Exhibit 10.6
CONSULTING AGREEMENT
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THIS AGREEMENT made the 15 day of November, 1999.
BETWEEN:
XXXXX.XXX INC., a corporation incorporated under the laws
of the Province of Alberta, Canada
(hereinafter called the "Consultant")
OF THE FIRST PART
-and-
C ME RUN CORP., a corporation incorporated under the laws
of the State of Delaware
(hereinafter called the "Corporation")
OF THE SECOND PART
WHEREAS the Consultant is in the business of supplying certain
strategic services and advice to companies;
AND WHEREAS the Corporation wishes to retain the services of the
Consultant on the terms and conditions set out in this agreement for a
minimum period of one year;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
mutual covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which is acknowledged
by each of the parties, the parties covenant and agree as follows:
ARTICLE I
CONSTRUCTION
1.01 CONSTRUCTION. In this Agreement, except as otherwise expressly
provided:
(a) all words and personal pronouns relating thereto shall be read and
construed as the number and gender of the party or parties referred to
in each case require and the verb shall be read and construed as
agreeing with the required word and pronoun;
(b) the division of this Agreement into articles and paragraphs and the
use of headings is for convenience of reference only and shall not
modify or affect the interpretation or construction of this Agreement
or any of its provisions; and
(c) when calculating the period of time within which or following which
any act is to be done or step taken pursuant to this Agreement, the
date which is the reference day in calculating such period shall be
excluded. If the last day of such period is a non-business day, the
period in question shall end on the next business day.
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ARTICLE II
PROVISION OF SERVICES
2.01 SERVICES. The Consultant is hereby retained to provide the following
services (the "Services") to the Corporation, as and when requested by the
Corporation, in accordance with the provisions of this Agreement:
(a) advice and services with respect to corporate strategy and
concept definition;
(b) advice and services with respect to defining corporate culture
and development of a human resources department;
(c) advice with respect to corporate financing;
(d) advice with respect to communications;
(e) advice with respect to the hiring of third party consultants and
professionals including advertising, marketing, legal, accounting
and other professionals.
It is the intention of the parties that the Consultant will assist the
Corporation in recruiting appropriate personnel to carry out all functions
provided by the Consultant during the term of this agreement.
Notwithstanding, that some Services may, during the term of this agreement,
be carried out exclusively by the Corporation's own employees or other
consultants, it is agreed that there shall be no reduction in the fees
charged by the Consultant to the Corporation.
2.02 TIME AND ATTENTION. The Consultant agrees to make appropriate
personnel available to provide the Services, when and as requested by the
Corporation, provided that the Consultant shall not be required to take
direction from the Corporation as to how to achieve a certain result and
provided further that Corporation provides adequate notice for the Consultant
to complete the required task.
2.03 NON-EXCLUSIVE ARRANGEMENT. The Corporation acknowledges that this
agreement for Services with the Consultant is not an exclusive arrangement.
The Corporation acknowledges that the Consultant has other clients which may
have to take priority to the interests of the Corporation; however, the
Consultant will use its reasonable commercial efforts to ensure that there is
no undue delay in the performing of such Services. In the event of any such
delay, the Corporation must advise the Consultant in writing with five days
of such delay or shall be deemed thereafter to have waived any claim with
respect to such delay or damages arising therefrom.
2.04 TERM. This Agreement shall be for an initial term (the "Term") of one
(1) year, commencing on the 15 day of November, 1999 upon and subject to all
other provisions of this Agreement.
2.05 RENEWAL. This Agreement may be renewed upon the mutual agreement of
the Corporation and the Consultant and upon such terms and conditions as are
agreed upon by the Corporation and the Consultant.
ARTICLE III
REMUNERATION FOR SERVICES
3.01 REMUNERATION. In consideration of the provision of the Services, the
Corporation shall pay the Consultant as fee (the "Fee") of Seven Hundred and
Twenty Thousand Dollars ($720,000) per annum, payable in advance.
3.02 LEGAL, ACCOUNTING AND COMMUNICATIONS EXPENSES. The parties
acknowledge that the Consultant
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will be contracting with third party legal, accounting, communications and
other professional services in order to properly deliver Services to the
Corporation. In some cases, the Corporation will deal directly with such
professionals who will assist the Consultant in delivering the required
Services. The Corporation shall reimburse the Consultant for any and all
charges for such third party professionals including the payment of the
Consultants legal fees for the structuring of delivery of warrants or options
to the Consultant and/or its employees and consultants. Payment terms are net
30 days from issuance of invoice from Corporation.
