EXHIBIT 10.23
CONTRACT FOR SERVICES
BETWEEN:
IMAGIS TECHNOLOGIES INC., having its primary address at 1630 - 0000 X.
Xxxxxxx Xx., Xxxxxxxxx, XX, X0X 0X0 Xxxxxx, hereinafter "Imagis"
AND:
XXXXXXX HOLDINGS LTD., with a primary address at 0000 Xxxxxxxxxxxx
Xxxxx, Xxxxxx Xxxxxxx Xxxxxxxx X0X 0X0, hereinafter "Xxxxxxx"
WHEREAS:
(a) Xxxxxxx is an independent contractor engaged in the business of
providing various corporate and consulting services to business
ventures;
(b) Imagis wishes to engage the services of Xxxxxxx;
(c) The parties have mutually agreed to evidence the terms of Xxxxxxx'x
service to Imagis by this Agreement;
WITNESS that in consideration of the respective covenants and agreements herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each party, the parties mutually
agree as follows:
PART 1
INTERPRETATION
1. For all purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires,
(a) "this Agreement" means this agreement for services from time to time
supplemented or amended by one or more agreements entered into
pursuant to the applicable provisions hereof,
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(b) the words "herein", "hereof" and "hereunder" and other words of
similar import refers to this Agreement as a whole and not to any
particular paragraph, subparagraph or other subdivision,
(c) all references to currency mean Canadian dollars (CDN$), unless
otherwise specified,
(d) a reference to an entity includes any entity that is a successor to
such entity,
(e) a reference to a Part is to a part of this Agreement, and the symbol
ss. followed by a number or some combination of numbers and letters
refers to the section, paragraph, subparagraph, clause or sub-clause
of this Agreement so designated,
(f) the headings are for convenience only and are not intended as a guide
to interpretation of this Agreement or any portion hereof, and
(g) a reference to a statute includes all regulations made pursuant
thereto, all amendments to the statute or regulations in force from
time to time, and any statute or regulation, which supplements or
supersedes such statute or regulations.
PART 2
ENGAGEMENT
ENGAGEMENT
2.1 Imagis hereby retains Xxxxxxx to provide services to Imagis and Xxxxxxx
hereby agrees to be so retained, upon and subject to the terms and
conditions hereinafter set forth for the duration of this Agreement.
TERM
2.2 This Agreement will extend for 12 months unless renewed or terminated as in
the manner provided for under this Agreement. The term of such Agreement
will be renewed, on the same terms and conditions set out herein, for
successive 12 month periods if
(a) 90 days before the expiry of such term Imagis has not exercised its
rights under Part 6 to terminate this Agreement, and
(b) 60 days before the expiry of such term Xxxxxxx gives Imagis notice of
his desire to
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renew the term for an additional 12 months.
The initial 12-month term will commence on July 15, 2003.
TERM OF REFERENCE
2.3 Imagis engages Xxxxxxx to perform the following services (the "Consulting
Services").
Xxx Xxxxxxx will operate for and on behalf of Imagis as the President and
Chief Executive Officer, on a consulting basis, reporting directly to the
Board of Directors ("Board").
PART 3
COMPENSATION
TOTAL COMPENSATION
3.1 Your compensation will consist of a monthly fee (the "Fee") of C$13,850.
Xxxxxxx Holdings will submit an invoice covering services rendered during
each monthly period plus Goods and Services Tax. In addition, a bonus will
be earned, based on annual corporate performance, as described in detail
below:
(a) Fee - Your Fee will paid as $6,000 cash with the balance paid in
shares at the average price each month, until such time as the company
achieves financial stability as determined by the Board of Directors.
(b) Bonus - The annual cash performance bonus will be 40% of cumulative
fee paid to you in each year, or partial year, based on Imagis having
completed a profitable calendar year or partial year. Profitability
will be calculated independently of the tax return statements and will
be based on terms agreed to by the Board that will take into
consideration appropriate amortization for marketing and development
expenses. The cash payments will be made subject to Imagis having
sufficient working capital to maintain its operations, net of the
payment, for a period of not less than two subsequent fiscal quarters.
(c) Car Allowance - Your car expenses will be reimbursed via a monthly
allowance of $500.
