EXHIBIT 10.6
CONSULTING SERVICES AGREEMENT
BETWEEN:
DBS HOLDINGS INC.
AND:
442668 B.C. LTD.
DBS HOLDINGS INC.
▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ and Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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-- DBS Holdings Inc. --
CONSULTING SERVICES AGREEMENT
THIS CONSULTING SERVICES AGREEMENT is made and dated for
reference effective as at the 1st day of November, 2001 (the "Effective Date")
as fully executed on this ____ day of November, 2001.
BETWEEN:
DBS HOLDINGS INC., a company duly incorporated under the laws of
the State of Nevada, U.S.A., and having a business office and an
address for notice and delivery located at ▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(the "Company");
OF THE FIRST PART
AND:
442668 B.C. Ltd., a company duly incorporated under the laws of
the Province of British Columbia and having an address for notice
and delivery located at IRC 331 - 2194 Health Sciences Mall,
Biomedical Research Centre, University of British Columbia,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(the "Consultant");
OF THE SECOND PART
(the Company and the Consultant being hereinafter singularly also
referred to as a "Party" and collectively referred to as the
"Parties" as the context so requires).
WHEREAS:
A. The Company is a non-reporting company, duly incorporated under
the laws of the State of Nevada, U.S.A., and is in the business of acquiring,
inventing and developing various therapeutics for vascular applications
(collectively, the "Business");
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B. The Consultant is a non-reporting company, duly incorporated
under the laws of the Province of British Columbia, and is owned and controlled
by ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇▇▇▇");
C. ▇▇. ▇▇▇▇▇▇▇▇▇ specializes in and, in the course of working in and
on behalf of the Biotechnology Laboratory at the University of the Province of
British Columbia, has developed certain expertise in the research, invention and
development of certain technology which may be of material benefit to the
Business of the Company;
D. The Company is hereby desirous of formally retaining the
Consultant as a consultant, and the Consultant is hereby desirous of accepting
such position, in order to provide the Company, with the exception of any
blood-brain barrier and auto-immunity application-related services, such
scientific, technical, research and technology development services as may be
necessary and determined by the Board of Directors of the Company, from to time
and in its sole and absolute discretion, to develop the Business of the Company
(collectively, the "General Services") during the initial term and during the
continuance of this agreement (the "Agreement");
E. Since the introduction of the Parties hereto the Parties hereby
acknowledge and agree that there have been various discussions, negotiations,
understandings and agreements between them relating to the terms and conditions
of the proposed General Services and, correspondingly, that it is their
intention by the terms and conditions of this Agreement to hereby replace, in
their entirety, all such prior discussions, negotiations, understandings and
agreements with respect to the proposed General Services; and
F. The Parties hereto have agreed to enter into this Agreement which
initially replaces, in their entirety, all such prior discussions, negotiations,
understandings and agreements, and, furthermore, which necessarily clarifies
their respective duties and obligations with respect to the within General
Services to be provided hereunder, all in accordance with the terms and
conditions of this Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSETH that, 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 shall have the following meanings:
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(a) "Agreement" means this Consulting Services Agreement as from time
to time supplemented or amended by one or more agreements entered
into pursuant to the applicable provisions hereof;
(b) "Arbitration Act" means the Commercial Arbitration Act of the
Province of British Columbia, R.S.B.C. 1996, as amended, as set
forth in Article "7" hereinbelow;
(c) "Board of Directors" means the Board of Directors of the Company
as duly constituted from time to time;
(d) "Business" has the meaning ascribed to it in recital "A."
