CONSULTING AGREEMENT
THIS is dated for reference the 3rd day of October, 2000
BETWEEN:
MERLIN SOFTWARE TECHNOLOGIES INTERNATIONAL INC., a company incorporated pursuant
to the laws of the State of Nevada, of Xxxxx 000, 0000 Xxxxxxxx Xxxxxxx,
Xxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Company")
OF THE FIRST PART
AND:
XXXX XXXX, of 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx, 00000
(the "Consultant")
OF THE SECOND PART
A. The Company desires to retain the Consultant to assist the Company
in locating and hiring (the "Services") a senior marketing employee who will be
responsible for the marketing of the Company's software products to original
equipment manufacturers and value added resellers (the "Marketing
Professional"); and
B. The Consultant has agreed to provide the Services to the Company on
the terms and conditions of this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
mutual covenants and promises set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
each, the parties hereto agree as follows:
ARTICLE 1
APPOINTMENT AND AUTHORITY OF CONSULTANT
1.1 Appointment of Consultant
The Company hereby appoints the Consultant to perform the Services for
the benefit of the Company as hereinafter set forth, and the Company hereby
authorizes the
Consultant to exercise such powers as provided under this Agreement. The
Consultant accepts such appointment on the terms and conditions herein set
forth.
1.2 Authority of Consultant
The Consultant shall have no right or authority, express or implied,
to commit or otherwise obligate the Company in any manner whatsoever except to
the extent specifically provided herein or specifically authorized in writing by
the Company.
1.3 Independent Consultant
In performing the Services, the Consultant shall be an independent
contractor and not an employee or agent of the Company, except that the
Consultant shall be the agent of the Company solely in circumstances where the
Consultant must be the agent to carry out his obligations as set forth in this
Agreement. Nothing in this Agreement shall be deemed to require the Consultant
to provide the Services exclusively to the Company and the Consultant hereby
acknowledges that the Company is not required and shall not be required to make
any remittances and payments required of employers by statute on the
Consultant's behalf and the Consultant or any of his agents shall not be
entitled to the fringe benefits provided by the Company to its employees.
ARTICLE 2
COMPANY'S AGREEMENTS
2.1 Compensation of Consultant
As compensation for the Services rendered by the Consultant pursuant to
this Agreement, the Company shall pay to the Consultant US$3,250.00 per month
(the "Monthly Retainer") until such time as the Services have been performed and
the Marketing Professional has entered into an employment agreement with the
Company.
In the event that the Company hires the Marketing Professional as a
result of the efforts of the Consultant in the performance of the Services, the
Consultant will then be entitled to receive a fee of thirty percent (30%) of the
Marketing Professional 's annual salary less the aggregate amount of all Monthly
Retainers paid to that date (the "Fee"), provided that the Marketing
Professional remains in the employ of the Company for a period of not less than
six (6) months.
The Fee shall become payable to the Consultant on the first business
day following the date which the Marketing Professional commences his or her
employment with the Company. The Fee will be payable in common shares (the "Fee
Shares") in the capital of the Company issued at the market price of the
Company's common shares on the day that the Fee becomes payable. The Company
will issue the Fee Shares to the Consultant upon the execution of all necessary
documents, including a Subscription Agreement, and the Fee Shares will be
deposited in escrow with the Company's solicitors and not delivered to the
Consultant until the Marketing Professional has remained in the employ of the
Company for a period of six (6) months.
2.2 Consultant's Acknowledgements
The Consultant acknowledges that the Fee Shares to be issued pursuant
to the terms of this Agreement will not be registered under the United States
Securities Act of 1933 (the "1933 Act"), or under any state securities or "blue
sky" laws of any state of the United States, and, unless so registered, may not
be offered or sold in the United States or to U.S. persons, except pursuant to
an effective registration statement under the 1933 Act, pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
1933 Act. The Consultant further acknowledges that the Fee Shares will be
subject in the United States to a one (1) year hold period from the date of
issuance of the Fee Shares.
ARTICLE 3
DURATION, TERMINATION AND DEFAULT
3.1 Effective Date
This Agreement shall become effective as of the ____ day of October,
2000 (the "Effective Date"), and shall continue for a period of ninety (90) days
from the Effective Date or until terminated pursuant to the terms of this
Agreement.
3.2 Termination
This Agreement may be terminated by either party by giving the other
ten (10) days written notice of such termination provided that this Agreement
may be immediately terminated by the Company if the Consultant is in breach of
any term of this Agreement.
3.3 Duties Upon Termination
Upon termination of this Agreement for any reason, the Consultant shall
upon receipt of all sums due and owing, promptly deliver the following in
accordance with the directions of the Company all documents pertaining to the
Company or this Agreement, including but not limited to, all books of account,
correspondence and contracts, provided that the Consultant shall be entitled
thereafter to inspect, examine and copy all of the documents which it delivers
in accordance with this provision at all reasonable times upon three (3) days'
notice to the Company.
3.4 Compensation of Consultant on Termination
Upon termination of this Agreement, the Consultant shall be entitled
to receive as his full and sole compensation in discharge of obligations of the
Company to the Consultant under this Agreement all sums due and payable under
this Agreement to the date of termination and the Consultant shall have no right
to receive any further payments; provided, however, that the Company shall have
the right to offset against any payment owing to the Consultant under this
Agreement any damages, liabilities, costs or expenses suffered by the Company by
reason of the fraud, negligence or wilful act of the Consultant, to the extent
such right has not been waived by the Company.
