Exhibit 4.8
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THE TIREX CORPORATION
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CONSULTING AGREEMENT
By and Between
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The Tirex Corporation Xxxxxxx X. Xxxxxx
0000 Xx. Xxxxxxx Xxxxxx and 0 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx Massapequa, New York
Canada H4E 1A4 USA 11758
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Whereas, the Consultant is willing to provide his services to the
Corporation for the said period under the terms and conditions
hereinafter provided; and
Whereas, the Corporation wishes to assure itself of the services of the
Consultant as provided for in Article 3 of this Agreement for the
period provided stipulated in Article 2 following:
Therefore, Witnesseth, that for and in consideration of the premises
and of the mutual promises and covenants herein contained, the parties
hereto agree as follows:
1. Definitions
1.1 Termination For Cause shall mean termination by the
Corporation of the Consultant's engagement by the Corporation
by reason of the Consultant's wilful dishonesty towards, fraud
upon, or deliberate injury or attempted injury to, the
Corporation or by reason of the Consultant's wilful material
breach of this Agreement which has resulted in material injury
to the Corporation. For purposes of this paragraph, no act or
failure to act on the Consultant's part shall be considered
"wilful" or "deliberate" unless done or omitted to be done, by
him not in good faith and without reasonable belief that his
action or omission was in the best interest of the
Corporation. Notwithstanding the foregoing, the Consultant
shall not be deemed to have been terminated for Cause without
(in written notice to the Consultant setting forth the reasons
for the Corporation's intention to terminate for Cause, (ii)
an opportunity on not less than twenty (20) days written
notice from the Corporation to the Consultant for the
Consultant, together with his counsel, to be heard before the
full Board of Directors of the Corporation, and (iii) delivery
to the Consultant of a Notice of Termination as defined in
Paragraph 7.8 hereof from the Board of Directors finding that,
following such hearing before the Board, in the good faith
opinion of such Board, the Consultant was guilty of conduct
set forth above and specifying the particulars thereof in
detail.
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1.2 Termination for "Good Reason" shall mean termination by the
Consultant of the Consultant's engagement by the Corporation
because of: (i) a "Change in Control", as defined in Paragraph
2.1 above, (ii) a failure by the Corporation to comply with
any material provision of this Agreement which has not been
cured within ten (10) days after notice of such non-compliance
has been given by the Consultant to the Company, (iii) the
determination by the Consultant that because of changes in the
composition or policies of the Board of Directors of the
Corporation, or of other events or occurrences of material
effect, that the Consultant can no longer properly and
effectively discharge his responsibilities under this
Agreement after giving the Corporation not less than thirty
(30) days prior written notice of the effective date of such
termination, or (iv) any purported termination of the
Consultant's employment which is not effected pursuant to a
Notice of Termination satisfying the requirements of Paragraph
7.8 hereof (and for purposes of this Agreement no such
purported termination shall be effective).
1.3 Termination Other Than For Cause shall mean termination by the
Corporation of the Consultant's engagement by the Corporation
(other than in a Termination for Cause) and shall include
"Constructive Termination", as that term is defined in
Paragraph 1.6.
1.4 Termination Upon a Change in Control shall mean a termination
by the Corporation of the Consultant's engagement with the
Corporation within 120 days following a Change in Control, as
that term is defined in Paragraph.1.
1.5 Voluntary Termination shall mean termination by the Consultant
of the Consultant's engagement by the Corporation other than
(i) Constructive Termination, (ii) Termination upon a Change
in Control, (iii) Termination for Good Reason, and (iv)
termination by reason of the Consultant's death or disability
as described in Paragraphs 7.3 and 7.4.
1.6 Constructive Termination shall mean termination by the
Corporation of the Consultant's employment by reason of
material breach of this Agreement by the Corporation, such
"Constructive Termination" to be effective upon thirty (30)
days written notice thereof from the Consultant to the
Corporation.
