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Exhibit 10.2
THIS AGREEMENT DATED THE 1ST DAY OF APRIL, 1997
BETWEEN:
COMMONWEALTH XXXXXX HOLDINGS LTD.
(the "Corporation"),
OF THE FIRST PART
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CORRTECH CONSULTING GROUP,
a Corporate Partnership
(the "Consultant"),
OF THE SECOND PART
CONSULTING AGREEMENT
WHEREAS the Corporation is the registered owner of all of the issued
common shares of Corrpro Canada, Inc. and, in turn, controls Eighty (80%)
Percent of Alcoke Distributors Ltd. and One Hundred (100%) Percent of X. Xxxxx
Pipeline Services Ltd. (the "Subsidiaries").
AND WHEREAS the Corporation intends to continue to operate the
Subsidiaries;
AND WHEREAS the Consultant is in the business of providing managerial,
administrative, engineering, marketing and technical services (the "Consulting
Services");
AND WHEREAS the Corporation desires the Consultant to render the
Consulting Services to the Corporation, its Subsidiaries and Affiliates in
accordance with provisions of this contract;
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AND WHEREAS the Consultant is a corporate partnership consisting of the
corporations listed in Schedule "A" attached hereto;
AND WHEREAS the corporate members of the partnership shall make
available the key individuals listed on Schedule "B" (the "Key Individuals")
attached hereto to supply to the Corporation the Consulting Services;
NOW THEREFORE WITNESSETH that in consideration of the recitals and
mutual covenants and agreements contained herein and other good and valuable
consideration, the parties hereto agree as follows:
1. SERVICES
(A) ENGAGEMENT
The Corporation hereby engages the Consultant and the Consultant
hereby agrees to render, at the request of the Corporation Consulting
Services to the Corporation, its Subsidiaries and Affiliates, to the
best of its ability, and upon the terms and conditions hereinafter set
forth.
(B) DUTIES
(i) The Consultant shall provide, through the Key Individuals, to
standards acceptable to the Corporation such management,
administrative, engineering, marketing, and technical services as
are necessary to ensure the continued operations of the
Corporation, the Subsidiaries, and the Affiliates.
(ii) In the event any of the Key Individuals are unable or fail for
any reason to perform the Consulting Services as requested of
that Key Individual to standards acceptable to the Corporation,
then the Consultant may designate a third person or persons of
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equal or greater ability and qualifications to provide the
consulting services the Key Individual is unable to provide.
(iii) It is understood and agreed that a Key Individual shall not be
substituted without the written consent of the Corporation and
agreement as to adjustment in compensation, if any.
2. COMPENSATION
(a) As compensation for all services rendered by the Consultant, pursuant
to this Agreement, the Corporation shall pay to the Consultant or such
designates, a monthly sum which is agreed to from time to time being a
base of Eighty-Two Thousand Five Hundred and Eighty Three ($82,583.00)
Dollars (CDN) plus Goods and Services Tax ("G.S.T.").
(b) All such compensation shall be payable without deductions whatsoever.
The Consultant shall be responsible for the remission of any and all
taxes with respect to compensation paid to the Consultant by the
Corporation under this Agreement. The Consultant shall indemnify the
Corporation for any and all taxes and other liabilities which the
Corporation may hereafter incur as a result of the Consultant's or any
of the Key Individuals' failure to report and pay any taxes due on
taxable amounts paid to or on behalf of the Consultant by the
Corporation.
(c) As additional compensation, the parties contemplate that the
Consultant may be entitled to bonuses from time to time, based on the
performance of the Corporation, the Subsidiaries and as mutually
agreed upon by the parties.
3. TERMS
(a) The parties hereto acknowledge that the term of this Agreement shall
be for a period of one (1)
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year commencing on the 1st day of April, 1997 and ending on the 31st
day of March, 1998, unless sooner terminated pursuant to this
Agreement.
4. OPERATION OF SUBSIDIARIES
(a) Insofar as it is the intent that the Consultant shall provide
Consulting Services directly to the Corporation, its subsidiaries, and
Affiliates, the parties hereto acknowledge that all consulting
services rendered to the Corporation are governed and bound by this
Agreement.
(b) The Corporation shall guarantee the due performance and obligations of
all agreements that the subsidiaries and the Affiliates may enter into
with Consultant pursuant hereto.
5. TIME COMMITMENT AND PERFORMANCE
(a) The Consultant shall ensure that such key Individuals that perform
services pursuant to this Agreement shall devote their best efforts
and substantially all of their business time, attention and skill to
the performance of the Consulting Services hereunder and shall do so
at all times in a manner consistent with the intention of this
Agreement and in accordance with good managerial, administrative,
engineering, marketing and technical practice, including without
limitation, the adherence to professional rules of conduct.
