AMENDMENT TO
CONSULTING SERVICES AGREEMENT
THIS CONSULTING SERVICES AGREEMENT is made as of the 2nd day of January. 2003
BETWEEN:
SUNGOLD ENTERTAINMENT CORP., a company duly incorporated under the laws of
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the Province of British Columbia, and having its registered and records
office at Suite 000 - 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, X.X., X0X 0X0,
(hereinafter called the "Company")
OF THE FIRST PART
AND
XXX XXXXX XXXX, having an address at #2604, 699 Cardero Street,
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Xxxxxxxxx, XX X0X 0X0
(hereinafter called the "Consultant"),
OF THE SECOND PART
WHEREAS:
The Consultant and the Company entered into a Consulting Agreement made as of
May 1, 1998 (the "Agreement");
The Company is a reporting company whose shares trade on the OTC Bulletin Board
in the U.S. and is engaged, inter alia, in the business of developing
entertainment and e-commerce business in Canada, USA and internationally; (the
"Business"); the Consultant has experience in the Business; the Company desires
to secure the hereinafter described Services of the Consultant; and, the
Consultant has agreed to provide its Services to the Company in accordance with
the terms and conditions herein set forth;
NOW THEREFORE, THIS AGREEMENT WITNESSETH that in consideration of the respective
covenants and agreements hereinafter contained and the sum of One Dollar now
paid by the Company to the Consultant (the receipt and sufficiency of which is
hereby acknowledged by the Consultant), the parties hereto agree as follows:
1. Contract for Services. The Company hereby engages the Consultant to
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provide the consulting services specified in Schedule "A" hereto together with
such other consulting services as the Company requests from time to time (the
"Services") and the Consultant hereby accepts such engagement and agrees to
perform the Services on the following terms and conditions.
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2. Responsibilities of Company. The Company will:
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(a) Make available to the Consultant, information or data pertinent to the
Services to be provided by the Consultant in connection with the
Company's Business;
(b) Consider all memoranda, reports and other documents prepared by the
Consultant relating to the Services, and whenever prompt action is
necessary, inform the Consultant of the Company's decisions in a
reasonable time;
(c) Pay in full when due, all amounts payable to the Consultant;
(d) Arrange and make provision for the Consultant's access to records and
other information, and to physical premises, as may be reasonably
necessary, to enable the Consultant to perform the Services; and
(e) Make such management personnel of the Company available to the
Consultant as may reasonably necessary, be required for the Consultant
to perform its consulting Services; and
(f) During the period of his engagement with the Company, the Consultant
shall be entitled each year to twenty-five (25) days paid vacation by
the Company.
3. Term. Subject to the provisions hereof the term of this Agreement shall
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be thirty-six (36) months commencing January 2, 2003 to January 1, 2006.
4. Character and Extent of Services to be Provided. It is the mutual intent
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of the parties that the Consultant shall act strictly in a professional
consulting capacity as an independent contractor for all purposes and in all
situations and shall not be considered an employee of the Company.
5. Source Deductions. The Company shall have no obligation to and shall not
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make any source deductions with respect to the Consultant. The Consultant shall
make all source deductions, if any, required to be made in respect of the
Consultant in respect of income tax, Canada Pension Plan, Unemployment
Insurance, Workers Compensation and all other required remittances and
deductions, and remit same as and when required and shall indemnify and hold
harmless the Company and each of its officers, directors and employees from any
liability in respect thereof.
6. Reporting. The Consultant shall report to the Board of Directors of the
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Company.
7. Time and Place of Consulting Services. The Consultant will attend at the
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premises of the Company or such other place as the Company may reasonably
require.
8. Working Facilities. The Consultant shall supply facilities and materials
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as necessary for the performance of its services; however, the Consultant shall,
as reasonably required by the Company, attend the facilities of the Company to
facilitate access to the files and databases of
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the Company. The Consultant shall have reasonable access to the customers,
advisors, employees, information and facilities of the Company as required in
the performance of the Services described herein.
9. Compensation and Expenses. The Company shall pay and the Consultant
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agrees to accept as compensation for the Services to be rendered hereunder a fee
of, $8,000.00 USD per month together with GST thereon. The Consultant shall be
reimbursed by the Company for invoiced expenses.
10. Consultant's Qualifications. The Consultant represents and warrants
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that the Consultant is qualified to provide the Services contemplated hereby and
that the Consultant has the necessary qualifications and expertise to perform
and provide the Services required hereunder in a professional manner, in
compliance with the highest ethical standards and all applicable laws and
regulations. The Consultant covenants and agrees to provide the Services in a
diligent, careful, skilful and efficient manner in keeping with the commercial
standards of the Consultant's industry.
