Exhibit 10.1
CONSULTING AGREEMENT
BETWEEN:
FIRST AID DIRECT, INC.
a body incorporated,
with a registered office in the State of Florida,
(formerly First Aid Direct, Inc.),
(hereinafter referred to as "Xxxx")
AND
CONSULTING COMPANY NAME,
a body to be incorporated in the State of ___________,
(hereinafter referred to as " Consultant ")
AND
XXXXXX X. XXXXXXXXX,
a business person residing in the State of____________,
(hereinafter referred to as "Service Provider")
2
WHEREAS Xxxx is issuing and exchanging an equal number of its treasury common
shares on a one for one basis with all of the common shares of 3323455
Canada Inc. ("3323"), which as its registered office in the Province of
Quebec, Canada as evidenced by the Security Exchange Agreement (SEA)
executed between the Parties (the "Transaction");
WHEREAS Consultant has the qualifications, skills and experience to provide the
required services;
WHEREAS after the Transaction, Xxxx wishes to retain the services of Consultant
for a specified period of time;
WHEREAS after the Transaction, Consultant wishes to offer its services to Xxxx
for the same specific period of time;
WHEREAS Xxxx and Consultant wish to define the terms and conditions of this
Consulting Agreement;
WHEREAS this Consulting Agreement forms an integral part of the executed SEA
between the Parties, with an effective date of November 1st, 2003,
which terms, conditions, references and definitions are hereby
incorporated and will have the same meanings as used in the said SEA;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained and other good and valuable consideration (the
receipt and sufficiency of which is hereby acknowledged) the Parties
have agreed and this Consulting Agreement (the "Agreement") witnesses
as follows:
3
ARTICLE 1
CONDITIONAL OFFER AND EFFECTIVE DATE
1.1 The preamble forms an integral part of this Agreement.
1.2 This Agreement is conditional upon the closing of the Transaction.
If the Transaction does not close, this Agreement shall be null and void ab
initio, and all obligations, including any obligation of compensation or payment
to Consultant, shall cease.
1.3 The effective date (the "Effective Date") of this Agreement shall
be the day following the closing of the Transaction.
ARTICLE 2
INDEPENDENT CONTRACTOR
2.1 This is an Agreement for the services of Consultant as a separate
business unit, and Consultant shall not be entitled to any benefits of any
nature whatsoever other than to those which are expressly provided for herein.
2.2 Consultant is acting exclusively as a business unit separate from
that of Xxxx and no relationship of agency, partnership, joint venture,
employer-employee, or master-servant is created between Consultant and Xxxx.
2.3 It is acknowledged and agreed by Consultant and Xxxx that
Consultant shall be and at all time is acting and performing as a consultant to
Xxxx. Consultant agrees not to represent to any other party that Consultant is
an agent, partner, joint venture, employee, or servant of Xxxx.
2.4 Consultant agrees that he shall indemnify and save harmless Xxxx
and 3323 against any and all claims, actions, causes of action, debts or demands
relating to deductions and withholdings under federal, state or municipal law
including those under the Income Tax Act as amended from time to time, and any
claims related to Employment Insurance, Workers Security Insurance, for or in
respect of the provision of services under this Agreement, together with any
interest or penalties relating thereto and any costs or expenses incurred by
Xxxx and 3323 in defending such claims, cause of action, demand, debt or by any
other authority.
2.5 Consultant further agrees that he shall indemnify and save harmless
3323 and Xxxx from Consultant's failure, omission or refusal to remit deductions
to the appropriate federal, state or municipal government entity, agency or
collecting body, as required by law.
4
ARTICLE 3
TERM OF THE CONSULTING AGREEMENT
AND OBLIGATIONS OF CONSULTANT
3.1 On the Effective Date of this Agreement, Service Provider agrees to
execute all necessary documents to facilitate the execution of this Consulting
Services Agreement.
3.2 Xxxx engages Consultant to provide and Consultant agrees to provide
the Consulting Services commencing as at the Effective Date, and continuing for
two twelve (12) month periods. This relationship and this Agreement will be
renewed for an additional twelve (12) month period with the prior written
consent of the Parties within sixty (60) days from the termination of the first
twelve month period. If this Agreement is not renewed, in accordance with the
terms and conditions of Section 3.2, this Agreement shall terminate at the end
of the applicable twelve (12) month period, which date shall be referred to as
the "Contract Termination Date".
