EXHIBIT 10._
CONSULTING SERVICES AGREEMENT
-----------------------------
Between:
▇▇▇▇▇▇▇▇.▇▇▇
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{changing its name to "GENEMAX CORP."}
And:
INTERNATIONAL COMMUNICATIONS INTERNATIONAL, INC.
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▇▇▇▇▇▇▇▇.▇▇▇
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▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇.▇., ▇▇▇▇▇
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CONSULTING SERVICES AGREEMENT
-----------------------------
THIS CONSULTING SERVICES AGREEMENT is made and dated for reference
effective as at May 9, 2002 (the "Effective Date") as fully executed on this
15th day of July, 2002.
BETWEEN:
▇▇▇▇▇▇▇▇.▇▇▇ {changing its name to "GENEMAX CORP."}, a
company incorporated under the laws of the State of
Nevada, U.S.A., and having an executive office and an
address for notice and delivery located at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇.▇., ▇▇▇▇▇
(the "Company");
OF THE FIRST PART
AND:
INTERNATIONAL COMMUNICATIONS INTERNATIONAL, INC., a
company incorporated under the laws of the State of
Washington, U.S.A., and having an address for notice
and delivery located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇.▇., ▇▇▇▇▇
(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 reporting company incorporated under the laws of the State
of Nevada, U.S.A., and has its common shares listed for trading on the NASDAQ
Over-The-Counter Bulletin Board;
B. The Consultant is a non-reporting company incorporated under the laws of the
State of Washington, U.S.A., which specializes in providing various corporate
finance and investor relations services to reporting companies and their
principals;
C. In accordance with the terms and conditions of a certain "Share Exchange
Agreement" dated for reference effective as at May 9, 2002 (the "Share Exchange
Agreement"), as entered into among the Company, GeneMax Pharmaceuticals Inc.
("GeneMax"), all of the shareholders of GeneMax and the Consultant, the Company
therein agreed to purchase all of the issued and outstanding shares of GeneMax
from the shareholders of GeneMax and the Consultant and the Company therein
agreed, in part, that, as a consequence of the due and complete closing of the
Share Exchange Agreement, they would use their commercially reasonable efforts
to initiate, complete and enter into a consulting services agreement whereby the
Consultant would provide, among other things, various management services to and
on behalf of the Company (collectively, the "General Services");
D. As a consequence of the proposed completion of the Share Exchange Agreement
the resulting Company will be involved in the principal business of GeneMax;
which is a leading-edge drug discovery and drug development company with a
patented drug discovery assay for immunomodulatory compounds and a development
pipeline aimed at treatment of cancer, infectious diseases, autoimmune disorders
and transplant tissue rejection (collectively, the resulting "Business");
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 (the "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 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:
(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, together with any
Schedules attached hereto;
(b) "Arbitration Act" means the Commercial Arbitration Act (British
Columbia), R.S.B.C. 1996, as amended, as set forth in Article "8"
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 "D." 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 ▇▇▇▇▇▇▇▇.▇▇▇ {changing its name to "GeneMax Corp." as
a consequence of the due and complete closing of the Share Exchange
Agreement), a company 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) "Consultant" means Investor Communications International, Inc., a
company incorporated under the laws of the State of Washington,
U.S.A., or any successor company, however formed, whether as a result
of merger, amalgamation or other action;
(h) "Effective Date" has the meaning ascribed to it on the front page of
this Agreement; and which is intended to represent the date of the due
and complete closing of the Share Exchange Agreement;
(i) "Effective Termination Date" has the meaning ascribed to it in each of
sections "3.2" and "3.3" hereinbelow;
(j) "Expenses" has the meaning ascribed to it in section "4.2"
hereinbelow;
(k) "Fee" has the meaning ascribed to it in section "4.1" hereinbelow;
(l) "GeneMax" means GeneMax Pharmaceuticals Inc., a company incorporated
under the laws of the State of Delaware, U.S.A., or any successor
company, however formed, whether as a result of merger, amalgamation
or other action;
(m) "General Services" has the meaning ascribed to it in section "2.1"
hereinbelow; the initial particulars of which are set forth in
Schedule "A" which is attached hereto;
(n) "Indemnified Party" has the meaning ascribed to it in section "6.1"
hereinbelow;
(o) "Notice of Termination" has the meaning ascribed to it in section
"3.2" hereinbelow;
(p) "Parties" or "Party" means, individually and collectively, the 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;
(q) "Regulatory Authorities" and "Regulatory Authority" means, either
singularly or collectively as the context so requires, such regulatory
agencies who have jurisdiction over the affairs of either of the
Company and/or the Consultant and including, without limitation, and
where applicable, the British Columbia Securities Commission, the
United States Securities and Exchange Commission, NASDAQ 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;
(r) "Share Exchange Agreement" has the meaning ascribed to it in recital
"C." hereinabove; and
(s) "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.
