CONSULTING AGREEMENT
EXHIBIT
10.40
THIS
AGREEMENT
made as
of the 21st
day of
June, 2007.
B
E T W E E N:
XXXXXX
X. XXXXXX
(hereinafter
called “the Consultant”)
-
and
-
DOCUCOM
IMAGING SOLUTIONS INC.
(hereinafter
called the “Company”)
WHEREAS
pursuant
to a Share Purchase Agreement the (the “Share Purchase Agreement”) entered into
as of June 21, 2007 between BPO Management Services, Inc.( the “Buyer”), the
Company, the Consultant and certain other parties, the Consultant and the other
parties agreed to sell, and Buyer agreed to purchase, all of the issued and
outstanding shares in the capital of the Company;
AND
WHEREAS
it was a
condition of the Share Purchase Agreement that the Consultant and Company enter
into this Agreement;
AND
WHEREAS the
Consultant has resigned as a full-time employee of the Company, and the Company
now wishes to engage the services of the Consultant on the terms and conditions
hereinafter contained in order to effect an orderly transition in management
of
the Company and to obtain the Consultant’s assistance with the operations of the
business of the Company;
NOW
THEREFORE THIS AGREEMENT WITNESSES
that in
consideration of the mutual covenants hereinafter contained, it is agreed by
and
between the parties hereto as follows:
|
1.
|
Engagement The
Company hereby engages the Consultant to provide consulting services
to
the Company, and the Consultant hereby accepts such engagement and
agrees
to provide such services to the Company, upon the terms and subject
to the
conditions hereinafter contained.
|
|
2.
|
Consulting
Period
The consulting engagement hereunder will commence on the date hereof
and
will terminate on March 21, 2008 (the “Consulting Period”) unless
terminated earlier as hereinafter
provided.
|
|
3.
|
Time
and Attention
During the first 3 months of the Consulting Period, the Consultant
will
devote such time and attention to the business and affairs of the
Company
as required to fulfill his duties and responsibilities described
in Part 1
of Schedule A hereto (which will be substantially the same amount
of time
and attention as devoted by the Consultant up to the date hereof,
unless
Mr. Xxxxx Xxxxx, on behalf of the board of directors of the Company,
advises the Consultant that a lesser amount of time is required).
During
the remaining 6 months of the Consulting Period, the Consultant will
be
available to devote such time and attention, to the business and
affairs
of the Company as required to carry out his duties and responsibilities
described in Part 2 of Schedule A, and will, upon request by the
Company
from time to time, devote additional time to the business and affairs
of
the Company. During the final 6 months of the Consulting Period,
the
Consultant may accept other engagements, provided they do not constitute
any direct conflict of interest with the Company or affect the performance
of the Consultant’s consulting services for the
Company.
|
|
4.
|
Duties
and Responsibilities
During the first 3 months of the Consulting Period, the Consultant
will
continue to operate the business on a day to day basis in the same
manner
as it was operated up to the date of closing under the Share Purchase
Agreement, except to the extent otherwise requested by Mr. Xxxxx
Xxxxx, as
the lead director of the Company (the “Lead Director”). In addition,
during the first 3 months of the Consulting Period, the Consultant
will
use his best efforts to effect an orderly transition in management
of the
Company to the person or persons designated by the Lead Director.
During
the Consulting Period, the Consultant will use reasonable commercial
efforts, and will take all action reasonably requested by Lead Director,
to preserve the business and goodwill of the Company and its relationship
with customers, suppliers and others having business dealings with
it and
to integrate the business of the Company with certain businesses
and
activities of the Buyer as may be directed from time to time by the
Lead
Director. The Consultant’s specific duties shall include those described
in Schedule A attached hereto. Unless otherwise agreed by the parties
hereto, the Consultant shall perform his duties in the Company’s office in
Toronto, Ontario; however, the Consultant will travel on behalf of
the
Company when required.
|
|
5.