hereinabove;
(e) "business day" means any day during which Canadian Chartered
Banks are open for business in the City of Vancouver, Province of
British Columbia;
(f) "Company" means DBS Holdings Inc., a company duly incorporated
under the laws of the State of Nevada, U.S.A., or any successor
company, however formed, whether as a result of merger,
amalgamation or other action;
(g) "Company's Non-Renewal Notice" has the meaning ascribed to it in
section "3.2" hereinbelow;
(h) "Company's Notice of Termination" has the meaning ascribed to it
in section "3.4" hereinbelow;
(i) "Consultant" means 442668 B.C. Ltd., a company duly incorporated
under the laws of the Province of British Columbia, or any
successor company, however formed, whether as a result of merger,
amalgamation or other action;
(j) "▇▇. ▇▇▇▇▇▇▇▇▇" means ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇;
(k) "Effective Date" has the meaning ascribed to it in section "3.1"
hereinbelow;
(l) "Effective Termination Date" has the meaning ascribed to it in
section "3.4" hereinbelow;
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(m) "Expenses" has the meaning ascribed to it in section "4.2"
hereinbelow;
(n) "Fee" has the meaning ascribed to it in section "4.1"
hereinbelow;
(o) "General Services" has the meaning ascribed to it in section
"2.1" hereinbelow;
(p) "Initial Term" has the meaning ascribed to it in section "3.1"
hereinbelow;
(q) "Insurance" has the meaning ascribed to it in section "5.9"
hereinbelow;
(r) "Parties" or "Party" means the Company and/or the Consultant
hereto, as the context so requires, together with their
respective successors and permitted assigns as the context so
requires;
(s) "Property" has the meaning ascribed to it in section "5.7"
hereinbelow;
(t) "subsidiary" means any company or companies of which more than
50% of the outstanding shares carrying votes at all times
(provided that the ownership of such shares confers the right at
all times to elect at least a majority of the directors of such
company or companies) are for the time being owned by or held for
that company and/or any other company in like relation to that
company and includes any company in like relation to the
subsidiary; and
(u) "University" means The University of British Columbia, a company
duly continued under the University Act of the Province of
British Columbia, or any successor company, however formed,
whether as a result of merger, amalgamation or other action.
1.2 INTERPRETATION. For the purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, section or other subdivision of this
Agreement;
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(b) the headings are for convenience only and do not form a part of
this Agreement nor are they intended to interpret, define or
limit the scope or extent of this or any provision of this
Agreement;
(c) any reference to an entity shall include and shall be deemed to
be a reference to any entity that is a permitted successor to
such entity; and
(d) words in the singular include the plural and words in the
masculine gender include the feminine and neuter genders, and
vice versa.
ARTICLE 2
SERVICES AND DUTIES OF THE CONSULTANT
2.1 GENERAL SERVICES. During the Initial Term (as hereinafter
determined) and during the continuance of this Agreement the Company hereby
agrees to retain the Consultant as a consultant to and on behalf of the Company,
or to and on behalf of any of the Company's subsidiaries, as the case may be and
as may be determined by the Board of Directors of the Company in its sole and
absolute discretion, and the Consultant hereby agrees to accept such position in
order to provide, with the exception of any blood-brain barrier and
auto-immunity application-related services, such scientific, technical, research
and technology development services as may be necessary and determined by the
Board of Directors of the Company, from to time and in its sole and absolute
discretion, to develop the Business of the Company during the Initial Term and
during the continuance of this Agreement and in accordance with the terms and
conditions of this Agreement (collectively, the "General Services"); it being
expressly acknowledged and agreed by the Parties hereto that the Consultant
shall commit and provide to the Company the General Services on a part-time
basis during the Initial Term and during the continuance of this Agreement for
which the Company, as more particularly set forth hereinbelow, hereby agrees to
pay to the order and direction of the Consultant the Fee and the Expense payment
reimbursements (each as hereinafter determined) in accordance with Article "4"
hereinbelow and during the Initial Term and during the continuance of this
Agreement.
