EXHIBIT 4
THIS CONSULTING SERVICES AGREEMENT MADE WITH EFFECT AS OF THE 29TH DAY
OF JULY, 1999.
B E T W E E N:
NICOLLETT PROCCESS ENGINEERING, INC.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx
XXX 00000
Attention: President
Telephone: (000) 000-0000
Telefax: (000) 000-0000
(hereinafter called the "Customer")
OF THE FIRST PART;
- AND -
TECHINSPIRATIONS, INC.,
a Nevada corporation having its business office at:
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx XX0X
Xxxxxxx Xxxxx, Xxxxxxx
XXX 33133
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(hereinafter called the "Consultant")
OF THE SECOND PART.
RECITALS:
1. The Customer is engaged in the business of supplying process control
hardware and software facilities to the plastics industries;
2. The Consultant has expertise in the area of information processing
technology, and in the areas of sales, marketing, and financing in the
information processing industry market;
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3. The Consultant was instrumental in procuring debt and equity financing
for the Customer; and
4. The Customer wishes to retain the Consultant to provide to the Customer
on a standby fee basis the review and advisory services more
particularly set out in this agreement.
NOW THEREFORE in consideration of the premises herein contained and
other good and valuable consideration (the receipt and sufficiency whereof is
hereby acknowledged), the parties hereto agree as follows:
ARTICLE 1 - GENERAL TERMS OF APPOINTMENT
1.1 APPOINTMENT
Subject to the provisions of this Agreement, the Customer hereby
appoints the Consultant to carry out the duties specified in this
agreement with the powers and authority set out herein, until this
Agreement is terminated in accordance with Section 8.1 hereof, and the
Consultant hereby accepts such appointment in accordance with the terms
of this Agreement
1.2 DELEGATION
In fulfilling its duties set out in this Agreement, the Consultant may
assign or delegate from time to time and at any time any or all of the
obligations of the Consultant under this Agreement to any person or
entity as the Consultant, in its discretion, deems appropriate to
fulfill such function (collectively, the "Sub-Agents"); provided
however:
(a) such assignment or delegation shall contain, with respect to
the assigned obligations, such rights, obligations, and
indemnities of the Sub-Agent (the "Transferred Obligations")
as are equivalent to those of the Consultant hereunder; and
(b) in all such cases, the Consultant shall retain ultimate
responsibility hereunder for the performance of the
Transferred Obligations.
The Consultant agrees with the Customer that in the event that the
Consultant elects to assign or delegate to any Sub-Agent any or all of
the tasks of the Consultant hereunder, the Consultant shall ensure that
its agreements with each such Sub-Agent contain terms and conditions
incorporating the Transferred Obligations.
1.3 FURTHER ASSURANCES
The Consultant shall have all of the power and authority necessary for,
appropriate or incidental to, the carrying out of its duties hereunder
and each of the parties agrees to do or cause to be done all such
further acts or things as may be necessary to more fully and
effectually implement the full nature and intent of this Agreement.
1.4 INDEPENDENT CONTRACTORS
It is acknowledged that this Agreement is a contract for services and
that the Customer and the Consultant are independent contractors and in
no event shall any of the Consultant, or any Sub-Agent on the one hand,
and the Customer on the other, or any officer, director or
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employee of any of the foregoing be deemed, by virtue of this
Agreement, to be an employee of the Customer, nor have the authority
to take action on behalf of the Customer other than as specifically
set out in this Agreement.
1.5 CONSULTANT'S BASIC COVENANTS
The Consultant shall devote as much time as may reasonably be required
to ensure that the Consultant performs its obligations hereunder. The
Consultant shall maintain its corporate existence in good standing and
maintain all requisite authorities, registrations, licenses and permits
necessary to provide the service contributed herein. The Consultant
will exercise its powers and discharge its duties under this Agreement
honestly, in good faith and in the best interests of the Customer, all
in a manner consistent with the provisions of this Agreement.
1.6 CUSTOMER'S BASIC COVENANTS
The Customer shall maintain its corporate existence in good standing
and maintain all requisite authorities, registrations, licenses and
permits as may be necessary to engage the Consultant to provide the
services contributed hereunder for so long as this Agreement is in
effect. The Customer represents and warrants that it has full power and
authority to enter into this Agreement; that this Agreement has been
duly authorized, executed and delivered by it.
1.7 CONFIDENTIALITY
Both parties to this Agreement agree to hold confidential all
confidential information received by that party from and regarding the
other party unless such information or advice is required to be
disclosed by law. Each party agrees not to use the other parties
confidential or proprietary information, except in performing its
duties under this Agreement. Confidential and proprietary information
shall not include, and the provisions of this paragraph shall not apply
to, such information that generally becomes available to the public
(other than as the result of disclosure by the recipient or its
agents), is legally in the recipient's possession at the time of
disclosure, or is received from a Third Party (not subject to any
constraints on information use imposed upon that Third Party directly
or indirectly by the Customer or the Consultant, as the case may be).
