EXHIBIT 4.9
CONSULTING AGREEMENT
THIS AGREEMENT is made as of the 6th day of November 2000.
BETWEEN:
BRC MANAGEMENT INC.
a Corporation incorporated under the
laws of the Province of Ontario
(hereinafter referred to as the "Consultant")
- and -
EQUILAR CAPITAL CORPORATION
a Corporation incorporated under the
laws of the Province of Ontario
(hereinafter referred to as the "Company")
WHEREAS the Company wishes to employ the services of BRC in accordance with the
by-laws of the Company;
AND WHEREAS the parties hereto desire to set out the understanding reached
between them in a written agreement;
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the mutual
covenants and agreements herein contained and for other good and valuable
consideration (the receipt and sufficiency whereof is hereby acknowledged), the
parties hereto hereby agree with each other as follows:
1.00 TERM
1.01 This Agreement shall be for a three (3) year term and thereafter shall, in
the absence of notice of cancellation by one party to the other, be
automatically deemed to be renewed, on the same terms and conditions set out
herein, by the parties, for successive one (1) year terms.
-2-
DUTIES
2.01 The Consultant shall provide management and administrative services as may
from time to time be prescribed by the Board of Directors of the Company.
2.02 The Consultant shall comply with all lawful instructions and directions
given to it by the Board of Directors.
3.00 TIME AND ATTENTION
3.01 During the term of this Agreement, the Consultant shall devote significant
time and attention, whether through (at the Consultant's discretion) employees,
officers, agents or sub-contractors, to the performance of the Consulting
Services, as is deemed necessary by the parties in the circumstances from time
to time.
3.02 The Company acknowledges that the Consultant is free to pursue other
activities during the term hereof, subject to Article 8.0 herein, and is not
devoting its full time and energies to the Company.
4.00 FEE
4.01 During the term of this Agreement, the Consultant shall be paid a fee at
the rate of Thirty Thousand Dollars ($30,000) per annum. Such fee shall be paid
to the Consultant in equal monthly installments, in advance. At the option of
the Consultant, such fee may be paid in common shares in the capital stock of
the Company at the prevailing market rate. If the Consultant elects to receive
such common shares as payment, said payment shall be made in advance for the
ensuing year.
For the purposes of this Agreement, "market rate" shall mean the average closing
price of the common shares of the Company over the twenty (20) trading days
preceding the relevant date as determined under this sub-paragraph.
-3-
5.00 EXPENSES
5.01 The Consultant shall be entitled to claim reimbursement for all reasonable
business expenses incurred by the Consultant in the course of its duties.
6.00 TERMINATION
6.01 This Agreement may only be terminated for legal cause, except as set out
below.
6.02 The Company may terminate this Agreement at any time, without cause, upon
providing not less than thirty (30) days prior written notice, and by paying to
the Consultant on the termination date so set all monies due and owing to the
Consultant, together with a cash amount equal to one-half of all payments which
would otherwise accrue for the remaining period of the current term.
Such payments are made in lieu of any damage claim by the Consultant for such
early termination who, in consideration of receipt of same, hereby expressly
waives the right to make such a claim. The Company acknowledges that the
Consultant has expended significant time and expense in preparing itself to deal
with its duties under this Agreement, and that the payments contemplated hereby
are reasonable. Any such payments should be treated as liquidated damages of the
Consultant.
In the event that the Consultant elected to receive its fee payments in capital
stock in lieu of cash, as contemplated by sub-paragraph 4.01, it shall not be
required to return any such securities, and if the deemed value thereof exceeds
the amount otherwise due hereunder, the Consultant shall be entitled to retain
same in full satisfaction of such payments.
6.03 No early termination of this Agreement pursuant to sub-paragraph 6.01 or
6.02 shall serve to relieve the parties of their obligations under Articles
7.00, 8.00 or 9.00 hereof.
7.00 CONFIDENTIAL INFORMATION
7.01 For the purposes of this Agreement, "Confidential Information" shall mean
all data and information (either oral or in a tangible form) that may be
disclosed by the Company, including but not limited to inventions, discoveries,
processes, and know-how; product information; research and development
information; information relating to actual and potential customers; financial
data and
-4-
information; business plans; marketing materials and strategy, information
relating to details of operations, commercial relationships, or negotiations of
the Company; and any other information regarding the foregoing that is not
generally known to public or competitors of the Company and that the Company
discloses to the Consultant hereunder or that the Consultant obtains as a result
of an inspection of or visit to the Company's premises. Failure to include a
confidentiality notice on any materials disclosed to the Consultant shall not
give rise to an inference that the information disclosed is not confidential.
7.02 For the purposes of this Agreement, "Confidential Information" shall also
mean all data and information (either oral or in tangible form) that may be
disclosed by the Consultant to the Company that was not expressly produced,
procured or otherwise acquired by the Consultant and provided to the Company
under the terms of this Agreement.
7.03 Confidential Information shall not include information that either party
can establish: was generally known to the public at the time of the disclosure
(other than as a result of a breach of this Agreement); was legally in the
possession of the relevant party at the time of disclosure, as evidenced by its
written records; was independently developed by the party, as evidenced by its
written records; was lawfully obtained from a third party owing no obligation of
confidentiality; or was later published or generally disclosed to the public.