2.2 SPECIFIC SERVICES. Without in any manner limiting the generality
of the General Services to be provided by the Consultant as set forth in section
"2.1" hereinabove, it is hereby also acknowledged and agreed that the Consultant
will provide, with the exception of any blood-brain barrier and auto-immunity
application-related services, the following specific scientific, technical,
research and technology development services to the Company, or to any of the
Company's subsidiaries, as the case may be and as may be determined by the Board
of Directors of the Company in its sole and absolute discretion, and in
connection with the development of the Business of the Company subject, at all
times, to the direction of the Board of Directors of the Company:
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(a) assistance with the initiation, coordination, implementation and
management of all aspects of any program in connection with the
scientific research and development of the Business of the
Company;
(b) assistance with the initiation, creation, development,
coordination and administration of any and all other development
and maintenance programs in respect of the Business of the
Company and each of its proposed or potential commercial
applications;
(c) assistance with the ongoing evaluation of all proposed and
potential development and maintenance programs in respect of the
Business of the Company;
(d) assistance in the negotiation and conclusion of all proposed or
potential joint venture arrangements in connection with the
ongoing development and maintenance of the Business of the
Company and each of its proposed or potential commercial
applications;
(e) assistance in the organization, preparation and dissemination of
any and all business plans, technical reports, news releases and
special shareholder or investment reports for the Company, or for
any of the Company's subsidiaries, as the case may be and as may
be determined by the Board of Directors of the Company in its
sole and absolute discretion, and in connection with the ongoing
development and maintenance of the Business of the Company and
each of its proposed or potential commercial applications;
(f) assistance in the liaison with and the setting up of all
corporate alliances and regulatory associations for the Company,
or for any of the Company's subsidiaries, as the case may be and
as may be determined by the Board of Directors of the Company in
its sole and absolute discretion, with all required regulatory
authorities and with potential customers and strategic business
and financial partners for the purposes of the ongoing
development and maintenance of the Business of the Company and
each of its proposed or potential commercial applications;
(g) assistance with the identification and recommendation of suitable
staff for the Company, or for any of the Company's subsidiaries,
as the case may be and as may be determined by the Board of
Directors of the Company in its sole and absolute discretion, to
both provide and lead further consulting services for or in
connection with the ongoing development and maintenance of the
Business of the Company and each of its proposed or potential
commercial applications; and
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(h) assistance in all other scientific, technical, research,
technology development, maintenance and regulatory services in
connection with the Business of the Company as may be directed,
from time to time, by the Board of Directors of the Company in
its sole and absolute discretion.
In this regard it is hereby acknowledged and agreed that the
Consultant shall be entitled to communicate with and rely upon the immediate
advice and instructions of ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the current President, Chief
Executive Officer and a Director of the Company, or upon the advice or
instructions of such other Director or Officer of the Company as ▇▇. ▇▇▇▇▇▇▇
shall, from time to time, designate in times of his absence, in order to
initiate, coordinate and implement the General Services for the Company as
contemplated herein.
2.3 CONSULTANT TO MAKE ▇▇. ▇▇▇▇▇▇▇▇▇ AVAILABLE. During the Initial
Term (as hereinafter determined) and during the continuance of this Agreement it
is hereby further acknowledged and agreed that the Consultant will make the
services of ▇▇. ▇▇▇▇▇▇▇▇▇ available in order to assist the Consultant in the
performance of the General Services hereunder faithfully, diligently, to the
best of the Consultant's abilities and in the best interests of the Company.
2.4 RESTRICTIONS ON GENERAL SERVICES TO BE PROVIDED. It is hereby
acknowledged and agreed that nothing in this Agreement shall:
(a) require the Consultant and/or ▇▇. ▇▇▇▇▇▇▇▇▇ to devote their full
time and efforts to performing the General Services hereunder;
(b) require, or shall be interpreted as requiring, ▇▇. ▇▇▇▇▇▇▇▇▇ to
commit a breach of any obligation owed by him, or any limitation
imposed on him by, the University; or
(c) prevent, or be interpreted as preventing, the Consultant and/or
▇▇. ▇▇▇▇▇▇▇▇▇ from performing services similar to the General
Services for any other person in relation to matters falling
outside the scope of the Business of the Company.
