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Exhibit 10.1
FINANCIAL CONSULTING AGREEMENT
This Agreement made the 28th day of February, 2000.
BETWEEN
DSI DATOTECH SYSTEMS INC., a company duly incorporated pursuant to
the laws of the Province of British Columbia having an office at
Suite 712 - 525 Seymour, in the City of Vancouver, in the Province
of British Columbia V6B 3H7 (hereinafter referred to as "DSI")
AND
XXXXX XXXX XXXXXX, a businessman, presently of 8 Tsawwassen, Beach
Road, in the Municipality of Delta, in the Province of British
Columbia V4M 4C6 (hereinafter referred to as "Xxxxxx")
WHEREAS:
1 Xxxxxx is in the business of arranging financing and insurance products for
clients for his business purposes;
2 DSI is in the business of research and development in the computer industry;
3 DSI has requested that Xxxxxx arranges financing and bonding for it's general
corporate purposes and Xxxxxx has agreed that he will, upon receipt of full
financial disclosure to him by DSI, use his best efforts to arrange financing
for DSI.
WITNESSETH that in consideration of the mutual covenants and agreements
hereinafter set forth and the sum of TEN ($10.00) dollars paid by each party to
the other party (the receipt and sufficiency of which is hereby acknowledged),
it is agreed by and between the parties hereto as follows:
SERVICES
1.0 Xxxxxx agrees to provide the following Services for the sole benefit and
use of DSI:
(a) Introduce DSI to sources and contacts which could provide the
long-term capital required by DSI
(b) Introduce DSI to financial and banking services that would be in a
position to provide term credit or letter of credit to DSI.
(hereinafter referred to as the "Services")
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1.1 DSI acknowledges and Xxxxxx agrees that the Services described above
constitute an integral part of DSI's business and therefore the parties to this
Agreement shall operate in good faith and shall exercise the highest degree of
care in fulfillment of their mutual obligations hereunder.
RIGHT TO CONTROL
2.0 Xxxxxx has the sole and exclusive right to control the method, manner and
sequence of the Services performed for DSI. DSI may, from time to time,
establish schedules or specifications for work performed. DSI will not do
anything or make any commitments which will interfere with the full performance
of Xxxxxx'x duties and obligations under this Agreement.
COOPERATION
3.0 DSI and Xxxxxx agree and acknowledge that the Services contemplated by this
Agreement require the full and complete cooperation of the parties hereto,
including the full and timely disclosure by DSI of any and all materials or
matters relevant to Xxxxxx'x fulfillment of his duties and obligations
hereunder.
TIME DEVOTED TO WORK
4.0 In performance of the Services, the hours Xxxxxx works on any given day will
be entirely within Xxxxxx'x control and discretion. DSI will rely on Xxxxxx'x
professional expertise and experience in their performance of the Services and
fulfillment of the spirit and purpose of this Agreement.
RETAINER AND PAYMENT
5.0 DSI will pay Xxxxxx 10% commission for any funds provided by Xxxxxx'x
private investors and/or corporation. Xxxxxx may convert all or part of this
commission received from DSI on the same terms and conditions as provided to the
private investor(s) and/or corporation(s) arranged by Xxxxxx for DSI. All
commissions are subject to regulatory approvals. Furthermore, the following
terms and conditions are hereby acknowledged and agreed to by the parties.
(a) DSI will pay Xxxxxx commissions of 1.5% of the amount for any
financing other than provided by Xxxxxx'x private investor(s) and/or
corporation(s) for a period of only one (1) year from signature of
this Agreement. Xxxxxx may convert all or part of this commission
received from DSI on the same terms and conditions as provided to
the private investor(s) and/or corporation(s). All commissions are
subject to regulatory approvals;
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(b) It is understood and agreed that Xxxxxx will limit the total
commissions paid to others providing funds to DSI in association
with Xxxxxx to a maximum of 5% and it is understood that the total
amount of commissions paid to Xxxxxx and others will not exceed 15%
in the aggregate for any financing provided by Xxxxxx'x private
investor(s) and/or corporation(s):
(c) It is understood and agreed that financing provided by Xxxxx Xxxxx
and associates or REFCO are considered the sole exceptions to the
above limit placed on commissions in section 5 (b) (see attached
Addendum A);
(d) DSI will pay Xxxxxx commissions of 10% of the amount for any
licensing fee, excluding royalty or other payments to DSI, provided
by Xxxxxx'x private investor(s) and/or corporation(s);
(e) DSI will not pay Xxxxxx any commissions for the grant of Option and
exclusive license for the Banking and Financial Transaction market
segment as mentioned below in sections 6.0, 7.0 and 8.0.
GRANT OF OPTION FOR LICENCING
6.0 Xxxxxx has earned the right to Option the commercialization of the
Technology and will invest his maximum effort in acquiring an exclusive license
for the Banking and Financial Transaction market segment for the sum of
US$8,000,000.00. DSI hereby grants Xxxxxx the sole, exclusive and transferable
Option, for the Option Period, to acquire the transferable and exclusive rights
to the Banking and Financial Transaction market segment.
