EXHIBIT 10.11
CONSULTING AGREEMENT
THIS AGREEMENT made with effect from the 24th day of August, 1999 (the
"Effective Date")
BETWEEN: Able Auctions (1991) Ltd., of
0000 Xxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0;
(the "Company")
AND: Dexton Technologies Corporation, of
0000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0;
(the "Consultant")
WHEREAS:
A. The Consultant was formerly the sole shareholder of the Company, and is now
a shareholder of the sole corporate shareholder of the Company;
B. The Consultant has experience in the auction business and in electronic
commerce and has expressed a desire to continue to be involved in the
affairs of the Company;
C. The Company wishes to utilize the Consultant's experience to facilitate the
Company's business; and
D. The Company has agreed to retain the services of the Consultant to provide
the consulting services described in Schedule "A" attached hereto (the
"Services") and the Consultant has agreed to provide the Services to the
Company, in accordance with the terms and conditions contained herein;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and
of the covenants and agreements herein contained the parties hereto covenant and
agree (the "Agreement") as follows:
1. DEFINITIONS AND INTERPRETATION
1.01 Definitions
In this Agreement, including the recitals and the schedule, the following words
and expressions have the following meanings unless the context otherwise
requires:
(a) "Confidential Information" means all information or data which may,
before or after the date of this Agreement, be delivered or made
available to the Consultant by the Company or by any affiliate of the
Company, all information or data regarding programs, products,
services, costs, equipment, operations, suppliers, employees,
contractors, distribution, marketing or customers relating to the
products, all technical information, procedures, processes, diagrams,
specifications, improvements, formulations, plans and data relating to
the business of the Company or any affiliate of the Company.
(b) "Services" means all services which the Consultant may provide from
time to time for the Company, including, without limitation, those
provided in Schedule "A" hereto.
1.02 Entire Agreement
This Agreement and any documents and agreements to be delivered pursuant to this
Agreement supersede all previous invitations, proposals, letters,
correspondence, negotiations, promises, agreements, covenants, conditions,
representations and warranties with respect to the subject matter of this
Agreement. There is no representation, warranty, collateral term or condition or
collateral agreement affecting this Agreement, other than as expressed in
writing in this Agreement. No trade terms or trade usages are to be incorporated
by reference implicitly or otherwise into this Agreement, unless expressly
referred to in this Agreement.
1.03 Amendments
No change or modification of this Agreement will be valid unless it is in
writing and signed by each party to this Agreement.
1.04 Invalidity of Particular Provision
It is intended that all of the provisions of this Agreement will be fully
binding and effective between the parties. If any particular provision or
provisions or a part of one or more is found to be void, voidable or
unenforceable for any reason whatsoever, then the particular provision or
provisions or part of the provision will be deemed severed from the remainder of
this Agreement. The other provisions of this Agreement will not be affected by
the severance and will remain in full force and effect.
1.05 Governing Law
This Agreement will be governed by and construed in accordance with the laws of
the Province of British Columbia and the laws of Canada applicable in such
Province.
2. APPOINTMENT AND AUTHORITY
2.01 Appointment of Consultant
The Company appoints the Consultant as a consultant to the Company to provide
the Services for the benefit of the Company and the Company authorizes the
Consultant to exercise the powers provided under this Agreement. The Consultant
accepts this appointment on the terms and conditions herein set forth.
2.02 Consultant's Employees Not Employees of the Company
The parties agree that none of the employees of the Consultant shall be
considered an employee of the Company.
2.03 No Partnership
This Agreement will not be construed as creating a partnership, joint venture or
agency relationship between the parties or any other form of legal association
which would impose liability upon one party for any act or failure to act by the
other party.
3. GENERAL OBLIGATIONS OF THE CONSULTANT
3.01 Limitations
The Consultant shall not be entitled to enter into any commitment, contractual
or otherwise binding upon, or pledge the credit of, the Company without the
express prior written consent of the directors of the Company.