(b) The consultant shall ensure that each Key Individual;
(i) specializing in a branch of professional engineering shall at all
time be a member of the Association of Professional Engineers;
(ii) specializing in a branch of engineering technology shall at all
times be a member of the Association of Engineering
Technologists;
(iii) specializing in accounting services shall at all times be a
member of a recognized
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accounting body in Canada.
6. CONFIDENTIAL INFORMATION
(a) The Consultant will have access to the Corporation's confidential
information including, without limitation, customer lists and
information and data or relating to its customers. Such information
and data is understood to include all information and data relating to
the Corporation's or the customer's project and administrative files,
drawings, sketches, plans, designs and business data. The Consultant
agrees to accept and retain such information and data in confidence
and, at all times during or after the termination of this Agreement,
not to disclose or reveal such information and data to others and to
refrain from using such information and data for purposes other than
those authorized by the Corporation. At the request of the
Corporation, the Consultant will promptly turn over to the Corporation
all of the Corporation's written or descriptive material in the
Consultants possession or under its control. This section is not
intended to restrict the use by the Consultant of its own intellectual
property which does not relate to the Corporation's confidential
information after the termination hereof.
(b) All project and administrative files, drawings, sketches, plans,
designs, trade secrets and any other documentation or data furnished
to or prepared by the Consultant in connection with this Agreement
shall be the property of the Corporation.
(c) The consultant shall, after termination of this Agreement for any
reason whatsoever unless terminated by the Corporation, upon
reasonable notice and upon payment of reasonable expenses by the
Corporation, furnish such information and proper assistance to the
Corporation as may be reasonably required by the Corporation in
connection with any litigation in which it is or may become a party
other than litigation by the Corporation against the Consultant, its
Partners,
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or the Key Individuals.
7. POST-TERMINATION OBLIGATIONS
(a) The consultant has carefully read and considered the provisions of
this Section and, having done so, agrees that the restrictions set
forth in this Section are fair and reasonable and are reasonably
required for the protection of the interests of the Corporation. The
Consultant, during the term of this Agreement, further acknowledges
and agrees that it will be assigned duties that will give it knowledge
of confidential and proprietary information which relates to the
conduct and details of the Corporation's business including the
Corporation's customers and marketing programs, and which may result
in irreparable injury to the Corporation if the Consultant should
engage in competition with the Corporation involving the Corporation's
Existing Customers of Prospective Customers.
(b) The Consultant agrees with, and for the benefit of, the Corporation
that the Consultant shall not without the prior written approval of
the Corporation during the term of this Agreement with the Corporation
or at any time within the period of time set forth below following the
date of termination of this Agreement however caused, either directly
or as a partner, joint venturer, shareholder, or otherwise in
conjunction with any person or persons, firm, association, syndicate,
company or corporation, as principal, agent, consultant, investor or
in any other manner whatsoever, directly or indirectly, carry on, be
engaged in, be interested in, or by concerned with, or permit its name
or any part thereof to be used or employed by any such person or
persons, firm association, syndicate, company or corporation, carrying
on, engaged in, interested in, or concerned with, a business which is
similar to the Business and which involves all Existing Customer or
any Prospective Customer for a period of one (1) Year following the
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termination of this Agreement:
(i) the Provinces of British Columbia, Alberta, Saskatchewan and
Manitoba;
(ii) any Province of Canada in which the Business is or may in the
future be carried on;
(iii) any Province of Canada;
(iv) Canada;
(v) any state in the United States of America in which the Business
or may in the future be carried on;
(vi) the United States of America;
(vii) any part of the world in which the Business is or may in the
future be carried on; or
(viii) the world.
(c) The Consultant represents and warrants to the Corporation that it has
not previously signed a confidentiality or non-completion agreement of
any kind whatsoever with another party which would impair its ability
to carry out its duties hereunder.
8. MEANINGS
For the purposes of this Agreement as referenced in Articles 6 and 7, the
following terms will have the meanings set out below:
(a) "Business" shall mean those businesses carried on by the Corporation,
its Subsidiaries and Affiliates (for purposes of this Section, any
entity Ten (10%) Percent or more of which is owned by the Corporation)
directly or indirectly of the Corporation from time to time;
(b) "Existing Customers" means an individual, firm, body corporate,
joint venture or trust with whom the Corporation, its Subsidiaries and
Affiliates is currently conducting Business or in the past has
conducted Business; and
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(c) "Prospective Customer" means an individual, firm, body corporate,
joint venture or trust with whom the Corporation, its Subsidiaries and
Affiliates is currently discussing Business or to whom or in
connection with whom the Corporation, its Subsidiaries and Affiliates
has made a proposal regarding Business.
9. TERMINATION BY THE CORPORATION
This Agreement may be terminated at the option of the Corporation upon the
happening of any of the following events:
(a) the dissolution of the Consultant;
(b) upon the consultant becoming bankrupt or insolvent;
(c) upon the failure of the Consultant to comply with any of the
substantive terms and conditions of this Agreement.
