Exhibit 10.33
CONSULTING AGREEMENT
THIS AGREEMENT made as of February 25, 1999
BETWEEN:
VIBRO-TECH INDUSTRIES, INC., a corporation subsisting under the laws of the
state of Delaware, having a place of business at Suite 0000 Xxxxxxxxx Xxxxx, 000
Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, X.X. X0X 0X0
("Vibro-Tech")
AND:
XX. XXXXXX XXXX, Businessman, having a residence at 0000 Xxxxxx Xxxxxx, Xxxx
Xxxx, Xx. 00000
("Quan")
WHEREAS:
A. Vibro-Tech and its affiliates are engaged in the business of the design,
manufacture, marketing and sales of seismic rubber vibration bearings for use in
the construction industry; X. Xxxx has agreed to be a financial consultant for
Vibro-Tech in charge on a non-exclusive basis of advising Vibro-Tech of the
financial matters relating to the government qualification, marketing and sales
of seismic rubber vibration bearings on the terms and conditions of this
Agreement;
WITNESSES THAT the parties mutually covenant and agree as follows:
ARTICLE I APPOINTMENT AND DECLARATION
1.01 Vibro-Tech appoints and engages Quan as a non-exclusive financial
consultant to act for and on behalf of Vibro-Tech and its affiliates in advising
on all financial matters related to Vibro-Tech and its affiliates, including
funding, plant expansion, marketing, sales, advertising, public market relations
and the financial aspects of all other matters and Quan accepts such
appointment, on the terms and other conditions of this Agreement.1.02 As
consultant for Vibro-Tech, Quan will give advice from time to time as requested
by the president of Vibro-Tech under the direction from time to time of the
president of Vibro-Tech.
1.04 Quan will work with, assist and in all ways cooperate with the Vibro-Tech
subsidiary, Shantou Vibro-Tech Industrial and Development Co Ltd., in the
provision of financial advice and will keep himself appraised of material
changes in the affairs of Vibro-Tech and its affiliates that would affect his
advice.
1.05 Quan will familiarize himself with the tax laws of the Republic of China,
with the Shantou Special Economic Zone of the Republic of China and with the
Hong Kong Special Administrative regions of the Republic of China as they are
amended from time to time.
ARTICLE II OBLIGATIONS OF QUAN
2.01 At and with the direction of, and in consultation, from time to time with,
the president of Vibro-Tech, Quan will: (a) advise on the financial consequences
of any governmental registration or qualification necessary to be obtained
market and sell the seismic rubber isolation bearings of Vibro-Tech;(b) use his
best efforts to present and recommend from time to time a continuing and
suitable financial program consistent with the business policies, objectives and
restrictions of Vibro-Tech to establish and expand the business of Vibro-Tech,
and to present business opportunities of a character consistent with the
business program adopted by the president of Vibro-Tech; and(c) generally advise
Vibro-Tech about any matter which Quan considers relevant or material in
connection with the administration or business of Vibro-Tech in any jurisdiction
2.02 Subject to direction from the president of Vibro-Tech, Quan will select
such persons, firms or corporations as Quan considers appropriate to provide
services required in connection with the operation of the business of
Vibro-Tech.
2.03 Quan will forthwith provide Vibro-Tech with information concerning any
change in the business objectives, policies of, or restrictions on, the business
of Vibro-Tech financial matters material to the business of Vibro-Tech and with
such further information concerning the affairs of Vibro-Tech as the president
may from time to time request.
ARTICLE III ADMINISTRATION OF THE BUSINESS OF VIBRO-TECH
3.01 Quan will, as financial consultant to Vibro-Tech, in consultation with the
president of Vibro-Tech:
(a) determine the financial plan and strategy of Vibro-Tech from time to time;
(b) retain qualified and appropriate legal, accounting, financial and business
advisers for, and acceptable to, Vibro-Tech as are required to maintain
Vibro-Tech pursuant to applicable law and to ensure that Vibro-Tech is able to
comply with the laws of all jurisdictions in which Vibro-Tech and its affiliates
carry on business; and
(c provide to the board of directors of Vibro-Tech on a timely basis any
information which the members of such board may from time to time reasonably
request in connection with the day to day business operations of Vibro-Tech, the
prospects of Vibro-Tech in Taiwan and any material changes in the business of
Vibro-Tech.
ARTICLE IV STANDARD OF CARE
4.01 Quan will exercise the powers and perform the duties assumed hereunder
honestly, in good faith and in the best interests of Vibro-Tech and its
affiliates and will exercise the degree of care, diligence and skill that a
reasonably prudent person would exercise in comparable circumstances.