11. Termination for Cause. Notwithstanding anything herein contained the
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Company may terminate this Agreement without prior notice for just cause which
shall include but not be limited to:
(a) failure by the Consultant to comply with any of the provisions
hereunder including, without limitation, failure, refusal or neglect
by the Consultant to perform or provide any aspect of the Services
within the time permitted for its provision or performance as
determined pursuant to the terms of this Agreement and upon the
Consultant being notified in writing by the Company's Representative
alleging such failure and failing to remedy such failure within
fifteen (15) days of receiving such notice;
(b) the Consultant or any of his/her employees committing an act of fraud
or dishonest or serious misconduct, or any act detrimental to the
reputation of the Company in circumstances that would, in the
reasonable opinion of the Company's Representative make the Consultant
unsuitable to continue to act on behalf of the Company; or
(c) the Consultant committing an act of bankruptcy or making a general
assignment for the benefit of its creditors or otherwise taking
advantage of laws relating to insolvency or creditors' rights
including the appointment of a receiver over the assets of the
Consultant.
12. Duty of Loyalty - No Conflict of Interest. The Consultant hereby agrees
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to avoid and to cause his/her employees to avoid any circumstances or actions
which might arguably place the Consultant or his/her employees or any of them in
a position of divided loyalty regarding their obligations to the Company. The
Consultant will not, and will obtain from each of his/her employees an agreement
in writing that he or she will not, utilize for its or his/her own benefit or
that of a third party any information or potential business opportunities it or
they may learn of as
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a result of the provision of the Services to the Company, without having first
obtained the written consent of the Company.
13. Non-Exclusive Services. The parties acknowledge that this is not an
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exclusive consulting agreement and the Consultant, outside of the hours required
by the Company's business and not in the Company's office, may provide services
to third parties without the prior consent of the Company if such services will
not create an actual or apparent conflict of interest with the activities of the
Company or conflict with the obligations of the Consultant pursuant to this
Agreement.
14. Confidentiality.
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14.1 The Services to be provided by the Consultant hereunder are sensitive
in nature. The Consultant shall keep and shall cause his/her employees to keep
in the strictest confidence all information regarding this Agreement and all
information it may acquire in respect of the Company, as well as the nature and
results of the Services the Consultant is to perform. During the course of this
Agreement the Consultant may also be given access to confidential or proprietary
information of the Company or another party with whom the Company may have
signed a non-disclosure agreement. Without the prior written consent of the
Company the Consultant shall not disclose or use any such information.
14.2 The scope of this obligation includes any Company proprietary
information which is labelled or otherwise identified to the Consultant or
his/her employees as confidential. It also includes any information regarding
the purpose or details of the Consultant's arrangement with the Company, the
strategic or other business plans of the Company, proprietary information which
is furnished to the Company by another under a non-disclosure agreement, and any
evaluations, discussions or transactions involving another party in which the
Consultant may be involved under this Agreement and whether pertaining to the
Company or otherwise (the "Confidential Information").
14.3 The Consultant will exercise due diligence to maintain in
confidence any Confidential Information which is disclosed to him. As used here
the term "due diligence" means the same precaution and standard of care which
the Consultant would use to safeguard its own proprietary information, but in no
event less than reasonable care.
14.4 The Consultant may not reproduce, distribute or disclose any
Confidential Information to others or use it for any commercial purpose outside
this Agreement without first obtaining the written permission of the Company.
The Consultant will ensure that any employee who is given access to the
Confidential Information signs an appropriate agreement in the form and content
provided by the Company from time to time requiring him/her to hold that
information in confidence and to use it only in the course of the Company's
Business.
14.5 This section does not impose any obligation on the Consultant if the
information is:
(a) publicly known at the time of disclosure;
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(b) furnished by the Company to others without restrictions on its use or
disclosure;
(c) legally required to be disclosed by a regulatory or legal authority;
or
(d) independently developed by the Consultant without the use of
Confidential Information.
15. Title to Documents and Work Product. All draft and final reports,
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notes, memoranda, budgets, plans, projections, records, documents, data bases,
lists of contacts, leads or other information which the Consultant furnishes to
the Company under this Agreement will become the sole property of the Company
and the Consultant shall deliver all such items to the Company's Representative
at the end of the Term or earlier termination of this Agreement and before
receipt of final payment hereunder and all reports and database materials will
be provided both as hard copy and on disk. The Consultant may keep a copy of
such materials for record keeping purposes. The Company shall own all right and
title to all ideas, materials or programs excluding pre-existing specified
computer programs owned by the Consultant and modified for use by the Company
which the Consultant make or conceive of in connection with the provision of
Services to the Company under this Agreement.
16. Assignment and Sub-contracting. The Consultant may not assign or
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sub-contract this Agreement or any portion of it to another without the express
written consent of the Company since the Company is relying on the special
expertise of the Consultant to properly provide the Services.
17. Provisions which Operating Following Termination. Notwithstanding any
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termination of this Agreement for any reason whatsoever and with or without
cause the provisions of sections 12, 14, and 15 any other provisions of this
Agreement necessary to give effect thereto shall continue in full force and
effect following any such termination.