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;
(b) 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
(c) words in the singular include the plural and words in the masculine
gender include the feminine and neuter genders, and vice versa.
1.3 Schedule. For the purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, the following shall represent
the Schedule which is attached to this Agreement and which forms a material part
hereof:
Schedule Description
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Schedule "A": General Services.
Article 2
GENERAL SERVICES AND DUTIES OF THE CONSULTANT
---------------------------------------------
2.1 General Services. 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 respective subsidiaries, as
the case may be and as may be determined by the Board of Directors of the
Company, from time to time, and in its sole and absolute discretion, and the
Consultant hereby agrees to accept such position in order to provide such
management services as may be determined by the Board of Directors, from time to
time, and in its sole and absolute discretion, in order to develop the various
Business interests of the Company during the continuance of this Agreement
(collectively, the "General Services"); it being initially acknowledged and
agreed by each of the Parties hereto that the Consultant's initial and required
General Services under the terms and conditions of this Agreement are
particularly described in Schedule "A" which is attached hereto and which forms
a material part hereof; and it being further acknowledged and agreed by each of
the Parties hereto that the Consultant shall commit and provide to the Company
the General Services on a reasonably full-time basis during the continuance of
this Agreement for which the Company, as more particularly set forth
hereinbelow, hereby agree to pay and provide to the order and direction of the
Consultant each of the proposed Fee (as hereinafter determined) and Expense (as
hereinafter determined) payment reimbursements in accordance with Article "4"
hereinbelow.
2.2 Additional duties respecting the General Services. Without in any manner
limiting the generality of the General Services to be provided as set forth in
section "2.1" hereinabove, it is hereby also acknowledged and agreed that
Consultant will, during the continuance of this Agreement, devote reasonably all
of the Consultant's consulting time to the General Services of the Consultant as
may be determined and required by the Board of Directors of the Company for the
performance of said General Services faithfully, diligently, to the best of the
Consultant's abilities and in the best interests of the Company and,
furthermore, that the Consultant's consulting time will be prioritized at all
times for the Company in that regard.
2.3 Adherence to rules and policies. The Consultant hereby acknowledges and
agrees to abide by the reasonable rules, regulations, instructions, personnel
practices and policies of the Company and any changes therein which may be
adopted from time to time by the same as such rules, regulations, instructions,
personnel practices and policies may be reasonably applied to the Consultant.
Article 3
EFFECTIVENESS AND TERMINATION
-----------------------------
3.1 Effectiveness of the Agreement. This Agreement commences on the Effective
Date as set forth on the front page of this Agreement.
3.2 Termination without cause by any Party. Notwithstanding any other provision
of this Agreement, this Agreement may be terminated by any of the Parties hereto
at any time after the Effective Date and during the continuance of this
Agreement upon such Party's delivery to the other Party hereto of prior written
notice of its intention to do so (the "Notice of Termination") at least 30
calendar days prior to the effective date of any such termination (the
"Effective Termination Date"). In any such event the Consultant's ongoing
obligation to provide the General Services will continue only until the
Effective Termination Date and the Company shall continue to pay to the
Consultant all of the amounts otherwise payable to the Consultant under Article
"4" hereinbelow until the Effective Termination Date.
3.3 Termination for cause by any Party. Notwithstanding any other provision of
this Agreement, this Agreement may be terminated by any of the Parties hereto at
any time upon written notice to the other Party of such Party's intention to do
so at least 10 calendar days prior to the effective date of any such termination
(herein also the "Effective Termination Date"), and damages sought, if:
(a) the other Party fails to cure a material breach of any provision of
this Agreement within 10 calendar days from its receipt of written
notice from said Party (unless such material breach cannot be
reasonably cured within said 10 calendar days and the other Party is
actively pursuing to cure said material breach);
(b) the other Party is willfully non-compliant in the performance of its
respective duties under this Agreement within 10 calendar days from
its receipt of written notice from said Party (unless such willful
non-compliance cannot be reasonably corrected within said 10 calendar
days and the other Party is actively pursuing to cure said willful
non-compliance);
(c) the other Party commits fraud or serious neglect or misconduct in the
discharge of its respective duties hereunder or under the law; or
(d) the other 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 10
calendar days.
