EXHIBIT 10.1
MANAGEMENT CONSULTING SERVICES AGREEMENT
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THIS MANAGEMENT CONSULTING SERVICES AGREEMENT is made and dated for reference
effective as at July 1, 2007 (the "EFFECTIVE DATE").
AMONG:
TRANSAX INTERNATIONAL LIMITED., a company incorporated under the laws
of the State of Colorado , U.S.A., and having an executive office and
an address for notice and delivery located at 8th Floor, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇
(the "COMPANY")
AND:
TRANSAX LIMITED., a company incorporated under the laws of the British
Virgin Islands, and also having an executive office and an address for
notice and delivery Floor, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇
(the "SUBSIDIARY COMPANY", and together with the Company, the
"COMPANIES")
AND:
CARLINGFORD INVESTMENTS LIMITED having an address for notice and
delivery located at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇
(the "CONSULTANT")
WHEREAS:
A. The Company is incorporated under the laws of the State of Colorado, U.S.A.,
has a class of securities registered with the United States Securities and
Exchange Commission and has its common shares (the "COMMON SHARES") listed for
trading on the NASD Over-The-Counter Bulletin Board;
B. The Subsidiary Company is a subsidiary of the Company and is incorporated
under the laws of the State of Colorado, USA;
C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇▇"), has rendered services as President and Chief
Executive Officer of the Company and Subsidiary Company since 2003 and 2002
respectively on certain terms and conditions (the "FORMER AGREEMENT") as
approved by the Board of Directors.
D. The Company, the Subsidiary Company, and the Consultant wish to enter into a
new Management Consulting Services Agreement in lieu of the Former Agreement
pursuant to which the Consultant will render services to the Company and to the
Subsidiary Company upon certain terms and conditions as set out herein; and
E. ▇▇. ▇▇▇▇▇▇▇ was the founder of the Company and the Subsidiary Company and has
contributed substantially in the development of the vision and business of the
Company since its inception, and the arrangement of all major financing for the
Companies.
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NOW THEREFORE, in consideration of the mutual covenants and provisos herein
contained, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, the following words
and phrases will have the following meanings:
(a) "AGREEMENT" means this Management Consulting Services
Agreement as from time to time supplemented or amended by one
or more agreements entered into pursuant to the applicable
provisions hereof, together with any Schedules attached
hereto;
(b) "BOARD OF DIRECTORS" means the Board of Directors of each or
either of the Company and the Subsidiary Company as duly
constituted from time to time;
(c) "CHANGE IN CONTROL" means, in relation to Section 4.10 herein,
the occurrence of any of the following events:
(i) the acquisition, whether direct or indirect, of
voting shares of the Company in excess of 30% of the
issued and outstanding voting shares of the Company
by a person or group of persons acting in concert,
other than through any compensation or incentive
based plan adopted by the Company and other than by
persons who are, or who are controlled by the
existing shareholders of the Company.
(ii) a merger of the voting shares of the Company where
the voting shares of the resulting merged company are
owned or controlled by shareholders of whom more than
30% are not the same as the shareholders of the
Company immediately prior to the merger; or
(iii) a sale by the Company of substantially all of the
assets of the Company to an entity that is not
controlled by either the shareholders of the Company
or by the Company. (d) "OPTION" means stock options
to purchase Common Shares;
(e) "PARTIES" or "PARTY" means, individually and collectively, the
Company, the Subsidiary Company, and/or the Consultant hereto,
as the context so requires, together with each of their
respective successors and permitted assigns as the context so
requires;
(i) "REGULATORY APPROVAL" means the acceptance for filing, if
required, of the transactions contemplated by this Agreement
by the Regulatory Authorities;
(j) "REGULATORY AUTHORITIES" and "REGULATORY AUTHORITY" means,
either singularly or collectively as the context so requires,
such regulatory agencies that have jurisdiction over the
affairs of either of the Company, the Subsidiary Company.
and/or the Consultant and including, without limitation, and
where applicable, the United States Securities and Exchange
Commission, NASD and all regulatory authorities from whom any
such authorization, approval or other action is required to be
obtained or to be made in connection with the transactions
contemplated by this Agreement;
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ARTICLE 2
FORMER AGREEMENT AND
GENERAL SERVICES AND DUTIES OF THE CONSULTANT
2.1 REPLACEMENT OF FORMER AGREEMENT. This Agreement constitutes the entire
agreement to date between the Parties hereto and replaces, in its entirety, the
Former Agreement, together with every previous agreement, discussion,
expectation, negotiation, representation or understanding, whether oral or
written, express or implied, statutory or otherwise, between the Parties with
respect to the subject matter of the Former Agreement.
