Exhibit 4.4
CONSULTING AGREEMENT
AGREEMENT ENTERED INTO AT THE CITY
OF MONTREAL, PROVINCE OF QUEBEC, THIS 30th DAY OF OCTOBER, 2001
| BY AND BETWEEN: |
INTASYS CORPORATION, a corporation duly incorporated according to law, having a place of business in the
Province of Quebec, herein acting and represented by Xxxxx Xxxxx and Xxxxxx Xxxxxxxx duly
authorized for the purposes hereof as they hereby declare |
| |
|
|
(hereinafter referred to as the
“CORPORATION”), |
| |
|
| AND: |
XXXX XXXXXXX ADVISORS LTD., a corporation duly incorporated according to law, having a place of business in the
Province of Quebec, herein acting and represented by Xxxxx Xxxxx and Xxxxxx Xxxxxxxx duly
authorized for the purposes hereof as they hereby declare |
| |
|
|
(hereinafter referred to as the
“CONSULTANT”) |
| |
|
| AND: |
XXXXX XXXXXXX, businessman, residing and domiciled at
000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx X0X 0X0 |
| |
|
|
(hereinafter referred to as “XXXXX”) |
WHEREAS
the CORPORATION is involved in the business of identifying, evaluating and investing in
technology companies and, via its wholly-owned subsidiaries, is a leading Internet media
company and a global provider of wireless, Internet-compatible billing and customer care
information systems (hereinafter the “Business”);
WHEREAS
the CONSULTANT is willing to provide advice, assistance and general consulting services to
the CORPORATION, and the CORPORATION is willing to engage the CONSULTANT, the whole in
accordance with the terms, covenants and conditions hereinafter set forth;
NOW,
THEREFORE, FOR THE REASONS SET FORTH ABOVE, AND IN CONSIDERATION OF THE MUTUAL PREMISES
AND AGREEMENTS HEREINAFTER SET FORTH, THE PARTIES HERETO ACKNOWLEDGE AND AGREE AS FOLLOWS:
| 1.1 |
|
Preamble:
The preamble hereto shall form an integral part hereof as if recited herein at length. |
255
| 2. |
|
NATURE
AND TERM OF SERVICES |
| 2.1 |
|
Nature
of Services: The CONSULTANT agrees that it shall provide its services to the CORPORATION
on a non-exclusive basis by making available its principal, XXXXX, as required, the whole
according to the terms and conditions hereinafter set forth, as a consultant to the
CORPORATION, and its duties as such shall include, but not be limited to, the furnishing
to the CORPORATION of its best advice, information, judgment and knowledge with respect
to the CORPORATION and the BUSINESS. In addition, the CONSULTANT shall use its best
efforts to promote the interests of the CORPORATION (hereinafter the “Services”). |
| 2.2 |
|
Best
Efforts: The CONSULTANT and XXXXX shall use their best efforts in providing the
Services and in fulfilling their duties and obligations hereunder pursuant
to the terms hereof. |
| 3. |
|
STATUS
AS INDEPENDENT CONTRACTOR |
| 3.1 |
|
Independent
Contractor: Nothing contained in this Agreement shall be construed as creating a
relationship between the CORPORATION and the CONSULTANT other than that of independent
contractor. The CONSULTANT shall not be deemed a partner, employee, joint venturer or
agent of the CORPORATION or of any Affiliate, and the CONSULTANT shall have no right,
power or authority to act in any way in the name of the CORPORATION. The CONSULTANT shall
not, and shall not represent to third parties that the CONSULTANT is authorized or
entitled to, execute or agree on behalf of the CORPORATION or bind the CORPORATION to any
agreement (whether oral or written), instrument or document of any kind whatsoever. |
| 4.1 |
|
Fees:
In consideration for the Services rendered pursuant to this Agreement, the
CORPORATION shall pay the CONSULTANT a fee of $125 per hour (hereinafter the “Fee”)
for all time spent by the CONSULTANT providing the Services except as provided in Section
4.3 hereof which time shall be billed to the CORPORATION on a monthly basis. |
| 4.2 |
|
Expenses:
In addition to the Fee, the CONSULTANT shall be reimbursed for all reasonable expenses
incurred by the CONSULTANT in the fulfilment of the Services, the whole upon the
presentation of appropriate receipts or vouchers. |
| 4.3 |
|
Exclusions.