3.4 Effect of termination. Terms of this Agreement relating to accounting,
payments, confidentiality, accountability for damages or claims and all other
matters reasonably extending beyond the terms of this Agreement and to the
benefit of the Parties hereto or for the protection of the Business interests of
the Company shall survive the termination of this Agreement, and any matter of
interpretation thereto shall be given a wide latitude in this regard. In
addition, and without limiting the foregoing, each of sections "3.2" and "3.3"
hereinabove shall survive the termination of this Agreement.
Article 4
GENERAL SERVICES COMPENSATION OF THE CONSULTANT
-----------------------------------------------
4.1 Fee. Subject at all times to sections "3.2" and "3.3" hereinabove, it is
hereby acknowledged and agreed that the Consultant shall render the General
Services as defined hereinabove 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 of the gross monthly fee of U.S. $10,000.00 (the
"Fee"). In this regard it is hereby acknowledged and agreed that, as the
Consultant is not an employee but an independent contractor to the Company under
this Agreement, the within Fee represents the gross and entire Fee which is
presently due and owing by the Company to the Consultant under the terms and
conditions of this Agreement and, correspondingly, that the Company has no
obligation to, and will not be required, on the Consultant's behalf, to remit
any statutory taxes and charges as may required under applicable laws before
providing the Consultant with the gross Fee hereunder. Consequent thereon, any
gross Fee will be due and payable by the Company to the Consultant on the final
business day of the month of then monthly period of service during the
continuance of this Agreement.
4.2 Reimbursement of Expenses. It is hereby acknowledged and agreed that the
Consultant shall also be reimbursed for all direct, pre-approved and reasonable
expenses actually and properly incurred by the Consultant for the benefit of the
Company (collectively, the "Expenses"); 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 to the Company
of written substantiation on account of each such reimbursable Expense.
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 the Company, 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 shall not engage in any business or activity which
reasonably may detract from or conflict with the Consultant's respective duties
and obligations to the Company as set forth in this Agreement without the prior
written consent of the Board of Directors of the Company. In addition, during
the continuance of this Agreement and for a period of at least six months
following the termination of this Agreement for any reason whatsoever the
Consultant shall not engage in any business or activity whatsoever which
reasonably may be determined by the Board of Director, 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
the Company or any of its 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 hereinafter 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 Company 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 Company, 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 shall 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 Company or of any of the Company's
respective subsidiaries which may come to the Consultant's knowledge 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 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
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.
5.5 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 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 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
Company's 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 Company 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 shall, unless otherwise required by the Board of
Directors, 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.
5.6 Consultant's Business conduct. The Consultant warrants that the Consultant
shall conduct the business and other activities in a manner which is lawful and
reputable and which brings good repute to the Company, the Business interests
and the Consultant. In particular, and in this regard, the Consultant
specifically warrants to provide the 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
business as conducted by the Consultant is being conducted in a way contrary to
law or is reasonably likely to bring disrepute to the Business interests or to
the Company's or the Consultant's reputation, the Company may require that the
Consultant make such alterations in the Consultant's business conduct or
structure, whether of management or Board representation or employee or
sub-licensee representation, as the Board of Directors 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 the event of any debate or dispute as to
the reasonableness of the Board of Directors of the Company's request or
requirements, the judgment of the Board of Directors shall be deemed correct
until such time as the matter has been determined by arbitration in accordance
with Article "8" hereinbelow.
Article 6
INDEMNIFICATION AND LEGAL PROCEEDINGS
-------------------------------------
6.1 Indemnification. The Parties hereto hereby each agree to indemnify and save
harmless the other Party hereto and including, where applicable, their
respective subsidiaries and affiliates and each of their respective directors,
officers, employees and agents (each such party being an "Indemnified Party")
harmless from and against any and all losses, claims, actions, suits,
proceedings, damages, liabilities or expenses of whatever nature or kind and
including, without limitation, any investigation expenses incurred by any
Indemnified Party, to which an Indemnified Party may become subject by reason of
the terms and conditions of this Agreement.
6.2 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 shall determine that the Indemnified Party was
grossly negligent or guilty of willful misconduct.
6.3 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.
6.4 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 shall 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.
6.5 Settlement. No admission of liability and no settlement of any action shall
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.
6.6 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 shall 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.
6.7 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
shall 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 shall 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, 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.