CONSIDERATION FOR OPTION
7.0 In consideration of the option granted to Xxxxxx hereunder, Xxxxxx will
grant DSI 20% undiluted capital equity in any partnership or corporation that
will exercise the subject exclusive license for the sum of US$8,000,000.00.
DURATION AND RENEWAL AND TERMINATION
8.0 The term of the Option Period shall be for the duration of twelve (12)
months from prototype availability or the end of this Agreement, whichever comes
first.
8.1 The parties hereto agree that this Agreement will be effective for a period
of one (1) year commencing on the date of signature of this Agreement. By
agreement of the parties hereto evidenced in writing, this Agreement may be
renewed by DSI for additional one-year terms at the end of each term. This
Agreement may be terminated by Xxxxxx at any time in whole or in part for any
reason by giving ninety (90) days written notice to DSI. DSI may terminate this
Agreement only for cause after giving notice to
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Xxxxxx of the alleged material breach of an obligation or duty of Xxxxxx under
this Agreement and upon expiration of a thirty day period during which time
Xxxxxx may cure any such alleged material breach. This Agreement shall terminate
upon the death or incapacity of Xxxxxx.
STATUS OF CONSULTANT
9.0 This Agreement calls for the performance of Services by Xxxxxx as
independent contractor, and it is understood and agreed by the parties hereto
that Xxxxxx is not, and will not be considered, an employee of DSI for any
purpose whatsoever. Furthermore, the following terms and conditions are hereby
acknowledged and agreed to by the parties.
(f) It is understood and agreed that Xxxxxx is not being paid a salary
or hourly rate, but rather will be compensated based upon a
percentage of the financing arranged by Xxxxxx for DSI;
(g) It is understood and agreed that no benefits will be provided by DSI
to Xxxxxx except that DSI will provide administrative support for
Xxxxxx. In addition, certain materials may be supplied by DSI as
requested by Xxxxxx.
(h) DSI does not dictate the time of performance for any of the Services
to be provided by Xxxxxx, except that DSI may establish performance
schedules;
(i) It is understood an agreed that the business of DSI and Xxxxxx are
maintained as separate and distinct operations;
(j) Xxxxxx is not entitled to unemployment insurance benefits or
industrial insurance benefits from DSI unless unemployment
compensation coverage or industrial insurance coverage is provided
by Xxxxxx or some other entity; and
(k) Xxxxxx is responsible for possessing all required business or
professional licenses for performing the Services and is solely and
exclusively responsible for payment of all state, federal or foreign
taxes and income taxes, including penalties and interest related
thereto, on any monies paid pursuant to this agreement
NONDISCLOSURE
10.0 The parties agree as follows;
(a) The parties agree that all information, financial or otherwise,
provided to Xxxxxx shall be and remain the property of DSI
(hereinafter referred to as the "Confidential Information")
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(b) Except as required for the purposes of this agreement, Xxxxxx, shall
hold and maintain the Confidential Information in strictest
confidence and in trust for the sole and exclusive benefit of DSI.
Xxxxxx shall have an affirmative duty of confidentiality regarding
all confidential information provided to it by DSI hereunder. Such
obligation shall survive the termination of this Agreement and the
License Agreement for a period of two (2) years. Moreover, Xxxxxx
acknowledges and agrees that, because of the nature of the property
rights involved under this Agreement and the License Agreement, any
breach of Xxxxxx'x obligations under this section 10.0 shall cause
immediate, irreparable injury to DSI; therefore, Xxxxxx agrees and
acknowledges that DSI shall be entitled, in addition to its other
rights and remedies at law and in equity, to seek temporary,
preliminary and/or permanent injunctions in the event an
unauthorized disclosure is made or appears to be imminent.
(c) Xxxxxx, shall not, without prior written approval of DSI, use for
his own benefit, publish or otherwise disclose to others, or permit
the use by others for their benefit or to the detriment of DSI, any
of the Confidential Information.
(d) Xxxxxx, shall carefully restrict access to the Confidential
Information to those who clearly need such access in order to
participate on behalf of Xxxxxx in the analysis and negotiation of a
business relationship or any contract or agreement, or the
advisability thereof, with the source of financing. Xxxxxx further
warrants and represents that he will advise each of the persons to
whom he provides access to any of the Confidential Information
pursuant to the foregoing sentence that such persons are strictly
prohibited from making any use, publishing or otherwise disclosing
to others, or permitting others to use for their benefit or to the
detriment of DSI, any of the Confidential Information.
(e) Xxxxxx, shall take all necessary action to protect the
confidentiality of the Confidential Information, except for this
disclosure pursuant to Paragraph 3 above, and hereby agrees to
indemnify DSI against any and all loses, damages, claims or expenses
incurred or suffered by DSI as a result of Xxxxxx'x breach of the
Agreement.
(f) This Agreement shall continue in full force and effect for one (1)
year from the date entered into, except that Xxxxxx'x obligation
hereunder shall not extend to any of the Confidential Information
which Xxxxxx can demonstrate was in the public domain on the date of
the Agreement.