3.03 REIMBURSEMENT OF EXPENSES. The Corporation shall reimburse the
Consultant for all travel, accommodation, lodging and meal expenses incurred
by the Consultant's employees or consultants who are travelling on the
Corporation's behalf. Payment terms are net 30 days from issuance of invoice
from Corporation.
ARTICLE IV
TERMINATION
4.01 TERMINATION BY CORPORATION. This Agreement may be terminated at
anytime at the option of the Consultant only by delivering written notice to
the Corporation. In such a case, the Fee shall be prorated to the time of
termination. It may also be terminated if the Corporation does not fulfill,
observe or perform any of the terms of this Agreement, or fails to make any
payment required hereunder within 5 days of receiving notice from the
Consultant of its failure to pay any such amount. In the case of a
termination as a result of a default, all Fees for the full term of the
contract shall become immediately due and payable. This Contract supersedes
and renders void the previous Service Contract signed by both parties on
November 15, 1999.
4.02 BANKRUPTCY. In the event of the bankruptcy or insolvency, whether
voluntary or involuntary, of either party, this Agreement may be terminated
at the option of the other party.
ARTICLE V
GENERAL CONTRACT PROVISIONS
5.01 NOTICES. All notices, requests, demands or other communications
required by this Agreement or desired to be given or made by the parties
hereto shall be given or made by personal delivery or by mailing the same in
a sealed envelope, postage prepaid, registered mail, return receipt
requested, and addressed:
TO THE CONSULTANT:
Xxxxx.xxx Inc., 114, 0000 - 00 Xx X.X., Xxxxxxx, Xxxxxxx, X0X 0X0
TO THE CORPORATION:
C Me Run Corp., 0000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx, 00000
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or to such other address as may from time to time be designated by notice
given in the manner provided in this paragraph. Any notice or communication
mailed as aforesaid shall be deemed to have been given and received on the
second business day next following the date of its mailing. Any notice or
writing delivered by a party hereto, to whom it is addressed, shall be deemed
to have been given and received on the day it is delivered, provided that if
such day is not a business day then the notice or communication shall be
deemed to have been given and received on the business day next following
such date.
5.02 INDEMNITY. The Corporation shall indemnify and hold harmless the
Consultant (and its third party consultants providing services in accordance
with Section 3.02) (the "Indemnified Party") against and from all claims,
demands, actions and rights of action from third parties which shall or may
arise by virtue of anything done or omitted to be done by them (directly or
through or by agents, employees or other representatives) in providing
Services under this agreement. All opinions, statements and recommendations
made by the Indemnified Party (directly or through or by agents, employees or
other representatives) are made to the best of the knowledge of Indemnified
Party based upon the best available information. Indemnified Party shall not
be liable for any misinformation, errors or omissions contained in any
report, document or opinion provided to them by the Corporation.
5.03 TIME OF THE ESSENCE. Time shall be of the essence in this Agreement
and every part hereof and no extension or variation of this Agreement shall
operate as a waiver of this provision.
5.04 AMENDMENT. No alteration, amendment or qualification of this
Agreement shall be valid unless it is in writing and is executed by both of
the parties hereto.
5.05 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Alberta, Canada.
5.06 SEVERABILITY. If any article, paragraph or any portion of any
paragraph of this Agreement is determined to be unenforceable or invalid by
the decision of any court of competent jurisdiction which determination is
not appealed or appealable, for any reason whatsoever, that unenforceability
or invalidity shall not affect the enforceability or validity of the remaining
portions of this Agreement and such unenforceable or invalid article,
paragraph or portion thereof shall be severed from the remainder of this
Agreement.
5.07 CURRENCY. All payments contemplated herein shall be paid in US funds.
5.08 FURTHER ASSURANCES. Each party to this Agreement shall execute and
deliver any and all documents and writings and do all things necessary or
expedient to achieve the purposes of this Agreement.
5.09 BINDING EFFECT. Each and all of the covenants, terms, provisions and
agreements contained herein shall enure to the benefit of and be binding upon
the parties hereto, their respective heirs, executors, administrators,
successors and assigns, committees and legal personal representatives.
5.10 RELATIONSHIP. The parties acknowledge that the Consultant is not an
employee of the Corporation, nor does any partnership or agency relationship
exist between the parties. Except with the approval of the Corporation, the
Consultant shall have no authority to act as agent for or otherwise represent
the Corporation or to enter into any agreement or to incur any obligation or
liability on behalf of the Corporation.
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IN WITNESS WHEREOF the parties hereto have duly executed this
Agreement on the date first above written.
XXXXX.XXX INC.
Per: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Per:
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C ME RUN CORP.
Per: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
President
Per:
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