10. TERMINATION BY THE CONSULTANT
The Agreement may be terminated at the option of the Consultant upon the
happening of any of the following events:
(a) upon the Corporation becoming bankrupt or insolvent;
(b) upon the Corporation failing to perform its duties hereunder in a
manner required by the Consultant, including the due performance by
any of its Subsidiaries and Affiliates.
11. ARBITRATION
All disputes and questions which shall arise during the term of this
Agreement between Corporation and the Consultant touching this Agreement or
the construction or application thereof
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or any clause or thing herein contained or as to any manner in any way
relating to the rights, duties and liabilities of any party under this
Agreement shall be referred to a single arbitrator in case the parties
agree upon one; otherwise to two arbitrators, one to be appointed by each
party. The two arbitrators so appointed shall by instructed to attempt to
reach agreement on a third arbitrator and that third arbitrator, together
with the arbitrators appointed by the disputants, shall determine all
questions. In the event that the parties appointed are unable to agree on
an arbitrator, then the parties, or either of them, may apply to any
Justice of the Court of Queen's Bench of Alberta, to appoint the third
arbitrator and in all other respects the provisions of the Arbitrators Act
of the Province of Alberta shall apply.
12. SEVERABILITY
The provisions contained in this Agreement are severable and in the event
any provision shall be held to be invalid, unenforceable or overbroad, in
whole or in part, by a court of other entity of competent jurisdiction, the
remainder of such provision and of this Agreement shall not be affected
thereby and shall remain in full force and effect.
13. This Agreement supersedes all previous agreements between the parties.
14. NOTICES
Any notice, direction or other instrument required or permitted to be given
under the provisions of this Agreement shall be in writing and may be given
by the delivery of same or sending by facsimile transmission to the
parties:
(a) In the case of the Corporation to:
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Xx. Xxxxxx X. Xxx
Corrpro Companies, Inc.
0000 Xxxx Xxxxx Xxxx
XXXXXX, Xxxx 00000
Fax: (000) 000-0000
and to:
Xxxxxx X. Xxxxxxxxx, Esq.
McDonald, Hopkins, Xxxxx & Xxxxx
2100 Bank One Center
000 Xxxxxxxx Xxxxxx, X.
Xxxxxxxxx, Xxxx 00000-0000
Fax: (000) 000-0000
and to:
Xxxxxx X. Xxxxx, Q.C.
Xxxxxxx and Company
Barristers and Solicitors
1400, 00000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx X0X 0X0
Fax: (000) 000-0000
or to such other person or address as the Corporation shall furnish to the
Consultant in writing pursuant to the above.
(b) In the case of the Consultant to:
x/x Xxxxx X. Xxxxxx, X.X.
Xxxxxxxx Xxxxxxxx Xxxxxx & Xxxxxx
Barristers and Solicitors
200, 0000 - 000 Xxxxxx
Xxxxxxxx, Xxxxxxx X0X 0X0
Fax: (000) 000-0000
and to:
c/o Xxxxx X. Xxxxxxxx
Corrtech Partnership
00000 - 000 Xxxxxx
Xxxxxxxx, Xxxxxxx X0X 0X0
Fax: (000) 000-0000
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or to such other person or address as the Consultant shall furnish to
the Corporation in writing pursuant to the above.
Any such notice, direction or other instrument shall:
(a) If delivered, be handed to an adult person at the designated address,
and shall be deemed to have been given or received on the day on which
it was so delivered if delivered prior to 3:00 o'clock P.M. (local
time) on a Business Day. If delivered after 3:00 P.M. (local time) or
if not a Business Day, then it shall have been deemed to have been
given or received on the Business Day next following the day of
delivery.
(b) If mailed, shall be mailed by prepaid registered or certified post
from a post office within the Province of Alberta, and shall be
deemed to have been given or received on the fifth (5th) Business
Day following the date of mailing.
(c) If sent by facsimile transmission, it shall be deemed to have been
given or received on the next Business Day following the day of
confirmed transmission.
"Business Day" where used in this Agreement shall mean a day in which
the offices of the Provincial Government of Alberta are open for
business.
15. SUCCESSORS AND ASSIGNS
The provisions hereof shall enure to the benefit of and shall be binding
upon the parties hereto, their successors and assigns.
16. JURISDICTION AND APPLICABLE LAW
The parties hereto agree that this contract shall be government and
construed in accordance with the
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laws of the Province of Alberta.
17. AMENDMENT
The parties hereto covenant and agree to execute such further and other
undertakings as may be required to properly give effect to the intention of
this Agreement.
18. TIME
Time is of the essence in this Agreement.
IN WITNESS WHEREOF the parties hereto have hereunto affixed their
corporate seals by the hand, of their proper officers in that behalf as of
the date and year first above written.
COMMONWEALTH XXXXXX HOLDINGS LTD. CORRTECH CONSULTING GROUP
Per: Per:
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Per: Per:
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