CONSULTING AGREEMENT
This consulting agreement (this "Agreement") is made the 2nd day of
September 2002 by and between AlphaCom Corporation, (the "Company"), and Xxxxxx
Xxxxxx (the "Consultant") .
RECITALS
WHEREAS, the Company wishes to engage the Consultant with respect to
certain aspects of its business;
WHEREAS, the Consultant is willing to make available to the Company the
consulting services provided for in the Agreement as set forth below;
AGREEMENT
NOW THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. TERM
The term of this Agreement shall commence on the date hereof and end on
March 31, 2003.
2. CONSULTING SERVICES
(a) Corporate financial consulting, mergers and acquisitions, long range
planning and business development.
(b) Compensation. In consideration of the consulting services set forth in
paragraph 2 (a), and subject to the terms and conditions set forth herein
the Company hereby agrees to pay Consultant US$4,000 per month plus GST of 7%,
plus hourly rates of $225 per hour through December 31, 2002 and $250 per hour
after December 31, 2002. All amounts are due within 30 days of invoice, and any
remaining amounts accrue interest at 1% per month.
(c) Expenses.
During the term of the Consultant's engagement hereunder. The
Consultant shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by the Consultant in performing services
hereunder, including all travel and living expenses while away from home on
business at the request of and in the service of the Company, provided that
such expenses are incurred and accounted for in accordance with the
policies and procedures established by the Company, and that any
expenses in excess of $500.00 have been pre-approved in writing by the
Company.
3. CONFIDENTIAL INFORMATION
(a) Confidential Information. In connection with the providing of
Consulting Services, hereunder, the Company may provide the Consultant with
information concerning the Company which the Company deems confidential (the
Confidential Information"). The Consultant understands and agrees that any
Confidential Information disclosed pursuant to this Agreement is secret,
proprietary and of great value to the Company, which value may be impaired if
the secrecy of such information is not maintained. The Consultant further agrees
that he will take reasonable security measures to preserve and protect the
secrecy of such Confidential Information, and to hold such information in
confidence and not to disclose such information, either directly or indirectly
to any person or entity during the term of this agreement or any time following
the expiration or termination hereof; provided, however, that the Consultant may
disclose the Confidential Information to an assistant to whom disclosure is
necessary for the providing of services under this agreement.
(b) Exclusions. For purposes of this paragraph 3, the term Confidential
Information shall not include Information which (i) becomes generally available
to the public other than as a result of a disclosure by the Consultant or his
assistants, agents or advisors, or (ii) becomes available on a non-confidential
basis to the Consultant from a source other than the Company or it's advisors,
provided that such source is not known to the Consultant to be bound by a
Confidentiality agreement with or other obligation of secrecy to the Company or
another party.
(c) Government Order. Notwithstanding anything to the contrary in this
Agreement, the Consultant shall not be precluded from disclosing any of the
Confidential Information pursuant to a valid order of any governmental or
regulatory authority, or pursuant to the order of any court or arbitrator.
(d) Injunctive Relief. The Consultant agrees that, since a violation of
this paragraph 3 would cause irreparable injury to the Company, and that there
may not be an adequate remedy at law for such violation, the Company shall have
the right in addition to any other remedies available at law or in equity, to
enjoin the Consultant in a court of equity for violating the provisions of this
paragraph 3.
4. REPRESENTATION AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Consultant that as of the
date hereof and as of the Closing Date (after giving effect to the
transactions contemplated hereby):
(a) Existence and Authority. The Company is a corporation duly
organized and validly existing in good standing under the laws of its
jurisdiction of incorporation and has full power and authority to own its
respective property, carry on its respective business as no being conducted, and
enter into and perform its obligations under this Agreement and to issue and
deliver the Shares to be issued by it hereunder. The Company is duly qualified
as a jurisdiction in which it is necessary to be so qualified to transact
business as currently conducted. This Agreement, has been duly authorized by all
necessary corporate action, executed, and delivered by the Company, and
constitutes the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally and to general
principals of equity.
(b) Authorization of Agreement. The Company has taken all actions and
obtained all consents or approvals necessary to authorize it to enter into
this Agreement.
(c) No Violation. Neither the execution or delivery of this Agreement, the
performance by the Company of its obligations under this Agreement, nor
the consummation of the transactions contemplated hereby will conflict
with, violate, constitute a breach of or a default (with the passage of time
or otherwise) under, require the consent or approval of or filing with any
person (other than consent and approvals which have been obtained and
filings which have been made) under, or result in the imposition of a lien
on or securities interest in any properties or assets of the Company,
pursuant to the charter or bylaws of the Company, any award of any arbitrator
or any agreement (including any agreement with stockholders),
instruments, order, judgment, decree, statute, law, rule or regulation to which
the Company is party or to which any such person or any of their respective
properties or assets is subject.