18. General. The Consultant has been asked to seek independent legal advice
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before signing this Agreement. This Agreement and the obligations of the
parties shall be binding upon the parties and their heirs, executors, successors
and permitted assigns. Save and except for the express provisions of this
Agreement, any and all previous agreements, written or oral, between the parties
hereto or on their behalf relating to the employment of the Consultant by the
Company are hereby terminated and canceled. The Consultant may not assign this
Agreement without the prior written agreement of the Company. This Agreement and
the instruments and schedules referred to herein constitute the entire agreement
between the parties with respect to the subject matter of the agreement and
supercede all prior agreements, undertakings negotiations and discussions,
whether oral or written, between the parties and there are no warranties,
conditions, representations or other agreements between the parties in
connection with the subject matter of this Agreement, except as specifically set
forth herein. No modification of this Agreement shall be valid unless made in
writing and signed by the parties hereto. British Columbia law governs this
Agreement. Notices under this Agreement must be sent by personal delivery,
facsimile or registered mail to the appropriate party at its address stated on
the first page of this Agreement or to a new address if the other has been
properly
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notified of the change. Such notice shall be deemed to be delivered, if by
personal delivery when delivered; if by facsimile when the transmitting machine
produces a report confirming the successful transmission; and if delivered by
registered mail on the third day following such mailing. The headings in this
Agreement are inserted for convenience only and shall not affect the
interpretation hereof. If any covenant or provision herein is determined to be
void or unenforceable in whole or in part, it shall not be deemed to affect or
impair the validity of any other covenant or provision and the foregoing clauses
are declared to be separate and distinct covenants. The parties shall deliver to
each other further documentation and shall perform such further acts as and when
the same may be required to carry out and give effect to the terms and intent of
this Agreement. No waiver or consent by a party of or to any breach or default
by any other party shall be effective unless evidenced in writing, executed and
delivered by the party so waiving or consenting and no waiver or consent
effectively given as aforesaid shall operate as a waiver of or consent to any
further or other breach or default in relation to the same or any other
provision of this Agreement. Time is of the essence of this Agreement and of its
performance.
19. Counterparts. This Agreement may be executed in counterparts and by
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facsimile each of which shall represent a signed original copy of this Agreement
and all of which together shall constitute one and the same Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement as of the day and
year first above written.
SUNGOLD ENTERTAINMENT CORP.
Per:
/s/ Xxxxxx X. Xxxxxx
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XXXXXX X. XXXXXX, Chairman
c/s
SIGNED, SEALED AND DELIVERED )
in the presence of: )
)
/s/ Xxxx Xxxxxxx )
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Name ) /s/ Xxx Xxxxx Xxxx
) ----------------------
------------------------------) XXX XXXXX XXXX
Address )
)
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Occupation )
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SCHEDULE "A"
DESCRIPTION OF CONSULTING SERVICES
1.01 The Consultant shall act and be retained by the Company to be
responsible for supervision, direction, control, promotion and operation of the
Company and will have the obligation, duties, authority and power to:
(a) do all acts and things as are customarily done by persons holding the
position of Chief Executive Officer or performing duties similar to those
performed by a Chief Executive Officer in corporations of similar size to
the Company, and all acts and things as are reasonably necessary for the
efficient and proper operation and development of the Company but, without
limiting the generality of the foregoing, will include all matters related
to the general administration of the Company which may reasonably be
considered the responsibility of persons holding the position of Chief
Executive Officer and President in corporations of similar size to the
Company; and
(b) provide management services to the Company, such services to include but
not be limited to the following:
(i) negotiations with other persons, firms, corporations or financial
institutions in connection with the arranging and securing of
financing for the Company, including financings through underwritings,
best efforts offerings or such other offerings as may be allowed
through the facilities of the NASD or FSE and financings through
limited partnership offerings or by conventional bank financing
methods, the terms of such financing to be subject to the approval of
the Board of Directors and in accordance with the policies of the
applicable securities regulatory bodies;
(ii) representation of the Company in all matters relating to the
business of the Company;
(iii) supervision of office administration;
(iv) maintenance of suitable banking relations;
(v) supervision of financial officer to maintain proper accounting
records and compilation of financial information as may be required
from time to time;
(vi) supervision of management of the Company and all of its
subsidiaries concerning matters pertaining to fiscal policies,
administration, shareholder and broker relations, public relations and
management of the Company;
1.02 In addition, the Consultant shall provide the following services to the
Company:
(a) assist in the location and researching of business opportunities
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(b) assist in obtaining management contracts by the Company and with
market and financial analysis and feasibility studies regarding
business opportunities;
(c) assist in arranging development and operating capital with respect to
business opportunities;
(d) supervise the management of the Company's operations.
1.03 In conducting his duties under this agreement, the Consultant will
report to the Company's directors and will act consistently with their
directives and policies.
1.04 The Consultant will perform the duties set out above (collectively the
"Services") and fulfill his obligations in a sound and workmanlike manner.