2.2 GENERAL SERVICES. During the continuance of this Agreement the Companies
hereby agree to retain the Consultant to provide the services of ▇▇. ▇▇▇▇▇▇▇ as
the President and Chief Executive Officer of each of the Companies. The
Consultant hereby agrees to be subject to the direction and supervision of, and
to have the authority as is delegated to the Consultant by, the Board of
Directors of the Company consistent with such positions, and the Consultant also
agrees to provide such related services as the Board of Directors will
reasonably assign to the Consultant from time to time and as may be necessary
for the ongoing maintenance and development of the Companies' various Business
interests during the continuance of this Agreement (collectively, the "GENERAL
SERVICES").
2.3 FULL-TIME PROVISION OF GENERAL SERVICES. The Parties expressly acknowledge
and agree that the Consultant will commit and provide to the Companies the
General Services on a reasonably full-time basis during the continuance of this
Agreement and in consideration for the provision of the General Services, the
Company agrees to pay and provide to the order and direction of the Consultant
each of the proposed Fees, bonuses, Expenses, applicable payment reimbursements,
Options, Vacation pay, Benefits and Severance Package in accordance with Article
3 and Article 4 herein.
2.4 ADDITIONAL DUTIES RESPECTING THE GENERAL SERVICES. Without in any way
limiting the generality of the General Services as set forth in Section 2.2
herein, the Parties further acknowledge and agree that Consultant will, during
the continuance of this Agreement:
(a) devote reasonably all of its consulting time to the provision
of the General Services as may be determined and required by
the Board of Directors;
(b) perform the General Services faithfully, diligently, to the
best of the its abilities and in the best interests of the
Companies; and
(c) at all times prioritize its consulting time for the Companies
in accordance with this Section 2.4.
2.5 ADHERENCE TO RULES AND POLICIES OF THE COMPANIES. The Consultant and agrees
to abide by the reasonable rules, regulations, instructions, personnel practices
and policies of the Companies and any changes thereto which may be adopted from
time to time as such rules, regulations, instructions, personnel practices and
policies may be reasonably applied to the Consultant as the Chairman and Chief
Executive Officer of each of the Companies.
ARTICLE 3
EFFECTIVENESS, TERMINATION AND SEVERANCE
3.1 EFFECTIVENESS OF THE AGREEMENT. This Agreement commences on the Effective
Date but is subject at all times to the Companies' prior receipt, if required,
of Regulatory Approval from each of the Regulatory Authorities to the terms and
conditions of and the transactions contemplated by this Agreement.
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3.2 TERMINATION WITHOUT CAUSE BY THE COMPANIES. Notwithstanding any other
provision herein, the Companies may terminate this Agreement without cause at
any time after the Effective Date upon their delivery to the Consultant of prior
written notice of their intention to do so (the "NOTICE OF TERMINATION") at
least 60 calendar days prior to the effective date of any such termination (the
"EFFECTIVE TERMINATION DATE").
3.3 ONGOING OBLIGATIONS OF CONSULTANT. If the Companies terminate this Agreement
pursuant to Section 3.2 above, the Consultant's ongoing obligation to provide
the General Services will continue only until the Effective Termination Date and
the Companies will continue to pay to the Consultant all amounts otherwise
payable to the Consultant under Article 4 herein until the Effective Termination
Date (including, but without limiting any of the amounts payable under Article 4
herein, a pro rata portion of any Fees, bonuses, Vacation pay and Benefits).
