THIS AGREEMENT is made effective as of the day of March, 2000
BETWEEN:
EFINANCIAL XXXXX.XXX, INC.
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150 - 0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, Xxxxxxxxxx, 00000
(hereinafter referred to as the "Company")
OF THE FIRST PART
AND:
COBRATECH INDUSTRIES INC.
---------------------------
(hereinafter referred to as the "Contractor")
OF THE SECOND PART
WHEREAS:
A. The Company desires to retain the Contractor to assist the Company
in pursuing a strategic relationship with Xxxxx.xxx and the Contractor has
agreed to so assist 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 CONTRACTOR
1.1 Appointment of Contractor
The Company hereby appoints the Contractor to perform certain services
for the benefit of the Company as hereinafter set forth, and the Company hereby
authorizes the Contractor to exercise such powers as provided under this
Agreement. The Contractor accepts such appointment on the terms and conditions
herein set forth.
1.2 Authority of Contractor
The Contractor 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 Contractor
In performing its services hereunder, the Contractor shall be an
independent contractor and not an employee or agent of the Company, except that
the Contractor shall be the agent of the Company solely in circumstances where
the Contractor must be the agent to carry out its obligations as set forth in
this Agreement. Nothing in this Agreement shall be deemed to require the
Contractor to provide its services exclusively to the Company and the Contractor
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
Contractor's behalf and the Contractor or any of its agents or employees shall
not be entitled to the fringe benefits provided by the Company to its employees.
ARTICLE 2
CONTRACTOR'S AGREEMENTS
2.1 General
The services to be provided by the Contractor to the Company shall
involve:
(a) assisting the Company in pursuing and securing a strategic relationship
with Xxxxx.xxx so as to integrate the securities trading platform of the Company
into the Xxxxx.xxx web site on substantially the terms set out in that letter of
intent entered into between the parties dated February 16, 2000, a copy of which
is attached as Schedule "A" hereto (the "Project"); and
(b) assisting the Company in connection with pursuing and securing strategic
relationships similar in form to the Project in connection with other web sites
targeting other parts of the Austral-Asia region (the "Secondary Projects");
and in so assisting the Company, the Contractor shall at all times be subject to
the direction of the Company and shall keep the Company informed as to all
matters concerning the Contractor's activities.
2.2 Expense Statements
The Contractor shall on or before the 15th day of each calendar month
during the term hereof, or if a Saturday, Sunday or holiday the next following
business day, render to the Company an itemized statement and accounting for the
previous calendar month, together with such supporting documents as and when the
Company may reasonably require, of all expenses which the Company is obligated
by this Agreement to reimburse.
The Contractor may incur expenses in the name of the Company up to an
amount per month as agreed in advance by the Company, such expenses to relate
solely to the carrying out of the Contractor's duties hereunder. The Contractor
will immediately forward all invoices for expenses incurred on behalf of and in
the name of the Company and the Company agrees to pay said invoices directly on
a timely basis.
ARTICLE 3
COMPANY'S AGREEMENTS
3.1 Compensation of Contractor
As compensation for the services rendered by the Contractor pursuant
to this Agreement in connection with the Project, the Company shall:
(a) issue to the Contractor 200,000 common shares (the "Common Shares") in
the capital stock of the Company, said shares being issued subject to the resale
restrictions set out in Rule 144 as promulgated under the Securities Act of
1933 ("Rule 144");
(b) issue to the Contractor a further 800,000 Common Shares provided that it
is acknowledged that 800,000 of such Common Shares (the "Escrow Shares") shall
be held in escrow and shall only be released to the Contractor upon successful
completion of the Project as evidenced by an executed agreement between the
Company and Xxxxx.xxx and, in circumstances where the Escrow Shares have not
been released by June 30, 2000, the Escrow Shares shall be returned to the
Company for cancellation;
(c) issue to the Contractor a further 1,000,000 Common Shares at such time
as 200,000 securities transactions per month have been effected through the
Xxxxx.xxx web site utilizing the Company's securities trading platform for 3
consecutive months.
As compensation for services rendered by the Contractor pursuant to
this Agreement in connection with the Secondary Projects, the Company shall
compensate the contractor in a manner equivalent to (b) and (c) above, taking
into consideration factors such as the relative size of the market which is the
subject of any Secondary Project and the price of the Common Shares at the time
of successful completion of any Secondary Project relative to their current
price.
