Exhibit 4.10
CONSULTING AGREEMENT
This Agreement dated as of the 22nd day of March 2002, is made and entered into
by and between:
THE TIREX CORPORATION a corporation incorporated under the laws of Delaware
and having an office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, (hereinafter referred to as "TIREX")
and
▇▇▇▇▇▇▇ OVERSEAS LTD., a corporation incorporated under the laws of the
British Virgin Islands and having an office at Torre
Las Mercedes, Av. La Estancia, Chuao, Caracas,
Venezuela, (hereinafter referred to as the
"Consultant")
WHEREAS Tirex has developed a unique technology for recycling waste tires
through a semi-cryogenic process and a patented disintegration process,
hereinafter referred to as the "TCS-System", and
WHEREAS the Consultants represent that they have relevant experience and useful
contacts in both the private and public sectors from whom Tirex could benefit,
and
WHEREAS TIREX wishes to establish a relationship with Consultant in order to
seek assistance in the area of management, government relations and funding, and
financial restructuring; and
WHEREAS TIREX supports the policies underlying the Organization for Economic
Co-operation and Development Convention on Combatting Bribery of Foreign Public
Officials in International Business Transactions (the "OECD Convention") and
TIREX requires that any party representing it comply with any and all applicable
legislation implementing the policies of the OECD Convention, including without
limitation the Corruption of Foreign Public Officials Act (Canada); and
WHEREAS, the Consultants agree to accept the engagement and to undertake all
necessary efforts and actions to fulfill the mandate accorded to them, and
WHEREAS the parties wish to record the terms and conditions of their
relationship;
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the mutual
covenants and agreements hereinafter set forth, the parties covenant and agree
as follows:
1. DEFINITIONS
1.1 The "Consultants" shall mean ▇▇▇▇▇▇▇ Overseas Ltd., and all persons
employed by or acting as consultants for and on behalf of ▇▇▇▇▇▇▇
Overseas Ltd.
1.2 The "Corporation" shall mean, unless context necessarily implies
otherwise, The Tirex Corporation, The Tirex Corporation Canada Inc. and
Tirex Canada R&D Inc, and all other corporations, partnership, or other
entities, now or in the future controlled by, under common control
with, or in control of, The Tirex Corporation, jointly and severally.
1.3 The Work shall mean all those activities and actions undertaken by the
Consultant for and on behalf of TIREX during the course of this
Consulting Agreement
1.4 The Projects shall mean those projects in respect of which the
Consultant will earn performance-based remuneration in accordance with
Article 5.5 following and any other project or projects conferred upon
the Consultant during the term of this Agreement by the management of
Tirex.
1.5 Territory shall mean such countries, political sub-divisions of
countries such as provinces or states, or regions where the Consultant
is expected to undertake the Work or any Project for which he will have
been given a mandate by Tirex and which mandate the Consultant will
have accepted.
2. APPOINTMENT AND TERM
2.1 This Agreement shall remain in effect until December 31, 2002.
2.1.1 There is no provision for automatic renewal of the present
agreement.
2.1.2 The parties may agree to extend the present contract on terms
and conditions to be negotiated prior to the end of the
present Agreement
2.2 The term shall expire immediately if this Agreement is terminated in
accordance with Article 7.
3. SCOPE OF REPRESENTATION
3.1 Consultant shall perform all reasonable services as Consultant may deem
necessary in order to favour the success of TIREX including, but not
limited to assisting the Company with its government relations,
identifying and introducing the Company to strategic manufacturing
partners and such additional services and advice on related matters as
needed.
3.2 The Consultant warrants and covenants that no individual or firm
involved in the performance of the Work, is, or shall at any time while
this Agreement is in effect, be a "foreign public official", as that
term is defined in the Act.
4. LIMITS OF REPRESENTATION
4.1 The Consultant shall not, directly or indirectly, solicit or
participate, for its own benefit and/or in its own name, with respect
to the work or any Project or with respect to a Customer of TIREX, in
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the sale of any services, materials, equipment, apparatus or other
items of a similar general character as the WORK, without the prior
written consent of TIREX.
4.2 The Consultant shall neither represent nor perform any services
enumerated herein for any person, firm or corporation that is, directly
or indirectly, in any way in competition with TIREX.
4.3 Consultant has not and shall not enter into any contract or
arrangement, either directly or indirectly, with any person, firm or
corporation that would create an actual or potential conflict of
interest, without TIREX's prior written approval, such approval not to
be unreasonably withheld.
4.4 The Consultant shall not, under any circumstances whatsoever unless,
duly authorized in writing by an officer of TIREX, be considered to be
TIREX's agent; have any right or authority to create any obligation of
any kind on TIREX's behalf; attempt to enter into contracts, agreements
or commitments in the name of or on behalf of TIREX; or bind TIREX in
any respect whatsoever.
