CONSULTING AGREEMENT
THIS AGREEMENT effective as of the 7th day of April, 1998
BETWEEN:
EPS ENVIRONMENTAL INC. D/B/A SOLUCORP
INDUSTRIES, LTD. a corporation duly
incorporated pursuant to the laws of the Yukon
Territory having an office at 000 Xxxx Xxxxx
Xxxx, Xxxx Xxxxx, Xxx Xxxx, 00000, X.X.X.
(hereinafter referred to as the "Company")
OF THE FIRST PART
AND:
XXXXXX X. XXXXXXXXXX
000 Xxxxx Xxxxxxxx
Xxxxx Xxxxx, Xxx Xxxx 00000
(hereinafter referred to as the "Consultant")
OF THE SECOND PART
RECITALS
WHEREAS the Company has requested the assistance of the Consultant
in providing certain consulting services, as hereinafter described;
WHEREAS the Consultant has agreed to provide such assistance and service to the
Company in accordance with the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants set forth below, the parties hereto agree as follows:
1. DUTIES AND DEVOTION OF TIME
Duties. During the terms of this Agreement the Consultant shall be
responsible for the duties contained in Schedule 'A' attached hereto and
incorporated herein by this reference (the "Duties").
1.2 Devotion of Time. The parties hereto acknowledge and agree
that the work of the Consultant is and shall be of such a nature
that regular hours are insufficient and impractical. The Consultant will perform
duties as described in Schedule "A" on a non-exclusive basis. It is expressly
understood that the consultant shall be free to engage in other businesses that
are not in competition with the business of the Company.
1.3 Location of Company Headquarters. The parties hereto acknowledge that the
effective strategic direction of the Company and its subsidiaries does not
require that the headquarters of the Company be or remain in the City of
Vancouver, in the Province of British Columbia, and agree that the Company's
location has no effect on the Duties of the Consultant.
1.4 Business Opportunities the Property of the Company. The Consultant agrees to
communicate immediately to the Company all business opportunities, inventions
and improvements in the nature of the business of the Company which, during the
term of this Agreement, the Consultant may conceive, make or discover, become
aware of, directly or indirectly, or have presented to it in any manner which
relates in any way to the Company, either as it is now or as it may develop, and
such business opportunities, inventions or improvements shall become the
exclusive property of the Company.
1.5 No Personal Use. The Consultant shall not use any of the work the Consultant
shall perform for the Company for any personal purposes Without first obtaining
the prior written consent of the Company.
2. CONSULTING FEES, BONUSES
2.1 Consultant Fees. In consideration of the Consultant providing the services
referred to herein, the Company agrees to pay the Consultant an annual
consulting fee of One hundred twenty five thousand U.S. Dollars($125,000.00)
payable semi-monthly, subject to increase as from time to time approved by the
Board of Directors of the Company and 100,000 free trading shares of stock per
annum.
2.2 Benefits. The company shall provide, maintain and pay for:
(a) Exclusive use of 1994 Mercedes Benz S500 Vehicle
Identification Number: WDBGA 7OE8R A1543 47, which will become the property of
the Consultant after termination of this Agreement for any reason whatsoever. If
vehicle is damaged beyond repair or stolen, the Company will replace such
vehicle to another of the Consultant's choice.
2.3 Options. The Company will issue to the Consultant 100,000 options per year
and every year of this five (5) year Agreement at regulatory accepted discounted
prices.
2.4 Payment in Cash or Shares. All payments payable by the Company to the
Consultant, including the consulting fees, Bonuses, and reimbursement of
expenses under Section 4.1 hereof, shall be payable in cash or, at the election
of the Consultant, such will be paid in whole or in part in free-trading shares
in the capital stock of the Company ("Free-Trading Shares").
3. VACATION
3.1 Entitlement to Vacation. The Company acknowledges that the Consultant shall
be entitled to an annual vacation of six (6) weeks. The Consultant shall use his
best efforts to ensure that such vacation is arranged with the Company in
advance such that it does not unduly affect the operations of the Company.
3.2 Increase in Vacation. The period set out in Section 3.1 may be increased
from time to time as mutually agreed to by the Consultant and the Board of
Directors.