1.7 Change in Control shall mean (i) the time that the Corporation
first determines that any person and all other persons who
constitute a group (within the meaning of Section 13(d) (3) of
the Securities Exchange Act of 1934 ("Exchange Act") have
acquired direct or indirect beneficial ownership (within the
meaning of Rule 13d-3 under the Exchange Act) of twenty
percent (20%) or more of the Corporation's outstanding
securities, unless a majority of the "continuing Directors",
as that term is defined in Paragraph 2.3, approves the
acquisition not later than ten (10) business days after the
Corporation makes that determination, or (ii) the first day on
which a majority of the members of the Corporation's Board of
Directors are not "Continuing Directors".
2. Engagement
The Corporation agrees to and does hereby engage the Consultant, and
the Consultant agrees to and does hereby accept engagement by the
Corporation as a consultant in connection with the operation of certain
aspects of the business and affairs of the Corporation, for the
three-month which commenced as of the Effective Date and will end on
November 30, 2001. The period during which Consultant will serve in
such capacity shall be deemed the "Engagement Period" and shall
hereinafter be referred to as such.
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3. Consulting Services
The activities which the Consultant will undertake and the services
which the Consultant will render from the Effective Date will, without
limitation, the following:
3.1 The Consultant will become knowledgeable with all facets of
the Corporation , its products, services, management and
capital structure such that the Consultant will be able to
best assist the Corporation.
3.2 The Consultant will assist the Corporation in the preparation
of Investor, Broker and Investment Banker Materials to present
Tirex in the best light to the aforementioned groups.
3.3 The Consultant will expose the Corporation to Brokers
throughout the USA to generally enhance the Corporation's name
within the Brokerage community.
3.4 The Consultant will introduce the Corporation to select
market-makers who can be of assistance in the marketplace and
be supportive of the combined efforts of the Consultant and of
the Corporation.
3.5 The Consultant will make appropriate introductions to certain
Investment Banking Firms and other funding sources to assist
the Corporation in raising funds to meet its goals.
3.6 The Consult will present the Corporation and arrange
interviews with Management for various media (i.e. Monthly
National Radio Broadcasts) to broaden the recognition of the
Corporation in designated areas. The Consultant will assist in
raising the funds to pay for the media.
3.7 The Consultant will arrange for Tirex to be a presenter at the
NIBA (National Investment Bankers Association) show in
February 2002. Consultant warrants that he has presented
several companies at these meetings and that all will have
received both market support and funding sources as a result.
The cost is approximately US$10,000. The Consultant will
assist the Corporation in raising the necessary funds.
3.8 The Consultant will provide such other assistance as is within
his sphere of competence at the request of Management, which
assistance could include, without limitation, the handling of
stockholder inquiries and responding to and assisting in the
preparation of SEC filings, as needed.
All such services are to be performed only upon the authorization from
President of the Corporation. The Consultant shall have the sole
discretion as to the form, manner and place in which the said
consulting services shall be rendered. The Consultant shall, by this
agreement, be prevented and barred from rendering services of the same
or similar nature, as herein described, or services of any nature
whatsoever, for or on behalf of persons, firms or corporations, other
than the Corporation, in the same business as, or which are in
competition with the Corporation.
4. Compensation
4.1 The "Benchmark Price" shall be defined as the average of the
closing bid and ask on the first or last trading day preceding
the start or end of each thirty days period of the Agreement,
to be specified in each case.
4.2 For the first thirty-day period of the Agreement, the
Corporation will issue to the Consultant 175,000 shares of the
Corporation.
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4.3 For the second and third thirty-day periods, the Corporation
will issue to the Consultant such number of shares as will be
derived by multiplying 175,000 by the fraction derived using
the Benchmark Price at the beginning of the thirty-day period
as the numerator and the Benchmark Price at the end of the
thirty-day period as the denominator. The calculated number of
shares shall be designated the "Base Issuable Shares".
4.4 Where the Benchmark Price at the end of a thirty-day period is
greater than the Benchmark Price at the beginning of the same
thirty-day period, the Consultant will be entitled to receive
additional shares, hereinafter called "Bonus Shares".
4.5 The number of bonus shares attributable to the Consultant
shall be calculated according to the following formula:
4.5.1 For each ten percentage point increase in the
Benchmark Price at the end of the thirty-day period
relative to the Benchmark Price at the beginning of
the thirty-day period, the Consultant shall be
entitled to receive two (2) percentage points of
additional shares multiplied by the Base Issuable
Shares.
