Exhibit 99.3
Management Services Agreement
By and between
2078198 Ontario Limited and Xxxxxxxx Pass Electronics Inc.
This Management Services Agreement (this "Agreement") made as of the 31st day of
July 2005, by and between Xxxxxxxx Pass Electronics Inc. (the "Company") and
2078198 Ontario Limited (hereinafter the "Provider").
WHEREAS, the Company has the need for certain management and administrative
services relating to its operations; and
WHEREAS, the Provider has agreed to provide such management and administrative
services; and
WHEREAS, the Company has agreed to reimburse the Provider for the cost of such
management and administrative services; and
NOW, THEREFORE, for and in consideration of the forgoing and the terms and
conditions contained hereinafter, the parties hereto agree as follows:
1.0 Term.
The term of this Agreement shall be for a 1 (one) year period from the date
hereof until the first anniversary of the date hereof (the "Initial Term"),
provided, however, that this agreement will automatically renew for a term of 1
(one) year (the "Renewal Term") unless 60 days prior written notice is provided
to either party of intent to terminate this agreement.
2.0 Services.
2.1 The Provider is the owner of certain Industry Canada radio
telecommunications spectrum licenses (the "Licenses") and the
Company utilizes these Licenses for the development of its business.
2.2 The Provider agrees to provide, and the Company agrees to accept,
general management and administrative services relating to its
operations, described in Exhibit A attached hereto and as otherwise
mutually agreed by the Provider and the Company (the "Services").
2.2. If not otherwise agreed, the specification of particular methods for
rendering the Services and the assignment of personnel therefore
will be determined by the Provider in such manner as in the
Provider's judgement will best serve the objectives indicated by the
Company. Such methods may include, but are not
Management Services Agreement
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limited to: (a) remote consulting (by telephone, fax, E-mail, video
conferencing, etc.); (b) written advice; (c) participation in
meetings, seminars and workshops; (d) secondment of employees for
specific activities; (e) supply of technical materials, studies and
other information; (f) introduction to persons, firms/companies
which may be of interest to the Company; and (g) other means
mutually agreed upon from time to time.
3.0 Compensation.
In consideration for the Services, the Company shall pay the Provider an annual
fee negotiated in advance. In addition, the Company shall also reimburse the
Provider for out-of-pocket expenses incurred in connection with the Services,
payable upon delivery of the Provider's invoice therefor, including, without
limitation, any and all fees of counsel for legal services rendered on behalf of
the Company.
4.0 Obligations.
4.1 The Company agrees to fully cooperate with the Provider and to
supply the Provider with any and all information reasonably
necessary to enable the Provider to perform the Services hereunder,
in such form as may be reasonably requested. The Company will give
the Provider representatives' free access to any and all sources of
information reasonably necessary to enable the Provider to
satisfactorily perform the Services.
4.2 The Provider agrees to fully cooperate with the Company and to
supply the Company with any and all information reasonably necessary
to enable the Company to meet its legal and tax requirements.
5.0 Liability.
The Provider shall have no liability to the Company except to the extent of the
actual damages (excluding lost profits or special or punitive damages) suffered
by the Company as a direct result of the gross negligence or greater culpability
of the Provider.
6.0 Indemnity.
The Company shall indemnify the Provider and its officers, directors, employees,
independent contractors, agents and representatives, in their capacities as such
(each, an "Indemnified Party"), against and hold them harmless from and any all
damage, claim, loss, liability and expense (including, without limitation,
reasonable attorneys' fees and expenses) incurred or suffered by any Indemnified
Party arising out of or relating to the Services, except to the extent that such
damage, claim, loss, liability or expense is found in a final non-appeal able
judgement to have resulted from the Provider's gross negligence or willful
misconduct.
7.0 Independent Contractor.
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Management Services Agreement
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The relationship between the Provider and the Company is that of independent
contractor. Neither the Provider nor the Company is, or may hold itself out as,
an agent for or employee of the other. Neither the Provider nor the Company
shall have any authority to take, and neither shall take, any action, which
binds, or purports to bind, the other. Without limiting the foregoing, no
employee of the Provider may claim, demand or application to or for any right or
privilege applicable to an officer or employee of the Company, including but not
limited to workmen's compensation coverage, unemployment insurance benefits,
social security coverage, health plan or insurance benefit, any other insurance
benefit or any retirement benefit.
8.0 Notices.
All notices and other communications given or made pursuant to this Agreement
shall be in writing and shall be (I) sent by registered or certified mail,
return receipt requested, (ii) hand delivered, (iii) sent by electronic mail, or
(iv) sent by prepaid overnight carrier, with a record of receipt, to the parties
at the following addresses (or at such other addresses as shall be specified by
the parties by like notice):
(i) if to the Provider at:
000 00xx Xxxxxxxx
Xxxx Xxxx, XX X0X 0X0 Xxxxxx
Attention: Xxxx Xxxxxxxx
(ii) if to the Company at:
0000 Xxxxxxxxx Xxxx, Xxxx 0
Xxxxxxxxxxx, XX X0X 0X0
Each notice or communication shall be deemed to have been given on the date
received.
9.0 Miscellaneous Provisions.
9.1 This Agreement contains the complete understanding of the parties
hereto and there are no understandings, representations, or
warranties of any kind, express or implied not specifically set
forth herein. This Agreement may be amended only be written
documents signed by duly authorized representatives of each of the
parties hereto.
9.2 This Agreement shall be governed, construed and interpreted in
accordance with the laws of the Province of Ontario.
9.3 This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of which taken together
shall constitute a single agreement.
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Management Services Agreement
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9.4 This Agreement shall be for the benefit of the Provider and the
Company and shall be binding upon the parties and their respective
successors and permitted assigns.
9.5 Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reasons
whatsoever, such term or provision shall be enforced to the maximum
extent permitted by law and, in any event, such illegality or
invalidity shall not affect the validity of the remainder of the
Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
of the day and year first above written.
2078198 ONTARIO LIMITED
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxx
Title Chief Financial Officer
XXXXXXXX PASS ELECTRONICS INC.
By: /s/ Xxxxx XxxXxxxxx
-----------------------------------------
Name: Xxxxx XxxXxxxxx
Title Managing Director
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Management Services Agreement
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EXHIBIT A
The Services to be rendered under this Agreement may include, without
limitation, the following:
1. Assistance, advise and support in strategic policy, and the provision of
operations consultancy and support;
2. Assistance, advise and support in new and existing services including
technical support, quality controls, market research and development;
3. Assistance, advice and support in business organization and
administration;
4. Assistance, advice and support in business development;
5. Assistance, advice and support in purchasing, including selection and
identification of suppliers;
6. Assistance, advice and support in legal, regulatory and related compliance
matters;
7. Assistance, advice and support in negotiating agreements with third
parties;
Should it be determined that the Company requires additional services and human
resources, the Company and the Provider upon mutual consent may amend this
Agreement to incorporate any additions and fees associated with such amendments.
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