STOCK OPTIONS
3.2 As President and CEO of the Company, you are entitled to Options Package
providing for the grant of options on a minimum of 5% of the issued shares
of the company over a period not to exceed 30 months as follows:
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a) Your initial options grant will be 250,000 options with an exercise
price equal to the closing price of the shares on the day of
acceptance of this agreement subject to TSX Venture Exchange approval.
b) Within 6 months of the acceptance of this offer or within 5 working
days of the completion of any new financing and/or restructuring,
whichever occurs first, (the "Triggering Event") it is the commitment
of the Board to allocate to you sufficient additional options for you
to maintain your total number of shares under option at, or above, 5%
of the issued shares of the company. The additional options will be
issued at an exercise price equal to the closing price of the shares
on the day of acceptance of this agreement subject to TSX Venture
Exchange approval. These additional options will vest as follows:
o Upon occurrence of the Triggering Event such additional options
as required to increase the total number of vested options to
equal 2% of the then issued shares of the company will vest
immediately.
o On the first anniversary of the Triggering Event such additional
options as required to increase the total number of options
vested to equal 3.5% of the then issued shares vest immediately.
o On the second anniversary of the Triggering Event additional
options as required to increase the total number to equal 5% and
vest immediately.
o Should any event occur that results in a change of control of the
Company such as, but not limited to, being acquired either
directly or indirectly by way of a reverse take over, a pro-rata,
accelerated vesting of the options will occur such that your
total number of vested options will be equal to a number
calculated by dividing the number of months since the signing of
this agreement by 30 and multiplying this fraction by the total
number of options allocated with the provision that this will
result in no less than 2% of the issued and outstanding shares of
the company being issued to you as fully vested options.
c) If any shares under option are exercised, additional options will be
issued, at the then current share price, to maintain your share option
count at 5% of the outstanding shares of the company.
EXPENSES
3.3 Imagis will reimburse Xxxxxxx all reasonable travel expenses, including car
rentals, food and lodging and sundry expenses, and all other reasonable
expenses incurred in connection with him providing service hereunder to
Imagis promptly on receiving all appropriate and complete vouchers or
receipts.
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REVIEW
3.4 At the end of the first anniversary of this Agreement and annually
thereafter, the Compensation Committee of Imagis will carry out an
objective review of the compensation provided herein with regards to any
developments within Imagis, and, if warranted, the Fee may be increased
(but not decreased).
OTHER
3.5 Imagis assumes that you will take four (4) weeks vacation per annum.
PART 4
COVENANTS
NON-COMPETITION
4.1 Without the consent of Imagis, Xxxxxxx will not, during the term of this
Agreement, whether directly or indirectly, either individually or in
partnership or in conjunction with any person or persons, firm,
association, syndicate, joint venture, partnership, company or corporation
as principal, agent, or shareholder or in any other manner whatsoever, (a)
engage in any business (directly or through any kind of ownership or other
arrangement other than ownership of securities of publicly held
corporations), (b) accept employment with, (c) provide services to, or (d)
carry on, be engaged in, concerned with or interested in any person or
person, firm, association, syndicate, joint venture, partnership, company
or corporation engaged in, concerned with or interested in any business
primarily involved in similar activities in any country in which Imagis
operates, or is actively considering, or take any other action inconsistent
with the relationship of a board member to his corporation.
4.2 Subject to the limitation contained in 4.1, 4.3 and 4.4, Xxxxxxx may make
investments for its own account and in any business or enterprise
whatsoever.
NON-SOLICITATION OF CUSTOMERS AND EMPLOYEES
4.3 Xxxxxxx shall not, without the specific prior written consent of the Board,
during the term of this Agreement and for a period of one year after the
termination of the Agreement, either on its own behalf or on behalf of any
other person, solicit the services of or entice away any person employed by
or otherwise providing services to the other Company or its direct or
indirect subsidiaries to transfer business to any other person. However,
nothing herein
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will prevent Xxxxxxx from continuing to carry on personal activities with
employees of Imagis to the extent that such activities were ongoing at the
date of the Agreement.