4.5 Without limiting the generality of paragraph 3.4, in no event shall the
Consultant alter in any manner whatsoever any offers, proposals, bids
or tenders submitted by TIREX to a CUSTOMER without TIREX's prior
written approval, and then only to the extent authorized.
5. REMUNERATION
5.1 Subject to the payment of amounts expressly specified in this
Agreement, Consultant shall bear its own costs and expenses related to
the performance of this Agreement.
5.2 Upon signing of this Agreement, the Corporation will instruct its
Transfer Agent to issue to the Consultants, or any other person or
corporation designated by the Consultants 2,250,000 unrestricted shares
of the Corporation. Said shares are being issued in recognition of work
already performed, including, but not limited to government relations
work with the Canadian Commercial Corp., Investment Quebec, Aon Inc.
and RSW Inc.. Additional remuneration will be awarded in accordance
with Article 5.5 following.
5.3 In the event that the present consulting agreement is terminated "for
cause" as described in Article 5.4 following, the Consultants will
return to the Corporation the shares received by them or other
designated by them under this agreement
5.4 Termination For Cause shall mean termination by the Corporation of the
Consultants' engagement by the Corporation by reason of the
Consultants' willful dishonesty towards, fraud upon, or deliberate
injury or attempted injury to, the Corporation or by reason of the
Consultants' willful material breach of this Agreement which has
resulted in material injury to the Corporation. For purposes of this
paragraph, no act or failure to act on the Consultants' part shall be
considered "willful" or "deliberate" unless done or omitted to be done,
by either of them acting alone or together, not in good faith and
without reasonable belief that their action or omission was in the best
interest of the Corporation. Notwithstanding the foregoing, the
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Consultants shall not be deemed to have been terminated for Cause
without (in written notice to the Consultants setting forth the reasons
for the Corporation's intention to terminate for Cause, (ii) an
opportunity on not less than twenty (20) days written notice from the
Corporation to the Consultants for the Consultants, together with their
counsel, to be heard before the full Board of Directors of the
Corporation, and (iii) delivery to the Consultants of a Notice of
Termination hereof from the Board of Directors finding that, following
such hearing before the Board, in the good faith opinion of such Board,
the Consultants were, acting alone or together, guilty of conduct set
forth above and specifying the particulars thereof in detail.
5.5 Performance-Based Remuneration
In addition to the shares issued under Article 5.2 preceding, the
Consultant(s) may be awarded additional compensation of up to a total
of ten million seven hundred and fifty thousand shares for the
successful conclusion of agreements satisfactory to Tirex with the
Canadian Commercial Corporation, Groupe RSW or a similar engineering
construction company, financial institutions respecting the
establishment of credit facilities, and agreements for grants,
contributions, loans and loan guarantees from departments and agencies
of the Government of Canada and from the Government of Quebec. These
shares may be issued in stages over the term of this agreement as the
Board of Directors of the Company in their good faith opinion deem
appropriate in accordance with the performance requirements set forth
herein.
5.5.1 The Consultant shall have the right and the responsibility to
manage such negotiations with the organizations noted in
Article 4.4 preceding, or with such other organizations as
might be able to offer similar benefits to Tirex, and to
receive such additional compensation as noted in Article 5.5
preceding on the conditions that the sale of a TCS System to
Puerto Rico is assured and that the operations of Tirex from
the date of signature of this Agreement until December 31,
2002 can equally be assured.
5.5.2 In addition to the shares noted in Articles 5.2 and 5.5
preceding, Tirex may engage the services of the Consultant to
perform other specific tasks at a rate and fee to be
negotiated on a case-by-case basis and outside of the terms of
this Agreement.
5.6 The Consultant represents, warrants and covenants that no payment of
any amount payable by TIREX to the Consultant hereunder shall
constitute or result in a violation of any Act or any of the laws of
any applicable jurisdiction.
5.7 The Consultants warrant that they are familiar with the laws and
regulations promulgated by the Securities and Exchange Commission of
the United States of America, and particularly but without limitation,
those laws and regulations pertaining to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, divulging of
insider information on a selective basis, and public expressions of
opinions and information respecting TIREX which a reasonable man might
expect to result in undue trading in the stock and stock price
variations. The Consultants expressly covenant that they will not
knowingly contravene any Securities Law or Regulation in force in the
United States of America in the course of providing consulting services
to the Corporation.