5. Confidentiality
5.1 The Consultant agrees that all confidential and proprietary
information relating to the business of the Corporation shall
be kept and treated as confidential both during and after the
term of this Agreement, except as may be permitted in writing
by the Corporation's Board of Directors or as such information
is within the public domain or comes within the public domain
without any breach of this Agreement.
5.2 The Consultant acknowledges that he will develop and be
exposed to information that is or will be confidential and
proprietary to the Corporation. The information includes
customer lists, technology designs, plans and information,
marketing plans, pricing data, product plans, software, and
other intangible information. Such information shall be deemed
confidential to the extent not generally known within the
trade. The Consultant agrees to make use of such information
only in the performance of his duties under this Agreement to
maintain such information in confidence and to disclose the
information only to persons with a need to know.
6. Compliance with Securities Regulations
6.1 The Consultant warrants that he is familiar with those
Securities Laws and Regulations in force in the United States
of America with regard to securities transactions in general,
and respecting the use or disclosure of confidential
information of a publicly traded company to individuals or
companies prior to such information's becoming available to
the general public.
6.2 The Consultant expressly covenants that he will not knowingly
contravene any Securities Law or Regulation in force in the
United States of America in the course of providing consulting
services to the Corporation.
7. Termination
7.1 Termination For Cause.
Termination For Cause may be effected by the Corporation in
accordance with the procedures set forth in Paragraph 1.1 at
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any time during the term of this Agreement and shall be
effected by written notification to the Consultant in
accordance with Paragraph 7.8 below and payment of any
appropriate business expenses incurred by the Consultant in
connection with his duties hereunder, all to the date of
termination, but the Consultant shall not be paid any other
compensation or reimbursement of any kind.
7.2 Termination For Good Reason.
Notwithstanding anything else in this Agreement, the
Consultant may effect a Termination for Good Reason at any
time upon giving written notice to the Corporation of such
termination in accordance with the provisions of Paragraph 7.8
hereof. Upon the effectiveness of any Termination for Good
Reason, the Consultant shall promptly be paid all accrued
remuneration and bonus compensation to the extent earned, and
any appropriate business expenses incurred by the Consultant
in connection with his duties hereunder, all to the date of
termination.
7.3 Termination by Reason of Disability.
If, during the term of this Agreement, the Consultant fails to
perform his duties under this Agreement on account of illness
of physical or mental incapacity, and such illness or
incapacity continues for a period of more than one month, the
Corporation shall have the right to terminate the Consultant's
contract hereunder by written notification to the Consultant
and payment to the Consultant of all accrued remuneration and
bonus compensation to the extent earned, and any appropriate
business expenses incurred by the Consultant in connection
with his duties hereunder, all to the date of termination, but
the Consultant shall not be paid any other compensation or
reimbursement of any kind.
7.4 Death.
In the event of the Consultant's death during the term of this
Agreement, the Consultant's contract shall be deemed to have
terminated as of the last day of the month during which his
death occurs and the Corporation shall promptly pay to his
estate or such beneficiaries as the Consultant may, from time
to time, designate all accrued remuneration and bonus
compensation to the extent earned, and any appropriate
business expenses incurred by the Consultant in connection
with his duties hereunder, all to the date of termination, but
the Consultant's estate shall not be paid any other
compensation or reimbursement of any kind.
7.5 Voluntary Termination.
In the event of a Voluntary Termination, the Corporation shall
promptly pay all accrued remuneration and bonus compensation
to the extent earned, and any appropriate business expenses
incurred by the Consultant in connection with his duties
hereunder, all to the date of termination, but no other
compensation or reimbursement of any kind.
7.6 Termination Upon a Change in Control
In the event of a Termination Upon the effectiveness of a
Change in Control, the Consultant shall immediately be paid
all accrued remuneration and bonus compensation to the extent
earned, and any appropriate business expenses incurred by the
Consultant in connection with his duties hereunder, all to the
date of termination.
