THIS AGREEMENT is made effective as of the 28th day of March, 2000
BETWEEN:
EFINANCIAL XXXXX.XXX, INC.
----------------------------
150 - 0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, Xxxxxxxxxx, 00000
(hereinafter referred to as the "Company")
OF THE FIRST PART
AND:
COBRA CAPITAL LIMITED
-----------------------
(hereinafter referred to as the "Contractor")
OF THE SECOND PART
WHEREAS:
A. The Company desires to retain the Contractor to assist the Company
in the areas of strategic development, mergers and acquisitions and corporate
finance with particular emphasis on Asia and the Contractor has agreed to so
assist the Company on the terms and conditions of this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
mutual covenants and promises set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
each, the parties hereto agree as follows:
ARTICLE 1
APPOINTMENT AND AUTHORITY OF CONTRACTOR
1.1 Appointment of Contractor
The Company hereby appoints the Contractor to perform certain services
for the benefit of the Company as hereinafter set forth, and the Company hereby
authorizes the Contractor to exercise such powers as provided under this
Agreement. The Contractor accepts such appointment on the terms and conditions
herein set forth.
1.2 Authority of Contractor
The Contractor shall have no right or authority, express or implied,
to commit or otherwise obligate the Company in any manner whatsoever except to
the extent specifically provided herein or specifically authorized in writing by
the Company.
1.3 Independent Contractor
In performing its services hereunder, the Contractor shall be an
independent contractor and not an employee or agent of the Company, except that
the Contractor shall be the agent of the Company solely in circumstances where
the Contractor must be the agent to carry out its obligations as set forth in
this Agreement. Nothing in this Agreement shall be deemed to require the
Contractor to provide its services exclusively to the Company and the Contractor
hereby acknowledges that the Company is not required and shall not be required
to make any remittances and payments required of employers by statute on the
Contractor's behalf and the Contractor or any of its agents or employees shall
not be entitled to the fringe benefits provided by the Company to its employees.
ARTICLE 2
CONTRACTOR'S AGREEMENTS
2.1 General
The services to be provided by the Contractor for the Company shall
include the following in relation to the Company's desire to expand its business
in Asia:
(a) assisting the Company in its strategic planning and development;
(b) providing the Company with advise in connection with the raising of
capital and the Company's affairs generally;
(c) identifying potential merger and acquisition targets for the Company and
assisting the Company in negotiating and consummating acquisitions;
(d) implementing or causing to be implemented decisions of the Company in
accordance with and as limited by this Agreement;
(e) providing such other services as the Company may reasonably request;
and in so assisting the Company, the Contractor shall at all times be subject to
the direction of the Company and shall keep the Company informed as to all
matters concerning the Contractor's activities.
2.2 Expense Statements
The Contractor shall on or before the 15th day of each calendar month
during the term hereof, or if a Saturday, Sunday or holiday the next following
business day, render to the Company an itemized statement and accounting for the
previous calendar month, together with
such supporting documents as and when the Company may reasonably require, of all
expenses which the Company is obligated by this Agreement to reimburse.
The Contractor may incur expenses in the name of the Company up to an
amount per month as agreed in advance by the Company, such expenses to relate
solely to the carrying out of the Contractor's duties hereunder. The Contractor
will immediately forward all invoices for expenses incurred on behalf of and in
the name of the Company and the Company agrees to pay said invoices directly on
a timely basis.
ARTICLE 3
COMPANY'S AGREEMENTS
3.1 Compensation of Contractor
As compensation for the services rendered by the Contractor pursuant
to this Agreement, the Company shall:
(a) issue to the Contractor, or as directed by the Contractor, a warrant
(the "Warrant") entitling the holder to acquire 300,000 common shares in the
capital stock of the Company (the "Common Shares") at a price of $5.00 per
share, said Warrant having a term of 5 years; and
(b) issue to the Contractor, or as directed by the Contractor, 8,500 Common
Shares per month, as at the last day of each and every month during the term of
this Agreement.