5. INDEMNIFICATION
(a) The Company shall indemnify the Consultant from and against any and all
expenses (including attorneys' fees), judgments, fines, claims, cause of
action, liabilities and other amounts paid (whether in settlement or otherwise
actually and reasonably incurred) by the Consultant in connection with such
action, suit or proceeding if (i) the Consultant was made a party to any action,
suit or proceeding by reason of the fact that the Consultant rendered advice or
services pursuant to this Agreement, and (ii) the Consultant acted in good faith
and in a manner reasonably believed by the Consultant to be in or not opposed to
the interests of the Company, and with respect to any criminal action or
proceeding, had no reasonable cause or believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the Consultant did not act in good faith in or
not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful. Notwithstanding the foregoing, the Company shall not indemnify the
Consultant with respect to nay claim, issue or matter as to which the consultant
shall have been adjudged to be liable for gross negligence or willful misconduct
in the performance other duties pursuant to this Agreement unless and only to
the extent that the court in which such action or suit was brought shall
determine upon application that, despite the adjunction of liability, but in
view of all the circumstances of the case, the Consultant is fairly and
reasonably entitled to indemnity for such expenses which such court shall deem
proper.
(b) The Consultant shall indemnify the Company from and against any and all
expenses (including attorney's fees), judgments, fines, claims, causes of
action, liabilities and other amounts paid (whether in settlement or otherwise
actually and reasonably incurred) by the Company in connection with such action,
suit or proceeding if (i) the Company was made a party to any action, suit or
proceeding by reason of the fact that the Consultant rendered advice or services
pursuant to this Agreement, and (ii) the Consultant did not act in good faith
and in a manner reasonably believed by the Consultant to be in or not opposed to
the interests of the Company, and with respect to any criminal action or
proceeding, did not reasonably believe his conduct was lawful. Notwithstanding
the foregoing, the Consultant shall not indemnify the Company with respect to
any claim, issue or matter as to which the Company shall have been adjudged to
be liable for gross negligence or willful misconduct in connection with the
performance of the Consultant's duties pursuant to this Agreement unless and
only to the extent that the court on which such action or suit was brought shall
determine upon application that, despite the adjunction of liability, but in
view of all circumstances of the case, the Company is fairly and reasonably
entitled to indemnify for such expenses which such court shall deem proper.
6. INDEPENDENT CONTRACTOR STATUS
It is expressly understood and agreed that this is a consulting
agreement only and does not constitute an employer-employee relationship.
Accordingly, the Consultant agrees that the consultant shall be solely
responsible for payment of his own taxes or sums due to the federal, state, or
local governments, overhead, workmen's compensation, fringe benefits, pension
contributions and other expenses. It is further understood and agreed that the
Consultant is an independent contractor and the company shall have no right to
control the activities of the Consultant other than during the express period of
time in which the Consultant is performing services hereunder, and that such
services provided hereunder and not because of any presumed employer-employee
relationship. The Consultant shall have no authority to bind the company.
The parties further acknowledge that the Company's services hereunder are
not exclusive, but that the Consultant shall be performing services and
undertaking other responsibilities, for and with other entities or persons,
which may directly or indirectly compete with the Company. Accordingly, the
services of the Consultant hereunder are on a part time basis only, and the
Company shall have no discretion, control of, or interest in, the Consultant's
services which are not covered by the terms of the Agreement. The Company hereby
waives any conflict of interest which now exists or may hereafter arise with
respect to Consultant's current employment and future employment.
7. NOTICE
All notices provided by this Agreement shall be in writing and shall be
given by facsimile transmission, overnight courier, by registered mail or by
personal delivery, by one party to the other, addressed to such other party at
the applicable address set forth below, or to such other address as may be given
for such purpose by such other party by notice duly given hereunder. Notice
shall be deemed properly given on the date of the delivery.
To Consultant: Xxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
To the Company: AlphaCom Corporation
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
8. MISCELLANEOUS
(a) Waiver. Any term or provision of this Agreement may be waived at any time
by the party entitled to the benefit thereof by a written instrument duly
executed by such party.
(b) Entire Agreement. This Agreement contains the entire understanding
between the parties hereto with respect to the transactions contemplated hereby,
and may not be amended, modified, or altered except by an instrument in writing
signed by the party against whom such amendment, modification, or alteration is
sought to be enforced. This Agreement supercedes and replaces all other
agreements between the parties with respect to any services to be performed by
the Consultant of behalf of the Company.
(c) Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the Province of Ontario.
(d) Binding Effect. This Agreement shall bind and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators,
successors and assigns.
(e) Construction. The captions and headings contained herein are inserted for
convenient reference only, are not a part hereof and the same shall not limit
or construe the provisions to which they apply. Reference in this agreement
to "paragraphs" are to the paragraphs in this Agreement, unless otherwise
noted.
(f) Expenses. Each party shall pay and be responsible for the cost and
expanses, including, without limitations, attorneys' fees, incurred by such
party in connection with negotiation, preparation and execution of this
Agreement and the transactions contemplated hereby.
(g) Assignment. No party hereto may assign any of its rights or delegate any
of its obligations under this Agreement without the express written consent of
the other party hereto.
(h) No Rights to Others. Nothing herein contained or implied is intended or
shall be construed to confer upon or give to any person, firm or corporation,
other than the parties hereto.
(i) Counterparts. This Agreement may be executed simultaneously in two
counterparts, each of which shall be deemed an original, but both of which
together shall constitute on and the same agreement, binding upon both parties
hereto, notwithstanding that both parties are not signatories to the original or
the same counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date and
year first above written.
AlphaCom Corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Its: Chief Executive Officer
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