The parties acknowledge that XXXXX is the Chief Executive Officer of the CORPORATION and
sits on its board of directors. XXXXX has received stock options in consideration for
holding this position and attending the meetings of the board of directors. All of his
time spent at meetings of the board of directors of the CORPORATION shall not be billed
to the CORPORATION as part of this Agreement. |
256
| 4.4 |
|
Benefits:
The CONSULTANT and the CORPORATION acknowledge and agree that as the CONSULTANT is an
independent contractor, the CORPORATION shall not, and shall have no obligation to,
provide the CONSULTANT or Xxxxx with any benefits (including, but not limited to, any
health, disability, vacation, severance, profit-sharing or pension benefits) not
otherwise provided for herein, and that the CONSULTANT shall pay directly to any relevant
taxation or other governmental authority all taxes, unemployment insurance contributions,
government pension plan contributions, medicare contributions or similar payments due in
connection with the receipt of the payment of any Fee, or other amount paid to the
CONSULTANT pursuant to this Article. |
| 5.1 |
|
Termination
without notice. In the event of a material breach by the CONSULTANT under this Agreement,
or upon the death or permanent disability of XXXXX such that the CONSULTANT cannot
perform the Services hereunder, this Agreement may be terminated by the CORPORATION
without notice or penalty. Notwithstanding the foregoing, any fees earned by the
CONSULTANT prior to such termination shall remain payable by the CORPORATION to the
CONSULTANT. |
| 5.2 |
|
Termination
by either party. This Agreement may be terminated by either party upon thirty (30) days
prior written notice to the other. At the expiry of the notice period, the parties
acknowledge that no further fees, compensation, indemnity or other termination or
severance pay shall be due to the CONSULTANT as a result of the termination of this
Agreement other than the Fees earned prior to such termination. Payments during the
thirty (30) day notice period shall not be the Fee multiplied by the average number of
hours billed per month since the beginning of said contract. |
| 5.3 |
|
Term.
Subject to the rights of the parties to earlier terminate this Agreement, this Agreement
shall automatically terminate on April 30th, 2002, unless the parties, in writing, renew
this Agreement or renegotiate a new agreement. |
| 6.1 |
|
Assignment.
Except as provided in this Section 6.1, the CONSULTANT, XXXXX and the CORPORATION
acknowledge and agree that the covenants, terms and provisions contained in this
Agreement and the rights of the parties hereunder cannot be transferred, sold, assigned,
pledged, or hypothecated; provided, however that this Agreement shall be binding upon and
shall enure to the benefit of the CORPORATION and any successor to or assignee of all or
substantially all of the business and property of the CORPORATION. In addition, the
CORPORATION may assign its rights hereunder to a direct or indirect subsidiary,
affiliated company, or division of the CORPORATION without the consent of the CONSULTANT. |
257
| 6.2 |
|
Capacity.
The CONSULTANT and XXXXX hereby represent and warrant that, in entering into this
Agreement, they are not in violation of any contract or agreement, whether written or
oral, with any other person, moral or physical, firm, partnership, corporation or any
other entity to which they are a party or by which they are bound and will not violate or
interfere with the rights of any other person, firm, partnership, corporation or other
entity. |
| 6.3 |
|
Entire
Agreement. This Agreement contains the entire agreement between the parties and shall not
be modified except in writing by the parties hereto. Furthermore, the parties hereto
specifically agree that all prior agreements, whether written or oral, relating to the
Services to the CORPORATION shall be of no further force or effect from and after the
date hereof. |
| 6.4 |
|
Severability.
If any phrase, clause or provision of this Agreement is declared invalid or unenforceable
by a court of competent jurisdiction, such phrase, clause or provision shall be deemed
severable from this Agreement, but will not effect any other provisions of this
Agreement, which otherwise shall remain in full force and effect. If any restriction or
limitation in this Agreement is deemed to be unreasonable, onerous and unduly restrictive
by a court of competent jurisdiction, it shall not be stricken in its entirety and held
totally void and unenforceable, but shall remain effective to the maximum extent
permissible within reasonable bounds. |
| 6.5 |
|
Waiver.
The waiver by the CORPORATION or the CONSULTANT of any breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any other breach of the
same or any other term or condition hereof. |
| 6.6 |
|
Governing
Law. The parties hereto agree that this Agreement shall be construed as to both validity
and performance and shall be enforced in accordance with and governed by the laws of the
Province of Quebec and the laws of Canada applicable therein. |
| 6.7 |
|
Language.
