EXHIBIT 4(c)2
CONSULTING AGREEMENT
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THIS AGREEMENT made as of the 1st day of April, 2000 (the "EFFECTIVE DATE").
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B E T W E E N:
XXXXXXX XXXXXXXX
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(hereinafter referred to as the "CONSULTANT)
OF THE FIRST PART
- and -
XXXXXXXXX.XXX INC., a corporation incorporated under the
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laws of the province of Ontario, (hereinafter referred
to as the "CORPORATION")
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OF THE SECOND PART
WHEREAS the Consultant has certain considerable expertise in the area
of corporate acquisitions and management
AND WHEREAS the Corporation is engaged as Internet development and
fulfilment services company (the CORPORATION'S BUSINESS);
AND WHEREAS the Corporation desires to obtain and apply the expertise
of the Consultant to the Corporation's Business:
THIS AGREEMENT WITNESSES that in consideration of Ten Dollars ($10.00)
paid by each party to the other, the receipt and sufficiency of which is hereby
acknowledged by each, together with the covenants and agreements herein
contained, the parties hereto agree as follows:
21. CONSULTING SERVICES - The Corporation hereby retains the services of the
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Consultant, on a non-exclusive basis, and the Consultant hereby agrees to
provide the consulting services to the Corporation described in this Agreement.
22. SCOPE OF SERVICES - The Consultant shall act as Chief Executive Officer
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of the Corporation until the duration of this agreement and render all the
services usually associated with such title.
23. QUALIFICATIONS - The Consultant represents that he has all the necessary
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knowledge, experience, abilities, qualifications and contracts to effectively
perform the Services. The Consultant represents that he shall provide the
Services in such manner as to permit the Corporation to have full benefit of the
Consultant's knowledge, experience, abilities, qualifications and contacts and
that it shall provide the Services in strict compliance with all applicable laws
and regulations.
24. TERM OF AGREEMENT - The provision of services by the Consultant to the
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Corporation hereunder shall commence on the Effective Date and shall, subject to
Section 14 of this Agreement, remain in force until March 31, 2005. Thereafter,
the Corporation may in its sole discretion extend this Agreement for a further
5-year term, with any additional extensions subject to Section 14.
25. COMPENSATION - In full consideration of the Consultant's performance of
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the Services after the Effective Date the Corporation shall pay the Consultant
the sum of $3,200 per month during the first year of this agreement. The
consultant's fee for the remaining years of the term shall be mutually agreed at
the beginning of each of the years. In addition, the Corporation shall grant to
the Consultant options (the CONSULTANT OPTIONS) pursuant to and in accordance
with the option Plan that may be approved by the shareholders from time to time.
The number and price of options will be decided by the Board of directors of the
Corporation.
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26. REIMBURSEMENT OF EXPENSES - Consultant shall be entitled to full
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reimbursement of expenses incurred by him in connection with the affairs of the
Corporation including travel, entertainment, parking and cellular phone
expenses.
27. CONFIDENTIAL INFORMATION -
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(1) As used herein the words "CONFIDENTIAL INFORMATION" include:
(1) such information as a director, officer or senior employee of the
Corporation may from time to time designate to the Consultant as
being included in the expression "Confidential Information";
(2) any secret or trade secret or know how of the Corporation or any
information relating to the Corporation or to any person, firm or
other entity with which the Corporation does business which is
not known to persons outside the Corporation including, without
limitation, the commission of or results from any exploration
conducted or authorized by the Corporation or its agents in
connection with any of the Corporation's mining properties or
claims;
(3) any information, process or idea that is not generally known
outside of the Corporation;
(4) all proprietary information relating to the Corporation; and
(5) all investor information now existing or currently under
development by the Corporation.
The Consultant acknowledges that the foregoing is intended to be
illustrative and that other Confidential information may currently
exist or arise in the future.
(2) The Corporation and the Consultant acknowledge and agree that the
relationship between them is one of mutual trust and reliance.
(3) The Consultant acknowledges that he may be exposed from time to time
to information and knowledge, including Confidential Information,
relating to all aspects of the business of the Corporation, the
disclosure of any of which to the Corporation's competitors,
customers, or the general public may be highly detrimental to the best
interests of the Corporation.