ARTICLE 4
CONFIDENTIALITY
4.1 Confidentiality
The Consultant shall not, except as authorized or required by his
duties, reveal or divulge to any person or companies any of the trade secrets,
secret or confidential operations, processes or dealings or any information
concerning the organization, business, finances, transactions or other affairs
of the Company, which may come to his knowledge during the term of this
Agreement and shall keep in complete secrecy all confidential information
entrusted to him and shall not use or attempt to use any such information in any
manner which may injure or cause loss, either directly or indirectly, to the
Company's business or may be likely so to do. This restriction shall continue
to apply after the termination of this Agreement without limit in point of time
but shall cease to apply to information or knowledge which may come into the
public domain.
The Consultant shall comply, and shall cause his agents to comply,
with such directions as the Company shall make to ensure the safeguarding or
confidentiality of all such information. The Company may require that any agent
of the Consultant execute an agreement with the Company regarding the
confidentiality of all such information.
4.2 Devotion to Contract
During the term of this Agreement, the Consultant shall devote
sufficient time, attention, and ability to the business of the Company, and to
any associated company, as is reasonably necessary for the proper performance of
the Services pursuant to this Agreement. Nothing contained herein shall be
deemed to require the Consultant to devote his exclusive time, attention and
ability to the business of the Company. During the term of this Agreement, the
Consultant shall, and shall cause each of his agents assigned to performance of
the Services on behalf of the Consultant, to:
(a) at all times perform the Services faithfully, diligently, to the best of
his abilities and in the best interests of the Company;
(b) devote such of his time, labour and attention to the business of the
Company as is necessary for the proper performance of the Services hereunder;
and
(c) refrain from acting in any manner contrary to the best interests of the
Company or contrary to the duties of the Consultant as contemplated herein.
4.3 Other Activities
The Consultant shall not be precluded from acting in a function
similar to that contemplated under this Agreement for any other person, firm or
company.
ARTICLE 5
MISCELLANEOUS
5.1 Waiver; Consents
No consent, approval or waiver, express or implied, by either party
hereto, to or of any breach of default by the other party in the performance by
the other party of its obligations hereunder shall be deemed or construed to be
a consent or waiver to or of any other breach or default in the performance by
such other party of the same or any other obligations of such other party or to
declare the other party in default, irrespective of how long such failure
continues, shall not constitute a general waiver by such party of its rights
under this Agreement, and the granting of any consent or approval in any one
instance by or on behalf of the Company shall not be construed to waiver or
limit the need for such consent in any other or subsequent instance.
5.2 Governing Law
This Agreement and all matters arising thereunder shall be governed by
the laws of the Province of British Columbia and the federal laws of Canada
applicable therein.
5.3 Successors, etc.
This Agreement shall enure to the benefit of and be binding upon each
of the parties hereto and their respective heirs, successors and permitted
assigns.
5.4 Assignment
This Agreement may not be assigned by any party except with the
written consent of the other party hereto.
5.5 Entire Agreement and Modification
This Agreement constitutes the entire agreement between the parties
hereto and supersedes all prior agreements and undertakings, whether oral or
written, relative to the subject matter hereof. To be effective any
modification of this Agreement must be in writing and signed by the party to be
charged thereby.
5.6 Headings
The headings of the Sections and Articles of this Agreement are
inserted for convenience of reference only and shall not in any manner affect
the construction or meaning of anything herein contained or govern the rights or
liabilities of the parties hereto.
5.7 Notices
All notices, requests and communications required or permitted
hereunder shall be in writing and shall be sufficiently given and deemed to have
been received upon personal delivery or, if mailed, upon the first to occur of
actual receipt or forty-eight (48) hours after
being placed in the mail, postage prepaid, registered or certified mail, return
receipt requested, respectively addressed to the Company or the Consultant as
follows:
The Company:
Merlin Software Technologies International, Inc.
Xxxxx 000, 0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, XX X0X 0X0
Attention: Xxxxxx Xxxxxx
Facsimile: 000-000-0000
The Consultant:
Xxxx Xxxx
000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxx Xxxxxxxx, 00000
Facsimile: (000) 000-0000
or such other address as may be specified in writing to the other party, but
notice of a change of address shall be effective only upon the actual receipt.
5.8 Time of the Essence
Time is of the essence of this Agreement.
5.9 Further Assurances
The parties hereto agree from time to time after the execution hereof
to make, do, execute or cause or permit to be made, done or executed all such
further and other lawful acts, deeds, things, devices and assurances in law
whatsoever as may be required to carry out the true intention and to give full
force and effect to this Agreement.
5.10 Counterparts
This Agreement may be executed in several counter-parts, each of which
will be deemed to be an original and all of which will together constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first above written.
MERLIN SOFTWARE
TECHNOLOGIES INTERNATIONAL, INC.
Per: /s/ Xxxxxx XxXxxxxxx
Authorized Signatory
)
WITNESSED BY: )
)
/s/ signed )
Name )
0 X. Xxxxxx Xxxxx )
Address )
Xxxxxxxxxx, XX 00000 )
Receptionist ) /s/ Xxxx Xxxx
Occupation ) XXXX XXXX