3.4 SEVERANCE PACKAGE. If this Agreement is terminated pursuant to Section 3.2
above, the Companies will pay to the Consultant, in addition to all of the
amounts otherwise due and payable to the Consultant under Article 4 herein, the
following amounts in the following manner, subject at all times to the
Consultant's ongoing compliance with the its obligations under Article 5 herein:
(a) an additional severance cash payment equating to an aggregate
of 24 months of the monthly Fee then payable by the Companies
to the Consultant on the Effective Termination Date, payable
within 10 business days of the Effective Termination Date;
(b) any Expense payment reimbursements which would then be due and
owing by the Companies to the Consultant to the date of the
Effective Termination Date; and, subject to the Consultant's
prior compliance with the provisions of Section 4.7 herein,
payable within 10 business days of the Effective Termination
Date;
(c) any Vacation pay which would then be due and owing by the
Companies to the Consultant to the date of the Effective
Termination Date; and payable within 10 business days of the
Effective Termination Date;
(d) confirmation that all of the Consultant's then issued and
outstanding and vested Options in and to the Companies as at
the Effective Termination Date are exercisable for a period of
five years from the Effective Termination Date; and
(e) confirmation that all of the Consultant's then Benefits and
Insurance coverage pursuant to Sections 4.9 and 6.2 would be
extended to the Consultant for a period ending one year from
the Effective Termination Date;
with the aggregate of each such obligation of the Companies to the Consultant
under each of Section 3.4(a), (b), (c), (d) and (e) herein being herein
collectively referred to as the "SEVERANCE PACKAGE".
3.5 TERMINATION WITHOUT CAUSE BY THE CONSULTANT. Notwithstanding any other
provision of this Agreement, this Agreement may be terminated by the Consultant
without cause at any time after the Effective Date and during the continuance of
this Agreement upon the Consultant's delivery to the Companies of prior written
notice of its intention to do so at least 60 calendar days prior to the
effective date of any such termination (herein also the "EFFECTIVE TERMINATION
DATE"). The Company will pay to the Consultant:
(a) all of the amounts due and payable to the Consultant by the
Companies pursuant to Article 4 herein until the Effective
Termination Date, and
(b) all of the amounts otherwise due or payable to the Consultant
by the Companies pursuant to the Severance Package.
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3.6 TERMINATION FOR CAUSE BY ANY PARTY. Notwithstanding any other provision of
this Agreement, this Agreement may be terminated by any Party hereto at any time
upon written notice to the other Parties of such Party's intention to do so at
least 60 calendar days prior to the effective date of any such termination
(herein also the "EFFECTIVE TERMINATION DATE"), and damages sought, if:
(a) the defaulting Party fails to cure a material breach of any
provision of this Agreement within 30 calendar days from its
receipt of written notice from said Party (unless such
material breach cannot be reasonably cured within said 30
calendar days and the defaulting Party is actively pursuing to
sure said material breach);
(b) the defaulting Party is willfully non-compliant in the
performance of its respective duties under this Agreement
within 30 calendar days from its receipt of written notice
from said Party (unless such willful non-compliance cannot be
reasonably corrected within said 30 calendar days and the
defaulting Party is actively pursuing to cure said willful
non-compliance);
(c) the defaulting Party commits fraud or serious neglect or
misconduct in the discharge of its respective duties hereunder
or under the law; or
(d) the defaulting Party becomes adjudged bankrupt or a petition
for reorganization or arrangement under any law relating to
bankruptcy, and where any such involuntary petition is not
dismissed within 30 calendar days.
In this regard, and in the event that either of the Companies terminates this
Agreement at any time for cause by providing 30 calendar days' prior written
notice to the Consultant with respect to either of Section 3.4(a) or 3.4(b) only
herein, the Company will pay to the Consultant all of the amounts otherwise due
or payable to the Consultant by the Company pursuant to Article 4 herein until
the Effective Termination Date (the "ADVANCE"); and which Advance may then be
utilized by the Consultant to either cure or correct any material breach or
willful non-compliance consequent thereon; failing which the Company may then
offset or claim any such Advance as against any other amounts which may then be
due and owing by the Company to the Consultant under the terms and conditions of
this Agreement.
In this regard, and in the event that the Consultant terminates this Agreement
at any time for cause by providing 30 calendar days' prior written notice to the
Company with respect to either of Section 3.4(a)or (b) only herein, the Company
will also pay to the Consultant all of the amounts otherwise due or payable to
the Consultant by the Company pursuant to Article 4 herein until the Effective
Termination Date as an Advance. In addition, and should it then be either agreed
by the Company or determined by a court of competent jurisdiction that the
Consultant had, in fact, appropriately terminated this Agreement for cause, the
Company will then be obligated to provide and pay to the Consultant all of the
amounts which comprise the Severance Package in the manner as set forth in
Section 3.2 herein.