|
Consulting
Fees
During the first 3 months of the Consulting Period, the Company will
pay
to the Consultant each month consulting fees of $7,500, and during
the
remaining 6 months of the Consulting Period will pay the Consultant
$1,000
per month, which will be paid bi-weekly, in arrears, by cheque or
direct
bank deposit. In addition, if, during the last 6 months of the Consulting
Period, the Consultant is required to devote more than 4 days per
month to
the performance of his duties hereunder, then the Company will pay
the
Consultant, in addition to the monthly fee of $1,000 referred to
above, a
per diem fee of $500. The Consultant shall be reimbursed for all
travel
and all proper business expenses incurred by him in performing his
duties
hereunder, and the Consultant will furnish adequate statements and
vouchers in respect of such
expenses.
|
2
|
6.
|
Rights
in Developments
The Consultant hereby acknowledges and agrees that any software,
inventions, technologies, discoveries, developments, ideas, plans,
methodologies, procedures, designs, research data, trade secrets,
confidential information, records, know-how, drawings, notes, manuals,
books and protocols, documentation, business methods, techniques,
and
improvements to any of these things (collectively, “Developments”) which
the Consultant develops, prepares or works on, either individually
or on a
team, in the course of providing consulting services to the Company
during
the Consulting Period will belong exclusively to the Company, and
the
Consultant hereby irrevocably sells, assigns and transfers to the
Company
all title and interest thereto, including all copyright and other
intellectual property rights related thereto, and hereby waives any
moral
rights which he may have therein. The Consultant further agrees not
to
apply for any intellectual property rights for any such Developments
without the written permission of the Company, and he agrees not
to
oppose, contest or seek to invalidate at any time any rights or
registration of rights by the Company in the Developments.
|
|
7.
|
Confidential
Information
The Consultant hereby acknowledges that prior to the date hereof
and
during the Consulting Period, the Consultant has had and will have
access
to and be entrusted with Confidential Information, the disclosure
of which
to competitors of the Company or to the general public would be highly
detrimental to the Company. The Consultant further acknowledges and
agrees
that the Confidential Information constitutes a proprietary right
which
the Company is entitled to protect. Accordingly, the Consultant hereby
agrees that, during the Consulting Period and for10 years thereafter,
he
will keep secret and confidential, and never disclose, directly or
indirectly, any Confidential Information to any person other than
a
director or officer of the Company or of the Buyer. The Consultant
further
agrees that he will not use any of the Confidential Information for
any
purposes whatsoever other than fulfilling his duties and responsibilities
hereunder and acting in the best interests of the Company. At the
termination of the Consulting Period, the Consultant agrees that
all
records, documents, files and other materials containing or relating
to
Confidential Information will be delivered by him to the proper officers
of the Company and he will not retain any copies thereof. The Consultant
agrees that a remedy for damages for breach of this section maybe
inadequate and accordingly the Company shall be entitled to temporary
and
permanent injunctive relief to enforce the provisions of this section
without the necessity of proving actual damages. The Consultant
acknowledges and agrees that the restrictions contained in this section
are reasonable and valid. In this Agreement, the term “Confidential
Information” means any confidential or proprietary information of the
Company and the Buyer whatsoever including, without limitation,
information relating to: business methods and systems; the terms
of any
contractual relations with customers, suppliers, and other third
parties;
customer lists, files, and information; business plans; marketing
plans;
financial statements and information; employee information; intellection
property or industrial property; technical know how; computer programs
and
databases; inventions and discoveries; information relating to internal
practices and procedures; and any other informations; the dissemination
of
which might prove detrimental to the Company or the Buyer; provided
however, “Confidential Information” shall not include any information
which: is generally available to the public through no act or omission
on
the part of the Consultant; is rightfully received by the Consultant
from
a third party without restriction on disclosure by that third party
and
without a breach of any obligation in favour of Company or Buyer;
or has
been disclosed pursuant to a requirement of a governmental agency
or of
law provided that the Consultant has first given written notice of
such
required disclosure to the Company and taken reasonable steps to
assist
the Company in seeking to protect the confidentiality thereof.
|
3
|
8.
|
Termination
The Company will be entitled to terminate the Consultant’s engagement by
notice to the Consultant, without compensation to the Consultant,
in the
event of (i) the breach by the Consultant of any of the provisions
of this
Agreement, (ii) the death of the Consultant or the occurrence of
such
disability as would prevent the Consultant from carrying out his
duties
hereunder for 10 consecutive business days, or (iii) any act or omission
as would constitute “cause” for termination of employment under the common
law of the Province of Ontario. The Consultant will have the right
to
terminate his engagement herewith at anytime after the first 3 months
of
the Consulting Period by giving 90 days’ written notice to the Company. In
the event of any such termination, the Company will have no further
obligation to pay the Consultant any further consulting fee .