1.8 WORK PRODUCT
Subject to the provisions of section 1.7 hereof, which shall be
paramount, the work product of the Consultant resulting from the
relationship hereunder (including without limitation, inventions,
discoveries, improvements, ideas (whether or not written or reduced to
practice) or works of authorship (whether or not they can be patented
or copyrighted), and whether generated alone or with others (the "Work
Product"):
(a) Shall, to the extent that it requires or is dependant upon the
Customer's confidential or proprietary information, be the
property of the Company; and otherwise,
(b) shall be the property of the Consultant with a license, in
favour of the Customer, to use the same for the benefit of the
Customer's business and for the purpose for which such Work
Product was intended.
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For greater certainty, no element or component of the Work Product shall be
deemed to be a "work for hire" within the meaning of the copyright law of the
United States of America, including the United States Copyright Law of 1996
unless the parties have so agreed in writing with respect to each such specific
component or element.
ARTICLE 2 - GENERAL ADVISORY SERVICES
2.1 DESCRIPTION
The Consultant either directly, or through Sub-Agents retained by the
Consultant, shall provide the following services to the Customer:
(a) The Consultant shall keep a watching brief on the information
processing industry and, in particular, on the business,
products (both marketed and in development), finances, plans
and strategies of the Customer. To that end, the Consultant
shall have access to one or more of the members of the Board
of Directors of the Customer and to its senior officers and
shall be entitled to full disclosure of all relevant matters
pertaining to the Customer, subject to maintaining the
Customer's confidential information in strictest confidence
pursuant to Section 1.7 above;
(b) The Consultant in its discretion from time to time shall
provide to the Customer comments and analysis relating to the
existing or potential marketing, product, and financial plans
of the Customer as the Consultant may deem necessary or
appropriate; and
(c) The Consultant shall make it or its employees available from
time to time at appropriate times to provide `sounding board'
advice to the Customer on matters noted under section 2.1(b)
as and when requested by the Customer. The Customer
acknowledges that the Consultant's views obtained from the
foregoing process are merely intended to be points of view for
the Customer's evaluation, together with the Customer's own
and other points of view, and that the Customer will
ultimately be responsible for the consequences of the
decisions drawn from all such points of view, and whether or
not such decisions accord with the Consultant's point of view.
2.2 PROVISO
The Customer acknowledges and agrees that the fees payable to the
Consultant set out in sections 4.1(a) and 4.1(b) hereunder shall be
fully earned by the Consultant as and by way of a stand-by fee and in
order to provide the Customer with access to the Consultant's industry
knowledge and expertise, on a general advisory basis initiated by the
Customer. Nothing herein contained shall obligate the Consultant to
initiate any particular advice to the Customer, nor to provide any
particular warnings with respect to the Customer's conduct of its
business, nor to identify any latent or obvious defects, deficiencies,
or problems related thereto.
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ARTICLE 3 - SPECIFIC SERVICES
3.1 SPECIFIC SERVICES
From time to time, it is anticipated that, utilizing the knowledge base
built up under Article 2, the Consultant and the Customer shall
negotiate and agree particular projects to be undertaken by the
Consultant on behalf of the Customer and, in respect of each such
project, the parties shall negotiate and agree the terms and conditions
of such work and the remuneration therefor.
ARTICLE 4 - REMUNERATION
4.1 FEES
For its services hereunder, the Consultant shall be paid:
(a) a fully earned stand-by retainer fee of $600,000.00 ("US$")
which earned fee for the Customer's cash flow purposes shall
be due in 24 monthly instalments of $25,000.00 each, the first
such installment being due on the 1st day of July, 1999, with
subsequent installments being due on the 1st day of each
consecutive month thereafter to and including the 1st day of
June, 2001. In the event that the Customer fails to pay any
installment within ten days of its due date, the entire
remaining balance of the installments due under this
subsection 4.1(a) shall be accelerated and be then immediately
due and payable without further notice or demand; and
(b) the Consultant shall be paid such further and other fees as
may be negotiated between the parties from time to time with
respect to the projects implemented pursuant to Article 3
hereof.
4.2 EXPENSES
The Consultant shall be reimbursed for its reasonable out-of-pocket
expenses incurred for the services provided hereunder and, in respect
thereof, the Consultant may be provided with an agreed expense
allowance, subject to reconciliation and accounting; provided that any
single expense in excess of $3,000.00 shall be approved in advance by
the Customer. If the Consultant is provided with an allowance on
account of expenses, the Consultant shall account to the Customer
semi-annually (or more or less frequently as may be mutually agreed)
for its out-of-pocket expenses paid or incurred by it on behalf of the
Customer in connection with the Consultant's duties hereunder. Such
amounts shall be reconciled to the payments on account thereof made
pursuant to this subsection. The parties agree to forthwith settle such
reconciliation by payment by the Customer to the Consultant, or by
refund from the Consultant to the Customer, as may be necessary to
result in the compensation of the Consultant for out-of-pocket expenses
actually incurred.