ARTICLE 4
GENERAL SERVICES COMPENSATION OF THE CONSULTANT
4.1 FEES. It is hereby acknowledged and agreed that the Consultant will render
the General Services during the continuance of this Agreement and will thus be
compensated by the Company and the Subsidiary Company from the effective date of
this Agreement to the termination of the same as follows:
(a) by way of the payment by the Company to the Consultant, or to
the further order or direction of the Consultant as the
Consultant may determine, in the Consultant's sole and
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absolute discretion, and advise the Company of prior to such
payment, of the monthly fee $17,500 (the "FEES") all such Fees
will be due and payable by the Company to the Consultant, or
to the further order or direction of the Consultant as the
Consultant may determine, in the Consultant's sole and
absolute discretion, and advise the Company of prior to any
such fee payment, on the final business day of the month of
the monthly period of service during the continuance of this
Agreement.
(b) a signing bonus of one million shares of restricted common
stock of the Company to be issued 4months after the effective
date of this agreement subject to satisfactory service.
4.2 INCREASE IN THE FEES. It is hereby acknowledged and agreed that the Fees
will be reviewed and renegotiated at the request of any Party annually during
the continuance of this Agreement and, in the event that the Parties cannot
agree, then the Fees will be increased on an annual basis by the greater of (i)
7.5% and (ii) the percentage which is the average percentage of all increases to
management salaries and fees within the Company during the previous 12months
period.
4.3 BONUSES AND OPTIONS The Company will pay to the Consultant, at the sole
discretion of the Board, such bonuses and will grant to the Consultant, when
available and subject to each of the rules and policies of the regulatory
authorities and applicable securities legislation and the terms and conditions
of the Company's then existing Stock Option compensation plan. An Annual bonus
payable within 30 days of each calendar year will not be less than 20% of the
monthly fee paid to the consultant during the previous 12months.
4.4 CAR ALLOWANCE. The Company will provide to the Consultant a car allowance in
the amount of US $500.00 per month.
4.5 HEALTH AND LIFE INSURANCE. The company will provide to the Consultant health
insurance coverage and life insurance up to a maximum of one million dollars in
event of death.
4.6 HOUSING ALLOWANCE. In the event that any employee of the Consultant is
obliged to reside at the request of the Company or the Subsidiary Company in a
residence other than his own, all costs in connection therewith will be borne by
the Company or the Subsidiary Company as the case may be.
4.7 REIMBURSEMENT OF EXPENSES. It is hereby acknowledged and agreed that the
Consultant will also be reimbursed for all direct, reasonable expenses actually
and properly incurred by the Consultant for the benefit of the Companies (the
"EXPENSES"); and which Expenses, it is hereby acknowledged and agreed, will be
payable by the Companies to the order, direction and account of the Consultant
as the Consultant may designate in writing, from time to time, in the
Consultant's sole and absolute discretion, as soon as conveniently possible
after the prior delivery by the Consultant to such of the Companies of written
substantiation on account of each such reimbursable Expense.
4.8 PAID VACATION. It is hereby also acknowledged and agreed that, during the
continuance of this Agreement, the Consultant will be entitled to four weeks
paid vacation (the "Vacation") during each and every year during the continuance
of this Agreement. In this regard it is further understood hereby that the
Consultant's entitlement to any such paid Vacation during any year (including
the initial year) during the continuance of this Agreement will be subject, at
all times, to the Consultant's entitlement to only a pro rata portion of any
such paid Vacation time during any year and to the effective date upon which
this Agreement is terminated prior to the end of any such year for any reason
whatsoever.
4.9 BENEFITS. It is hereby acknowledged and agreed that, during the continuance
of this Agreement, the Consultant will be entitled to participate fully in each
of the Companies' respective medical services plans and management and employee
benefits program(s) (collectively, the "BENEFITS").
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4.10 CHANGE IN CONTROL In the event of a Change in Control, all Options which
have not yet vested will immediately vest and become exercisable by the
Consultant and the Consultant will be entitled to receive, in addition to all
other severance and compensation set out in Section 3.4 and Article 4 hereof,
the following:
(a) an additional severance cash payment equating to an aggregate
of 12 months of the monthly fee then payable by the Companies
to the Consultant on the Effective Termination Date, payable
within 10 business days of the Effective Termination Date;
ARTICLE 5
ADDITIONAL OBLIGATIONS OF THE CONSULTANT
5.1 REPORTING. At such time or times as may be required by the Board of
Directors of each of the Companies, acting reasonably, the Consultant will
provide the Board of Directors with such information concerning the results of
the Consultant's General Services and activities hereunder for the previous
month as the Board of Directors may reasonably require.