3.2 Indemnity by Company
The Company hereby agrees to indemnify, defend and hold harmless the
Contractor, from and against any and all claims, demands, losses, actions,
lawsuits and other proceedings, judgments and awards, and costs and expenses
(including reasonable legal fees), arising directly or indirectly, in whole or
in part, out of any matter related to any action taken by the Contractor within
the scope of its duties or authority hereunder, excluding only such of the
foregoing as arise from the fraudulent, gross negligence, reckless or wilful act
or omission of the Contractor, its officers, directors, agents or employees or
as arise in respect of the Contractor's
office overhead or the Contractor's general administrative expenses, and the
provisions of this Section 3.2 shall survive termination of this Agreement.
ARTICLE 4
DURATION, TERMINATION AND DEFAULT
4.1 Effective Date
This Agreement shall become effective as of the date hereof, and shall
continue on subject to termination as provided for herein.
4.2 Termination
This Agreement may be terminated by either party by giving the other
30 days written notice of such termination.
Notwithstanding the generality of the foregoing, the Agreement shall
terminate in circumstances where the Project has not been successfully completed
by June 30, 2000.
Notwithstanding the termination of the Agreement, the Contractor shall
be entitled to receive the applicable compensation provided for herein in
circumstances where the Company completes a Project or a Secondary Project
within 6 months of termination of this Agreement unless such termination has
been effected by the Contractor.
4.3 Duties Upon Termination
Upon termination of this Agreement for any reason, the Contractor
shall promptly deliver the following in accordance with the directions of the
Company:
(a) a final accounting, reflecting the balance of expenses incurred on
behalf of the Company as of the date of termination; and
(b) all documents pertaining to the Company or this Agreement, including but
not limited to, all books of account, correspondence and contracts, provided
that the Contractor 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.
ARTICLE 5
CONFIDENTIALITY
5.1 Ownership of Work Product
All reports, documents, concepts, products and processes together with
any marketing schemes, business or sales contracts, or any business
opportunities prepared, produced, developed, or acquired, by or at the direction
of the Contractor, directly or indirectly, in connection with or otherwise
developed or first reduced to practice by the Contractor performing the services
(collectively, the "Work Product") shall belong exclusively to the
Company which shall be entitled to all right, interest, profits or benefits in
respect thereof. No copies, summaries or other reproductions of any Work
Product shall be made by the Contractor or any of its agents or employees
without the express permission of the Company, provided that the Contractor is
hereby given permission to maintain one copy of the Work Product for its own
use.
5.2 Confidentiality
The Contractor shall not, except as authorized or required by its
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 its 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 Contractor shall comply, and shall cause its agents and employees
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 or employee of the Contractor execute an agreement with
the Company regarding the confidentiality of all such information.
5.3 Devotion to Contract
During the term of this Agreement, the Contractor 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
its services pursuant to this Agreement. Nothing contained herein shall be
deemed to require the Contractor to devote its exclusive time, attention and
ability to the business of the Company. During the term of this Agreement, the
Contractor shall, and shall cause each of its agents or employees assigned to
performance of the services on behalf of the Contractor to,:
(a) at all times perform its services faithfully, diligently, to the best of
its abilities and in the best interests of the Company;
(b) devote such of its time, labour and attention to the business of the
Company as is necessary for the proper performance of the Contractor's 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 Contractor as contemplated herein.
ARTICLE 6
MISCELLANEOUS
6.1 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.
6.2 Piggyback Registration Rights
If, at any time du ring the 2 years following the issuance of any
Common Shares to the Contractor, as contemplated hereunder the Company proposes
to file a registration statement qualifying the issuance of or resale of certain
of the Company's securities, the Company shall, subject to the objections of any
underwriter involved in such share issuance, include any Common Shares issued to
the Contractor hereunder in such registration statement. This provision shall
survive any termination of this Agreement.
6.3 Governing Law
This Agreement and all matters arising thereunder shall be governed by
the laws of the State of Delaware and the parties attorn to the exclusive
jurisdiction of the Courts thereof.
6.4 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.
6.5 Assignment
This Agreement may not be assigned by any party except with the
written consent of the other party hereto.
6.6 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.
6.7 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.
6.8 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 Contractor as follows:
The Company:
efinancial xxxxx.xxx, Inc.
150 - 0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX
XXX
00000
Attention: Xxxx Xxxxxx
The Contractor:
CobraTech Industries Inc.
Attention: Xxxx X. Xxxxxxxx
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.
6.9 Time of the Essence
Time is of the essence.
6.10 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.
6.11 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.
EFINANCIAL XXXXX.XXX, INC.
Per: /s/ Xxxx Xxxxxx
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Authorized Signatory
COBRATECH INDUSTRIES INC.
Per: /s/ Xxxxxxx Xxxxxx
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Authorized Signatory
