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CONTRACT FOR CONSULTING SERVICES
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Exhibit 3.6
THIS AGREEMENT dated the 1st day of April, 1999.
BY AND BETWEEN:
INTERNATIONAL TELEPRESENCE (CANADA) INC., a Corporation incorporated
under the laws of Canada.
(hereinafter referred to as the "Corporation")
OF THE FIRST PART
AND
LIROJEN ENTERPRISES LTD., a Corporation, duly incorporated under the
laws of Canada.
(hereinafter referred to as the "Contractor")
OF THE SECOND PART
AND
MORDEN X. XXXXXXX, of the City and District of Montreal, in the
Province of Quebec.
(hereinafter referred to as the "Guarantor")
OF THE THIRD PART
WHEREAS the Corporation wishes to retain the services of the Contractor
to provide the services hereinafter described during the term hereinafter set
out and the Contractor is willing to provide such services;
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AND WHEREAS, effective the date of this agreement (the "Agreement"),
the terms of any agreement or understanding (oral or written, express or
implied) governing the Contractor's provision of services to the Corporation
shall be superseded by the terms and conditions set forth in this Agreement;
NOW, THEREFORE, THIS AGREEMENT WITNESSES that in consideration of the
mutual covenants and agreements herein contained and for other good and valuable
consideration, the parties agree as follows:
1. TERM
The Corporation shall retain the Contractor for a period of twelve (12)
months, from April 1st, 1999 to and including March 31st, 2000, unless
such retainer shall be terminated earlier, as hereinafter provided.
Upon the expiration of the term of this Agreement on March 31st, 2000,
the Contractor shall have the option of extending the term of this
contract for an additional twelve (12) months (provided that the
Contractor has given written notice to the Corporation of its intention
to do so, no later than February 29th, 2000) and on an annual basis
thereafter, on terms and conditions mutually agreeable to the parties.
2. CONSULTING SERVICES
The Contractor is an independent contractor, not an employee of the
Corporation. No employment relationship is created by this Agreement.
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3. REPORTING PROCEDURES
The Contractor shall report to the Board of Directors of the
Corporation (the "Board of Directors"). The Contractor shall report
fully on the management, operations and business affairs of the
Corporation and advise to the best of its ability and in accordance
with reasonable business standards on business matters that may arise
from time to time during the term of this Agreement.
4. REMUNERATION
(e) The Contractor shall be paid a fee of One Hundred and Twenty
Thousand Dollars ($120,000.00) (exclusive of GST) for the first
twelve (12) months of the term of this Agreement for its services
hereunder, payable in equal monthly instalments, in advance (the
"Fee"). If the Contractor elects to extend the term of this
Agreement, it shall be entitled to be paid the Fee for any such
extended term(s).
(f) Subject to regulatory approvals and to any required shareholders
approval, the Corporation shall permit the Contractor to
participate in its share option plan and in any share purchase
plan, retirement plan or similar plan offered by the Corporation
from time to time to its service providers or employees, in the
manner and to the extent authorized by the Board of Directors.
The Corporation shall grant the Contractor Three Hundred Thousand
(300,000) options on July 1st, 1999 (the "July Options"), such
that they shall vest immediately. It is further understood and
agreed that the Corporation shall grant the Contractor an
additional Three Hundred Thousand (300,000) options on July 1st
of any
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subsequent year during the term of this Agreement or any agreed
extension hereof, subject to the Contractor continuing to provide
its services hereunder.
7. PERFORMANCE CLAUSE
The parties acknowledge the importance to the Corporation of proving
the commercial viability of the Telepresence(R) Single Optical
Path 3-D Image Capture System (the "System"). The parties therefore
agree that in the event that the Contractor arranges or assists in
arranging a contract with an Internet corporation with respect to its
"3D Streaming Internet Video Applications" of the System during the
term of this Agreement, the Corporation and the Contractor shall
conduct good faith discussions concerning the award of a performance
bonus (the "Bonus") to the Contractor in recognition of its services in
such regard.