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5.8 The Consultants expressly warrant that they are familiar with those SEC
Regulations governing the eligibility of persons to be included in Form
S-8 filings for purposes of having restrictive legends removed from
share certificates and that the activities which they will undertake
for and on behalf of the Corporation, with the exception of any
activities which might be undertaken to raise funds for Tirex from
private investors compensation for which is expressly excluded from any
rights of inclusion under a Form S-8 Registration Statement, will not
render them ineligible for inclusion on any S-8 filing which might be
made by the Corporation during the course of the twelve-month period
following the date on which the compensation shares will have been
issued to the Consultants.
6. TIREX'S RIGHTS
6.1 TIREX reserves the right to reject any order or terminate any
negotiations at any time prior to contract signing for any reason
whatsoever without incurring any responsibility or liability to the
Consultant.
7. CURRENCY, EXCHANGE AND TAXES
7.1 Unless otherwise agreed upon in writing by the parties, all payments by
TIREX to the Consultant shall be in United States dollars.
7.2 TIREX shall not be liable for any taxes, duties, levies or other
similar amounts whatsoever levied by any authority whatsoever on
payments by TIREX to the Consultant pursuant to this Agreement. All
such payments shall be deemed to include all such taxes, duties and
levies.
7.3 Subject to article 10 following TIREX shall have no obligation
whatsoever to make payment of any amount payable hereunder to any
individual or entity other than the Consultant, or at any place other
than the Consultant's address for notice set out in paragraph 9.1
8. TERMINATION
8.1 If TIREX or the Consultant gives notice to the other party indicating
the other party's default or failure to perform its obligations, and if
such default or failure is not remedied within ten (10) days of the
said notice, this Agreement shall terminate forthwith and automatically
without any further notice.
8.2 This Agreement may be terminated without cause by either party, at any
time, with 30 days prior written notice.
8.3 Notwithstanding the provisions of Section 8.1, this Agreement shall
terminate forthwith and automatically without any notice whatever by
the mere occurrence of any one or more of the following events, unless
TIREX shall waive termination upon notification by the Consultant of
such occurrences:
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a) Consultant or any of its employees or agents carrying out its
duties hereunder becomes for whatever reason persona non
grata;
b) Consultant or any of its employees or agent carrying out its
duties hereunder becomes unable to carry out the
responsibilities under this Agreement or becomes unable to
carry on business in the applicable territory for any reason
whatsoever, for a period exceeding ten (10) days;
(c) this Agreement or any part thereof, or the performance of any
one or more of the obligations of either Party hereunder, is
or becomes impermissible under the laws of any of: (i) Canada
and each of its provinces and territories; and (ii) any other
applicable jurisdiction.
9. NOTICES
9.1 Any and all notices, invoices, statements and other information to be
given or forwarded by the Consultant to TIREX or by TIREX to the
Consultant shall be deemed to have been properly and adequately given
if sent to the addresses written below by telefacsimile or letter
signed by the party, postage prepaid, or by registered airmail:
The Tirex Corporation ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇
Tel: ▇▇▇ ▇▇▇-▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇ Overseas Ltd. ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
10. ASSIGNMENT
10.1 The Consultant may assign this contract to a related third party for
fiscal reasons, and such assignment will not be a cause for
cancellation of this Agreement, providing the persons undertaking the
Work are the same as those contracting for and on behalf of ▇▇▇▇▇▇▇, or
such other persons acceptable to Tirex.
11. LIABILITY
11.1 It is understood that Consultant shall not accept responsibility nor
indemnify TIREX for any claims, liability, or damages resulting from
any acts or omissions of the Consultant in the performance of his
duties under this Agreement, unless such claims, liability or damages
result from wilful and wrongful acts of the Consultant.
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12. CONFIDENTIALITY
12.1 The Consultant shall, during and after the term of this Agreement, keep
in strict confidence and consider as proprietary, all information
disclosed by TIREX of a commercial nature and technical nature,
including business and financial information, agreements and
arrangements between the parties, patents, know-how, designs,
copyrights, licenses or sub-licenses, trade marks and trade secrets,
except such technical information which is in or becomes part of the
public domain, or which a Consultant already had in its possession.
13. GENERAL
13.1 No waiver, alteration or modification of any of the provisions hereof
shall be binding on either party unless the same be in writing and
signed by the parties hereto or confirmed by telefacsimile by both
parties.
13.2 This Agreement supercedes and cancels any and all previous
understandings, agreements and commitments as may have been reached by
the parties. This Agreement is the entire agreement between the parties
and there are no collateral, oral or other written terms of any kind.
13.3 This Agreement shall not be deemed to be effective or binding upon
TIREX until signed on its behalf by an Officer of the Company and
ratified by the Board of Directors of Tirex.