5.2 NO CONFLICT, NO COMPETITION AND NON-CIRCUMVENTION. During the continuance of
this Agreement, the Consultant will not engage in any business or activity which
reasonably may detract from or conflict with the Consultant's respective duties
and obligations to the Companies as set forth in this Agreement without the
prior written consent of the Board of Directors of the Companies. In addition,
during the continuance of this Agreement and for a period of at least 12 months
following the termination of this Agreement for any reason whatsoever the
Consultant will not engage in any business or activity whatsoever which
reasonably may be determined by the Board of Directors, in its sole and absolute
discretion, to compete with any portion of the Business interests as
contemplated hereby without the prior written consent of the Board of Directors.
Furthermore, the Consultant hereby acknowledges and agrees, for a period of at
least six months following the termination of this Agreement for any reason
whatsoever, not to initiate any contact or communication directly with either of
the Companies or any of their respective subsidiaries, as the case may be,
together with each of their respective directors, officers, representatives,
agents or employees, without the prior written consent of the Board of Directors
and, notwithstanding the generality of the foregoing, further acknowledges and
agrees, even with the prior written consent of the Board of Directors to such
contact or communication, to limit such contact or communication to discussions
outside the scope of any confidential information (as herein determined). For
the purposes of the foregoing the Consultant hereby recognizes and agrees that a
breach by the Consultant of any of the covenants herein contained would result
in irreparable harm and significant damage to the Companies that would not be
adequately compensated for by monetary award. Accordingly, the Consultant agrees
that, in the event of any such breach, in addition to being 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 as may be appropriate
to ensure compliance with the provisions hereof, the Consultant will also be
liable to the Companies, as liquidated damages, for an amount equal to the
amount received and earned by the Consultant as a result of and with respect to
any such breach. The Parties hereby acknowledge and agree that if any of the
aforesaid restrictions, activities, obligations or periods are considered by a
Court of competent jurisdiction as being unreasonable, the Parties agree that
said Court will have authority to limit such restrictions, activities or periods
as the Court deems proper in the circumstances. In addition, the Parties further
acknowledge and agree that all restrictions or obligations in this Agreement are
necessary and fundamental to the protection of the Business interests and are
reasonable and valid, and all defenses to the strict enforcement thereof by the
Consultant are hereby waived.
5.3 CONFIDENTIALITY. The Consultant will not, except as authorized or required
by the Consultant's duties hereunder, reveal or divulge to any person or
companies any information concerning the organization, business, finances,
transactions or other affairs of the Companies or of any of the Companies'
respective subsidiaries which may come to the Consultant's knowledge during the
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continuance of this Agreement, and the Consultant will keep in complete secrecy
all confidential information entrusted to the Consultant and will not use or
attempt to use any such information in any manner which may injure or cause loss
either directly or indirectly to the Companies' respective Business interests.
This restriction will continue to apply after the termination of this Agreement
without limit in point of time but will cease to apply to information or
knowledge which may come into the public domain.
5.4 COMPLIANCE WITH APPLICABLE LAWS. The Consultant will comply with all U.S.
and foreign laws, whether federal, provincial or state, applicable to the
Consultant's duties hereunder and, in addition, hereby represents and warrants
that any information which the Consultant may provide to any person or company
hereunder will, to the best of the Consultant's knowledge, information and
belief, be accurate and complete in all material respects and not misleading,
and will not omit to state any fact or information which would be material to
such person or company.
5.5 OPINIONS, REPORTS AND ADVICE OF THE CONSULTANT. The Consultant acknowledges
and agrees that all written and oral opinions, reports, advice and materials
provided by the Consultant to the Companies in connection with the Consultant's
engagement hereunder are intended solely for the Companies' benefit and for the
Companies' uses only, and that any such written and oral opinions, reports,
advice and information are the exclusive property of the Companies. In this
regard the Consultant covenants and agrees that the Companies may utilize any
such opinion, report, advice and materials for any other purpose whatsoever and,
furthermore, may reproduce, disseminate, quote from and refer to, in whole or in
part, at any time and in any manner, any such opinion, report, advice and
materials in the Companies' sole and absolute discretion. The Consultant further
covenants and agrees that no public references to the Consultant or disclosure
of the Consultant's role in respect of the Companies may be made by the
Consultant without the prior written consent of the Board of Directors of the
Company in each specific instance and, furthermore, that any such written
opinions, reports, advice or materials will, unless otherwise required by the
Board of Directors, be provided by the Consultant to the Companies in a form and
with such substance as would be acceptable for filing with and approval by any
Regulatory Authority having jurisdiction over the affairs of the Company from
time to time.
