CONSULTING AGREEMENT
THIS AGREEMENT made the 1st day of October, 2000.
BETWEEN:
MERLIN SOFTWARE TECHNOLOGIES INC.
(the "Company")
AND:
XXXXX XXXXXXX
(the "Consultant")
WHEREAS:
A. The Consultant is familiar with the business of the Company and has
valuable experience and abilities to offer the Company in the area of investor
relations.
B. The Company wishes to avail itself of the Consultant's valuable skill and
abilities and has agreed to engage the Consultant on the terms and conditions
set out herein.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the premises
and of the mutual covenants and agreements set out the parties hereto covenant
and agree as follows:
Duties:
1.1 The Company hereby engages the Consultant as an Investor Relations
Consultant to perform all aspects of the Company's investor relations in
accordance with the terms hereof.
1.2 The Consultant hereby agrees that he shall make himself available at
such times and from time to time as the Company may reasonably require, to
render services to the Company in the area of investor relations.
1.3 The Consultant agrees to fulfil his duties hereunder faithfully,
diligently, and using his best efforts to facilitate the interests of the
Company.
Term:
2.1 The engagement of the Consultant hereunder shall be for an indefinite
term.
Compensation:
3.1 The company agrees to pay the Consultant on account of the consultative
services provided to the Company by the Consultant, the sum of $4,000 (CDN) per
month, in arrears, with semi-monthly payments in the sum of $2,000 (CDN) made on
the 15th and 30th day of each month.
3.2 The Company will grant the Consultant the following stock options
(hereinafter the "Stock Options"):
(a) 20,000 Options at the price of $1.75 (U.S.) per share, to be issued on
October 3,1 2000;
(b) 30,000 Options at the price of $1.75 (U.S.) per share to be issued on
December 31, 2000.
3.3 The Stock Options are available to be exercised on or before the dates
set out above, save that in respect of the 30,000 free-trading shares to be
issued on December 31, 2000, the Consultant shall have the right to exercise the
option even if, at the time, this Consulting Agreement has been terminated
either by the Company or the Consultant.
Expenses:
4.1 The Company agrees to reimburse the Consultant for all travelling and
other expenses actually and properly incurred by him at the request of the
Company in connection with his duties hereunder.
4.2 The expenses covered hereby are to be incurred only on the prior written
instructions of the Chief Financial Officer of the Company, and will be
reimbursed upon presentation to the Company of the statements and vouchers
relating to these expenses.
Confidentiality:
5.1 The Consultant will, for the duration of this Consulting Agreement, have
access to and be entrusted with confidential information of the Company. This
will include information relating to the Company's business, financial affairs,
commission and pricing structures, technology as well as customer and supplier
lists, that exist as at the date hereof, as well as any such information that
will be created or come into existence during the Term.
5.2 The Consultant therefore expressly agrees that he will not use or
disclose, during or after the term of this Consulting Agreement, any such
confidential information except as may be necessary in the discharge of his
duties under this Consulting Agreement.
5.3 The Consultant therefore agrees to sign the standard form of
Confidentiality Agreement that employees of the Company are required to sign in
the normal course.
Fiduciary Duties:
6.1 The Consultant has, and will continue to have throughout the duration of
this Consulting Agreement, fiduciary duties that are owed to the Company.
6.2 The Consultant expressly agrees to abide by and comply with those
fiduciary obligations which are limited to the following:
(a) The duty not to approach the customers of the Company for a period of
six months from the termination of this Consulting Agreement; and
(b) The duty not to approach the employees of the Company with a view to
soliciting them away from the Company to work for, directly or indirectly, the
Vendors.
Severability:
7.1 Each provision contained in this agreement is declared to constitute a
separate and distinct covenant and to be severable from all other separate and
distinct covenants.
7.2 If any of the capacities, activities, periods, or areas specified herein
or in any schedule hereto are considered by a Court of competent jurisdiction as
being unreasonable, the parties hereto agree that that Court shall have
authority to limit these capacities, activities, periods, or areas to those that
the Court may deem proper in the circumstances.
7.3 If, notwithstanding the foregoing any covenant or provision of this
agreement is determined to be void or unenforceable in whole or in part, that
covenant or provision shall be deemed not to affect or impair the enforceability
or validity of any other covenant or provision of this agreement or any part
thereof.
Remedies for Breach:
8.1 The parties hereto recognize that a breach by the Consultant of any of
the covenants herein contained would result in damages to the Company and that
the Company cannot necessarily adequately determine these damages or in any
event adequately be compensated for these damages by monetary award.
8.2 Accordingly, the Consultant agrees that in the event of any breach, in
addition to all other remedies available to the Company at law or in equity, the
Company shall be entitled as a matter of right to apply to a Court of competent
equitable jurisdiction for relief by way of restraining order, injunction,
decree, or otherwise that may be appropriate to ensure compliance with the
provisions of this agreement.
Termination:
9.1 This Consulting Agreement can be terminated by the Consultant for any
reason whatsoever, on 30 days' notice to the Company, and at that time this
Consulting Agreement will be at an end.
9.2 This Consulting Agreement can be terminated by the Company at any time
for just cause.
9.3 The Consulting Agreement can be terminated by the Company for reasons
other than just cause by giving the Consultant the following notice, or salary
in lieu thereof:
(a) 1 month: If the Consulting Agreement has been in force for 6 months
(b) 2 months: If the Consulting Agreement has been in force for 12
months
(c) 3 months: If the Consulting Agreement has been in force for 12 - 24
months
(d) 4 months: If the Consulting Agreement has been in force for 24 - 28
months
(e) 6 months: If the Consulting Agreement has been in force of 48 months
Non-Waiver:
10.1 No consent or waiver, express or implied, of any parties to, or of any
breach or default by the other party in the performance by the other of its
obligations hereunder shall be deemed or construed to be a consent or waiver to
or of any other breach or default of these obligations or any other obligations
of that party.
10.2 Failure of the part of any party to complain of any act or failure to
act by the other of them, or to declare the other party in default irrespective
of how long that failure continues, shall be constitute a waiver that party of
its rights hereunder or of the right to then or subsequently declare a default.
Time of Essence:
11.1 Time shall be of the essence of this transaction.
Enurement:
12.1 This agreement shall enure to the benefit of and be binding upon the
parties hereto and their heirs, executors, administrators, successors and
assigns.
Laws:
13. This agreement shall be construed in accordance with and governed by the
laws in force from time to time in the Province of British Columbia.
IN WITNESS WHEREOF this agreement has been executed by the parties hereto as of
the day and year first above written.
THE CORPORATE SEAL OF MERLIN SOFTWARE TECHNOLOGIES, was hereunto affixed in the
presence of:
Authorized Signatory C/S
SIGNED, SEALED and DELIVERED by XXXXX XXXXXXX in the presence of:
/s/ signed
Signature
Print Name
0000 - 000xx Xx. Xxxxxxx, XX )
Address
Accountant /s/ Xxxxx Xxxxxxx
Occupation XXXXX XXXXXXX
