Exhibit 4.3
CONSULTING AGREEMENT
THIS MEMORANDUM is evidence of a consulting agreement (the "Agreement") entered
into on the 1st of April, 2001 between X-XXXXXXXXXXX.XXX, INC. (the
"Corporation") and XXXXXXXX XXXXXXXX (the "Consultant"):
1. RECITALS
1.1 The Corporation has agreed to engage the services of the Consultant and
the Consultant has agreed to render his services to the Corporation
upon the terms and conditions herein contained.
2. ENGAGEMENT
2.1 The Consultant irrevocably agrees to provide his exclusive services to
the Corporation, or such affiliated or related entity of the
Corporation as the Corporation may deem more appropriate from time to
time for taxation or business reasons (and for purposes of this
agreement, such affiliated or related entity or entities are included
in the definition of the "Corporation");
2.2 The Consultant agrees to devote his full time and attention to the
Corporation as may be reasonably required by the Corporation for the
fulfillment of the Consultant's services as set out herein.
2.3 The Consultant's services shall include INTER ALIA, all services
consistent with the office of Director, Business Operations (the
"Services"), and without limiting the generality of the foregoing, the
Consultant shall:
(1) perform those duties that may reasonably be expected to be
performed by a Director, Business Operations, diligently and
faithfully to the best of the Consultant's abilities and in
the best interests of the Corporation;
(2) be responsible for the day to day operations of the
Corporation;
(3) use his best efforts to promote the business, interests, and
goodwill of the Corporation;
(4) report to the Board of Directors of the Corporation on the
management, operations and business affairs of the
Corporation;
(5) advise the Board of Directors of the Corporation to the best
or his ability and in accordance with reasonable business
standards on business matters that arise from time to time.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1 The Consultant represents, warrants and covenants that the Consultant
has the right and capacity to enter into and to perform his obligations
under this agreement.
4. CONSULTANT'S COMPENSATION
4.1 The Corporation shall pay to the Consultant a fee in return for his
services hereunder in the amount of $75,000.00 United States dollars,
less deductions or withholdings required by law and any other
deductions that are mutually agreed (the "Fee"). The Corporation may,
at its sole discretion, choose to pay the Fee to the Consultant by
issuing stock of the Corporation to the Consultant, in which case stock
of the Corporation shall be issued on the basis of $0.055/share and the
Consultant shall receive a maximum of 1,363,636 shares, of which up to
497,000 may be free-trading shares ("Registered Shares) and the balance
(866,636) shall be restricted shares ("Restricted Shares"). The
Corporation undertakes and commits to registering the Registered Shares
issuable in respect of the Consultant's Fee for resale under the
Securities Act of 1933, as amended. Further, and notwithstanding any
consent of ITNI, Consultant understands that the Restricted Shares
issuable in respect of the Consultant's Fee have not been registered
under the Securities Act of 1933. The Consultant agrees that the
Restricted Shares issuable in respect of the Consultant's Fee may not
be sold, offered for sale, pledged, hypothecated, or otherwise
transferred except pursuant to an effective registration statement
under the Securities Act of 1933, or an opinion of counsel satisfactory
to the Corporation that registration is not required under such Act or
unless sold pursuant to Rule 144 under such Act.
5. TERM
5.1 The term of the Agreement shall be for a period of twelve (12) months
commencing on the latest date indicated beside the parties signatures
hereon, unless and until terminated in accordance with the terms
hereof.
5.2 The Corporation shall have the ability to suspend the Agreement during
the period of any mental, physical or other disability or incapacity of
the Consultant which prevents the Consultant from fully performing the
terms hereof or complying with any obligation of the Consultant to be
performed hereunder; provided always that the Corporation shall have
the right at its option to terminate the Agreement at any time during
the continuance of any contingency mentioned in this paragraph 6.3 in
the event that such contingency continues for twelve consecutive weeks,
or an aggregate period of six (6) months in any eighteen (18) month
period.
5.3 The Corporation may terminate the Agreement:
(1) at any time without notice or payment in lieu of notice for
cause and the Consultant shall cease to be engaged by the
Corporation effective forthwith upon such termination;
(2) at any time without notice or payment in lieu of notice upon
the death of the Consultant, and the Consultant shall cease to
be engaged by the Corporation effective forthwith upon the
Consultant's death;
(3) at the end of the initial term or renewal term thereof, by
written notice given to the Consultant at least two (2) weeks
prior to the expiration of the then current term, and the
Consultant shall cease to be engaged by the Corporation
effective forthwith, and the Corporation shall pay to the
Consultant those sums owing to the Consultant for the said
two-week period, and Consultant shall receive same in full and
final satisfaction of any and all liabilities or obligations
of the Corporation arising out of this Agreement.