ARTICLE V COMPENSATION AND DISBURSEMENTS
5.01 Quan will be reimbursed from time to time for disbursements reasonably
incurred with the prior approval of the president of Vibro-Tech in connection
with Quan's activities.5.02 In consideration of providing financial advice to
Vibro-Tech and its affiliates, Vibro-Tech will grant to Quan an irrevocable
option to purchase up to 25,000 shares of Vibro-Tech for $0.30 per share before
December 31, 2003.
5.03 Vibro-Tech may from time to time engage such other persons, firms or
corporations as it wishes to do such things as Vibro-Tech might direct and do
such other things as may be determined to be in the best interests of Vibro-Tech
without affecting the validity of this Agreement.
ARTICLE VI OTHER ACTIVITIES OF QUAN
6.01 Quan may have such other business interests and may engage in such other
activities he might wish from time to time, but will not engage in a business,
proprietorship, partnership, or other enterprise, or invest in a business,
proprietorship, partnership, or other enterprise, similar to, or in competition
with, those relating to the activities to be performed for Vibro-Tech any
jurisdiction.
ARTICLE VII RELATIONSHIP OF PARTIES
7.01 Quan will perform his duties as an independent contractor and none of
Vibro-Tech, its affiliates, or their respective directors, officers or employees
is for the purposes of this Agreement employees or agents of, or co-venturers
with, Quan and nothing in this Agreement will be construed so as to make them
employees, agents or co-venturers of Quan or to impose any liability on Quan as
an employer, principal or co-venturer.
7.02 Vibro-Tech will bear the sole and complete responsibility and liability for
the employment, conduct and control of its employees, agents and contractors and
for the injury of such persons or injury to others through the actions or
omissions of such persons.
ARTICLE VIII INDEMNITY
8.01 Vibro-Tech will indemnify and save harmless Quan for any loss (other than
loss of profits), liability, claim, damages or expense, including the reasonable
cost of investigating, settling or defending any alleged loss, liability ,
claim, damages or expense and reasonable counsel fees incurred in connection
therewith, incurred as a result of or in connection with the execution of his
duties under this Agreement or otherwise in respect of the affairs of Vibro-Tech
if Quan has exercised his powers and performed his duties in accordance with the
standard of care stipulated in Article IV.
ARTICLE IX TERM AND TERMINATION
9.01 This Agreement will be effective on February 25, 2000 and will continue in
force until December 31, 2000.
9.02 After December 31, 2000, if either party has not before October 31 before
the end of the term of the Agreement, this Agreement will be automatically
renewed for an additional term of one year on the terms and other conditions of
this Agreement, including this condition.
9.03 This Agreement may be terminated by Quan on not less than 90 days' written
notice to Vibro-Tech in the event of:
(a) the commission by Vibro-Tech of any material fraudulent act in performing
any of its obligations or any material deliberate misrepresentation, as that
expression is defined in United States securities laws, to Quan; or
(b) the malfeasance of misfeasance of any of Vibro-Tech in the performance of
its duties.
9.04 This Agreement may be terminated by Vibro-Tech on not less than 30 days'
written notice to Quan in the event of:
(a) the commission by Quan of any material fraudulent act in performing any of
his obligations or any material deliberate misrepresentation, as that expression
is defined in United States securities laws, to Vibro-Tech or to its respective
directors, officers or shareholders;
(b) failure of Quan to perform his duties and discharge its obligations; or
(c) the malfeasance of misfeasance of Quan in the performance of his duties.
9.05 The Agreement will terminate forthwith with respect to Quan if he becomes
or acknowledges that he is insolvent or makes a voluntary assignment or proposal
under any bankruptcy laws or applicable legislation or if a bankruptcy petition
is filed or presented against Quan.
9.06 From and after the effective date of termination of this Agreement, Quan
will not be entitled to compensation for any further services but will be paid
all compensation accruing to such date.
9.09 Upon the termination of this agreement, Quan will:
(a) pay over to Vibro-Tech all moneys which may be held by Quan for the account
of Vibro-Tech pursuant to this Agreement after deducting any accrued
compensation to which Quan is then entitled;
(b) deliver to Vibro-Tech a full accounting, including a statement of all moneys
collected by Quan, a statement of all moneys held by Quan, and a statement of
all moneys paid by Quan, covering the period following the date of the last
accounting furnished to Vibro-Tech; and
(c) deliver to and, where applicable, transfer into the name of Vibro-Tech ( or
as it may direct in writing ) all property and documents of Vibro-Tech held in
the name or custody of Quan and all information held in whatever form relating
to the dealings of Quan with persons, firms, corporations or governmental bodies
in Taiwan.
