EXHIBIT 10.4
MANAGEMENT ADVISORY SERVICES AGREEMENT WITH
AMBER TIGER HOLDINGS CORP. DATED
JANUARY 1, 2004
This MANAGEMENT ADVISORY SERVICES AGREEMENT is dated for reference as of
the 1st. day of January, 2004.
BETWEEN:
AMBER TIGER HOLDINGS CORP., having its head office at
0000 Xxxxxx Xxxxx, Xxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx
(hereinafter called "ATHC")
OF THE FIRST PART
AND:
CIROND NETWORKS INC., having its head office at 213 -
00000 Xxxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000
(hereinafter called the "Company")
OF THE SECOND PART
WHEREAS ATHC provides various consulting, administrative, management
and related services;
AND WHEREAS the Company wishes to engage ATHC to provide the services
set out below;
NOW THEREFORE THE PARTIES HAVE AGREED and do hereby agree as follows:
1.0 SCOPE OF SERVICES
During the term of this Agreement, ATHC will provide the services (the
"Services") described in Schedule "A" attached hereto.
2.0 FEES
The Company will pay to ATHC a fee of US$15,000 per month.
3.0 EXPENSES
3.1 The Company will reimburse ATHC for all reasonable and necessary expenses
incurred by ATHC in performance of the Services. The Company will, at the
request of ATHC, provide funds in advance for substantial disbursements.
3.2 Reasonable and necessary expenses will include, but are not limited to,
travel, telephone, facsimile, photocopying, postage, stationery, courier and
printing costs associated with the
-2-
Services, and the cost of any independent legal, accounting, technical
consulting services obtain by ATHC in connection with the provision of the
Services.
4.0 REPRESENTATIVES OF THE COMPANY
The Company will provide to ATHC, for the term of this Agreement, the
director, a senior employee or officer of the Company designated in Schedule "A"
to provide ATHC with any assistance required from the Company in performance of
the Services, each of whom will be authorized to act on behalf of the Company.
5.0 REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 The Company warrants and represents, which representations and
warranties will remain in full force and effect during the term of this
agreement, to ATHC that:
(a) the Company and its subsidiaries, if any, are valid and
subsisting corporations duly incorporated and in good standing
under the laws of the jurisdictions in which they are
incorporated, continued or amalgamated; and
(b) the Company has all necessary corporate power and authority to
enter into this Agreement and to perform its obligations and
the execution and delivery of this Agreement by the Company and
the performance of its obligations has been authorized by all
necessary corporate action on the part of the Company.
6.0 ATHC WARRANTS AND REPRESENTS TO THE COMPANY THAT:
(a) it is a valid and subsisting corporation under the laws of the
jurisdiction in which it was incorporated;
(b) it has all necessary corporate power and
authority to enter into this Agreement and to perform its
obligations and the execution and delivery of this Agreement by
ATHC and the performance of its obligations has been authorized
by all necessary corporate action on the part of ATHC; and
(c) it will comply with the requirements of all applicable
corporate and securities laws, in performing the Services.
7.0 INVOICING
7.1 ATHC will deliver to the Company on or before the 15th day of each calendar
month, an invoice for the previous month (the "Invoice") setting out the fee
payable to ATHC pursuant to paragraph 2.0 hereto, the expenses incurred by ATHC
in that month, and attached to the Invoice will be a summary of expenses
incurred.
7.2 The Invoice will be payable immediately upon receipt.
-3-
8.0 TERM OF AGREEMENT
8.1 Subject to early termination as set out below, this Agreement will commence
on the date hereof for a term of one year, subject to either party's right to
terminate on three months' written notice to the other party. The agreement will
automatically be renewed on an annual basis unless terminated by either party.
8.2 On termination of this Agreement, the Company will pay to ATHC any fees and
disbursements owing to the date of termination and neither ATHC nor the Company
will have any further rights or obligations under this Agreement other than
pursuant to paragraph 10 which will survive the termination of this Agreement.
9.0 CONFIDENTIALITY
THC will use its best efforts to preserve and protect any confidential
information concerning the business and financial affairs of the Company or any
of its dealings, transactions or affairs which may be disclosed to ATHC by the
employees, officers or agents of the Company during the term of this Agreement.
Without restricting the generality of the foregoing, ATHC will not disclose any
of the aforesaid information to third parties without the prior written consent
of the Company, except that such consent will not be required where the
information is disclosed:
(a) to the employees, officers or agents of ATHC to enable such
persons to assist ATHC in providing the Services;
(b) to the employees, officers or agents of the Company or other
persons as the directors of the Company may designate;
(c) pursuant to any law, statute, regulation, ordinance or
administrative, regulatory or judicial order; or
(d) to any other person or party which ATHC requires to assist in
providing the Services.