4. REIMBURSEMENT OF EXPENSES
4.1 Reimbursement of Expenses. The Consultant shall be reimbursed for all
reasonable out-of-pocket expenses incurred by the Consultant in or about the
execution of the Duties contained herein, including without limitation the
generality of the foregoing, and recognizing that the Consultant is and has not
been permanently resident in Vancouver, all reasonable travel and promotional
expenses payable or incurred by the Consultant in connection with the Duties
under this Agreement. All payments and reimbursements shall be made within three
(3) days of submission by the Consultant of vouchers, bills or receipts for such
expenses.
5. CONFIDENTIAL INFORMATION
5.1 Confidential Information. The Consultant shall not, either during the term
of this Agreement or at any time thereafter, without specific consent in
writing, disclose or reveal in any manner whatsoever to any other person, firm
or corporation, nor will it use, directly or indirectly, for any purpose other
than the purposes of the Company, the private affairs of the Company or any
confidential information which it may acquire during the term of this Agreement
with relation to the business and affairs of the directors and shareholders of
the Company, unless the Consultant is ordered to do so by a court of competent
jurisdiction or unless required by any statutory authority.
5.2 Non-Disclosure Provisions. The foregoing provision shall be
subject to the further non-disclosure provisions contained in
Schedule "C" attached hereto and incorporated hereinafter by this reference.
5.3 Provisions Survive Termination. The provisions of this
section shall survive the termination of this Agreement.
6. TERM
6.1 Term. Subject to the termination provisions contained hereunder, this
Agreement shall remain in effect for a period of Five (5) years from the
effective date Thereafter the parties shall renew this Agreement if they
mutually agree upon the terms and conditions of such renewed agreement.
7. TERMINATION
7.1 Termination of Consultant. Notwithstanding any other provision contained
herein, the parties hereto agree that the Consultant may terminate this
Agreement, with or without cause, by giving ninety (90) days written notice of
such intention to terminate.
7.2 Resignation or Cessation of Duties. In the event that the Consultant ceases
to perform all of the Duties contained herein, other than by reason of the
Consultant's death or disability, or if the Consultant resigns unilaterally and
on his own initiative from all of his positions this Agreement shall be deemed
to be terminated by the Consultant as of the date of such cessation of Duties or
such resignation, balance of monies or stock due the Consultant may be due
immediately at the Consultant's option.
7.3 Termination by Company. The parties further agree that the Company may not
terminate this Agreement without payment, at that time to the Consultant of a
termination for any cause whatsoever.
7.4 Termination if Change of Control. Notwithstanding any other provision of
this Agreement, in the event of a change in control of the Company this
Agreement shall be deemed to be terminated by the Company, and the Consultant
shall be entitled to the termination allowance stated in Section 7.3 hereof. For
the purposes hereof, a change in control of the Company shall be deemed to occur
if a transaction or series of transactions takes place whereby, directly or
indirectly:
(a) any person or combination of persons (other than any
person or persons who are controlling shareholders of
the Company) obtains a sufficient number of
securities of the Company to affect materially the
control of the Company; for the purposes of this
Agreement, a person or
combination of persons holding shares or other
securities in excess of the number which, directly or
following conversation thereof, would entitle the
holder thereof to cast 20% or more of the vote
attaching to all shares of the Company which may be
cast to elect directors of the Company, shall be
deemed to be in a position to affect materially the
control of the Company; or
(b) the Company shall consolidate or merge with or
into, amalgamate with, or enter into a statutory
arrangement with, any other person (other than a
subsidiary of the Company) shall consolidate or
merge with or into or amalgamated with or enter
into a statutory arrangement with, the Company,
and, in connection therewith, all or part of the
outstanding voting shares shall be changed in any
way, reclassified or converted into, exchanged or
otherwise acquired for shares or other securities
of the Company or any other person or for cash or
any other property (other than a transaction which
has been approved by a majority of the directors
of the Company holding office on the effective
date of this Agreement); or
(c) the Company shall sell or otherwise transfer,
including by way of the grant of a leasehold interest
(or one or more of its subsidiaries shall sell or
otherwise transfer, including by way of grant of a
leasehold interest) property or assets (A)
aggregating more than 50% of the consolidated assets
(measured by either book value or fair market value)
of the Company and its subsidiaries as at the end of
the most recently completed financial year of the
Company, or (B) which during the most recently
completed financial year of the Company generated, or
during the then current financial year of the Company
are expected to generate, more than 50% of the
consolidated operating income or cash flow of the
Company and its subsidiaries, to any other person or
persons (other than the Company or one of its
subsidiaries).