3.2 Indemnity by Company
The Company hereby agrees to indemnify, defend and hold harmless the
Contractor and Xxxxxxx Xxx, from and against any and all claims, demands,
losses, actions, lawsuits and other proceedings, judgments and awards, and costs
and expenses (including reasonable legal fees), arising directly or indirectly,
in whole or in part, out of any matter related to any action taken by the
Contractor within the scope of its duties or authority hereunder, excluding only
such of the foregoing as arise from the fraudulent, gross negligence, reckless
or wilful act or omission of the Contractor, its officers, directors, agents or
employees or as arise in respect of the Contractor's office overhead or the
Contractor's general administrative expenses, and the provisions of this Section
3.2 shall survive termination of this Agreement.
ARTICLE 4
DURATION, TERMINATION AND DEFAULT
4.1 Effective Date
This Agreement shall become effective as of the 1st day of March,
2000, and shall continue for a period ending August 31, 2000, subject to earlier
termination as provided for herein.
4.2 Termination
This Agreement may be terminated by either party by giving the other
30 days written notice of such termination provided that in circumstances where
the Contractor would otherwise have been entitled to receive a payment pursuant
to Section 3.1 herein within 30 days following termination of this Agreement the
Company shall make such payment to the Contractor as if the Agreement had not
been terminated.
4.3 Duties Upon Termination
Upon termination of this Agreement for any reason, the Contractor
shall upon receipt of all payments due and owing, promptly deliver the following
in accordance with the directions of the Company:
(a) a final accounting, reflecting the balance of expenses incurred on
behalf of the Company as of the date of termination; and
(b) all documents pertaining to the Company or this Agreement, including but
not limited to, all books of account, correspondence and contracts, provided
that the Contractor shall be entitled thereafter to inspect, examine and copy
all of the documents which it delivers in accordance with this provision at all
reasonable times upon three (3) days' notice to the Company.
4.4 Compensation of Contractor on Termination
Upon termination of this Agreement, the Contractor shall be entitled
to receive as its full and sole compensation in discharge of obligations of the
Company to the Contractor under this Agreement all payments due and payable
under this Agreement to the date of termination and the Contractor shall have no
right to receive any further payments; provided, however, that the Company shall
have the right to offset against any payment owing to the Contractor under this
Agreement any damages, liabilities, costs or expenses suffered by the Company by
reason of the fraud, negligence or wilful act of the Contractor, to the extent
such right has not been waived by the Company.
ARTICLE 5
CONFIDENTIALITY
5.1 Ownership of Work Product
All reports, documents, concepts, products and processes together with
any marketing schemes, business or sales contracts, or any business
opportunities prepared, produced, developed, or acquired, by or at the direction
of the Contractor, directly or indirectly, in connection with or otherwise
developed or first reduced to practice by the Contractor performing the services
(collectively, the "Work Product") shall belong exclusively to the Company which
shall be entitled to all right, interest, profits or benefits in respect
thereof. No copies, summaries or other reproductions of any Work Product shall
be made by the Contractor or any of its agents or employees without the express
permission of the Company, provided that
the Contractor is hereby given permission to maintain one copy of the Work
Product for its own use.
5.2 Confidentiality
The Contractor shall not, except as authorized or required by its
duties, reveal or divulge to any person or companies any of the trade secrets,
secret or confidential operations, processes or dealings or any information
concerning the organization, business, finances, transactions or other affairs
of the Company, which may come to his knowledge during the term of this
Agreement and shall keep in complete secrecy all confidential information
entrusted to him and shall not use or attempt to use any such information in any
manner which may injure or cause loss, either directly or indirectly, to the
Company's business or may be likely so to do. This restriction shall continue
to apply after the termination of this Agreement without limit in point of time
but shall cease to apply to information or knowledge which may come into the
public domain.
The Contractor shall comply, and shall cause its agents and employees
to comply, with such directions as the Company shall make to ensure the
safeguarding or confidentiality of all such information. The Company may
require that any agent or employee of the Contractor execute an agreement with
the Company regarding the confidentiality of all such information.