(4) The Consultant acknowledges that the business of the Corporation
cannot be properly protected from adverse consequences of the actions
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of the Consultant other than by restrictions as hereinafter set forth.
(5) The Consultant agrees that he will not disclose at any time during the
term of this Agreement or after termination of this Agreement any of
the Confidential Information (whether or not conceived, originated,
discovered or developed in whole or in part by the Consultant) it
being expressly acknowledged and agreed by the Consultant that the
Confidential Information shall be kept strictly confidential at all
times. The Confidential Information shall not include any information
which is already in the public domain or becomes so through no fault
of the Consultant.
(6) In the event this Agreement is terminated for any reason whatsoever,
whether by passage of time or otherwise, the Consultant shall
forthwith upon such termination return to the Corporation each and
every copy of any Confidential Information (including all notes,
records and documents pertaining thereto) in the possession or under
the control of the Consultant at that time, and the Consultant shall
continue to be subject to the restrictions of this Section 7
notwithstanding termination of this Agreement.
(7) The Consultant hereby acknowledges that, as between the Consultant and
the Corporation, the Corporation is and shall remain the sole owner of
all right, title and interest in the Confidential Information,
including, but not limited to any and all rights and copyright,
patent, trade secret and trade xxxx. In the event this Agreement is
terminated for any reason whatsoever, whether by affluxion of time or
otherwise, the Consultant shall forthwith upon such termination return
to the Corporation each and every copy of any Confidential Information
(including all notes, records and documents pertaining thereto) in the
possession or under the control of the Consultant at that time.
28. NON-COMPETITION - The Consultant agrees with the Corporation that the
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Consultant will not, for the period commencing on the Effective Date and until
six (6) months following the date of termination of this Agreement, participate
directly or indirectly, in any business which is substantially similar to the
Corporation's Business or competitive with the Corporation's Business anywhere
within Canada whether:
(1) as a principal or partner;
(2) in conjunction or association with any incorporated or unincorporated
entity as an officer, director or similar official of any incorporated
or unincorporated entity (including, without restricting the
generality of the foregoing any corporation, partnership, joint
venture, association, syndicate or trust) engaged in any of the
activities included as part of the Corporation's Business (each of
which entities is hereinafter referred to as the "OTHER ENTITY");
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(3) as the consultant or advisor to or agent of any Other Entity be
engaged in any manner whatsoever, directly or indirectly, in the
vermiculite industry;
(4) as a holder of shares in any Other Entity engaged in a
vermiculite-related business in such number which, together with all
shares in such Other Entity which are subject to an agreement to, or
which in fact, vote (or otherwise act) in concert with the Consultant,
exercise the effective control of any such Other Entity;
(5) by canvassing or soliciting on behalf of the Other Entity orders for
the Corporation's Business; or
(6) by providing, directly or indirectly, financial or other assistance to
a business which is substantially similar to or competitive with the
Corporation's Business.
29. CONSULTANT NOT AN EMPLOYEE - The parties acknowledge and agree that the
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Consultant shall provide the Services to the Corporation as an independent
contractor and not as an employee of the Corporation and that an
employer-employee relationship is not created by this Agreement. The Consultant
shall have no power or authority to bind the Corporation or to assume or create
any obligation or responsibility, expressed or implied, on the Corporation's
behalf, or in its name, nor shall it represent to anyone that it has such power
or authority, except as expressly provided in this Agreement. As the Consultant
is not an employee of the Corporation, he shall not be entitled to receive from
the Corporation any benefits whatsoever and the Corporation shall not be
required to make contributions for unemployment insurance, Canada Pension,
workers' compensation and other similar levies in respect of any fee for
services to be paid to the Consultant pursuant to this Agreement.
30. NO DEROGATORY REMARKS - The Consultant agrees with the Corporation that
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from and after the Effective Date the Consultant and the Corporation shall not
make any derogatory remarks regarding the Corporation and the Consultant,
respectively, and that the Consultant will not take any act as a result of which
the relations between the Corporation and its suppliers, customers, employees or
others may be impaired or which act may otherwise be detrimental to the business
of the Corporation as the same is now or may hereafter be carried on by the
Corporation. The Corporation shall be affixed with the same policy as the
Consultant in this regard.