5.4 The Consultant may terminate his engagement at any time on two (2)
weeks written notice to the Corporation, and the Consultant shall cease
to be engaged by the Corporation effective forthwith, and the
Corporation shall pay to the Consultant those sums owing to the
Consultant for the said two-week period, and Consultant shall receive
same in full and final satisfaction of any and all liabilities or
obligations of the Corporation arising out of this Agreement.
5.5 For purposes of this Agreement, "for cause" means:
(1) the continued failure of the Consultant to perform his duties
according to the terms of his engagement;
(2) a breach by the Consultant of his fiduciary obligation to the
Corporation;
(3) a failure by the Consultant to exercise the minimum standard
of care required of him in performance of his duties as
President;
(4) criminal dishonesty intended to or resulting in personal gain
to the Consultant at the Corporation's expense; sexual
harassment of employees or contractors or customers, and other
criminal, immoral or improper conduct;
(5) the engaging in of any act which is materially injurious to
the Corporation, financially or otherwise.
6. OBLIGATIONS UPON TERMINATION
6.1 Except as expressly provided herein, the Consultant shall not be
entitled to any compensation or other benefits in the event of the
termination of the Consultant's engagement with the Corporation. Any
payments made pursuant to this Article 7 shall be in full satisfaction
of all claims the Consultant may have against the Corporation, its
subsidiaries, affiliates, directors and officers, under the applicable
engagement standards legislation, or any successor or applicable
legislation, at common law, or otherwise, in respect of any matters
pertaining to the engagement of the Consultant or the termination
thereof.
6.2 The Consultant agrees to accept such notice, or such payment in lieu of
notice as is required to
be given under applicable engagement legislation in full satisfaction
of all actions, causes of action, claims, and demands of every nature
or kind arising out of or in any way connected with the engagement of
the Consultant by the Corporation and the termination thereof, and the
Consultant further agrees to execute, immediately upon receipt of such
notice and/or payment, a full and final release of the Corporation from
all actions, causes of action, claims and demands of every nature or
kind arising out of or in any way connected with the engagement of the
Consultant by the Corporation and the termination thereof.
7. CONFIDENTIAL INFORMATION
7.1 The Consultant acknowledges and agrees that the Consultant will be
privy to certain information, including data, processes, "know-how,"
systems, tangible materials, apparatus, methods, procedures,
agreements, memoranda, plans, customer lists, contracts, finances,
programs, projects, business affairs, ideas, and other information
relating to the undertakings of the Corporation, some of which will be
contributed in whole or in part by the Consultant, and all of which are
valuable, special and unique assets of the Corporation, (all
hereinafter called the "Proprietary Information") and that the
Proprietary Information is the property of the Corporation, which the
Corporation is entitled to protect.
7.2 As a material inducement to the Corporation to employ or to continue to
employ the Consultant and to pay to the Consultant to compensation for
such services to be rendered to the Corporation by the Consultant (it
being understood and agreed by the parties that the compensation shall
also be paid and received in consideration), the Consultant agrees that
the Consultant shall not, except with the prior written consent of the
Corporation, or except as necessary for the performance of the Services
in connection with the Corporation's business and in accordance with
the Corporation's business practices and engagement policies, at any
time during or following the term of the Consultant's engagement by the
Corporation, directly or indirectly, disclose, divulge, publish,
reveal, report, transfer or use for any purpose any of the information
which has been obtained or disclosed to the Corporation as a result of
the Consultant's engagement by the Corporation, including any of the
Proprietary Information.
7.3 Failure to xxxx any of the Proprietary Information as confidential,
proprietary or protected shall not affect its status as part of the
Proprietary Information under the terms of this Agreement.
7.4 Disclosure of any information of the Corporation shall not be
prohibited if the disclosure is directly pursuant to a valid and
existing order of a court of competent jurisdiction or governmental
body or agency within North America; provided, however, that (a) the
Consultant shall first have given prompt notice to the Corporation of
any possible or prospective order (or proceeding pursuant to which any
order may result), and (b) Corporation shall have been afforded a
reasonable opportunity to prevent or limit any disclosure.