9.07 Upon termination of this Agreement, Vibro-Tech will assume all contracts
and obligations entered into or undertaken by Quan (other than with any
affiliate of Quan) within the scope of its authority and indemnify Quan against
any liability by reason of anything done or required to be done under any such
contract or obligation after the date of termination of this Agreement.
ARTICLE X NOTICE
10.01 Any notice to be given by any party to any other party will be deemed to
be given when in writing and delivered or communicated by telecopier or email on
any business day to the address for notice of the intended recipient.
10.02 The address for notice of each of the parties will, until changed, be:
(a) Quan:
Xx. Xxxxxx Xxxx
0000 Xxxxxx Xxxxxx, Xxxx Xxxx, Xx 00000
Fax: 000-000-0000
Email: xxxxxx_xxxx@xxxxx.xxx
(b) Vibro-Tech
Vibro-Tech Industries, Inc.
0000 Xxxxxxxxx Xxxxx
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Attention: Xx. Xxxx Xxxxx, President and Chief Executive Officer
Fax: 000-000-0000
Email: xxxx@xxxxx-xxxx.xxx
with a copy to:
Vibro-Tech Industries, Inc.
Xxxxx 000, 0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, X. X. X0X 0X0
Attention: Mr. Xxxx XxxXxxxxx, Secretary
Fax: 000-000-0000
Email: xxxx@xxxxxxxxx.xxx
10.03 A party may by notice to the other party change its address for notice to
some other address and shall so change its address for notice whenever the
existing address for notice ceases to be adequate for delivery by hand or
communication by telecopier or email.
ARTICLE X1 GOVERNING LAW
11.01 This agreement will be governed by and construed in accordance with the
laws of British Columbia and any proceeding commenced or maintained in respect
of this Agreement will be so commenced or maintained in the forum of appropriate
jurisdiction in the County of Vancouver to which jurisdiction the parties
irrevocable attorn.
ARTICLE X11 ARBITRATION
12.01 If any difference or dispute will arises between the Parties that cannot
be resolved between the Parties by negotiation with regard to mutual benefit and
equality then in respect to any matter, such difference or dispute will be
arbitrated or submitted to arbitration under and pursuant to the Commercial
Arbitration Act (British Columbia).
12.02 Such dispute will be referred by the Party affected to an arbitrator who
will be agreed upon by such Participants and, failing such agreement within four
weeks after notice by any such Party, then an arbitrator may be named as
provided in the Commercial Arbitration Act but in all cases the arbitration will
be conducted by a sole arbitrator who may be a member of the firms of auditors
of Vibro-Tech.
12.03 The arbitrator so appointed will sit in Vancouver, British Columbia,
unless there is unanimous agreement of such Parties that he will sit at another
place, and will hear and dispose of such dispute in such manner as the
arbitrator, in his discretion, will determine, but in so doing will be required
to receive the submissions of such Parties.
12.04 The decision of the arbitrator will be rendered in writing with all
reasonable speed and will be final and binding upon such Participants. 12.05 If
the Parties to the arbitration cannot agree on the respective shares of the
costs of arbitration to be borne by them, the arbitrator will determine what
part of the costs and expenses incurred in any such proceeding will be borne by
each of them.
ARTICLE XIII ASSIGNMENT
13.01 This agreement may not be assigned, set over, transferred, in whole or in
part by any party without the written consent of the other party, which consent
may be unreasonably withheld.
ARTICLE XIV GENERAL
14.01 The provisions of this Agreement constitute the entire agreement between
the parties and supersede all previous communications, representations and
agreements, whether verbal or written, between the parties with respect to the
subject matter hereof.
14.02 The captions, section numbers and article numbers appearing in this
Agreement are inserted for convenience of reference only and will in no way
define, limit, constrict or describe the scope or intent of this Agreement nor
in any way affect this Agreement.
14.03 In this Agreement, wherever the context requires, words importing the
singular number will include the plural and vice versa, words importing the
masculine gender will include the feminine and neuter genders and words
importing persons will include firms and corporations and vice versa.
14.04 Unless otherwise stated, a reference in this Agreement to a numbered or
lettered article, section, paragraph or subparagraph refers to the article,
section, paragraph or subparagraph bearing that number or letter in this
Agreement.
14.04 If any covenant or other provision of this Agreement is invalid, illegal
or incapable of being enforced by reason of any rule of law or public policy
such covenant or other provision will be severed; all other terms and conditions
of this Agreement will, nevertheless, remain in full force and effect and no
covenant or provision will be deemed dependent upon any other covenant or
provision unless so expressed herein.
IN WITNESS WHEREOF this Agreement has been executed by the parties hereto on the
day and year first above written.
VIBRO-TECH INDUSTRIES, INC.
By: /s Xxxx XxxXxxxxx, Secretary
/s/ XXXXXX XXXX