3.3 The Parties agree that the only person who can provide the
Consulting Services hereunder is Service Provider, and it shall be a breach of a
material provision of this Agreement by Consultant if Service Provider does not
personally and exclusively provide the Consulting Services.
3.4 Services retained:
3.4.1 Xxxx retains the professional services of Consultant to serve
as Fadi's Chief Executive Officer and to perform such services, roles and
responsibilities as are usually and customarily performed by the chief executive
officer of a publicly-traded corporation, subject to the direction of the Board
of Directors (the "Consulting Services").
3.4.2 Xxxx will cause Service Provider to be elected as Chief
Executive Officer of Xxxx. If Service Provider is requested to serve on the
Board of Directors of Xxxx, he agrees to do so without additional compensation
therefor.
3.5 Consultant shall perform the Consulting Services in accordance with
and in the following manner:
3.5.1 Attachment 3.4.1
3.5.2 In a good and workmanlike manner and in accordance with
accepted standards, practices, policies and guidelines;
3.5.3 In compliance with all applicable federal, state, municipal
and local laws and regulations, and Fadi's corporate policies (as those policies
pertain to consultants).
3.6 It is agreed that during the term of this Agreement, Consultant
will perform the Consulting Services when and as needed, during reasonable
working hours and upon reasonable prior notice.
5
3.7 Consultant and Service Provider agree to return to Xxxx any and all
computers, discs, tapes, files, documents and working papers acquired and/or
produced under this Agreement within three working days of termination of this
Agreement.
ARTICLE 4
FEE ARRANGEMENT
4.1 Subject to the terms of this Agreement, Consultant shall be paid by
Xxxx for the provision of the Consulting Services at a rate of 20,000 USD per
month, plus any applicable taxes.
4.2 Consultant shall not be entitled to be a participant in any
employee benefit plans of Xxxx.
4.3 Xxxx shall pay to Consultant all reasonable expenses actually and
properly incurred by Consultant in connection with the performance of its
obligations under this Agreement, such expenses to be documented in accordance
with Xxxx' standard policies. Consultant shall submit statements and vouchers
for all such expenses once a month, at the end of each month.
ARTICLE 5 TERMINATION
5.1 TERMINATION FOR CAUSE
Xxxx will terminate this Agreement at any time and, Fadi's obligation to
compensate Consultant with respect to this Agreement will terminate upon written
notice to Consultant and Service Provider in the event that Consultant or
Service Provider is in breach of or in default of the following:
5.1.1 Section 3.3 herein;
5.1.2 Section 3.5 herein;
5.1.3 Change of control of Consultant without the prior written
approval of
Xxxx;
5.1.4 Article 6 herein during the term of this Agreement;
5.2 TERMINATION BY CONSULTANT OR SERVICE PROVIDER
If Consultant and/or Service Provider terminates this Agreement at any time for
the following reasons, this Agreement shall terminate, all obligations,
including any obligation of
6
compensation or payment to Consultant by Xxxx, shall cease and the Restricted
Period (as hereinafter defined) shall be three (3) months:
5.2.1 Election of Consultant or Service Provider;
5.2.2 The death or disability of Service Provider, for the purposes
of this Agreement, long term disability shall mean the inability of Service
Provider to provide the Consulting Services for a period of 90 days.
5.3 TERMINATION WITHOUT CAUSE
5.3.1 If Xxxx terminates this Agreement without cause, Xxxx will
continue to pay Consultant the amount referred to in Section 4.1 herein for the
balance of the agreed term of 24 months from the date of execution of this
Agreement and the Restricted Period shall be six (6) months.
5.4 TERMINATION FOR ANY REASON
Upon termination of this Agreement for any reason, Xxxx will pay Consultant,
within five (5) business days of Consultant's last day actively performing the
Consulting Services for Xxxx, the following:
5.4.1 all Consulting Services fees plus applicable taxes earned,
but not yet paid, on a pro-rata basis, for the month of termination;
5.4.2 any expenses incurred and not paid in accordance with this
Agreement.
5.4.3 Service Provider shall resign as an Officer and/or Director
of Xxxx and agrees to execute all necessary documents to facilitate the
resignation..