4.3 SALES TAXES
In addition to the fees and expenses set out herein, the Customer shall
pay any retail sales tax, value added tax, goods and services tax, or
other ad valorum taxes which are properly payable by the Consultant, or
properly collectible by the Customer, in respect of the fees and
expenses paid to the Consultant under this Agreement. Nothing herein
contained shall be
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construed so as to oblige the Customer to pay income taxes on behalf
of the Consultant on the revenue generated under this Agreement.
ARTICLE 5 - RESPONSIBILITY, LIABILITIES AND EXCLUSIONS, INDEMNITIES
5.1 CONSULTANT'S LIABILITY
The Consultant shall not be liable for any act or omission or
negligence in the course of or connected with this Agreement except
that the Consultant shall be liable and shall assume the entire
responsibility for the Customer's losses, liabilities, expenses and
disbursements, arising out of a breach of the Consultant's duties under
this Agreement or in the course of or connected with rendering services
hereunder to the Customer to the extent that the same are occasioned by
the Consultant's wilful misconduct, fraudulent or criminal act, lack of
good faith and the wilful misconduct, fraudulent or criminal act, or
lack of good faith of any of its directors, officers or employees or
Sub-Agents in rendering of such services.
5.2 CUSTOMER INDEMNITY
The Customer agrees to indemnify and to hold the Consultant, and the
Sub-Agents and their respective directors, officers, employees and
agents harmless from and against any and all taxes (except income
taxes), duties, charges, costs, expenses, damages, claims, actions,
demands and liabilities which they, or any of them, may incur or become
subject to, including legal costs and reasonable counsel fees, for or
in respect of anything done by the Customer, or omitted to be done by
the Customer in connection with this Agreement, except as referred to
in paragraph 5.1.
ARTICLE 6 - AMENDMENTS
6.1 AMENDMENTS
This Agreement may only be amended by the mutual written agreement of
the Customer and the Consultant.
ARTICLE 7 - TERMINATION
7.1 NOTICE AND EFFECT
This Agreement will take effect as of July 1st, 1999 and shall continue in full
force and effect until the 30th day of June 2001 (the "First Term") at which
time this Agreement shall automatically be renewed for a term of 12 months, and
so on from year to year unless terminated at the end of a particular term in
accordance with this section 7.1. Either party to this Agreement on no less than
60 days written notice to the other may terminate this Agreement at the end of
any particular term hereof.
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ARTICLE 8 - OTHER MATTERS
8.1 ASSIGNMENT
Save as set out in Section 1.2, neither this Agreement nor any of the
rights or obligations of either party under it, may be assigned or
transferred to any other person without the express written consent of
the other party.
8.2 ENUREMENT
This Agreement shall extend to and enure to the benefit of and be
binding upon the successors and permitted assigns of the Customer and
the Consultant.
8.3 NON-WAIVER
If either party fails to exercise, or delays in exercising any right
under this Agreement, such failure or delay shall not constitute a
waiver of such right.
8.4 LAW OF CONTRACT
This Agreement shall be governed by the laws of the State of Minnesota
and any dispute regarding it shall be resolved by the courts in that
jurisdiction.
8.5 ADDITIONAL INTERPRETATION
The division of this Agreement and articles, sections, and paragraphs
and the insertion of headings are for convenience of reference only and
shall not affect the construction or interpretation of this Agreement.
All words herein importing gender shall be deemed to include the male,
female and neuter genders and the singular number shall include the
plural number and vice versa as the context requires.
ARTICLE 9 - NOTICE
9.1 NOTICE
Any statement to be given by the Consultant to the Customer, notice of
an audit, notice of termination, or any other notice required or
permitted to be given pursuant to this Agreement shall be in writing
and shall be hand delivered or mailed during any period when normal
postal services prevail or sent by facsimile, transmission confirmed,
to the addresses for the parties set out in the recitals on page 1 of
the parties to this Agreement.
Any such notice shall be deemed to have been given, if hand delivered,
upon delivery, or if mailed on the fifth postal delivery day following
the day of mailing, or if sent by confirmed facsimile on the day of
sending. Either party may change their address as set out above by
giving written notice in accordance with this section.
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IN WITNESS WHEREOF this Agreement has been signed by the parties hereto
by their duly authorized signing officers.
NICOLLETT PROCESS ENGINEERING, INC.
PER:
------------------------------------
NAME:
TITLE:
I have the authority to bind the corporation.
TECHINSPIRATIONS, INC.
PER:
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NAME: XXXXXX XXXXXX
TITLE: PRESIDENT
I have the authority to bind the corporation.