ARTICLE 6
INDEMNIFICATION, INSURANCE AND LEGAL PROCEEDINGS
6.1 INDEMNIFICATION. The Companies hereby agree to indemnify and save harmless
the Consultant and its employees (the "INDEMNIFIED PARTIES") from and against
any and all losses, claims, actions, suits, proceedings, damages, liabilities or
expenses of whatever nature or kind and to the extent allowed by law and
including, without limitation, any investigation expenses incurred by the
Consultant, to which the Consultant may become subject by reason only of the
performance by the Consultant of the General Services under this Agreement;
provided, however, that this indemnity will only apply if the General Services
are performed faithfully, diligently, to the best of the Consultant's abilities
and in the best interests of the Companies. This indemnity will not apply in
respect of the Consultant in the event and to the extent that a Court of
competent jurisdiction in a final judgment will determine that the Consultant
was grossly negligent or guilty of willful misconduct.
In case any action is brought against the Consultant in respect of
which indemnity may be sought against either of the Parties hereto, the
Consultant will give the Company prompt written notice of any such action of
which the Consultant has knowledge and the Company will undertake the
investigation and defense thereof on behalf of the Consultant, including the
prompt employment of counsel and the payment of all expenses. Failure by the
Consultant to so notify will not relieve the Companies of the Companies'
obligation of indemnification hereunder unless (and only to the extent that)
such failure results in a forfeiture by the Companies of substantive rights or
defenses. No admission of liability and no settlement of any action will be made
without the consent of each of the Parties hereto, such consent not to be
unreasonable withheld. Notwithstanding that the Company will undertake the
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investigation and defense of any action, the Consultant will have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel will be at the expense of the
Consultant unless such counsel has been authorized by the Company, the Company
has not assumed the defense of the action within a reasonable period of time
after receiving notice of the action, the named parties to any such action
include that the Consultant will have been advised by counsel that there may be
a conflict of interest between any Party hereto or there are one or more legal
defenses available to the Consultant which are different from or in addition to
those available to the Companies.
If for any reason other than the gross negligence or bad faith of the
Consultant being the primary cause of the loss claim, damage, liability, cost or
expense, the foregoing indemnification is unavailable to the Consultant or
insufficient to hold the Consultant harmless, the Companies will contribute to
the amount paid or payable by the Consultant as a result of any and all such
losses, claim, damages or liabilities in such proportion as is appropriate to
reflect not only the relative benefits received by the Companies on the one hand
and the Consultant on the other, but also the relative fault of the Companies
and the Consultant and other equitable considerations which may be relevant.
Notwithstanding the foregoing, the Companies will in any event contribute to the
amount paid or payable by the Consultant as a result of the loss, claim, damage,
liability, cost or expense (other than a loss, claim, damage, liability, cost or
expenses, the primary cause of which is the gross negligence or bad faith of the
Consultant), any excess of such amount over the amount of the fees actually
received by the Consultant hereunder.
6.2 INSURANCE. During the continuance of this Agreement it is hereby
acknowledged and agreed that the Company will use its best efforts to seek and
obtain directors' and officers' liability insurance (the "INSURANCE") for its
Board of Directors and Senior Officers which in no case will be less than the
insurance which a reasonable and prudent businessman carrying on a similar line
of business would acquire from time to time. In connection with the foregoing it
is hereby further acknowledged and agreed that any such Insurance will be placed
with a reputable and financially secure insurance carrier and will include the
Company as an additional insured and will provide primary coverage with respect
to the activities contemplated by this Agreement. Furthermore, it is also
intended that any such Insurance policy(ies) will include severability of
interest and cross-liability provisions and will provide that the policy(ies)
will not be canceled or materially altered except upon at least 30 calendar
days' prior written notice to each of the relevant parties thereto.