7.2 Notice. A Party shall within three calendar days give notice to the other
Party of each event of force majeure under section "7.1" 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 8
ARBITRATION
-----------
8.1 Matters for Arbitration. Except for matters of indemnity or in the case of
urgency to prevent material harm to a substantive right or asset, 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. This provision
shall not prejudice a Party from seeking a Court order or assistance to garnish
or secure sums or to seek summary remedy for such matters as counsel may
consider amenable to summary proceedings.
8.2 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 Parties 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 "8.3"
hereinbelow.
8.3 Appointments. The Party desiring arbitration shall appoint one arbitrator,
and shall notify the other Parties of such appointment, and the other Parties
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 chairperson of the arbitration herein provided for. If the other Parties
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
chairperson, the chairperson 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 chairperson, 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 the chairperson
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.
8.4 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 9
GENERAL PROVISIONS
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9.1 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.
9.2 No Assignment. This Agreement may not be assigned by any Party hereto except
with the prior written consent of the other Parties.
9.3 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 business 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. 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 shall be given to it
thereafter until further change.
9.4 Time of the Essence. Time will be of the essence of this Agreement.
9.5 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.
9.6 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.
9.7 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.
9.8 Representation and Costs. It is hereby acknowledged by each of the Parties
hereto that ▇▇▇▇▇▇ ▇▇▇▇▇▇, Barristers and Solicitors, acts solely for GeneMax,
and, correspondingly, that each of the Company and the Consultant has been
advised by each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ and GeneMax to obtain independent legal advice
with respect to their respective reviews 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 GeneMax.
9.9 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.
9.10 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).
9.11 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.
9.12 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 Effective Date as set forth on the front
page of this Agreement.
9.13 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 Parties, nor
create any fiduciary relationship between them for any purpose whatsoever.
9.14 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.
IN WITNESS WHEREOF the Parties hereto have hereunto set their respective
hands and seals as at the Effective Date as hereinabove determined.
The CORPORATE SEAL of )
▇▇▇▇▇▇▇▇.▇▇▇, )
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the Company herein, was hereunto affixed )
in the presence of: )
) (C/S)
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Authorized Signatory )
The COMMON SEAL of )
INVESTOR COMMUNICATIONS )
INTERNATIONAL, INC., )
-------------------- )
the Consultant herein, ) (C/S)
was hereunto affixed in the presence of: )
)
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Authorized Signatory )
Schedule A
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This is Schedule "A" to that certain Consulting Services Agreement
respecting the Company and the Consultant.
General Services
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Without in any manner limiting the generality of the General Services to be
provided by the Consultant as set forth in section "2.1" of the Agreement
hereinabove, it is hereby also acknowledged and agreed that the Consultant will
provide the following specific management consulting services to the Company, or
to any of the Company's respective subsidiaries, as the case may be and as may
be determined by the Board of Directors of the Company, from time to time, in
their sole and absolute discretion, and in conjunction with the maintenance and
development of the Company's various Business interests subject, at all times,
to the direction of the Board of Directors:
(a) assistance in the filing of all U.S. regulatory filings for the
Company;
(b) assistance in the initiation, coordination, implementation and
management of all aspects of any program or project in connection with
the maintenance and development of the Company's various Business
interests;
(c) assistance in the organization and preparation of any and all
financial statements, business plans, technical reports, news releases
and special shareholder or investment reports for the Company, or for
any of the Company's respective subsidiaries, as the case may be and
as may be determined by the Board of Directors of the Company, from
time to time, in its sole and absolute discretion, and in connection
with the maintenance and development of the Company's various Business
interests;
(d) 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 respective subsidiaries, as the case may be and as may
be determined by the Board of Directors of the Company, from time to
time, in its sole and absolute discretion, and in connection with the
maintenance and development of the Company's various Business
interests;
(e) assistance in the negotiation and structuring of any proposed
transaction which will maximize the Company's interests in each
subject transaction together with the presentation of a written
summary of said structure; provided, however, the Consultant will not
be required to act as a lender or underwriter of any financing of any
such proposed transaction; and
(f) assistance in all other matters and services in connection with the
maintenance and development of the Company's various Business
interests as may be determined by the Board of Directors of the
Company, from time to time, 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 such Director or Officer of the Company as may be designated,
from time to time, by the Board of Directors of the Company, or upon the advice
or instructions of such other Director or Officer of the Company as such
designated Director or Officer shall, from time to time, designate in times of
such Director's and/or Officer's absence, in order to initiate, coordinate and
implement the General Services as contemplated herein.
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