The parties have required that this Agreement and all documents or notices related
thereto be in the English language. Les parties ont exigé que cette convention et
tout document ou avis afférent soit en langue anglaise. |
SIGNATURE PAGE FOLLOWS
258
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.
|
INTASYS CORPORATION |
|
|
|
Per: s/s Xxxxx Xxxxx |
|
Xxxxx Xxxxx |
|
|
|
Per: s/s Xxxxxx Xxxxxxxx |
|
Xxxxxx Xxxxxxxx |
|
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|
XXXX XXXXXXX ADVISORS LTD. |
|
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|
Per: s/s Xxxxx Xxxxxxx |
|
Xxxxx Xxxxxxx |
|
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|
s/s Xxxxx Xxxxxxx |
|
XXXXX XXXXXXX |
259
Exhibit 4.4
AGREEMENT ENTERED INTO AT THE CITY
OF MONTREAL, PROVINCE OF QUEBEC, THIS 1st DAY OF MAY, 2002
| BY AND BETWEEN: |
INTASYS CORPORATION, a corporation duly incorporated according to law, having a place of business in the
Province of Quebec, herein acting and represented by Xxxxxx Xxxxx duly authorized for the
purposes hereof as they hereby declare |
| |
|
|
(hereinafter referred to as the
“CORPORATION”), |
| |
|
| AND: |
XXXX XXXXXXX ADVISORS LTD., a corporation duly incorporated according to law, herein
acting and represented by Xxxxx Xxxxxxx duly authorized for the purposes hereof as he
hereby declares |
| |
|
|
(hereinafter referred to as the
“CONSULTANT”) |
| |
|
| AND: |
XXXXX XXXXXXX, businessman, residing and domiciled at 000 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx X0X 0X0 |
| |
|
|
(hereinafter referred to as “XXXXX”) |
WHEREAS
the CORPORATION is involved in the business of identifying, evaluating and investing in
technology companies and, via its wholly-owned subsidiaries, is a leading Internet media
company and a global provider of wireless, Internet-compatible billing and customer care
information systems (hereinafter the “Business”);
WHEREAS
the CONSULTANT entered into a consulting agreement with the CORPORATION dated October 30,
2001 which agreement terminated April 30, 2002;
WHEREAS
the parties wish to enter into a new consulting agreement, the whole in accordance with
the terms, covenants and conditions hereinafter set forth;
NOW,
THEREFORE, FOR THE REASONS SET FORTH ABOVE, AND IN CONSIDERATION OF THE MUTUAL PREMISES
AND AGREEMENTS HEREINAFTER SET FORTH, THE PARTIES HERETO ACKNOWLEDGE AND AGREE AS FOLLOWS:
| 1.1 |
|
Preamble:
The preamble hereto shall form an integral part hereof as if recited herein at length. |
260
| 2.1 |
|
Nature
of Services: The CONSULTANT agrees that it shall provide its services to the CORPORATION
on a non-exclusive basis by making available its principal, XXXXX, as required, the whole
according to the terms and conditions hereinafter set forth, as a consultant to the
CORPORATION, and its duties as such shall include, but not be limited to, the furnishing
to the CORPORATION of its best advice, information, judgment and knowledge with respect
to the CORPORATION and the BUSINESS. In addition, the CONSULTANT shall use its best
efforts to promote the interests of the CORPORATION (hereinafter the “Services”). |
| 2.2 |
|
Best
Efforts: The CONSULTANT and XXXXX shall use their best efforts in providing the
Services and in fulfilling their duties and obligations hereunder pursuant
to the terms hereof. |
| 3. |
|
STATUS
AS INDEPENDENT CONTRACTOR |
| 3.1 |
|
Independent
Contractor: Nothing contained in this Agreement shall be construed as creating a
relationship between the CORPORATION and the CONSULTANT other than that of independent
contractor. The CONSULTANT shall not be deemed a partner, employee, joint venturer or
agent of the CORPORATION or of any Affiliate, and the CONSULTANT shall have no right,
power or authority to act in any way in the name of the CORPORATION. The CONSULTANT shall
not, and shall not represent to third parties that the CONSULTANT is authorized or
entitled to, execute or agree on behalf of the CORPORATION or bind the CORPORATION to any
agreement (whether oral or written), instrument or document of any kind whatsoever. |
| 4.1 |
|
Fees: In consideration for the Services rendered pursuant to this Agreement, the CORPORATION
shall pay the CONSULTANT a fee of $200 per hour (hereinafter the “Fee”) for all
time spent by the CONSULTANT providing the Services except as provided in Section 4.3
hereof which time shall be billed to the CORPORATION on a monthly basis. |
| 4.2 |
|
Expenses: In addition to the Fee, the CONSULTANT shall be reimbursed for all reasonable expenses
incurred by the CONSULTANT in the fulfilment of the Services, the whole upon the
presentation of appropriate receipts or vouchers. |
| 4.3 |
|
Exclusions. The parties acknowledge that XXXXX is the Chief Executive Officer of the CORPORATION and
sits on its board of directors. XXXXX has received stock options in consideration for
holding this position and attending the meetings of the board of directors. All of his
time spent at meetings of the board of directors of the CORPORATION shall not be billed