5.5 The provisions of Article 6 herein shall survive the termination of
this Agreement, regardless of the reason for termination, notwithstanding that
the applicable restricted period of ARTICLE 6 herein shall vary in accordance
with the cause of termination of this Agreement (the " Restricted Period").
Unless a different time period is specified herein, the Restricted Period shall
be 12 months.
ARTICLE 6
PERSONAL COVENANTS AND
POST-AGREEMENT OBLIGATIONS
6.1 Consultant and Service Provider have carefully read and considered
the provisions of this Article 6 and, having done so, agree that the
restrictions set forth in this Article are fair and reasonable, and are
reasonably required for the protection of the interests of Xxxx and 3323 and to
protect the value of the business purchased by 3323 and Xxxx in the
7
Transaction. Consultant and Service Provider recognize and agree that as a
consultant of Xxxx, they will become knowledgeable, aware and possessed of
confidential information of Xxxx and 3323 and other affiliated companies
including their investor's, customer's and other consultant's, technology,
know-how, products and technical and business data, marketing strategies and
investor programs shall be referred to in this Agreement as the ("Confidential
Information"). Consultant and Service Provider acknowledge and agree that Xxxx
and 3323 are the sole and exclusive owners and proprietors of all such
Confidential Information, and that Consultant and Service Provider owe a duty to
ensure that all Confidential Information is and remains at all times
confidential
6.2 Non Competition
a. Consultant and Service Provider further acknowledge that in the
course of this consulting relationship, they will be assigned duties that will
give them knowledge of Confidential Information and proprietary information
which relates to the conduct and details of Xxxx and 3323's businesses ( for the
purposes hereof, "Business" shall mean and include only providing information
technology consulting services and outsourcing services) and which may result in
irreparable injury if Consultant and/or Service Provider would enter into an
employment or consulting relationship with a business which is the same as or
similar to and which is competitive to the Business (as Business is hereinafter
defined). Consultant and Service Provider agree with, and for the benefit of
Xxxx, that Consultant and Service Provider shall not without the prior written
approval of the Board of Directors of Xxxx during the term of this Agreement or
at any time within the Restricted Period as of the Contract Termination Date,
either as an individual or as a partner or joint venture or otherwise in
conjunction with any person or persons, firm, association, syndicate, company or
Xxxx, as principal, agent, consultant, director, officer, employee, investor or
in any other manner whatsoever, directly or indirectly, carry on, be engaged in,
be interested in, or be concerned with, or permit Consultant's or Service
Provider's names or any part thereof to be used or employed by any such person
or persons, firm, association, syndicate company or Xxxx, carrying on, engaged
in, interested in or concerned with, a business which is the same as or similar
to the Business conducted by Xxxx as at the date of termination of this
Agreement, within the State of Florida or the National Capital region of Canada
within the Provinces of Ontario and Quebec.
b. Consultant and Service Provider have the right to request in
writing the Board of Directors of Xxxx, in advance for agreement that a proposed
business or position is not prohibited within the terms of this Agreement. If
Consultant and Service Provider receive written acknowledgment that the Board of
Directors of Xxxx do not object to Consultant's or Service Provider's
participation in the said requested business or position, then they shall be
allowed to so participate.
c. This Article shall not prevent Consultant or Service Provider
from purchasing as a passive investor up to 5% of the outstanding publicly
traded shares or other securities of any class of an issuer listed on a
recognized stock exchange.
8
6.3 Non-Disclosure
The Parties understand that Xxxx and 3323 desire to keep their contractual
relationship with their investors, customers and other consultants confidential.
Consultant and Service Provider agree during the term of this Agreement and
thereafter not to disclose any such investor, customer or other consultant
relationships unless authorized in writing by the Board of Directors of Xxxx and
3323 or as required by applicable law.
6.4 Confidential Information
Consultant and Service Provider will have access to the Confidential Information
Consultant and Service Provider agree to accept and retain said Confidential
Information in confidence and, at all times during or after the termination of
this Agreement, not to disclose or reveal such information and data for purposes
other than those authorized by Xxxx or as required by applicable law. At the
request of Xxxx and upon termination of this Agreement, Consultant and Service
Provider will promptly turn over to Xxxx all written or descriptive matter
containing the Confidential Information or proprietary information or data.