NOTICE OF CONFLICT
4.4 If the Board determines that Xxxxxxx is engaging in conflicting activity
and causes Xxxxxxx to be so advised in writing, Xxxxxxx will thereafter
discontinue such activity within 30 days after such notice, or such longer
period as the Board agrees, and Xxxxxxx will, within such 30-day period,
certify in writing to Imagis that he has discontinued such activity.
SURVIVAL
4.5 The obligations of Xxxxxxx 4.3 shall, except as otherwise provided herein,
survive the expiration or termination of this Agreement and shall terminate
one year after the termination of this Agreement.
PART 5
DUTIES OF XXXXXXX
DUTIES
5.1 You will be responsible for all aspects of the Company, including strategic
planning, marketing, sales, corporate development, customer service,
technology, operations, and finance/administration.
You will continue as a Director of Imagis.
With prior notification to Imagis and with Imagis' prior written consent,
which consent will not be unreasonably withheld, Xxxxxxx may delegate or
subcontract the performance of any Consulting Service to any other Person
(as hereinafter defined). For the purposes of this Agreement, "Person"
includes, without limitation, any individual, firm, corporation,
association, partnership, joint venture, consortium, trust or other entity.
RELATIONSHIP OF PARTIES
5.2 Xxxxxxx in performing its duties hereunder is acting as an independent
contractor and in providing the Consulting Service, shall not be considered
an employee of Imagis and, as such, entitled to any benefit plans to which
regular employees of Imagis are entitled. Xxxxxxx hereby acknowledges that
he is responsible for remitting his own taxes and any contributions
required by law to be remitted and Imagis shall have no responsibility in
respect of any failure by Xxxxxxx to properly remit such amounts when due,
and Xxxxxxx agrees to indemnify and save Imagis harmless from and against
assessments, losses or
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penalties actually incurred by Imagis in this respect.
CONFIDENTIAL INFORMATION
5.3 Xxxxxxx hereby covenants, agrees and acknowledges as follows:
(a) Xxxxxxx has and will have access to and will participate in the
development of or be acquainted with confidential or proprietary
information and trade secrets related to the business of Imagis, its
subsidiaries and affiliates (collectively, the "Companies"), including
but not limited to
(i) business plans, operating, plans, marketing plans, financial
reports, operating data, budgets, wage and salary rates, pricing
strategies and information, terms of agreements with suppliers
or customers and others, prospect- and customer lists, patents,
devices, software programs, reports, correspondence, tangible
property and specifications owned by or used in the businesses
of one or more of the Companies,
(ii) information pertaining to future developments such as, but not
limited to, research and development, future marketing,
distribution, delivery or merchandising plans or ideas, and
potential new business locations, and
(iii) other tangible and intangible properties, which are used in the
business and operations of the Companies but not made publicly
available.
The information and trade secrets relating to the business and operations
of the Companies described hereinabove in this paragraph (a) are
hereinafter referred to collectively as the "Confidential Information",
provided that the term Confidential Information shall not include any
information that is or becomes generally publicly available (other than as
a result of violation of this Agreement by Xxxxxxx) or (b) that Xxxxxxx
receives on a non-confidential basis from a source (other than Imagis, its
affiliates or representatives) that is not known by it to be bound by an
obligation of secrecy or confidentiality to the Companies or any of them.
(b) Xxxxxxx hereby assigns to Imagis, in consideration of its engagement,
all Confidential Information developed by or otherwise in the
possession of Xxxxxxx at any time during the term of this Agreement,
whether or not made or conceived during working hours, alone or with
others, which relates to businesses or proposed businesses of any of
the Companies, and Xxxxxxx agrees that all such Confidential
Information shall be the exclusive property of the Companies. Upon
request of the Board of Directors of Imagis, Xxxxxxx shall execute and
deliver to the Companies any specific assignments or other documents
appropriate to vest title in such Confidential Information.
(c) Xxxxxxx shall not disclose, use or continue to make known for his or
another's benefit
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any Confidential Information or use such Confidential Information in
any way except in the best interests of the Companies in the
performance of Xxxxxxx' duties under this Agreement. Xxxxxxx may
disclose Confidential Information when required by applicable law or
judicial process, but only after notice to Imagis of Xxxxxxx'
intention to do so and opportunity for Imagis to challenge or limit
the scope of the disclosure.