7.7 Constructive Termination
The Consultant may give notice to the Corporation that the
Corporation has effected a Constructive Termination of the
Consultant's employment by reason of the Corporation's
material breach of this Agreement, by written notification to
the Corporation in accordance with Paragraph 7.8 below. Upon
the effectiveness of any Constructive Termination, the
Consultant shall immediately be paid all accrued remuneration
and bonus compensation to the extent earned, and any
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appropriate business expenses incurred by the Consultant in
connection with his duties hereunder, all to the date of
termination.
7.8 Notice of Termination
The Corporation may effect a termination of this Agreement
pursuant to the provisions of this Section upon giving thirty
(30) days written notice to the Consultant of such
termination. The Consultant may effect a termination of this
Agreement pursuant to the provisions of this Section upon
giving thirty (30) days written notice to the Corporation of
such termination.
8. Assignment
This Agreement may be assigned by the Corporation as part of the sale
of substantially all of its business; provided, however, that the
purchaser shall expressly assume all obligations of the Corporation
under this Agreement. Further, this Agreement may be assigned by the
Corporation to an affiliate, provided that any such affiliate shall
expressly assume all obligations of the Corporation under this
Agreement, and provided further that the Corporation shall then fully
guarantee the performance of the Agreement by such affiliate.
Consultant agrees that if this Agreement is so assigned, all the terms
and conditions of this Agreement shall obtain between such assignee and
himself with the same force and effect as if said Agreement had been
made with such assignee in the first instance. This Agreement is
personal to the Consultant and shall not be assigned without written
consent of the Corporation.
9. Notices
Any notices permitted or required under this Agreement shall be
delivered by hand, certified mail, or recognised overnight courier, in
all cases with written proof or receipt required, addressed to the
parties as set forth below and shall be deemed given upon receipt :
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The Tirex Corporation 0000 Xx. Xxxxxxx X. Xxxxxx
Xxxxxxx Street 0 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx Massapequa, New York
Canada H4E 1A4 USA 11758
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10. Law Governing
This Agreement shall be governed by and subject to the laws of the
Province of Quebec.
11. General
11.1 Titles and Captions
All sections, titles or captions contained in this Agreement
are for convenience only and shall not be deemed part of the
context nor effect the interpretation of this Agreement.
11.2 Entire Agreement
This Agreement contains the entire understanding between and
among the parties and supersedes any prior understandings and
agreements among them respecting the subject matter of this
Agreement.
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11.3 Agreement Binding
This Agreement shall be binding upon the heirs, executors,
administrators, successors and assigns of the parties hereto.
11.4 Computation of Time
In computing any period of time pursuant to this Agreement,
the day of the act, event or default from which the designated
period of time begins to run shall be included, unless it is a
Saturday, Sunday or a legal holiday in either Canada or in the
USA, in which event the period shall begin to run on the next
day which is not a Saturday, Sunday, or legal holiday in
Canada or in the USA, in which event the period shall run
until the end of the next day thereafter which is not a
Saturday, Sunday or legal holiday in Canada or in the USA.
11.5 Pronouns and Plurals
All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, singular or plural
as the identity of the person or persons may require.
11.6 Further Action
The parties hereto shall execute and deliver all documents,
provide all information and take or forbear from all such
action as may be necessary or appropriate to achieve the
purposes of the Agreement.
11.7 Parties in Interest
Nothing herein shall be construed to be to the benefit of any
third party, nor is it intended that any provision shall be
for the benefit of any third party.
11.8 Savings Clause
If any provision of this Agreement or the application of such
provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement or the application of
such provision to persons or circumstances other than those as
to which it is held invalid, shall not be affected thereby.
11.9 Language of the Agreement
The parties have agreed that the present document be written
in English. Les parties conviennent que le present document
soit redige en anglais.
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In Witness Whereof, the parties hereto have executed the above
Agreement this 20th day of September, 2001
For: For:
THE TIREX CORPORATION Xxxxxxx X. Xxxxxx
/s/ XXXX X. XXXXXXXX, XX. /s/ XXXXXXX X. XXXXXX
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Xxxx X. Xxxxxxxx Xx., President/CEO Xxxxxxx X. Xxxxxx, Consultant
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