ARTICLE 3
INITIAL TERM, RENEWAL AND TERMINATION
3.1 INITIAL TERM. The initial term of this Agreement (the "Initial
Term") is for a period of five calendar years commencing on the Effective Date
hereof.
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3.2 RENEWAL BY THE COMPANY. Subject at all times to sections "3.3"
and "3.4" hereinbelow, this Agreement shall renew automatically if not
specifically terminated in accordance with the following provisions. The Company
agrees to notify the Consultant in writing at least 180 calendar days prior to
the end of the Initial Term of its intent not to renew this Agreement (the
"Company's Non-Renewal Notice"). Should the Company fail to provide a Company's
Non-Renewal Notice this Agreement shall automatically renew on a one-year to
one-year basis after the Initial Term until otherwise specifically renewed in
writing by each of the Parties hereto for the next one calendar year or,
otherwise, terminated upon delivery by the Company of a corresponding and
follow-up 180 calendar day Company's Non-Renewal Notice in connection with and
within 180 calendar days prior to the end of any such one year renewal period.
Any such renewal on a one-year basis shall be on the same terms and conditions
contained herein unless modified and agreed to in writing by the Parties.
3.3 TERMINATION FOR CAUSE BY THE COMPANY. Notwithstanding any other
provision of this Agreement, the General Services portion of this Agreement may
be terminated at any time by the Company upon written notice to the Consultant
and, if applicable, damages sought if:
(a) the Consultant fails to cure a material breach of any provision
of this Agreement within 30 calendar days from its receipt of
written notice from the Company (unless such breach cannot be
reasonably cured within said 30 calendar days and the Consultant
is actively pursuing to cure said breach);
(b) the Consultant is willfully non-compliant in the performance of
the Consultant's respective duties under this Agreement within 30
calendar days from its receipt of written notice from the Company
(unless such willful non-compliance cannot be reasonably
corrected within said 30 calendar days and the Consultant is
actively pursuing to cure said willful non-compliance);
(c) the Consultant commits fraud or serious neglect or misconduct in
the discharge of the Consultant's respective duties hereunder or
under the law; or
(d) the Consultant 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 any such event the respective obligations of each of the
Parties hereto under this Agreement (and including, without limitation, the
Consultant's ongoing obligation to provide the General Services and the
Company's ongoing obligation to provide the Fee and the Expense payment
reimbursements (each as hereinafter determined)) will immediately terminate.
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3.4 TERMINATION WITHOUT CAUSE BY THE COMPANY. Notwithstanding any
other provision of this Agreement, this Agreement may also be terminated by the
Company at any time after the Effective Date and during the Initial Term and
during the continuance of this Agreement upon its delivery to the Consultant of
prior written notice of its intention to do so (the "Company's Notice of
Termination") at least 180 calendar days prior to the effective date of any such
termination (the "Effective Termination Date"). In any such event the respective
obligations of each of Parties hereto under this Agreement (and including,
without limitation, the Consultant's ongoing obligation to provide the General
Services and the Company's ongoing obligation to provide the Fee and the Expense
payment reimbursements (each as hereinafter determined)) will continue until
such Effective Termination Date as provided for in the Company's Notice of
Termination and, furthermore, upon the Effective Termination Date the Company
will also be obligated to provide the Consultant the then balance of any Fee and
Expense payment reimbursement which would then be due and owing by the Company
to the Consultant to the completion of the Initial Term of this Agreement and,
in addition, and if this Agreement had then been previously and automatically
renewed for a further one-year period in accordance with section "3.2"
hereinabove, until the end of any such further one-year period in conjunction
with section "3.2".