8. NO FURTHER FEES OR ADJUSTMENTS
Other than as herein provided, there shall be no cost-of-living
increase or merit increase in any Fee or any Bonus unless agreed to in
writing by the Corporation.
9. RIGHT TO ACCEPT CONCURRENT RETAINERS
The Contractor shall be permitted to accept retainers from parties
other than the Corporation provided that such retainers do not
materially
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interfere with the Contractor's obligations to the Corporation under
this Agreement.
10. EXPENSES
(k) The Contractor shall be reimbursed promptly for all reasonable
travel and other out-of-pocket expenses actually and properly
incurred by the Contractor from time to time, in connection with
the carrying out of its duties hereunder. For all such expenses,
the Contractor shall promptly furnish to the Corporation
originals of all invoices or statements in respect of which the
Contractor seeks reimbursement.
12. CONFIDENTIALITY
The Contractor acknowledges and agrees that:
m) In the course of performing its duties and responsibilities as a
consultant to the Corporation, it has, had and will continue in
the future to have access to and has been and will be entrusted
with detailed confidential information and trade secrets (printed
or otherwise) concerning past, present, future and contemplated
products, services, operations and marketing techniques and
procedures of the Corporation and its subsidiaries, including,
without limitation, information relating to addresses,
preferences, needs and requirements of past, present and
prospective clients, customers, suppliers and employees of the
Corporation and its subsidiaries (collectively, "Trade Secrets"),
the disclosure of any of which to competitors of the Corporation
or to the general public,
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or the use of same by the Contractor or any competitor of the
Corporation or any of its subsidiaries, would be highly
detrimental to the interests of the Corporation ;
n) In the course of performing its duties and responsibilities for
the Corporation, the Contractor has been and will continue in the
future to deal with the Corporation's customers, clients and
suppliers and, as such, has, had and will continue in the future
to have significant responsibility for maintaining and enhancing
the goodwill of the Corporation with such customers, clients and
suppliers and would not have, except by virtue of this Agreement,
developed a close and direct relationship with the customers,
clients and suppliers of the Corporation;
o) The Contractor owes fiduciary duties to the Corporation,
including the duty to act in the best interests of the
Corporation; and
p) The right to maintain the confidentiality of th Trade Secrets,
the right to preserve the goodwill of the Corporation and the
right to the benefit of any relationships that have developed
between the Contractor and the customers, clients and suppliers
of the Corporation by virtue of the Contractor's retainer by the
Corporation constitute proprietary rights of the Corporation,
which the Corporation is entitled to protect.
17. RELATIONSHIP OF PARTIES
Contractor, as used in this Agreement, means the person or entity that
signs this Agreement and all of its shareholders, directors, officers,
employees and agents.
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The Contractor is not an employee of the Corporation and is ineligible
for any employee benefits of the Corporation.
The Contractor will report all compensation received pursuant to this
Agreement to the relevant tax authorities and will pay all applicable
taxes. The Corporation will not make deductions from any Fee for taxes,
insurance, bonds or any other subscription of any kind.
18. DISCLOSURE
During the term of this Agreement, the Contractor shall promptly
disclose to the Board of Directors full information concerning any
interest, direct or indirect, of the Contractor to purchase or
otherwise obtain services or products from, or to sell or otherwise
provide services or products to the Corporation or to any of its
suppliers or customers.
19. PLACE OF SERVICES
The Contractor shall perform the services herein at such place as may
be directed by the Board of Directors.
20. RETURN OF MATERIALS
All files, forms, brochures, books, materials, written correspondence,
memoranda, documents, manuals, computer disks, software products and
lists (including lists of customers, suppliers, products and prices)
pertaining to the business of the Corporation or any of its
subsidiaries and associates that may come into possession or control of
the
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Contractor shall, at all times, remain the property of the Corporation
or such subsidiary or associates, as the case may be. On termination
of this Agreement, for any reason, the Contractor agrees to deliver
promptly to the Corporation all such property of the Corporation in
the possession of the Contractor, or directly or indirectly under the
control of the Contractor. The Contractor agrees not to make for its
use or that of any other party, reproductions or copies of any such
property or other property of the Corporation, without the prior
consent of the Board of Directors.