The above covenants as to confidentiality will not apply to any
information which:
(e) through no act or omission of ATHC becomes generally known or
part of the public domain;
(f) is furnished to others by the Company without restriction or
disclosure; or
(g) is furnished to ATHC by a third party.
-4-
10.0 ACCESS TO MATERIAL FACTS
10.1 The Company will provide ATHC with full access to material facts related to
the Company's corporate activities and financial position, and keep ATHC advised
of current and impending corporate developments.
10.2 The Company will send to ATHC, from time to time, as soon as available,
copies of all documents filed by the Company with securities commissions, stock
exchanges and other regulatory authorities including, without limitation, all
financial statements, press releases, material change reports, quarterly reports
and filing statements of the Company.
10.3 The Company will advise ATHC immediately in writing of the full particulars
of any "material change", as such term is defined in the SECURITIES ACT (British
Columbia), in the affairs of the Company.
11.0 INDEMNIFICATION
The Company will indemnify and save ATHC, its directors, employees,
officers, representatives and agents, harmless from and against all liability
including all actions, claims, damages, costs and legal fees which ATHC may
incur or be a party to, arising out of actions taken or statements made by ATHC
at the Company's request or based upon information supplied or approved by the
Company.
12.0 AMENDMENT OF AGREEMENT
This Agreement may only be amended by written agreement between the
parties hereto.
13.0 GENERAL PROVISIONS
13.1 EXISTENCE OF CLAIM. The provisions of this Agreement will be enforceable
notwithstanding the existence of any claim or cause of action of the Company
against ATHC whether predicated on this Agreement or otherwise.
13.2 GOVERNING LAW. This Agreement is and will be governed and construed in
accordance with the laws of the Province of British Columbia and the parties
hereto irrevocably attorn to the jurisdiction of the courts of the Province of
British Columbia.
13.3 ENTIRE AGREEMENT. This Agreement represents the entire understanding of the
parties with respect to the specific subject matter of this Agreement and
supersedes all previous understandings, written or oral, between the parties
with respect to the subject matter.
13.4 ASSIGNMENT. Neither party will assign its interest hereunder without the
express written consent of the other.
-5-
13.5 RELATIONSHIP OF PARTIES. The legal relationship between the parties hereto
is that of independent contracting parties and is not and will not be deemed to
be any other form of legal relationship, including, without limiting the
generality of the foregoing, joint venture, partners or principal and agent.
13.6 TIME OF ESSENCE. Time will be of the essence of this Agreement.
13.7 HEADINGS. The headings used in this Agreement are for convenience of
reference only and do not form part of this Agreement and are not to be used in
the interpretation thereof.
13.8 SEVERABILITY. If any part of this Agreement is found to be void or
unenforceable in whole or in part, it will not be deemed to effect or impair the
validity of any other part of this Agreement which will continue in full force
and effect and be construed as if this Agreement had been executed without the
invalid part and it is hereby declared the intention of the parties that this
Agreement would have been executed without reference to any part which may, for
any reason, be determined to be void or unenforceable.
13.9 WAIVER. The failure of ATHC to insist, in one or more instances, upon the
performance of any term or terms of this Agreement will not be construed as a
waiver by ATHC to require such performance in the future, performance of any
such terms and the obligations of the Company will continue in full force and
effect.
13.10 NOTICE. Any notice or any writing required or permitted to be given
hereunder will be sufficiently given if delivered personally or transmitted by
telecopier to the addresses or facsimile numbers of the parties set out below:
(a) If to ATHC:
Amber Tiger Holdings Corp.
Attention: Xxxxxxxx Xxxxxx
Fax No.: (000) 000-0000
(b) If to the Company:
Attention: Xxxxxxxx Xxxxxx
Fax No.: (000) 000-0000
Such notice will be deemed to have been received, if received during
the normal business hours of the recipient on the date of delivery or
transmission. If such notice is received after the end of such normal business
hours, it will be deemed to have been received on the next business day
following the date of delivery or transmission. Any party may, from time to
time, by notice in writing, change its address for the purposes of this
paragraph.
-6-
13.11 ENUREMENT. This Agreement will be binding upon and enure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
IN WITNESS WHEREOF the parties have caused this Agreement to be
executed as of the day and year first above written.
AMBER TIGER HOLDINGS CORP. CIROND NETWORKS INC.
By: /s/ XXXXXXXX X. XXXXXX By: /s/ XXXXXXXX X. XXXXXX
----------------------------- ---------------------------------
Xxxxxxxx X. Xxxxxx Xxxxxxxx X. Xxxxxx
Authorized Signatory Authorized Signatory
:
SCHEDULE "A"
1.0 SCOPE OF SERVICES
ATHC shall assist the Company to provide all business management and
executive services related to the role of the President and Chief Executive
Officer of the Company
2.0 REPRESENTATIVES OF COMPANY
Xxxxxxxx X. Xxxxxx