ARTICLE 4
GENERAL SERVICES COMPENSATION OF THE CONSULTANT
4.1 FEE. It is hereby acknowledged and agreed that the Consultant
shall render the General Services as defined hereinabove during the Initial Term
and during the continuance of this Agreement and shall thus be compensated on a
monthly basis by the Company from the Effective Date of this Agreement to the
termination of the same 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 absolute discretion, and advise the
Company prior to such payment, of a monthly fee of U.S. $6,000 (the "Fee"),
with such Fee being 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 prior to
such payment, on the first business day of the month following the then monthly
period of service during the Initial Term and during the continuance of this
Agreement. In this regard, and for the purposes of evidencing the Company's
ongoing commitment to compensate the Consultant together with the Consultant's
ongoing commitment to perform the General Services faithfully, diligently, to
the best of the Consultant's abilities and in the best interests of the Company
during the Initial Term and during the continuance of this Agreement, it is
hereby acknowledged and agreed that the Company shall provide the Consultant, in
the manner aforesaid, with the initial month's Fee payment for the Initial Term
of this Agreement on the first business day following the Effective Date of this
Agreement.
4.2 REIMBURSEMENT OF EXPENSES. It is hereby also acknowledged and
agreed that the Consultant shall be reimbursed for all pre-approved direct
reasonable expenses actually and properly incurred by the Consultant for the
benefit of the Company
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(collectively, the "Expenses"), which Expenses have first been approved by the
Board of Directors of the Company, and which Expenses, it is hereby acknowledged
and agreed, shall be payable by the Company 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 of written substantiation on
account of each such reimbursable Expense.
ARTICLE 5
ADDITIONAL OBLIGATIONS OF THE CONSULTANT AND THE COMPANY
5.1 REPORTING BY THE CONSULTANT. At least once in every month, or so
often as may be required by the Company, the Consultant will provide the Board
of Directors of the Company with such information concerning the results of the
Consultant's General Services and activities hereunder for the previous month as
the Board of Directors of the Company may reasonably require. In addition, it is
hereby acknowledged and agreed that any written information or materials
provided by the Consultant to any person or company hereunder will be subject to
the prior review, approval and direction of the Board of Directors of the
Company.
5.2 CONFIDENTIALITY BY THE CONSULTANT. 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 Company, or of any of
its subsidiaries, which may come to the Consultant's knowledge during the
Initial Term and during the 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 Company's
respective businesses. 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.
5.3 COMPLIANCE WITH APPLICABLE LAWS BY THE CONSULTANT. The Consultant
will comply with all Canadian, 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.
5.4 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 Company in connection with the
Consultant's engagement hereunder are intended solely for the Company's benefit
and for the Company's use only, and that any such written and oral opinions,
reports, advice and information are the exclusive property of the Company. In
this regard the Consultant covenants and agrees that the Company may utilize any
such opinion, report, advice and
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materials for any purpose whatsoever and, furthermore, may reproduce,
disseminate, quote from and refer to, in whole or in part, and at any time any
such opinion, report, advice and materials in the Company's sole and absolute
discretion. The Consultant further covenants and agrees that any such written
opinions, reports, advice or materials shall, unless otherwise required by the
Company, be provided by the Consultant to the Company 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.
5.5 COVENANT BY THE COMPANY IN CONNECTION WITH THE CONSULTANT'S
OPINIONS, REPORTS AND ADVICE. The Company hereby covenants and agrees with the
Consultant that it shall not alter the form or substance of any written or oral
opinions, reports, advice or information provided by the Consultant to the
Company in connection with the Consultant's engagement hereunder without the
prior written consent of the Consultant in each such specific instance.
