Exhibit 10.16
CONSULTING AGREEMENT
THIS AGREEMENT is made effective this 1st day of May, 2005.
BETWEEN:
MIDNET (CANADA), INC., a body incorporated under the laws of Canada, having
its head office at 000-0000 X. Xxxxxxxx Xx., Xxxxxxxxx XX, X0X 0X0
(hereinafter called the "Company")
OF THE FIRST PART
AND:
THE HAVORY CONSULTING GROUP, of 0000 Xxxxx Xxxxx, Xxxxx Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxx, X0X 0X0
(hereinafter called the "Consultant")
OF THE SECOND PART
WHEREAS:
A. The Consultant is a senior financial executive.
B. The Company is desirous of retaining the services of the Consultant, and
the Consultant has agreed to serve the Company as an independent Consultant
upon the terms and conditions hereinafter set forth;
FOR VALUABLE CONSIDERATION it is hereby agreed as follows:
SECTION 1 - SERVICES
1.01 Subject to sections 2, 3 and 10 hereof and to the control and direction
of the Board of Directors and officers of the Company, the Company
hereby retains the Consultant to provide management and financial
consulting services (the "Services") to the Company, and the Consultant
covenants and agrees to provide the "Services" to the Company. Specific
responsibilities are as outlined in Schedule "A". These may be amended
by mutual agreement.
1.02 The Consultant shall use the Consultant's best efforts, working time,
attention and ability in the performance of the Services. Furthermore,
the Consultant agrees that he shall not provide Services to any other
competitive third party during the term of this Agreement.
1.03 During the Term, the Consultant shall provide the "Services" to the
Company in a timely manner.
1.04 Travel on Midnet Inc's behalf may be required from time to time. The
Consultant will be compensated at a pro-rated daily rate when the
Consultant is required to travel on a weekend. Any additional expenses,
such as Travel Accident Insurance, incurred by the Consultant will be
re-imbursed to the Consultant as set out in paragraph 3.04
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SECTION 2 - TERM OF CONTRACT
2.01 The term of this Agreement (the "Term") shall commence May 1, 2005 and,
subject to section 2.02, will be ongoing severed or amended by mutual
agreement, or terminated as set out in section 5.
2.02 As of September 30 2005, or earlier if mutually agreed to, the
consultant shall assume the position and responsibilities of the Chief
Financial Officer of Midnet Inc, the company. It is intended, subject
to adequate financing of the company, that this position will be full
time and at a compensation commensurate with the duties and
responsibilities and which shall be negotiated prior to September 30
2005.
SECTION 3 - COMPENSATION
3.01 During the term of this Agreement, the Company shall pay the Consultant
a fee (the "Fee") of $5,000.00 CDN plus applicable taxes for
approximately 80 hours for services provided to the Company and
performed by the Consultant during the respective calendar month. The
Consultant accepts the amount specified as payment in full for all
services to be provided by the Consultant and Consultant's employees.
3.02 On behalf of the Consultant and the Consultant's employees, the
Consultant hereby waives any claim for step-up fees, bonus, benefits
[eg. dental, medical, disability, life insurance, company pension],
vacation pay, holiday pay or other additional remuneration or
compensation whatsoever, except as otherwise agreed to from time to
time.
3.03 The Consultant shall invoice the Company on a monthly basis in advance
for services rendered. Company shall pay invoices within 7 days of
receipt.
3.04 The Consultant shall be reimbursed, on a timely basis, for all
pre-approved out-of-pocket expenses actually and properly incurred by
him in connection with his provision of "Services" hereunder. For all
such expenses the Consultant shall furnish to the Company statements
and vouchers, including original receipts, as and when required and
will xxxx the Company at cost at the end of each month.
3.05 The Consultant shall be responsible for the payment of his own taxes on
income and other remittances as shall be required by any governmental
entity with respect to the "Fee" and/or expenses paid by the Company to
or on behalf of the Consultant.
3.05 The Consultant shall indemnify and hold the Company harmless from and
against any and all taxes, interest, penalties, claims, liabilities,
damages or expenses incurred directly or indirectly by the Company and
arising from or with respect to any failure by the Company to withhold
income taxes and / or any other legally required deductions from any
amounts paid to or in respect of the Consultant or the Consultant's
employees.
SECTION 4 - INTELLECTUAL PROPERTY / CONFIDENTIALITY
4.01 The Consultant shall not, either during the Term or at any time
reasonable thereafter, disclose the private affairs of the Company, or
any secrets of the Company to any person other than the Directors,
management or employees of the Company, as is appropriate, and shall
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not (either during the Term or at any reasonable time thereafter) use
for the Consultant's own purposes, or for any purpose other than those
of the Company, any information the Consultant may acquire in relation
to the business and affairs of the Company, other than as allowed for
in accordance with prevailing legislation. This does not prevent the
Consultant or any of its employees from purchasing stock in the company
as long as this is not in contravention of any legislation governing
such purchases.