7.5 Death. In the event of the death of the Consultant during the term of this
Agreement, this Agreement shall be terminated as of the date of such death, and
the Consultant shall be entitled to the termination allowance stated in Section
7.3 hereof to be paid to the Consultant's spouse. In the case of the
simultaneous death of the Consultant and his spouse, the funds shall be paid to
the Consultant's estate.
7.6 Disability. In the event that the Consultant will during the term of this
Agreement by reason of illness or mental or physical disability or incapacity be
prevented from or incapable of performing the Duties hereunder, then the
Consultant shall be entitled to receive the remuneration provided for herein as
specified in Section 7.2.
7.7 Termination Payments. Any payments made by the Company to the Consultant
upon the termination of this Agreement shall, at the election of the Consultant,
be made in cash in a lump sum payment, in cash in installments as chosen by the
Consultant, in Free-Trading Shares, or in a combination of cash and Free-Trading
Shares, subject to regulatory approval. All payments required to be made by the
Company to the Consultant pursuant to Section 7 hereof shall be made in full,
irrespective of the amount of the term remaining under this Agreement.
8. RIGHTS AND OBLIGATIONS UPON TERMINATION
8.1 Rights and Obligation. Upon termination of this Agreement, the Consultant
shall deliver up to the Company all documents, papers, plans, materials and
other property of or relating to the affairs of the Company, other than the
Consultant's personal papers in regard to his role in the Company, which may
then be in its or the Consultant's possession or under his control.
9. CLOSING
9.1 Closing Date. This Agreement shall close five (5) days following the receipt
in writing of the last of the board approvals for this Agreement.
9.2 Condition of Closing. The parties hereto agree that it shall be a condition
of the closing of this Agreement that prior to or contemporaneously with the
closing of this Agreement:
(a) this Agreement shall be approved by the board
members of the Company;
(b) the Consultant and the Company shall terminate any
previously existing employment contracts or terms;
and
(c) the Consultant shall execute a non-disclosure
agreement with the Company.
10. Notices and Requests
10.1 Notices and Requests. All notices and requests in connection with this
Agreement shall be deemed given as of the day they are received either by
messenger, delivery service, or mailed by registered or certified mail with
postage prepaid and return receipt requested and addressed as follows:
(a) if to the Company:
Solucorp Industries Ltd. 000 Xxxx Xxxxx Xxxx
Xxxx Xxxxx, Xxx Xxxx 00000
With a copy to:
Xxxxxx Xxxxxx, Esq. 00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
(b) if to the Consultant:
Xx. Xxxxxx X. Xxxxxxxxxx 000 Xxxxx Xxxxxxxx
Xxxxx Xxxxx, Xxx Xxxx 00000
or to such other address as the party to receive notice or request so designates
by written notice to the other.
15. WAIVER
15.1 Waiver. No consent or waiver, expressed or implied, by either party to or
of any breach or default by the other party in the performance by the other of
its obligations herein shall be deemed or construed to be a consent or waiver to
or of any breach or default of the same or any other obligation of such party.
Failure on the part of any party to complain of any act or failure to act, or to
declare either party in default irrespective of how long such failure continues,
shall not constitute a waiver by such party of its rights herein or of the right
to then or subsequently declare a default.
16. SEVERABILITY
16.1 Severability. If any provision contained herein is determined to be void or
unenforceable in whole or in part, it is to that extent deemed omitted. The
remaining provisions shall not be affected in any way.
17. AMENDMENT
17.1 Amendment This Agreement shall not be amended or otherwise modified except
by a written notice of even date herewith or subsequent hereto signed by both
parties.
18. HEADINGS
18.1 Headings. The headings of the sections and subsections herein are for
convenience only and shall not control or affect the meaning or construction of
any provisions of this Agreement.
19. GOVERNING LAW
19.1 Governing Law. This Agreement shall be construed under and governed by the
laws of New York and the laws of the United States of America applicable
therein.
20. EXECUTION
20.1 Execution in Several Counterparts. This Agreement may be executed by
facsimile and in several counterparts, each of which shall be deemed to be an
original and all of which shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the 8th day of January, 1998.
SOLUCORP INDUSTRIES LTD.
Per
Authorized Signatory
SIGNED, SEALED AND DELIVERED BY
in the presence of
Name
Address
Occupation