5.6 CONSULTANT'S BUSINESS CONDUCT. The Consultant warrants that it
shall conduct its General Services and other related activities in a manner
which is lawful and reputable and which brings good repute to the Company, to
the Consultant and to the Business of the Company. In this regard the Consultant
warrants to provide all General Services in a sound and professional manner such
that the same meets superior standards of performance quality within the
standards of the industry or as set by the specifications of the Company. In the
event that the Company has a reasonable concern that the General Services as
conducted by the Consultant, or the conduct of any individual thereof, is being
conducted in a way contrary to law or is reasonably likely to bring disrepute to
the Business of the Company or to the Company's or to the Consultant's
reputation, the Company may require that the Consultant make such alterations in
its conduct, personnel or structure, whether of management, employee or
consultant or sub-licensee representation, as the Company may reasonably
require, in its sole and absolute discretion, failing which the Company, in its
sole and absolute discretion, may terminate this Agreement upon 30 calendar
days' prior written notice to the Consultant. In this regard, however, it is
hereby expressly acknowledged and agreed by the Parties hereto that nothing in
this Agreement shall require the Consultant to undertake any act which would
contravene any of the policies of the University as may be determined by the
University from time to time and in its sole and absolute discretion. In the
event of any debate or dispute as to the reasonableness of the Company's request
or requirements, the judgment of the Company shall be deemed correct until such
time as the matter has been determined by arbitration in accordance with Article
"7" hereinbelow.
5.7 RIGHT OF OWNERSHIP TO THE BUSINESS AND RELATED PROPERTY. The
Consultant hereby acknowledges and agrees that the Company's Business, together
with any products or improvements derived therefrom and any trade marks or trade
names used in connection with the same (collectively, the "Property"), are
wholly owned and controlled by the Company. Correspondingly, neither this
Agreement, nor the operation of the research and development and the
distribution and marketing Business contemplated by this Agreement, confers or
shall be deemed to confer upon the Consultant any interest whatsoever in and to
any of the Property. In this regard the Consultant hereby further covenants and
agrees not to, during or after the Initial Term
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and the continuance of this Agreement, contest the title to any of the Company's
Property interests, in any way dispute or impugn the validity of the Company's
Property interests or take any action to the detriment of the Company's
interests therein. The Consultant acknowledges that, by reason of the unique
nature of the Property interests, and by reason of the Consultant's knowledge of
and association with the Property interests during the Initial Term and during
the continuance of this Agreement, the aforesaid covenant, both during the
continuance of this Agreement and thereafter, is reasonable and commensurate for
the protection of the legitimate Business of the Company. As a final note, the
Consultant hereby further covenants and agrees to immediately notify the Company
of any infringement of or challenge to the any of the Company's Property
interests as soon as the Consultant becomes aware of the infringement or
challenge.
5.8 BOARD OF DIRECTORS. During the Initial Term and during the
continuance of this Agreement it is hereby acknowledged and agreed that
management of the Company will consult with the Consultant and consider the
Consultant's advice in connection with the proposed appointment by the Company
of any further members to the present Board of Directors of the Company.
5.9 DIRECTORS' AND OFFICERS' LIABILITY INSURANCE. During the Initial
Term and 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 (collectively, the "Insurance") for its Board
of Directors and Executive Officers which in no case shall 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 shall be
placed with a reputable and financially secure insurance carrier and shall
include the Company as an additional insured and shall provide primary coverage
with respect to the activities contemplated by this Agreement. Furthermore, it
is also intended that any such Insurance policy(ies) shall include severability
of interest and cross-liability provisions and shall provide that the
policy(ies) shall not be canceled or materially altered except upon at least 30
calendar days' prior written notice to each of the relevant parties thereto.