Notwithstanding such termination, the Consultant’s obligations under
section 6 hereof which have arisen prior to the date of termination
and
the Consultant’s obligations under section 7 hereof will continue in full
force and effect.
|
|
9.
|
Legal
Advice
The Consultant confirms having had the opportunity to obtain independent
legal advice regarding this Agreement and that he is signing this
Agreement freely and voluntarily, with full understanding of its
contents.
|
|
10.
|
General
Provisions
The Consultant is and shall be deemed to be an independent contractor,
and
not an employee of the Company. This Agreement shall be governed
by and
construed in accordance with the laws of the Province of Ontario.
The
waiver by the Company of any breach by the Consultant of any provision
of
this Agreement shall not operate or be construed as a waiver of any
subsequent breach by the Consultant. This Agreement may be executed
in
several counterparts, each of which shall be deemed to be an original
and
all of which together shall constitute one and the same instrument.
All
dollar amounts referred to in this Agreement refer to Canadian currency.
This Agreement constitutes the entire agreement of the parties with
respect to subject matter hereof and supersedes and replaces all
prior
agreements and understandings not expressly incorporated herein.
|
4
IN
WITNESS WHEREOF the
parties hereto have signed this Agreement effective as of the date and year
first written above.
SIGNED,
SEALED AND
DELIVERED )
in
the
presence
of )
)
)
/s/
Xxxxxx X. Mollot__________________
) XXXXXX
X. XXXXXX
DOCUCOM
IMAGING SOLUTIONS INC.
Per:
/s/
5
SCHEDULE
A
Services
During First 3 Months of Consulting Period
All
of
the following services will be carried out in the same manner and to the same
extent and standards as provided prior to closing under the Share Purchase
Agreement, unless otherwise advised by the Lead Director from time to
time.
|
·
|
Administration
of day-to-day business and affairs of the
Company
|
|
·
|
Supervision
of management of sales and marketing
activities
|
|
·
|
Supervision
of management of customer service
activities
|
|
·
|
Supervision
of performance of all customer contracts, including: delivery, logistics,
integrations and installations of products and services
|
|
·
|
Supervision
of inventory planning and control
|
|
·
|
Meeting
with any customers, as requested by the Lead Director or Company
sales
managers from time to time, to affect an orderly transition to new
management of Company or deal with any customer issues
|
|
·
|
Assisting
with collection of any material delinquent accounts receivable
|
|
·
|
Meeting
with all major suppliers and business partners in conjunction with
Buyer
immediately following closing, and thereafter, as requested by the
Lead
Director, from time to time
|
|
·
|
Monitoring
progress of the transition in management of the business and recommending
to the Lead Director from time to time any necessary or desirable
steps or
actions to improve the effectiveness and efficiency of the transition
process
|
|
·
|
Assisting
representatives of the Buyer in identifying synergies between the
business
of the Company and other businesses of Buyer
|
|
·
|
Assisting
representatives of the Buyer in integrating certain functions of
the
Company with functions of the Buyer or its other business units,
as
determined by the Buyer from time to
time
|
|
·
|
Assisting
in identifying cross-selling opportunities between the Company and
other
businesses of the Buyer
|
Services
During the Last 6 Months of the Consulting Period
|
·
|
Meetings
with major customers and suppliers to help complete the transition
process
in an orderly manner
|
|
·
|
Assisting
with any of the specific services referred to in the first section
of this
Schedule as may be requested by the Lead Director from time to
time
|
6