6.3 NO INDEMNIFICATION. This indemnity will not apply in respect of an
Indemnified Party in the event and to the extent that a Court of competent
Jurisdiction in a final judgment will determine that the Indemnified Party was
grossly negligent or guilty of willful misconduct.
6.4 CLAIM OF INDEMNIFICATION. The Parties hereto agree to waive any right they
might have of first requiring the Indemnified Party to proceed against or
enforce any other right, power, remedy, security or claim payment from any other
person before claiming this indemnity.
6.5 NOTICE OF CLAIM. In case any action is brought against an Indemnified Party
in respect of which indemnity may be sought against either of the Parties
hereto, the Indemnified Party will give both Parties hereto prompt written
notice of any such action of which the Indemnified Party has knowledge and the
relevant Party will undertake the investigation and defense thereof on behalf of
the Indemnified Party, including the prompt employment of counsel acceptable to
the Indemnified Party affected and the relevant Party and the payment of all
expenses. Failure by the Indemnified Party to so notify will not relieve the
relevant Party of such relevant Party's obligation of indemnification hereunder
unless (and only to the extent that) such failure results in a forfeiture by the
relevant Party of substantive rights or defenses.
6.6 SETTLEMENT. No admission of liability and no settlement of any action will
be made without the consent of each of the Parties hereto and the consent of the
Indemnified Party affected, such consent not to be unreasonable withheld.
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6.7 LEGAL PROCEEDINGS. Notwithstanding that the relevant Party will undertake
the investigation and defense of any action, an Indemnified Party will have the
right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel will be at the
expense of the Indemnified Party unless:
(a) such counsel has been authorized by the relevant Party;
(b) the relevant Party has not assumed the defense of the action
within a reasonable period of time after receiving notice of
the action;
(c) the named parties to any such action include that any Party
hereto and the Indemnified Party will have been advised by
counsel that there may be a conflict of interest between any
Party hereto and the Indemnified Party; or
(d) there are one or more legal defenses available to the
Indemnified Party which are different from or in addition to
those available to any Party hereto.
6.8 CONTRIBUTION. If for any reason other than the gross negligence or bad faith
of the Indemnified Party being the primary cause of the loss claim, damage,
liability, cost or expense, the foregoing indemnification is unavailable to the
Indemnified Party or insufficient to hold them harmless, the relevant Party will
contribute to the amount paid or payable by the Indemnified Party as a result of
any and all such losses, claim, damages or liabilities in such proportion as is
appropriate to reflect not only the relative benefits received by the relevant
Party on the one hand and the Indemnified Party on the other, but also the
relative fault of relevant Party and the Indemnified Party and other equitable
considerations which may be relevant. Notwithstanding the foregoing, the
relevant Party will in any event contribute to the amount paid or payable by the
Indemnified Party, as a result of the loss, claim, damage, liability, cost or
expense (other than a loss, claim, damage, liability, cost or expenses, the
primary cause of which is the gross negligence or bad faith of the Indemnified
Party), any excess of such amount over the amount of the fees actually received
by the Indemnified Party hereunder.
ARTICLE 7
FORCE MAJEURE
7.1 EVENTS. If either Party hereto is at any time either during this Agreement
or thereafter prevented or delayed in complying with any provisions of this
Agreement by reason of strikes, walk-outs, labor shortages, power shortages,
fires, wars, acts of God, earthquakes, storms, floods, explosions, accidents,
protests or demonstrations by environmental lobbyists or native rights groups,
delays in transportation, breakdown of machinery, inability to obtain necessary
materials in the open market, unavailability of equipment, governmental
regulations restricting normal operations, shipping delays or any other reason
or reasons beyond the control of that Party, then the time limited for the
performance by that Party of its respective obligations hereunder will be
extended by a period of time equal in length to the period of each such
prevention or delay.
7.2 NOTICE. A Party will within three calendar days give notice to the other
Party of each event of force majeure under Section 7.1 herein, and upon
cessation of such event will furnish the other Party with notice of that event
together with particulars of the number of days by which the obligations of that
Party hereunder have been extended by virtue of such event of force majeure and
all preceding events of force majeure.
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ARTICLE 8
GENERAL PROVISIONS
8.1 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement to date
between the Parties hereto and supersedes every previous agreement, expectation,
negotiation, representation or understanding, whether oral or written, express
or implied, statutory or otherwise, between the Parties with respect to the
subject matter of this Agreement and including, without limitation, the terms
and conditions of the Underlying Agreement.