31. CONSULTANT SHALL NOT CONTRACT ON BEHALF OF CORPORATION - The Consultant
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shall not enter into any contract or commitment in the name of or on behalf of
the Corporation or bind the Corporation in any respect whatsoever, nor shall he
represent to anyone that he has such power or authority other than the powers
and authority vested in him under the terms of this agreement.
32. USE OF CONSULTANT'S WORK - Notwithstanding any other provisions of this
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Agreement, the Corporation shall not be bound to act on or otherwise utilize the
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Consultant's advice or materials produced by the Consultant in the performance
of the Services.
33. TERMINATION -
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(1) This Agreement shall, if not previously terminated as provided for
herein, automatically be terminated at the close of business March 31,
2005, subject to the sole discretion of the Corporation to extend the
Agreement for a further 5-year term. Thereafter, unless either party
has given 10 days prior written notice, the Agreement will be
automatically extended for further 5-year terms. Any options not
exercised at the time of notice of termination shall expire fourteen
(14) days after the date of the written notice of termination.
(2) This Agreement may be immediately terminated by mutual consent of the
parties at any time during the term of this Agreement, except that if
the agreement is terminated by the Corporation before the expiry of
the term without any cause, Consultant shall be entitled to a lump sum
compensation of $250,000.
(3) The Corporation or the Consultant may immediately terminate this
Agreement in the event that the other party is in breach of any of the
terms or conditions of the Agreement applicable to that other party.
(4) This Agreement shall be terminated automatically and with immediate
effect if at any time either the Corporation or the Consultant becomes
insolvent or voluntarily or involuntarily bankrupt, or makes an
assignment for the benefit of either party's creditors.
(5) Notwithstanding any other provision hereon, upon termination of this
Agreement by the Corporation pursuant to subsections 14(a), (c) or (d)
above,
34. INDEMNIFICATION - The Corporation hereby agrees to indemnify the
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Consultant and save him harmless from and against any and all losses, expenses,
liabilities, claims (including fines, penalties and interest thereon), costs
(including legal costs on a solicitor-client basis) and damages for or by reason
of or in any way arising out of the Consultant's compliance with the terms of
this Agreement.
35. AMENDMENTS AND WAIVERS - No amendment to this Agreement shall be valid
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or binding unless set forth in writing and duly executed by both of the parties
hereto. No waiver of any breach of any term or provision of this Agreement
shall be effective or binding unless made in writing and signed by the party
purporting to give the same and, unless otherwise provided in the written
waiver, shall be limited to the specific breach waived.
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36. ASSIGNMENT - The Consultant shall not assign, transfer, sub-contract or
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pledge this Agreement or any rights or the performance of any obligation arising
under this Agreement, without the prior written consent of the Corporation.
37. SURVIVAL - Without limitation, the parties acknowledge that Sections 7,
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8 and 14 shall survive the termination of this Agreement.
38. SEVERABILITY - If any provision of this Agreement is determined to be
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invalid or unenforceable in whole or in part, such invalidity or
unenforceability shall attach only to such provision or part thereof and the
remaining part of such provision and all other provisions hereof shall continue
in full force and effect.
39. FURTHER ASSURANCES - Each party hereto agrees from time to time,
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subsequent to the date hereof, to execute and deliver or cause to be executed
and delivered to the other of them such instruments or further assurances as
may, in the reasonable opinion of the other of them, be necessary or desirable
to give effect to the provisions of this Agreement.
40. GOVERNING LAW - This Agreement and the rights and obligations and
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relations of the parties hereto shall be governed by and construed in accordance
with the laws of the Province of Ontario and the federal laws of Canada
applicable therein (but without giving effect to any conflict of laws rules).
The parties hereto agree that the courts of Ontario shall have jurisdiction to
entertain any action or other legal proceedings based on any provisions of this
Agreement. Each party hereto does hereby attorn to the jurisdiction of the
courts of the Province of Ontario.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the day and year first above written.
SIGNED, SEALED AND DELIVERED )
)
) by: /s/ Xxxxxxx Xxxxxxxx
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) XXXXXXX XXXXXXXX
) CONSULTANT
)
) by: /s/ Xxxxxxx Xxxxxxxx
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) XXXXXXXXX.XXX INC.
) CORPORATION
) Per:
) Name: Xxxxxxx Xxxxxxxx
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) Title: Chairman
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