7.5 For the purposes of this Agreement, Proprietary Information shall not
include information which is or becomes publicly available without
breach of (a) this Agreement, (b) any other agreement or instrument to
which the Corporation is a party or a beneficiary or (c) any duty owed
to the Corporation by the Consultant or any third party; provided,
however, that the Consultant acknowledges and agrees that, except as
otherwise provided herein, if the Consultant shall seek to disclose,
divulge, reveal, report publish, transfer or use, for any purpose, any
Proprietary Information, the Consultant shall bear the burden of
proving that any information shall have become publicly available
without any breach.
8. OUTSIDE ACTIVITIES
8.1 The Consultant agrees that his engagement with the Corporation is
exclusive to the Corporation, and that similar work of any nature
elsewhere or participation in any business similar to that carried on
by the Corporation is prohibited unless previously approved by the
Corporation in writing. The Consultant shall immediately disclose to
the Corporation the facts of any situation or circumstances where a
conflict of interest appears to be present so that a determination can
be made by Corporation's board of directors as to whether such conflict
of interest does exist. The Consultant shall take whatever action is
deemed to be necessary by the board of directors of the Corporation to
resolve such conflict of interest. The Consultant understands and
agrees that exception to this policy will not be made if the
Corporation believes such outside work could, in any way, interfere
with the Consultant's performance or responsibilities or such
participation could constitute a conflict of interest.
9. RELATIONSHIP
9.1 Except to the extent that the Parties otherwise agree in writing, this
Agreement does not constitute and shall not be construed as
constituting a partnership, joint venture, or employer/employee
relationship between the Parties. The Consultant shall at all times
remain an independent contractor of the Corporation, and neither party
shall represent itself to be a employee of the other, nor assume any
obligation or enter into any contract on behalf of the other.
10. NOTICES
10.1 Any notice required or permitted to be given hereunder may be
effectively given by facsimile transmission or prepaid registered mail.
10.2 If delivered by facsimile transmission, any such notice shall be deemed
to have been given on the date and at the time shown on the facsimile
transmission report therefore, If mailed as aforesaid, any such notice
shall have been deemed to have been given on the second business day
following that on which the letter containing the notice is posted; and
if delivered as aforesaid, any notice shall be deemed to have been
given on the date of delivery. Any party to the Agreement may change
its address for service from time to time by notice given in accordance
with the foregoing.
11. GENERAL PROVISIONS
11.1 This Agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario and the laws of Canada applicable
therein.
11.2 No waiver by either party or any breach of this Agreement by the other
party shall be deemed to be a waiver of any preceding or succeeding
breach hereof.
11.3 A provision of this agreement which is found by a court of competent
jurisdiction to be unlawful or unenforceable shall be severed from the
agreement without affecting the enforceability of any other provision.
11.4 The rights which accrue to the Corporation under this Agreement shall
pass to its successors or assigns. The rights of the Consultant under
this Agreement are not assignable or transferable in any manner.
11.5 The headings in this agreement are for convenience only, and shall not
be of any effect in construing the contents of the respective Articles.
11.6 This Agreement shall be binding upon the heirs, executors,
administrators, legal and personal representatives and assigns of the
parties hereto.
11.7 This Agreement constitutes the entire understanding between the parties
and supersedes all prior agreements, written or oral, express or
implied, between the parties with respect to the subject matter hereof,
and such prior agreements are terminated and cancelled and each of the
parties releases and forever discharges the other of and from all
manner of action, causes of action, claims or demands under or in
respect of any such prior agreement.
11.8 This Agreement cannot be modified except by a written instrument signed
by both parties hereto.
11.9 The Consultant acknowledges that he has read and understands this
Agreement, and acknowledges that he has had the opportunity to obtain
independent legal advice with respect to it.
11.10 This Agreement and any appendicies or schedules hereto may be executed
in any number of counterparts with the same effect as if all the
Parties had signed the same document; all counterparts shall be
construed together and shall constitute one (1) agreement. This
Agreement may be delivered by facsimile transmission.
12. EXECUTION
12.1 As evidence of their agreement, the parties have signed below on the
date first written above.
X-XXXXXXXXXXX.XXX, INC.
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Per:
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Xxxxxxxx Xxxxxxxx