3.02 The Company's Ownership Rights
The Consultant acknowledges and agrees that nothing contained in this Agreement
shall be construed as an assignment to the Consultant of any right, title or
interest in the Confidential Information or in any other tangible or intangible
property of the Company, in respect of which all right, title and interest is
expressly reserved by the Company.
4. COMPENSATION
4.01 Compensation
In full and complete consideration for the performance of the Services by the
Consultant, the Company shall pay the Consultant consulting fees totalling
US$240,000, payable as to US$120,000 on the Effective Date and the balance of
US$120,000 on April 1, 2000, subject to such approvals and conditions as may be
required by any regulatory authority having jurisdiction.
5. TERM
5.01 Term
This Agreement will take effect on the Effective Date and will continue in full
force and effect for one year unless earlier terminated by one of the parties in
accordance with this Agreement.
5.02 Termination With Notice
Notwithstanding any other provision of this Agreement, the Company may, in its
absolute discretion, at any time upon 48 hour's advance written notice by the
Company to the Consultant, terminate this Agreement without cause and on the
expiration of the 48 hour notice period this
Agreement and the Option granted hereunder shall be terminated. Such notice may
expire on any day of the month, but shall not affect the Consultant's
entitlement to payment of all consulting fees payable under section 4.01 hereof,
and any consulting fees which have not yet been paid or which have not yet
become due will be paid on the date of termination.
5.03 Termination Without Notice
The Company may terminate this Agreement immediately and without advance written
notice to the Consultant if:
(a) the Consultant has materially breached its duties under this Agreement
and such breach has not been cured within 7 days after receipt of
notice thereof; or
(b) the Consultant has committed a crime or wrongful act which relates
directly to the performance of this Agreement.
6. GENERAL
6.01 Notices
Any notice, direction, request or other communication required or contemplated
by any provision of this agreement shall be given in writing and shall be given
by delivering or faxing same to the Company or the Consultant, as the case may
be, at the address for that party first set out above. Any such notice,
direction, request or other communication shall be deemed to have been given or
made on the date on which it was delivered or, in the case of fax, on the next
business day after receipt of transmission. Either party may change its fax
number or address for service from time to time by notice in accordance with the
foregoing.
6.02 Assignment
This Agreement is not assignable in whole or in part by the Consultant. Any
attempt to assign any of the rights, or to delegate any of the duties or
obligations of this Agreement is void. Any assignment occurring by operation of
law such as on a bankruptcy or amalgamation will be deemed an event of default
under this Agreement.
6.03 Waiver
No failure or delay of any party in exercising any power or right under this
Agreement will operate as a waiver of such power or right, nor will any single
or partial exercise of any such right or power preclude any further or other
exercise of such right or power under this Agreement. No modification or waiver
of any provision of this Agreement and no consent to any departure by any party
from any provision of this Agreement will be effective unless it is in writing.
Any such waiver or consent will be effective only in the specific instance and
for the specific purpose for which it was given. No notice to or demand on any
party in any circumstances will entitle such party to any other or further
notice or demand in similar or other circumstances.
6.04 Enurement
Subject to the restrictions on transfer contained in this Agreement, this
Agreement will enure to the benefit of and be binding on the parties and their
respective heirs, executors, administrators, successors and assigns.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date first
above written.
THE CORPORATE SEAL of )
Able Auctions (1991) Ltd. was hereunto )
affixed in the ))
presence of: )
) c/s
/s/ Xxxxx Xxxxx )
----------------------------------------- )
Name: )
Title: )
THE CORPORATE SEAL of )
Dexton Technologies Corporation was )
hereunto affixed in the presence of: )
) c/s
/s/ Xxxxx Xxxxx )
----------------------------------------- )
Name: )
Title: )
SCHEDULE "A"
THE SERVICES
------------
The Consultant covenants and agrees with the Company to provide advisory
services to the Company with respect to:
1. the operation of an auction business;
2. the operation of an electronic commerce business;
3. marketing;
4. negotiation of banner advertising, URL link arrangements and other
value-added relationships;
5. identifying potential strategic partnerships and other arrangements; and
6. other related corporate advisory services.