8.2 NO ASSIGNMENT. This Agreement may not be assigned by any Party hereto except
with the prior written consent of the other Parties.
8.3 NOTICE. Each notice, demand or other communication required or permitted to
be given under this Agreement will be in writing and will be sent by prepaid
registered mail deposited in a recognized post office and addressed to the Party
entitled to receive the same, or delivered to such Party, at the address for
such Party specified on the front page of this Agreement. The date of receipt of
such notice, demand or other communication will be the date of delivery thereof
if delivered, or, if given by registered mail as aforesaid, will be deemed
conclusively to be the third business day after the same will have been so
mailed, except in the case of interruption of postal services for any reason
whatsoever, in which case the date of receipt will be the date on which the
notice, demand or other communication is actually received by the addressee. Any
Party may at any time and from time to time notify the other Parties in writing
of a change of address and the new address to which notice will be given to it
thereafter until further change.
8.4 TIME OF THE ESSENCE. Time will be of the essence of this Agreement.
8.5 ENUREMENT. This Agreement will enure to the benefit of and will be binding
upon the Parties hereto and their respective heirs, executors, administrators
and assigns.
8.6 CURRENCY. Unless otherwise stipulated, all payments required to be made
pursuant to the provisions of this Agreement and all money amount references
contained herein are in lawful currency of the United States.
8.7 FURTHER ASSURANCES. The Parties will from time to time after the execution
of this Agreement make, do, execute or cause or permit to be made, done or
executed, all such further and other 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.
8.8 APPLICABLE LAW. The situs of this Agreement is Miami, Florida, USA and for
all purposes this Agreement will be governed exclusively by and construed and
enforced in accordance with the laws and Courts prevailing in the State of
Florida.
8.9 SEVERABILITY AND CONSTRUCTION. Each Article, section, paragraph, term and
provision of this Agreement, and any portion thereof, will be considered
severable, and if, for any reason, any portion of this Agreement is determined
to be invalid, contrary to or in conflict with any applicable present or future
law, rule or regulation in a final unappealable ruling issued by any court,
agency or tribunal with valid jurisdiction in a proceeding to which any Party
hereto is a party, that ruling will not impair the operation of, or have any
other effect upon, such other portions of this Agreement as may remain otherwise
intelligible (all of which will remain binding on the Parties and continue to be
given full force and effect as of the date upon which the ruling becomes final).
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8.10 COUNTERPARTS. This Agreement may be signed by the Parties hereto in as many
counterparts as may be necessary, and via facsimile if necessary, each of which
so signed being deemed to be an original and such counterparts together
constituting one and the same instrument and, notwithstanding the date of
execution, being deemed to bear the Effective Date as set forth on the front
page of this Agreement.
8.11 NO PARTNERSHIP OR AGENCY. The Parties have not created a partnership and
nothing contained in this Agreement will in any manner whatsoever constitute any
Party the partner, agent or legal representative of the other Parties, nor
create any fiduciary relationship between them for any purpose whatsoever.
8.12 CONSENTS AND WAIVERS. No consent or waiver expressed or implied by either
Party in respect of any breach or default by the other in the performance by
such other of its obligations hereunder will:
(a) be valid unless it is in writing and stated to be a consent or
waiver pursuant to this Section 8.12;
(b) be relied upon as a consent to or waiver of any other breach
or default of the same or any other obligation;
(c) constitute a general waiver under this Agreement; or
(d) eliminate or modify the need for a specific consent or waiver
pursuant to this Section 8.12 in any other or subsequent
instance.
IN WITNESS WHEREOF the Parties hereto have hereunto set their
respective hands and seals as at the Effective Date as herein determined.
THE CORPORATE SEAL OF
TRANSAX INTERNATIONAL LIMITED., the Company herein,
was hereunto affixed in the presence of:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------
Authorized Signatory
THE CORPORATE SEAL OF
TRANSAX LIMITED., the Subsidiary Company herein,
was hereunto affixed in the presence of:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------
Authorized Signatory
THE CORPORATE SEAL OF
CARLINGFORD INVESTMENTS LIMITED the Company herein,
was hereunto affixed in the presence of:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
Authorized Signatory
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