving an act or omission by Consultant or except in connection with any
litigation between the Company and Consultant, directly or indirectly disclose
or use such Confidential Information for its own benefit or for the benefit of
any other person or entity other than the Company. Upon termination of the
Period of Engagement, Consultant shall immediately return to the Company all
documentary or tangible Confidential Information in its possession, custody or
control and shall not remove from Company premises or make or keep any copies,
notes, abstracts, summaries, tapes, or other record of any type of any of the
Confidential Information.
As used in this Agreement, the term "Confidential Information"
shall mean and include information which the Company has taken reasonable
efforts to keep confidential and which has not become publicly available by
legitimate means concerning (1) the Company's financial condition, including,
without limitation, its actual and forecasted statements of results of
operations, balance sheets, funds flow statements, gross sales, profit margins,
and other financial matters, (2) competitive conditions and strategic plans, (3)
marketing methods and plans, (4) the needs, wishes, requirements, and other
characteristics of customers and suppliers of the Company, (5) new or proposed
products, (6) computer software or data bases, (7) the technical specifications
of machinery, equipment and raw materials needed in the manufacture of the
Company's products, (8) the sources for the purchase of such machinery,
equipment, raw materials and components thereof, (9) the proper storage of such
raw materials and installation, operation, maintenance and repair of such
machinery and equipment, (10) descriptions of each stage in the quality control
of the Company's products, (11) trade secrets of the Company, (12) information
concerning the Company and its consideration and evaluation of and plans for
possible acquisitions including, without limitation, any and all information
which the Company is required to keep confidential in accordance with the
provisions of confidentiality agreements with third parties, (13)
investigations, (14) any and all communications between the Company (including,
without limitation, any employee, officer, director or shareholder of the
Company), on the one hand, and any attorney retained by the Company for any
purpose, or any person employed by or retained by such attorney for the purpose
of assisting such attorney, on the other hand, in connection with an attorney's
performance of services for the Company, and (15) all other matters and
materials belonging to or relating to the internal affairs, operation, or
business of the Company, including, without limitation, information recorded on
any medium which gives the Company an opportunity to obtain an advantage over
its competitors who do not know or use the same.
(b) Solicitation of Employees. Consultant shall not during the Period
of Engagement hereunder, directly or indirectly, solicit for employment, employ,
or advise or recommend to any other person or entity, that such person or entity
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employ or solicit for employment, any person employed by the Company or any of
its parent, subsidiary, affiliated or related companies.
(c) Remedies. Consultant expressly acknowledges and agrees that
the business of the Company is highly competitive and that a violation of any of
the provisions of this Section would cause immediate and irreparable harm, loss,
and damage to the Company not adequately compensable by a monetary award.
Without limiting any of the other remedies available to the Company at law or in
equity, Consultant agrees that any actual or threatened violation of any of the
provisions of this Section may be immediately restrained or enjoined by any
court of competent jurisdiction, and that any temporary restraining order or
emergency, preliminary, or final injunctions may be issued in any court of
competent jurisdiction. In the event any proceedings are initiated by the
Company as a result of any actual or threatened violation of any of the
provisions of this Section 8, the non-prevailing party shall be liable to the
other party for, and shall pay to such other party, all costs and expenses,
including, without limitation, reasonable attorneys' fees, incurred by such
other party in connection with such proceedings.
9. Miscellaneous.
(a) Further Assurances. Each party agrees to cooperate with the
other, and to execute and deliver, or cause to be executed and delivered, all
such other documents and instruments, and to take all such other actions as it
may be reasonably requested to take, from time to time, in order to effectuate
the provisions and purposes of this Agreement.
(b) Binding Effect and Benefit. This Agreement shall be for the
sole and exclusive benefit of the Company and Consultant. This Agreement may not
be assigned by either party, whether by operation of law or otherwise, without
the prior written consent of the other party. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
(c) Entire Agreement. All discussions, understandings, and
agreements heretofore made between the parties concerning the subject matter
contained in this Agreement are merged into and superseded by this Agreement,
which contains the entire agreement between the parties concerning the subject
matter contained in this Agreement. Any modification hereof may be made only by
an instrument in writing signed by or on behalf of the party to be charged.
(d) Notices. All notices required or permitted hereunder shall
be in writing, signed by the party giving notice or an officer thereof and shall
be deemed to have been given when delivered by personal delivery, by facsimile,
telegraph or telex, or Federal Express or similar courier service or by deposit
in the mail, registered or certified, with postage prepaid, return receipt
requested, addressed as follows:
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If the Company, at:
Xxxxx 000, 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx
Xxxxxxx Xxxxxxxx
X0X 0X0
Fax: (000) 000-0000
with a copy to:
Xxxxx Xxxxxxxxx
If to Consultant, at:
00 Xxxxx Xxxxx Xxxx
Xxxxxx
Xxxxxxxxxxx
00000
Fax: (000) 000-0000
with a copy to:
Xxxxxx X. XxXxxx
or to such other address as any party may designate for itself by notice given
to the other party from time to time in accordance with the provisions hereof.
(e) Headings. The headings of sections and subsections herein
are merely for convenience of reference and shall not affect the interpretations
of any of the provisions of this Agreement. Whenever the context so requires,
the plural shall include singular and vice versa, the masculine shall include
the feminine and the neuter, the feminine shall include the masculine and neuter
and the neuter shall include the masculine and the feminine.
(f) Governing Law. This Agreement is being executed and
delivered in the Province of British Columbia and the validity, construction and
enforceability of this Agreement shall be governed in all respects by the
Province of British Columbia.
(g) Severability. Whenever possible, each provision of this
Agreement shall be construed as to be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
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or the application thereof to any party or circumstance shall be prohibited by
or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition without invalidating the remainder of such provision
or any other provision of this Agreement or the application of such provision to
other parties or circumstances.
(h) Waivers. No delay on the part of any party in the exercise
of any right or remedy shall operate as a waiver thereof, and no single or
partial exercise by any party of any remedy shall preclude other or further
exercise thereof, or the exercise of any other right or remedy. Neither the acts
or omissions of any of the parties hereto or their agents or beneficiaries nor
any knowledge obtained by or on behalf of any of them as a result of any
activities, tests, or investigations undertaken pursuant to or contemplated by
the terms of this Agreement or otherwise shall constitute a waiver of or
estoppel or other barrier to enforcement by any party hereto of any
representation or warranty or other provision contained in this Agreement.
(i) Counterparts. This Agreement may be executed in any one or
more counterparts, each of which shall constitute an original, no other
counterpart needing to be produced, and all of which, when taken together, shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed by their duly authorized officers or agents, this Agreement on the date
and year first above written.
POWERTRADER SOFTWARE, INC.,
a British Columbia corporation
By: /s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx, President
Xxxxxx X. XxXxxx,
a Consultant
By: /s/ Xxxxxx X. XxXxxx
Xxxxxx X. XxXxxx
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