EXHIBIT 10.26
THIS AGREEMENT DATED THE 1ST DAY OF APRIL, 2004
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, owns certain other entities (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
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Corporation, then the Consultant may designate a third person or
persons of 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 Sixty Seven Thousand Four Hundred Thirty Three Dollars and
Thirty Three Cents ($67,433.33) (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.
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3. TERMS
(a) The parties hereto acknowledge that the term of this Agreement shall be
for a period of one (1) year commencing on the lst day of April, 2004 and
ending on the 31st day of March, 2005, 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;
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(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 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 Consultant's
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
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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, 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 or
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
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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 any Existing Customer or any Prospective
Customer for a period of one (1) Year following the 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
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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
(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
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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 the Corporation and the Consultant touching this Agreement
or the construction or application thereof 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.
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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:
Xx. Xxxxxx Xxxxx
Corrpro Companies, Inc.
0000 Xxxx Xxxxx Xxxx
XXXXXX, Xxxx 00000
Fax: (000) 000-0000
and to:
Xxxxxx X. Xxxxx, Q.C.
Xxxxxxx LLP
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
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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
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.
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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 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.
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IN WITNESS WHEREOF the parties hereto have hereunto affixed their corporate
seals by the hands 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:_________________________
PER: _______________________ PER: _____________________________
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SCHEDULE "A"
LIST OF CORPORATIONS
MIKAR HOLDINGS LTD.
TONTINE HOLDINGS LTD.
PHYRON HOLDINGS LTD.
GRAMARR HOLDINGS LTD.
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SCHEDULE "C"
LIST OF KEY INDIVIDUALS AND ANNUAL COMPENSATION
XXXXX X. XXXXXXXX $ 260,000
XXXXX X. XXXXX $ 149,000
XXXXXX X. XXXXXXX $ 181,000
XXXXXX X. XXXX $ 219,200