(d) Xxxxxxx acknowledges and agrees that a remedy at law for any breach or
threatened breach of the provisions of this ss.5.7 would be inadequate
and, therefore, agrees that the Companies shall be entitled to
injunctive relief in addition to any other available rights and
remedies in case of any such breach or threatened breach; provided,
however, that nothing contained herein shall be construed as
prohibiting Imagis from pursuing any other rights and remedies
available for such breach or threatened breach.
(e) Xxxxxxx agrees that upon termination of its engagement by Imagis for
any reason, Xxxxxxx shall forthwith return to Imagis all Confidential
Information, documents, correspondence, notebooks, reports, computer
programs and all other materials and copies thereof (including
computer discs and other electronic media) relating in any way to the
business of the Companies in any way developed or obtained by Xxxxxxx
during, the period of its engagement with Imagis.
(f) Xxxxxxx agrees for a period of one year after the termination of this
Agreement not to pursue any business opportunities that were developed
or evaluated at Imagis during his tenure at Imagis, except such
business opportunities which have been declined by Imagis.
(g) The obligations of Xxxxxxx under this ss.5.3 shall, except as
otherwise provided herein, survive the expiration or termination of
this Agreement and shall terminate one year after the termination of
this Agreement.
PART 6
TERMINATION
TERMINATION BY EITHER PARTY
6.1 The Company may terminate this agreement without cause upon notice to you
as follows:
a) If notice is given during the first three months of this agreement,
one (1) months notice or payment-in-lieu based on the Fee;
b) If notice is given after three months of this agreement, three (3)
months notice or payment-in-lieu based on the Fee;
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c) If notice is given after nine (9) months of this agreement, six (6)
months notice or payment-in-lieu based on the Fee.
The notice from Imagis will become the Termination Allowance.
Notwithstanding any provision herein, Imagis will be entitled to terminate
this Agreement for cause or for any breach by Xxxxxxx of any material
covenant of this Agreement, in which case Xxxxxxx will have no benefit of
the Provision under this Part 6.
EFFECT OF OTHER ENGAGEMENTS
6.2 The obligation of Imagis to make payment as provided in ss.6.1, will not be
affected by, and the amount of any such payment will not be reduced by
virtue of, Xxxxxxx engaging in business on its own behalf or with others
(except to the extent same is in conflict with ss.4.1 or 4.3), at any time
after termination hereunder.
ELECTION BY XXXXXXX
6.3 Xxxxxxx may by notice to Imagis elect to take the termination allowance to
which it is entitled under ss.6.1 in a lump sum payment or in installments
over such period as it may specify.
RIGHTS OF XXXXXXX CUMULATIVE
6.4 The rights, powers and remedies of Xxxxxxx provided in this Agreement are
cumulative and do not affect any right, power of remedy otherwise available
to Xxxxxxx at law or in equity.
RETURN OF PROPERTY
6.5 On the effective date of termination Xxxxxxx will deliver up to the
Company, in a reasonable state of repair, all property, both real and
personal, including documents and copies thereof, owned, leased or bailed
to Imagis and used by or in the possession of Xxxxxxx.
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PART 7
LIABILITY
LIABILITY
7.1 Imagis assumes no responsibility to third parties for any costs, losses,
damages, claims or liability of whatever nature resulting from any act or
omission in the performance of the Consulting Services by Xxxxxxx. Xxxxxxx
shall assume all risks related to the execution of all obligations arising,
under this Agreement and shall defend indemnify and save harmless Imagis
from all liabilities, suits, actions, losses, costs (including reasonable
attorneys fees), damages, claims and demands arising out of such execution
(or non-execution) or resulting from its acts or omissions.
7.2 Notwithstanding ss.7.1, if Xxxxxxx or any of its officers, directors or
employees is or is threatened to be joined as a defendant in legal
proceedings with Imagis in respect of a matter that does not primarily
arise out of an act or omission of Xxxxxxx or the execution by Xxxxxxx of
any obligation under the Agreement, Imagis shall indemnify and save Xxxxxxx
harmless from all liabilities, suits, actions, losses, costs (including
reasonable attorney fees), damages, claims and demands arising out of or
pertaining to such actual or threatened joinder.