(g) Xxxxxx, understands and acknowledges that any disclosure or
misappropriation of any of the Confidential Information in violation
of this Agreement may cause DSI irreparable harm, the amount of
which may be difficult to ascertain, and therefore, agrees that DSI
shall have the right to apply to a court of competent jurisdiction
or an order restraining any such further disclosure or
misappropriation and for such other relief as DSI shall deem
appropriate. Such right of DSI is to be in addition to the remedies
otherwise available to DSI at law or in equity.
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(h) Xxxxxx shall return to DSI any and all records, notes, and other
written printed, or tangible materials pertaining to the
Confidential Information immediately on the written request of DSI.
(i) This Agreement and Xxxxxx'x obligations hereunder shall be binding
on the representatives, assigns, and successors of Xxxxxx and shall
enure to the benefit of the assigns and successors of DSI.
(j) This Agreement shall he governed by the construed in accordance with
the laws of the Province of British Columbia, Canada.
(K) If any action at law or in equity is brought to enforce or interpret
the provisions of this Agreement, the prevailing party in such
action shall be entitled to reasonable legal fees.
GOVERNING LAW
11.0 This agreement shall be governed by and construed in accordance with the
laws of the Province of British Columbia that shall be deemed the proper law
hereof.
11.1 The Courts of British Columbia shall have jurisdiction (but not exclusive
jurisdiction) to entertain and determine all disputes and claims, whether or
specific performance, injunction, declaration or otherwise howsoever both at a
law and in equity, arising our of or in any way connected with the constriction,
breach or alleged, threatened or anticipated breach of this Agreement and shall
have jurisdiction to hear and determine all questions as to the validity,
existence or enforceability thereof.
11.2 In any action or legal proceedings referred to in section 10.0 of this
Agreement brought in the Courts of British Columbia against a party, service of
the writ or other document initiating such action or legal proceeding may be
validly made on Xxxxxx by delivering a true copy thereof to or sending the same
by prepaid registered mail addressed to:
000 Xxxxx Xxxxx
0000 Xxxxxx Xxxx
Xxxxxxxx, XX
X0X 0X0
And for such purpose, Xxxxxx hereby appoints Xxxxxxx X. Xxxxxx for a period of
five years as his agent to accept service of any such writ or other document and
on DSI to:
#000 - 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X.
X0X 0X0
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FURTHER ASSURANCES
12.0 Each of the Xxxxxx and DSI agree to execute such further and other
documents and do such further and other things as may be necessary to implement
and carry out the intent of this Agreement.
PARTIES IN INTEREST
13.0 This Agreement and all of its terms and provision shall be binding on and
enure to the benefit of and be enforceable by the parties thereto and their
respective heirs, executors, administrators, successors and assigns, including
but limited to any company, entity or other party with which DSI merges or that
is acquired by DSI as a result of introductions made by Xxxxxx.
TIME OF ESSENCE
14.0 Time shall be of the essence of this Agreement.
NOTICES
15.0 All notices, requests, demands and communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered by hand or
mailed by registered mail postage prepaid, addressed to the party concerned at
the following addresses:
To Xxxxxx: Xxxxx Xxxx Xxxxxx
8 Tsawwassen, Beach Road
Delta, British Columbia
V4M 232
To DSI: DSI Datotech Systems Inc.
#000 - 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Or at such other addresses as may from time to time be notified in writing by
any of the foregoing parties. Any such notice, request, demand and other
communication shall be deemed to have been received, if delivered by hand on the
day delivered, and if, mailed, seven days after the posting as aforesaid at any
postal station in British Columbia.
ENTIRE AGREEMENT
16.0 The terms and provisions herein contained constitute the entire agreement
between the parties and shall supercede all previous communications,
representations or agreements whether verbal or written between the parties
hereto with respect to the subject matter hereof.
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COUNTERPARTS
17.0 This Agreement may be executed in any number of counterparts each of which
shall be deemed an original by all of which together shall constitute one and
the same instrument.
HEADINGS
18.0 The headings in the paragraphs of this Agreement are inserted for
convenience only and shall not constitute a part hereof.
IN WITNESS WHEREOF this Agreement has been executed by the parties hereto as of
the day and year first above written.
SIGNED, SEALED and DELIVERED BY
XXXXX XXXX XXXXXX in the presence of
Name
/s/ Xxxx Xxxxx /s/ Xxxxx Xxxx Xxxxxx
XXXX XXXXX ---------------------
XXXXX XXXX XXXXXX
Address
000-000 XXXXXXXXX XXXXXX, XXXXXXXXX
Occupation
Engineer
The corporate seal of DSI
DATOTECH SYSTEMS INC.
was hereunder affixed in the presence of:
Name
/s/ Xxxxxx X. Pardiak
XXXXXX X. PARDIAK
Address c/s
0-0000 XXXXXXXXX XX. X. XXXXXXXXX
Occupation
Businessman
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