6.5 Patent-Copyright
a. Consultant and Service Provider agree to make prompt and
complete disclosure to Xxxx of any (i) invention, discovery, or improvement
("Invention"), whether patentable or not and (ii) copyrightable material, which
relate to the Business and which are made, conceived, or authored by Consultant
or Service Provider, alone or with others, during the term of this Agreement
and, with respect to an Invention, for one (1) year following the Contract
Termination Date. All works produced by Consultant shall be deemed "work made
for hire."
b. Consultant and Service Provider agree to and do hereby assign to
Xxxx all of their right, title and interest in any Invention(s) and
copyrightable material. At the request and expense of Xxxx, Consultant and
Service Provider will render whatever assistance may be necessary for Xxxx to
secure a patent or copyright for such Invention(s) or material.
9
6.6 Non-Solicitation
Consultant and Service Provider agree that as a result of their position with
Xxxx, that they will have access to the Confidential Information. Consultant and
Service Provider agree that during the term of this Agreement or at any time
within the Restricted Period as of the Contract Termination Date, regardless of
the reason for termination, that Consultant and Service Provider shall not:
(i) directly or indirectly, either as an individual or as a partner
or joint venture, or as an employee or principal, management, consultant, agent,
shareholder, officer, director, or sales person for any person, firm,
association, organization, syndicate, company or Xxxx, solicit or accept any
business from any Client of Xxxx;
(ii) hire, solicit, or attempt to induce any employee of Xxxx to
leave Fadi's employ and work directly or indirectly for or with Consultant and
Service Provider or any employer or contractor of Consultant and Service
Provider; or
(iii) hire, solicit, or attempt to induce any contractor or
sub-contractor of Xxxx to not perform their respective duties or to leave Xxxx
and work directly or indirectly for or with Consultant or Service Provider or
any employer or contractor of Consultant and Service Provider.
6.7 Property
All reports, computer programs, manuals, tapes, card decks, listings (including
customer listings) and any other documentation or data furnished to or prepared
by Consultant in connection with this Agreement shall be the property of Xxxx.
ARTICLE 7
GENERAL PROVISIONS AND NOTICE
7.1 Any waiver by a Party of any breach of any provision of this
Agreement by the other Party shall not be binding unless in writing, and shall
not operate or be construed as a waiver of any other or subsequent breach by
Consultant or Service Provider.
7.2 This Agreement contains the entire agreement between the Parties
and may be changed only by agreement in writing signed b the Parties hereto.
7.3 This Agreement shall be governed by and construed in accordance
with the laws in force in the State of Florida, USA.
7.4 If any paragraph, subparagraph or provision of this Agreement is
determined to be unenforceable by a Court of competent jurisdiction, then such
provision shall be severable from the Agreement and the remainder of this
Agreement shall be unaffected thereby and shall remain in full force and effect.
10
7.5 Any notice required to be given hereunder shall be in writing and
sufficiently made if delivered personally, sent by facsimile transmission, or
mailed by prepaid registered mail to the Parties at their respective addresses
herein.
7.6 Any such notice shall be deemed to have been given on the date it
is delivered if personally delivered or sent by facsimile, or if mailed, on the
third business day following the
7.7 mailing thereof. Any of the Parties may change its address for
service by giving written notice hereunder.
7.8 Time shall be of the essence of this Agreement.
XXXX:
First Aid Direct, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx, 00000-0000
Tel: (000) 000-0000
Fax: (954) --- ---
CONSULTANT:
Consulting company
c/o Spiegel Xxxxxx
5, Place Ville Xxxxx , Suite 1203
Montreal, Quebec
Canada, H3B 2G2
SERVICE PROVIDER:
Xxxxxx X. Xxxxxxxxx
c/o Spiegel Xxxxxx
5, Place Ville Xxxxx , Suite 1203
Montreal, Quebec
Canada, H3B 2G2
11
IN WITNESS WHEREOF the Parties hereto have executed this Agreement
FIRST AID DIRECT, INC.,
PER:
___________________________
XXXXX XXXXXX
CONSULTING COMPANY.
PER:
___________________________
XXXXXX X XXXXXXXXX
SERVICE PROVIDER
___________________________
XXXXXX X. XXXXXXXXX
