Exhibit 4.2
CONSULTING AGREEMENT
THIS AGREEMENT is entered into on the 1st day of April, 2001, between
▇-▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC. (the "Corporation") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Consultant")
13. RECITALS
13.1. The Corporation wishes to engage the Consultant to provide consulting
services on the terms set out herein.
13.2. The Consultant wishes to accept this engagement by the Corporation.
NOW THEREFORE in consideration of the mutual covenants and agreements contained
in this Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
14. DEFINITIONS
14.1. In this Agreement,
(a) "AGREEMENT" means this agreement as it may be amended from
time to time.
(b) "CONFIDENTIAL INFORMATION" means all confidential or
proprietary information, intellectual property (including
trade secrets, business models and procedures, and customer
lists) and material change and material facts relating to the
business and affairs of the Corporation that have not been
disseminated to the public.
15. ENGAGEMENT
15.1. The Consultant irrevocably agrees to provide her services to the
Corporation, or such affiliated or related entity of the Corporation as
the Corporation may deem more appropriate from time to time for
taxation or business reasons (and for purposes of this agreement, such
affiliated or related entity or entities are included in the definition
of the ACorporation@);
15.2. The Consultant agrees and consents to her appointment to the Board of
Directors of the Corporation. The Consultant's services shall include
INTER ALIA, all services consistent with the office of Director (the
"Services"). The parties acknowledge and agree that the Consultant's
services as director of the Corporation shall at all times be subject
to the law governing corporations in New Jersey and all other
applicable United States and New Jersey laws.
15.3. The Consultant represents, warrants and covenants that the Consultant
has the right and capacity to enter into and to perform her obligations
under this agreement.
16. COMPENSATION
16.1. As compensation for the Consultant's services set out herein, the
Corporation agrees to pay the Consultant as follows:
(a) FEE FOR SERVICES: The Corporation agrees to pay the Consultant
a annual fee for services in the amount of $75,000 in U.S.
dollars, payable in equal monthly installments or as may be
mutually agreed, less such deductions or withholdings required
by law and any other deductions that may be mutually agreed.
17. TERM OF AGREEMENT
17.1. The term of this agreement shall be two (2) years, unless otherwise
terminated by the parties pursuant to the terms of this Agreement.
18. TERMINATION
18.1. This Agreement may be terminated after 90 days from the date first
written above by either party giving 30 days written notice of intent
to terminate.
18.2. The Corporation may terminate this Agreement on 30 days written notice
if the Consultant is in breach of any of its covenants or agreements
set out in Article 3 herein unless the breach is corrected within the
30 day notice period.
18.3. The Consultant may terminate this Agreement on 30 days written notice
if the Corporation is in breach of any of its covenants or agreements
set out herein unless the breach is corrected within the 30 day notice
period.
19. CONFLICTS
19.1. The Consultant is in the business of providing similar services to
other companies and such services as provided to others whether their
business be similar to that of the Corporation, will not be a breach of
this Agreement or considered a conflict of interest on the part of the
Consultant.
20. CONFIDENTIAL INFORMATION
20.1. During the term of this Agreement and at all times after the
termination of this Agreement, the Consultant will keep confidential
all Confidential Information and will not use, for the benefit of the
Consultant or others (except in connection with the business and
affairs of the Corporation in the course of providing services
hereunder) any Confidential Information and will not disclose any
Confidential Information to any person except in the course of
providing services under this Agreement to a person who is employed by
the Corporation or with the Corporation's prior consent and in
accordance with applicable law. The foregoing prohibition will not
apply to any Confidential Information if:
(a) The Confidential Information is available to the public or in
the public domain at the time of disclosure or use.
(b) Disclosure of the information is required to be made by
operation of law, in which case the Consultant will notify the
Corporation immediately upon learning of that requirement; or
(c) Disclosure is made with the Corporation's prior written
approval.
20.2. Consultant acknowledges that the Confidential Information may be deemed
"▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇" for purposes of Canadian provincial securities laws
and United States federal and state securities laws.
20.3. Consultant agrees not to use the Confidential Information in any manner
which would violate Canadian provincial, or United States federal or
state securities laws, and will indemnify and hold Corporation harmless
from any liability caused by the Consultant's use of Confidential
Information or trading in Corporation's securities when in possession
of Confidential Information.
20.4. Consultant agrees that it shall not, directly or indirectly, and shall
procure that is employees, agents and independent contractors do not,
directly or indirectly disclose, disseminate, or make use of the
Confidential Information for its own benefit or for the benefit of any
person or entity other than the Corporation except in accordance with
the provisions of this Agreement, and not for any other purpose.
20.5. If the Consultant should ever breach or threaten breach of this
agreement, Consultant agrees to pay the Corporation's reasonable legal
fees and disbursements incurred in obtaining equitable relief to
restrain and enjoin use or disclosure or dissemination of the
Confidential Information by the Consultant and by any third party who
obtained such Confidential Information, directly or indirectly from
Consultant, and to pay adequate compensation to the Corporation for
whatever damages are caused by such breach.
21. REGULATORY APPROVALS
21.1. If any of the provisions set out in this Agreement require regulatory
approval, the Corporation undertakes to forthwith upon execution of
this Agreement make application for such approval. The Consultant shall
not be obligated to commence providing services under this agreement
until such approvals are obtained. At the option of the Corporation all
other provisions of this Agreement that are tied to the date of the
Agreement may be extended to the date of said approvals.