PART 8
GENERAL
REASONABLENESS OF RESTRICTIONS AND COVENANTS
8.1 Xxxxxxx confirms and agrees that the covenants and restrictions pertaining
to Xxxxxxx contained in this Agreement are reasonable and valid and hereby
further acknowledges and agrees that Imagis would suffer irreparable injury
in the event of any breach by Xxxxxxx of its obligations under any such
covenant or restriction. Accordingly, Xxxxxxx hereby acknowledges and
agrees that damages would be an inadequate remedy at law in connection with
any such breach and that Imagis shall be entitled, in addition to any other
right or remedy which it may have at law, in equity or otherwise, to
temporary and permanent injunctive relief enjoining and restraining Xxxxxxx
from any such breach.
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SET-OFF
8.2 Xxxxxxx hereby authorizes Imagis to set off against any amounts payable to
Xxxxxxx hereunder any bona fide indebtedness of Xxxxxxx to Imagis with
respect to this Agreement that has been recorded on the books and records
of Imagis and of which Xxxxxxx has been given written notice of and to make
deductions and to retain any portions of such payments to satisfy any such
indebtedness, to the extent permitted by law.
ASSIGNMENT
8.3 Neither of the parties may assign any right, benefit or interest in this
Agreement without the written consent of the other, and any purported
assignment without such consent will be void.
SEVERABILITY
8.4 If any provision of this Agreement is unenforceable or invalid for any
reason it will be severable from the remainder of this Agreement and, in
its application at that time, this Agreement will be construed as though
such provision was not contained herein and the remainder will continue in
full force and effect and be construed as if this Agreement had been
executed without the invalid or unenforceable provision.
WAIVER AND CONSENT
8.5 No consent or waiver, express or implied, by any party to or of any breach
or default by any other parry of any or all of its obligations under this
Agreement will
(a) be valid unless it is in writing and stated to be a consent or waiver
pursuant to this section,
(b) be relied upon as a consent to or waiver of any other breach or
default of the same or any other obligation,
(c) constitute a general waiver under this Agreement, or
(d) eliminate or modify the need for a specific consent or waiver pursuant
to this section in any other or subsequent instance.
NOTICE
8.6 Every notice, request, demand or direction (each, for the purposes of this
section, a "notice") to be given pursuant to this Agreement by any party to
another will be in writing and will be delivered or sent by registered or
certified mail postage prepaid and mailed in
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any government post office or by email, or other similar form of written
communication, in each case, addressed as above or as follows:
If to Xxxxxxx at:
email: xxx@xxxxxxx.xxx
Attention: Xxx Xxxxxxx
If to Imagis at:
email: XxxxxxXxx@xxxxxxx.xxx
Attention: Xxxxxx "Xxxx" Revell, Chairman
or to such other address as is specified by the particular party by notice
to the other.
8.7 Any notice delivered or sent in accordance with ss.8.6 will be deemed to
have been given and received
(a) if delivered, or emailed on the day of delivery,
(b) if mailed, on the earlier of the day of receipt and the sixth business
day after the day of mailing, or
(c) if sent by any form of written communication, on the first business
day following the day of transmittal.
BINDING EFFECT
8.8 This Agreement will ensure to the benefit of and be binding upon the
respective legal representatives, successors and permitted assigns of the
parties.
TIME OF ESSENCE
8.9 Time is of the essence in the performance of each obligation under this
Agreement.
GOVERNING LAW
8.10 This Agreement shall be governed by and construed in accordance with the
laws of Province of British Columbia, Canada.
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COUNTERPARTS
8.11 This Agreement may be executed in any number of counterparts with the same
effect as if all parties to this Agreement had signed the same document and
all counterparts will be construed together and will constitute one and the
same instrument.
IN WITNESS WHEREOF the parties hereto have executed this Agreement effective as
of July 15, 2003.
Per: ___________________________
Name: Xxx Xxxxxxx
Title: Consultant
Per: ___________________________
Name: Xxxxxx "Xxxx" Revell
Title: Chairman, Imagis Technologies Inc.
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