14. GOVERNING LAW AND ATTORNMENT
This Agreement shall be governed by and construed in accordance with
the laws of the Province of Quebec and the parties hereto agree to
attorn to the Courts of the Province of Quebec.
15. SEVERABILITY
If any provision of this Agreement, including the breadth or scope of
such provision, shall be held by any Court of competent jurisdiction
to be invalid or unenforceable, in whole or in part, such invalidity
or unenforceability shall not affect the validity or enforceability of
the remaining provisions, or part thereof, of this Agreement and such
remaining provisions, or part thereof, shall remain enforceable and
binding.
16. ENFORCEABILITY
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The Contractor hereby confirms and agrees that the covenants and
restrictions pertaining to the Contractor contained in this Agreement,
are reasonable and valid and hereby further acknowledges and agrees
that the Corporation would suffer irreparable injury in the event of
any breach by the Contractor of its obligations under any such
covenants or restrictions.
Accordingly, the Contractor hereby acknowledges and agrees that
damages would be an inadequate remedy at law in connection with any
such breach and that the Corporation shall therefore be entitled in
lieu of any action for damages, temporary and permanent injunctive
relief enjoining and restraining the Contractor from any such breach.
17. NOTICES
Any notice or other communication required or permitted to be given
hereunder shall be in writing and either delivered by hand or sent by
facsimile. Notices shall be addressed as follows:
If to the Corporation, to it at:
International Telepresence (Canada) Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
Delivered by Fax No. (000) 000-0000
With a Copy to:
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Xxxxxxx, Xxxxxxx & Xxxxxxxxx
Xxxxxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx Xxxxx, Jr., Q.C.
(Delivered by Fax No. (000) 000-0000)
If to the Contractor and/or the Guarantor, to it and/or him at:
Lirojen Enterprises Ltd.
000, Xxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx, X0X 0X0
Attention: Mtre. Morden X. Xxxxxxx
Delivered by Fax No. (000) 000-0000
18. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior
agreements, written or oral, with respect thereto.
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19. WAIVERS AND AMENDMENTS
This Agreement may be amended, modified, superseded, cancelled, renewed
or extended, only by a written agreement between the parties. Failure
or delay by either party to enforce compliance with any term or
condition of this Agreement shall not constitute a waiver of such term
or condition.
20. ASSIGNMENT
This Agreement and the Contractor's rights and obligations hereunder
may not be assigned by the Contractor. The Corporation may assign this
Agreement and its rights, together with its obligations, hereunder in
connection with any sale, transfer or other disposition of all or
substantially all of its assets or business, whether by merger,
consolidation or otherwise, provided that the assignee assumes all
obligations of the Corporation hereunder. If the assignee does not
assume all the obligations of this Agreement, the Corporation shall
fulfil the obligations of this Agreement.
21. SUCCESSORS
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This Agreement shall be binding on and enure to the benefit of the
successors and assigns of the Corporation and the successors and
assigns of the Contractor
22. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument.
23. HEADINGS
The headings of this Agreement are for reference purpose only and
shall not in any way affect the meaning or interpretation of this
Agreement.
24. GUARANTOR
The Guarantor hereby unconditionally guarantees the performance by the
Contractor of its obligations under this Agreement.
25. LANGUAGE
The parties hereto acknowledge that they have requested and are
satisfied that the foregoing and all related documents be drawn up in
the English language;
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Les parties aux presentes reconnaissent qu'elles ont exige que ce qui
precede et tous documents qui s'y rattache soient rediges et executes
en anglais et s'en declarent satisfaits.
IN WITNESS WHEROF, THE PARTIES HERETO HAVE EXECUTED AND DATED THIS AGREEMENT AS
OF THE DATE FIRST HEREINABOVE MENTIONED.
INTERNATIONAL TELEPRESENCE (CANADA) INC.
Per:
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XXXXXXX XXXXXXX, Q.C.
LIROJEN ENTERPRISES LTD.
Per:
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MORDEN X. XXXXXXX
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MORDEN X. XXXXXXX
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WITNESS
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