5.10 INDEMNIFICATION OF ▇▇. ▇▇▇▇▇▇▇▇▇ AS A DIRECTOR AND/OR OFFICER OF
THE COMPANY OR ANY SUBSIDIARY. During the Initial Term (as hereinafter
determined) and during the continuance of this Agreement it is hereby also
acknowledged and agreed that, should ▇▇. ▇▇▇▇▇▇▇▇▇ agree to serve the Company,
or any subsidiary of the Company as the case may be, as a Director and/or
Officer thereof, both ▇▇. ▇▇▇▇▇▇▇▇▇ and the Consultant shall thereupon be
indemnified by the Company and funded on a current basis for all losses,
damages, legal expenses and any other expenses or costs of any nature which may
be occasioned by any previous acts, deeds and/or conduct of any existing or
previous Directors and/or Officers of the Company or any subsidiary of the
Company. Inter alia, this indemnity shall apply to all manner of actions,
proceedings or prosecutions, whether civil, regulatory or criminal, to which
either ▇▇. ▇▇▇▇▇▇▇▇▇ or the Consultant may be subject due in whole or in part to
the General Services provided herein or by virtue of any office held. This
indemnity shall apply both during and after the Initial Term and the continuance
of this Agreement for all matters arising during the same, and any extension,
until any limitation period has expired in respect to any action which might be
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contemplated. The Company shall not refuse coverage for any purpose or reason
and a strict presumption of innocence shall be applied and the Company may only
seek refund of any coverage in the case of finding of fraud or criminal
culpability, after exhaustion of all appeals. The Company shall diligently seek
and support any such court approvals for the within indemnity as ▇▇. ▇▇▇▇▇▇▇▇▇
and the Consultant may require. ▇▇. ▇▇▇▇▇▇▇▇▇ and the Consultant shall pay all
such retainers and trust requirements as counsel for ▇▇. ▇▇▇▇▇▇▇▇▇ and the
Consultant may require and shall pay all accounts of counsel as they come due
and such accounts shall be rendered in the name of the Company and, furthermore,
and should the Company fail to pay any reasonable account, it shall attorn to
all such actions, summary judgments and garnishing orders as such counsel may
consider fit to enforce and receive payment of its account. The Company shall
not seek to settle or compromise any action without the approval of ▇▇.
▇▇▇▇▇▇▇▇▇ and the Consultant. The Company warrants it shall employ due diligence
and good faith and seek the best interests of ▇▇. ▇▇▇▇▇▇▇▇▇ and the Consultant
as a defendant in any action or prosecution. ▇▇. ▇▇▇▇▇▇▇▇▇ and the Consultant
shall permit the Company to consult with their counsel and to be informed of any
matters thereof, subject only to any requirements for legal privilege purposes.
ARTICLE 6
FORCE MAJEURE
6.1 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, labour 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 shall
be extended by a period of time equal in length to the period of each such
prevention or delay.
6.2 NOTICE. A Party shall within three calendar days give notice to
the other Party of each event of force majeure under section "6.1" hereinabove,
and upon cessation of such event shall 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.
ARTICLE 7
ARBITRATION
7.1 MATTERS FOR ARBITRATION. The Parties agree that all questions or
matters in dispute with respect to this Agreement shall be submitted to
arbitration pursuant to the terms hereof.
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7.2 NOTICE. It shall be a condition precedent to the right of any
Party to submit any matter to arbitration pursuant to the provisions hereof,
that any Party intending to refer any matter to arbitration shall have given not
less than five business days' prior written notice of its intention to do so to
the other Party together with particulars of the matter in dispute. On the
expiration of such five business days the Party who gave such notice may proceed
to refer the dispute to arbitration as provided for in section "7.3"
hereinbelow.
7.3 APPOINTMENTS. The Party desiring arbitration shall appoint one
arbitrator, and shall notify the other Party of such appointment, and the other
Party shall, within five business days after receiving such notice, appoint an
arbitrator, and the two arbitrators so named, before proceeding to act, shall,
within five business days of the appointment of the last appointed arbitrator,
unanimously agree on the appointment of a third arbitrator, to act with them and
be chairman of the arbitration herein provided for. If the other Party shall
fail to appoint an arbitrator within five business days after receiving notice
of the appointment of the first arbitrator, and if the two arbitrators appointed
by the Parties shall be unable to agree on the appointment of the chairman, the
chairman shall be appointed in accordance with the Arbitration Act. Except as
specifically otherwise provided in this section, the arbitration herein provided
for shall be conducted in accordance with such Arbitration Act. The chairman, or
in the case where only one arbitrator is appointed, the single arbitrator, shall
fix a time and place for the purpose of hearing the evidence and representations
of the Parties, and he shall preside over the arbitration and determine all
questions of procedure not provided for by the Arbitration Act or this section.