22. RELATIONSHIP
22.1. Except to the extent that the Parties otherwise agree in writing, this
Agreement does not constitute and shall not be construed as
constituting a partnership, joint venture, or employer/employee
relationship between the Parties. The Consultant shall at all times
remain an independent contractor of the Corporation, and neither party
shall represent itself to be a employee of the other, nor assume any
obligation or enter into any contract on behalf of the other. Except as
required by law or pursuant to this Agreement, neither party shall have
any liability or responsibility to the other party for any withholding,
collection or payment of income taxes, unemployment insurance,
statutory or other taxes.
23. NOTICE
23.1. Any notice or other instrument required or permitted to be given
hereunder shall be in writing and may be given by delivery in person or
by prepaid registered mail, telex, telegram or telecopy:
(a) In the case of the Corporation, to: ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Facsimile: ▇▇▇-▇▇▇-▇▇▇▇; and
(b) In the case of the Consultant, to:
provided that if any interruption in the postal service of the
jurisdiction of the party giving or receiving any notice is in effect
or known to be pending, any such notice or direction as aforesaid shall
be given by personal delivery, telex, telegram or telecopy. Any notice
or other instrument, if delivered as aforesaid, shall be deemed to have
been given on the date of delivery, if given by telex, telegram or
telecopy as aforesaid, shall be deemed to have been given on the next
business day following the date of sending and, if mailed as aforesaid,
shall be deemed to have been given on the fifth business day following
the day on which it was mailed. Either party may change its address for
service from time to time by notice given in accordance with the
foregoing.
24. GENERAL
24.1. The Corporation may assign this Agreement. The Consultant may assign
this Agreement with the prior written approval of the Corporation.
24.2. The parties agree that no party may commence or continue any
proceedings in any court of law in any jurisdiction to enforce the
obligations of any other party to this agreement and no party at any
time shall be entitled to commence or continue any proceedings in any
court of law in any jurisdiction with respect to any omission of any
material fact in this agreement.
24.3. This Agreement shall enure to the benefit of and be binding upon the
Corporation, its successors and assigns, and the Consultant and her
successors and permitted assigns.
24.4. This agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario and the laws of Canada applicable
therein. The courts of the Province of Ontario shall have non-exclusive
jurisdiction over any dispute arising out of the performance or
interpretation of this agreement. The parties submit to the
jurisdiction of the courts of the Province of Ontario. Notwithstanding
the foregoing, the parties agree that the Consultant's services as
director of the Corporation shall at all times be subject to the law
governing corporations in New Jersey and all other applicable United
States and New Jersey laws.
24.5. The Consultant agrees that the breach by the Consultant of any
provision of this Agreement will cause irreparable damage to the
Corporation, and upon any such breach, the Corporation shall be
entitled to equitable relief, including injunctive relief and specific
performance, without the necessity of proving actual damages.
24.6. The division of this Agreement into sections and the insertion of
headings herein are for convenience of reference only and shall not
affect the interpretation hereof.
24.7. Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction will, as to that jurisdiction, be ineffective to the
extent of the prohibition or unenforceable without invalidating the
remaining provisions of this Agreement, and any prohibition or
unenforceability in any jurisdiction will not invalidate or render
unenforceable that provision in any other jurisdiction. For any
provision severed there will be deemed substituted a like provision to
accomplish the intent of the parties as closely as possible to the
provision as drafted, as determined by any court or arbitrator having
jurisdiction over any relevant proceeding, to the extent permitted by
the applicable law.
24.8. This agreement constitutes the entire agreement between the parties
pertaining to the subject matter. There are no warranties,
representations or agreements between the parties in connection with
the subject matter except as are specifically set out or referred to in
this Agreement. No reliance is placed on any representation, opinion,
advice or assertion of fact made by either party or its directors,
officers, employees or agents to the other party, or its directors,
officers or agents, except to the extent that the same has been reduced
to writing and included as a term of this Agreement. Accordingly, there
is to be no liability, wither in tort or in contract, assessed in
relation to any such representation, opinion, advice or assertion of
fact, except to the extent aforesaid.
24.9. Except as expressly provided in this Agreement, no amendment or waiver
of this Agreement will be binding unless executed in writing by the
party to be bound. The failure of either party at any time to require
performance by the other party of any provisions of this Agreement will
in no way affect the right of that party to require performance of any
provisions. No waiver of any provision of this Agreement will
constitute a waiver of any other provision nor will any waiver of any
breach of any provision of this Agreement be construed as a waiver of
any continuing or succeeding breach of such provision unless otherwise
expressly provided.
24.10. This Agreement constitutes the entire understanding of the parties
relating to the subject matter hereof and replaces all previous
agreements, written or oral, between the parties relating to the
subject matter hereof.
24.11. All amounts in this Agreement are stated and will be paid in United
States currency.
24.12. This Agreement may be executed in any number of counterparts, including
facsimile signatures, which shall be deemed as original signatures. All
executed counterparts shall constitute one Agreement, notwithstanding
that all signatories are not signatories to the original or the same
counterpart.
24.13. No presumption shall operate in favour of or against any Party hereto
as a result of any responsibility that such Party may have had for
drafting this Agreement or any portion thereof.
24.14. Each of the parties hereto acknowledges that it has read and understood
the terms of this agreement. Each of the parties acknowledges that such
party has been advised to seek independent legal advice with respect to
the terms and conditions and effect of this agreement and has received
same, or has decided not to seek independent legal advice and to rely
on his/her/its own judgment. Each of the parties shall pay all of their
own expenses (including solicitors' and accountants' fees) in
connection with the negotiation, drafting, and performance of their
respective obligations hereunder and the consummation of the
transactions contemplated hereby (whether consummated or not).
IN WITNESS WHEREOF the parties hereto have executed this Agreement under their
respective corporate seals and by the hands of their proper officers duly
authorized.
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇-▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
Per:
Signature: _________________________