5.3 Devotion to Contract
During the term of this Agreement, the Contractor shall devote
sufficient time, attention, and ability to the business of the Company, and to
any associated company, as is reasonably necessary for the proper performance of
its services pursuant to this Agreement. Nothing contained herein shall be
deemed to require the Contractor to devote its exclusive time, attention and
ability to the business of the Company. During the term of this Agreement, the
Contractor shall, and shall cause each of its agents or employees assigned to
performance of the services on behalf of the Contractor to,:
(a) at all times perform its services faithfully, diligently, to the best of
its abilities and in the best interests of the Company;
(b) devote such of its time, labour and attention to the business of the
Company as is necessary for the proper performance of the Contractor's services
hereunder; and
(c) refrain from acting in any manner contrary to the best interests of the
Company or contrary to the duties of the Contractor as contemplated herein.
5.4 Other Activities
The Contractor shall not be precluded from acting in a function
similar to that contemplated under this Agreement for any other person, firm or
company.
ARTICLE 6
MISCELLANEOUS
6.1 Waiver; Consents
No consent, approval or waiver, express or implied, by either party
hereto, to or of any breach of default by the other party in the performance by
the other party of its obligations hereunder shall be deemed or construed to be
a consent or waiver to or of any other breach or default in the performance by
such other party of the same or any other obligations of such other party or to
declare the other party in default, irrespective of how long such failure
continues, shall not constitute a general waiver by such party of its rights
under this Agreement, and the granting of any consent or approval in any one
instance by or on behalf of the Company shall not be construed to waiver or
limit the need for such consent in any other or subsequent instance.
6.2 Piggyback Registration Rights
If at any time during the 2 years following the issuance of the
Warrant or any Common Shares to, or at the direction of, the Contractor as
contemplated hereunder the Company proposes to file a registration statement
qualifying the issuance or resale of certain of the Company's securities, the
Company shall, subject to the objection of any underwriter involved in such
share issuances, include any securities issued to the Contractor hereunder in
such registration statement. This provision shall survive any termination of
this Agreement.
6.3 Governing Law
This Agreement and all matters arising thereunder shall be governed by
the laws of Delaware and the parties hereto agree to attorn to the jurisdiction
of the Courts thereof
6.4 Successors, etc.
This Agreement shall enure to the benefit of and be binding upon each
of the parties hereto and their respective heirs, successors and permitted
assigns.
6.5 Assignment
This Agreement may not be assigned by any party except with the
written consent of the other party hereto.
6.6 Entire Agreement and Modification
This Agreement constitutes the entire agreement between the parties
hereto and supersedes all prior agreements and undertakings, whether oral or
written, relative to the subject matter hereof. To be effective any
modification of this Agreement must be in writing and signed by the party to be
charged thereby.
6.7 Headings
The headings of the Sections and Articles of this Agreement are
inserted for convenience of reference only and shall not in any manner affect
the construction or meaning of anything herein contained or govern the rights or
liabilities of the parties hereto.
6.8 Notices
All notices, requests and communications required or permitted
hereunder shall be in writing and shall be sufficiently given and deemed to have
been received upon personal delivery or, if mailed, upon the first to occur of
actual receipt or forty-eight (48) hours after being placed in the mail, postage
prepaid, registered or certified mail, return receipt requested, respectively
addressed to the Company or the Contractor as follows:
The Company:
efinancial xxxxx.xxx, Inc.
150 - 0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX
XXX
00000
Attention: Xxxx Xxxxxx
The Contractor:
Cobra Capital Inc.
Attention:
or such other address as may be specified in writing to the other party, but
notice of a change of address shall be effective only upon the actual receipt.
6.9 Time of the Essence
Time is of the essence.
6.10 Further Assurances
The parties hereto agree from time to time after the execution hereof
to make, do, execute or cause or permit to be made, done or executed all such
further and other lawful acts, deeds, things, devices and assurances in law
whatsoever as may be required to carry out the true intention and to give full
force and effect to this Agreement.
6.11 Counterparts
This Agreement may be executed in several counter-parts, each of which
will be deemed to be an original and all of which will together constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first above written.
EFINANCIAL XXXXX.XXX, INC.
Per: /s/ Xxxx Xxxxxx
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Authorized Signatory
COBRA CAPITAL CORP.
Per: /s/ Xxxxxxx Xxxxxx
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Authorized Signatory