to the CORPORATION as part of this Agreement. |
261
| 4.4 |
|
Benefits: The CONSULTANT and the CORPORATION acknowledge and agree that as the CONSULTANT is an
independent contractor, the CORPORATION shall not, and shall have no obligation to,
provide the CONSULTANT or Xxxxx with any benefits (including, but not limited to, any
health, disability, vacation, severance, profit-sharing or pension benefits) not
otherwise provided for herein, and that the CONSULTANT shall pay directly to any relevant
taxation or other governmental authority all taxes, unemployment insurance contributions,
government pension plan contributions, medicare contributions or similar payments due in
connection with the receipt of the payment of any Fee, or other amount paid to the
CONSULTANT pursuant to this Article. |
| 5.1 |
|
Termination without notice. In the event of a material breach by the CONSULTANT under this Agreement,
or upon the death or permanent disability of XXXXX such that the CONSULTANT cannot
perform the Services hereunder, this Agreement may be terminated by the CORPORATION
without notice or penalty. Notwithstanding the foregoing, any fees earned by the
CONSULTANT prior to such termination shall remain payable by the CORPORATION to the
CONSULTANT. |
| 5.2 |
|
Termination by either party. This Agreement may be terminated by either party upon sixty (60) days
prior written notice to the other. At the expiry of the notice period, the parties
acknowledge that no further fees, compensation, indemnity or other termination or
severance pay shall be due to the CONSULTANT as a result of the termination of this
Agreement other than the Fees earned prior to such termination. For greater certainty,
payments during the sixty (60) day notice period shall not be the Fee multiplied by the
average number of hours billed per month since the beginning of said contract. |
| 6.1 |
|
Assignment. Except as provided in this Section 6.1, the CONSULTANT, XXXXX and the CORPORATION
acknowledge and agree that the covenants, terms and provisions contained in this
Agreement and the rights of the parties hereunder cannot be transferred, sold, assigned,
pledged, or hypothecated; provided, however that this Agreement shall be binding upon and
shall enure to the benefit of the CORPORATION and any successor to or assignee of all or
substantially all of the business and property of the CORPORATION. In addition, the
CORPORATION may assign its rights hereunder to a direct or indirect subsidiary,
affiliated company, or division of the CORPORATION without the consent of the CONSULTANT. |
| 6.2 |
|
Capacity. The CONSULTANT and XXXXX hereby represent and warrant that, in entering into this
Agreement, they are not in violation of any contract or agreement, whether written or
oral, with any other person, moral or physical, firm, partnership, corporation or any
other entity to which they are a party or by which they are bound and will not violate or
interfere with the rights of any other person, firm, partnership, corporation or other
entity. |
262
| 6.3 |
|
Entire Agreement. This Agreement contains the entire agreement between the parties and shall not
be modified except in writing by the parties hereto. Furthermore, the parties hereto
specifically agree that all prior agreements, whether written or oral, relating to the
Services to the CORPORATION shall be of no further force or effect from and after the
date hereof. |
| 6.4 |
|
Severability.
If any phrase, clause or provision of this Agreement is declared invalid or unenforceable
by a court of competent jurisdiction, such phrase, clause or provision shall be deemed
severable from this Agreement, but will not effect any other provisions of this
Agreement, which otherwise shall remain in full force and effect. If any restriction or
limitation in this Agreement is deemed to be unreasonable, onerous and unduly restrictive
by a court of competent jurisdiction, it shall not be stricken in its entirety and held
totally void and unenforceable, but shall remain effective to the maximum extent
permissible within reasonable bounds. |
| 6.5 |
|
Waiver.
The waiver by the CORPORATION or the CONSULTANT of any breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any other breach of the
same or any other term or condition hereof. |
| 6.6 |
|
Governing
Law. The parties hereto agree that this Agreement shall be construed as to both validity
and performance and shall be enforced in accordance with and governed by the laws of the
Province of Quebec and the laws of Canada applicable therein. |
| 6.7 |
|
Language.
The parties have required that this Agreement and all documents or notices related
thereto be in the English language. Les parties ont exigé que cette convention et
tout document ou avis afférent soit en langue anglaise. |
SIGNATURE PAGE FOLLOWS
263
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.
|
INTASYS CORPORATION |
|
|
|
Per: s/s Xxxxxx Xxxxx |
|
XXXXXX XXXXX |
|
|
|
|
|
XXXX XXXXXXX ADVISORS LTD. |
|
|
|
Per: s/s Xxxxx Xxxxxxx |
|
XXXXX XXXXXXX |
264