13.4 This Agreement is made with The Tirex Corporation and is not applicable
in any manner to any of its affiliated or associated companies through
the world.
13.5 The Consultant hereby waives any right it had or has under any prior
agreement be it contractual or at law.
13.6 The Consultant undertakes to bind, for its own benefit and for the
benefit of TIREX, all of its employees and agents that may participate
in the Consultant's efforts pursuant to this Agreement, such that all
such persons shall have the same obligations to TIREX that the
Consultant has to TIREX hereunder. The Consultant further agrees to
indemnify TIREX for all losses and damages suffered by TIREX as a
result of any breach of such obligations by such persons.
13.7 In the performance of its obligations under this Agreement, the
Consultant and its agents, employees and subcontractors shall at all
times comply with all applicable laws, rules, regulations and orders of
(i) Canada and each of its provinces and territories, including without
limitation the Corruption of Foreign Public Officials Act (Canada) (the
"Act"), and (ii) any other applicable jurisdiction. The Consultant and
the Principal hereby jointly and severally represent and warrant that
each has read and understands the provisions of the Act. The Consultant
and the Principal hereby further jointly and severally represent,
warrant and covenant, on behalf of the Consultant and any other person,
firm or other entity involved in the performance of the Work, that:
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(a) none of the remuneration payable to the Consultant hereunder
by TIREX has been or shall be used for, and that no money or
other consideration, whether paid or payable to the Consultant
by TIREX or from the Consultant's own account, has been or
shall be used for any illegal, immoral or corrupt purpose; and
(b) without limiting the generality of sub-paragraph 13.7(a),
neither the Consultant nor any other person, firm or entity
involved in the performance of the Work shall, in violation of
the Act, directly or indirectly, give, offer or agree to give
or offer, a loan reward, advantage or benefit of any kind to a
foreign public official (as that term is defined in the Act)
as consideration for an act or omission by the official in
connection with the performance of the official's duties or
functions or to induce the official to use his or her position
to influence any acts or decisions of the foreign state (as
that term is defined in the Act) or public international
organization for which the official performs duties or
functions, and that neither the Consultant nor any other
person, firm or entity involved in the performance of the Work
has done so prior to the effective date of this Agreement.
The Consultant agrees to apprise any and all persons, firms and
entities involved in the performance of the Work of the Consultant's
representations, warranties, covenants and obligations hereunder and
ensure that such persons, firms and entities comply therewith. The
Consultant shall, as and when requested by TIREX, certify in writing
the Consultant's compliance, as well as the compliance of any and all
persons, firms and entities involved in the performance of the Work,
with the provisions of paragraphs 2.2, 5.6, 7.3, 8.3(c) and 13.7 of
this Agreement. In addition, the Consultant shall retain all books,
payrolls, information and other records relating to this Agreement for
a period of seven (7) years after the close of the calendar year to
which the records relate. TIREX shall have access to and the right to
audit these records at any reasonable time or times, at no charge to
TIREX, to verify compliance by the Consultant with the provisions of
this Agreement. The Consultant shall ensure that such audit rights in
favour of TIREX are included in any and all subcontracts entered into
by the Consultant with subcontractors for the performance of any of the
Work.
Notwithstanding any other provision of this Agreement, the Consultant
shall indemnify, defend and hold harmless TIREX from and against any
claim, loss, damage, penalty, liability, expense, attorney's fees and
costs of whatever nature arising out of, or related to, or connected
with any default or breach of the provisions of this paragraph 13.7, to
the fullest extent permitted by law.
13.8 Further Action
The parties hereto shall execute and deliver all documents, provide all
information and take or forbear from all such action as may be
necessary or appropriate to achieve the purposes of the Agreement.
13.9 Parties in Interest
Nothing herein shall be construed to be to the benefit of any third
party, nor is it intended that any provision shall be for the benefit
of any third party.
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13.10 Savings Clause
If any provision of this Agreement or the application of such provision
to any person or circumstance, shall be held invalid, the remainder of
this Agreement or the application of such provision to persons or
circumstances other than those as to which it is held invalid, shall
not be affected thereby.
13.11 Language of the Agreement
The parties have agreed that the present document be written in
English. Les parties conviennent que le present document soit redige en
anglais.
13.12 Governing Laws
This Agreement shall be governed by the laws and courts of the Province
of Quebec, Canada.
13.13 Retroactivity
The parties agree that, notwithstanding the actual date of signature of
this Agreement, the effective date for purposes of establishing the
contractual relationship between the parties shall be November 1, 2001.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their
duly authorized officers and their corporate seals to be hereunto affixed.
THE TIREX CORPORATION
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
President / CEO
▇▇▇▇▇▇▇ OVERSEAS LTD.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
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