4.02 The Consultant shall well and faithfully serve the Company during the
Term and, subject to section 10.01 hereof, use his best efforts to
promote the interests of the Company.
SECTION 5 - TERMINATION
5.01 This Agreement may be terminated by either party at any time upon
thirty (30) days' prior written notice.
5.02 After notice, the Company at its option, may waive the requirement that
the Consultant continue to provide the Services during the applicable
notice period; but, in any event, the Company shall continue to pay the
Fee during the applicable notice period. Thereafter, neither the
Consultant nor the Company shall have any further obligations
hereunder.
5.03 In the event this Agreement is terminated by reason of default on the
part of the Consultant, then at the request of the Board of Directors
of the Company, the Consultant shall forthwith resign any position or
office, which he then holds with the Company.
SECTION 6 - ASSIGNMENT
6.01 The services to be performed by the Consultant pursuant hereto are
personal in character, and except that the Consultant shall be at
liberty to assign this Agreement, with notice, to a company controlled
by him, neither this Agreement nor any rights or benefits arising
hereunder are assignable by the Consultant without the previous written
consent of the Company.
6.02 The provisions of this Agreement shall enure to the benefit of and be
binding upon the Consultant, the Company and their respective
successors and assigns. For this purpose, the terms "successors" and
"assigns" shall include any person, firm or corporation or other
entity, which at any time, whether by merger, purchase or otherwise,
shall acquire all or substantially all of the assets or business of the
Consultant or the Company, as the case may be.
SECTION 7 - NOTICE
7.01 Any notice in writing required or permitted to be given to the
Consultant hereunder shall be sufficiently given if delivered or faxed
to the Consultant or mailed by registered mail, postage prepaid,
addressed to the Consultant at his address as shown on page 1 hereof.
Any such notice mailed in Canada as aforesaid shall be deemed to have
been received by the Consultant on the third business day following the
date of mailing. Any notice in writing required or permitted to be
given to the Company hereunder shall be sufficiently given if delivered
or faxed to the Company or mailed by registered mail, postage prepaid,
addressed to the Company at its address as shown on page 1 hereof. Any
such notice mailed in Canada as aforesaid shall be deemed to have been
received by the Company on the third business day following the date of
mailing. Any such address for the giving of notices hereunder may be
changed by notice in writing given hereunder.
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SECTION 8 - INDEMNIFICATION
8.01 The Company shall indemnify, defend and hold harmless the Consultant
and its employees against any and all claims, demands, suits,
judgments, expenses incurred therein, attorneys' fees, damages and
obligations arising out of the performance of the Consultant and its
employees under this Agreement.
SECTION 9 - GOVERNING LAW
9.01 This Agreement shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by, the laws of the
Province of British Columbia, Canada and the parties hereby irrevocably
attorn to the jurisdiction of the courts of such Province for this
purpose.
SECTION 10 - COMPLETE AGREEMENT
10.01 If any provision, word or clause of this Agreement shall be held to be
illegal, invalid or unenforceable for any reason, such illegality,
invalidity or unenforceability shall not affect the remaining
provisions of this Agreement which shall be fully severable, and this
Agreement shall be construed and enforced without regard to such
illegal, invalid or unenforceable provision. This Agreement constitute
the entire agreement between the parties hereto in respect of the
subject matter hereof and hereby supersedes any other such oral or
written agreements between the parties.
IN WITNESS WHEREOF this Agreement has been executed as of the day, month
and year first above written.
MIDNET (CANADA), INC.
Per:
/s/ Xxx Xxxxx
--------------------------------
Authorized Signatory
Acting Chief Financial Officer
--------------------------------
Print Name and Title
THE HAVORY CONSULTING GROUP
Per:
/s/ Xxxxx Xxxxx
--------------------------------
Authorized Signature
President
--------------------------------
Print Name and Title
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SCHEDULE A
The services to be performed by the consultant include:
- Working with the interim CFO to produce monthly and quarterly financial
statements, file 10Q and 10K reports and regulatory matters associated with
these and other financial reporting;
- Working with senior management to design and implement controls to record
and produce financial information;
- Be responsible for the operation of the financial department;
- Work with senior management on strategic plans and financial forecasts;
- Assist in search for a corporate lawyer;
- Work with senior management on designing short term and long term
compensation packages for senior management, employees and consultants;
- Research and establish relationships with leasing companies
- Research tax jurisdictional issues to address overseas expansion
- Work with senior management on the move to a senior stock exchange
- Work with senior management in presenting business plans and financing
requirements to investors, potential investors and analysts
- Work with senior management in the identification of new sources of
financing and presenting to these potential investors.
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