After hearing any evidence and representations that the Parties may submit, the
single arbitrator, or the arbitrators, as the case may be, shall make an award
and reduce the same to writing, and deliver one copy thereof to each of the
Parties. The expense of the arbitration shall be paid as specified in the award.
7.4 AWARD. The Parties agree that the award of a majority of the
arbitrators, or in the case of a single arbitrator, of such arbitrator, shall be
final and binding upon each of them.
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.
8.2 NO ASSIGNMENT. This Agreement may not be assigned by either Party
hereto except with the prior written consent of the other Party.
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8.3 NOTICE. Each notice, demand or other communication required or
permitted to be given under this Agreement shall be in writing and shall 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 shall be the date of
delivery thereof if delivered, or, if given by registered mail as aforesaid,
shall be deemed conclusively to be the third day after the same shall have been
so mailed, except in the case of interruption of postal services for any reason
whatsoever, in which case the date of receipt shall be the date on which the
notice, demand or other communication is actually received by the addressee.
Either Party may at any time and from time to time notify the other Party in
writing of a change of address and the new address to which notice shall 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 Canada.
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 REPRESENTATION AND COSTS. It is hereby acknowledged by each of
the Parties hereto that, as between the Company and the Consultant herein,
▇▇▇▇▇▇ ▇▇▇▇▇▇ acts solely for the Company, and that the Consultant has been
advised by both ▇▇▇▇▇▇ ▇▇▇▇▇▇ and the Company to obtain independent legal advice
with respect to the Consultant's review and execution of this Agreement. In
addition, it is hereby further acknowledged and agreed by the Parties hereto
that each Party to this Agreement will bear and pay its own costs, legal and
otherwise, in connection with its respective preparation, review and execution
of this Agreement and, in particular, that the costs involved in the preparation
of this Agreement, and all documentation necessarily incidental thereto, by
▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be at the cost of the Company.
8.9 APPLICABLE LAW. The situs of this Agreement is Vancouver, British
Columbia, 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 Province of British Columbia.
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8.10 SEVERABILITY AND CONSTRUCTION. Each Article, section, paragraph,
term and provision of this Agreement, and any portion thereof, shall 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 shall 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 shall remain binding on the Parties and
continue to be given full force and effect as of the date upon which the ruling
becomes final).
8.11 CAPTIONS. The captions, section numbers and Article numbers
appearing in this Agreement are inserted for convenience of reference only and
shall in no way define, limit, construe or describe the scope or intent of this
Agreement nor in any way affect this Agreement.
8.12 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 execution date as set forth on the front
page of this Agreement.
8.13 NO PARTNERSHIP OR AGENCY. The Parties have not created a
partnership and nothing contained in this Agreement shall in any manner
whatsoever constitute any Party the partner, agent or legal representative of
the other Party, nor create any fiduciary relationship between them for any
purpose whatsoever.
8.14 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 shall:
(a) be valid unless it is in writing and stated to be a consent or
waiver pursuant to this section;
(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 in any other or subsequent instance.
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IN WITNESS WHEREOF the Parties hereto have hereunto set their
respective hands and seals as at the Effective Date as hereinabove determined.
The COMMON SEAL of )
DBS HOLDINGS INC., )
the Company herein, )
was hereunto affixed in the presence of: ) (C/S)
)
)
per /▇▇▇▇ ▇▇▇▇▇▇▇/ )
---------------------------------------- )
Authorized Signatory )
The COMMON SEAL of )
442668 B.C. LTD., )
the Consultant herein, )
was hereunto affixed in the presence of: ) (C/S)
)
)
per /▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇/ )
---------------------------------------- )
Authorized Signatory )
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