7.04 The parties agree that during the term of this Agreement and following the
termination of the Agreement herein, it will not:
(a) disclose to anyone, except in the course of the relationship created
hereunder, or
(b) use for its own purposes or for any purposes except those
contemplated hereby
any Confidential Information. This restriction shall cease to apply to
information, which becomes available to the public generally otherwise than by
the Consultant's, or the Company's, as the case may be, default.
7.05 Each party acknowledges that a breach or threatened breach by the other of
any provision of this Agreement will result in the non-breaching party suffering
irreparable harm, which cannot be calculated or fully or adequately compensated
by recovery of damages alone. Accordingly, the parties agree that, in addition
to any other relief or remedy to which the breached party becomes
-5-
entitled, that party shall be entitled to interim and permanent injunctive
relief, specific performance and other equitable remedies.
8.00 NON-COMPETITION
8.01 Unless the prior written consent of the Company is obtained, the
Consultant shall not, for so long as this Agreement or any renewal of this
Agreement is in effect, and for a period of one (1) year after the termination
of this Agreement or renewal of this Agreement, directly or indirectly in any
manner whatsoever including, without limitation, either individually, in
partnership, jointly or in conjunction with any other person or entity, or as
employee, principal, agent, director or shareholder of any other entity:
(a) carry on or be interested in, whether as a shareholder, investor,
lender, licensee or otherwise, any business which competes in a
material way with any business carried on by the Company or any of
its subsidiaries; except that it may hold, for investment purposes
only, up to five percent (5%) of the issued securities of any class
of any company if the securities are listed and publicly-traded on a
stock exchange; and
(b) be a consultant or an employee or a director or officer in any
capacity in any business, which competes in a material way with any
business, carried on by the Company, or any of its subsidiaries.
8.02 This non-competition covenant shall be restricted to the following
geographic locations:
(a) within Canada.
8.03 It is understood by the parties that every provision, paragraph and
sub-paragraph and this Article 8 and every part thereof is hereby declared to be
separate and distinct and is intended to be severable. If any provision,
paragraph or sub-paragraph of this Article 8 or any part thereof is determined
to be void or unenforceable in whole or in part by any court of competent
jurisdiction, it shall not be deemed to affect or impair the validity or any
other provision, paragraph or sub-paragraph of this Article 8 or any other part
this Agreement herein.
9.00 NON-SOLICITATION
-6-
9.01 Neither party shall during this Agreement for so long as this Agreement or
any renewal of this Agreement is in effect, and for a period of one (1) year
after the termination of this Agreement or renewal of this Agreement, directly
or indirectly:
(a) attempt to solicit, entice away, engage or employ any person
employed by the other, or any of its subsidiaries, at the date of
termination or during the three (3) months immediately prior to
termination; or
(b) procure that such a person be engaged or employed by any other
business which competes in a material way with any business carried
on by the other at the date of termination; or
(c) approach or attempt to solicit any of the sponsors, customers, or
persons, firms or corporations that do business with the other, or
its subsidiaries.
10.00 NOTICE
10.01 All notices, requests, demands or other communications (collectively,
"Notices") by the terms hereof required or permitted to be given by one party to
any other party, or to any other person shall be given in writing by personal
delivery or by registered mail, postage prepaid, or by facsimile transmission to
such other party as follows:
(a) To the Company:
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
(b) To the Consultant:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
-7-
or at such other address as may be given by such person to the other parties
hereto in writing from time to time.
All such Notices shall be deemed to have been received when delivered or
transmitted or, if mailed, 48 hours after 12:01 a.m. on the day following the
day of the mailing thereof. If any Notice shall have been mailed and if regular
mail service shall be interrupted by strikes or other irregularities, such
Notice shall be deemed to have been received 48 hours after 12:01 a.m. on the
day following the resumption of normal mail service, provided that during the
period that regular mail service shall be interrupted all Notices shall be given
by personal delivery or by facsimile transmission.
11.00 LEGAL ADVICE
11.01 Both parties acknowledge that ▇▇▇▇▇ & ▇▇▇▇▇▇ may have acted for them in
the past but is not acting for either party in respect of this transaction, and
further acknowledge that ▇▇▇▇▇ & ▇▇▇▇▇▇ has advised both parties to seek
independent legal advice in respect of this transaction or any transaction which
may result herefrom, all in accordance with the rules of the Law Society of
Upper Canada.
12.00 GOVERNING LAW
12.01 This Agreement shall be governed by and construed in accordance with the
laws of Ontario and the laws of Canada applicable therein.
13.00 ENTIRE AGREEMENT
13.01 This Agreement constitutes the entire Agreement between the parties with
respect to all of the matters herein and its execution has not been induced by,
nor do any of the parties rely upon or regard as material, any representations
or writings whatever not incorporated herein and made a part hereof and may not
be amended or modified in any respect except by written instrument signed by the
parties hereto. Any schedules referred to herein are incorporated herein by
reference and form part of the Agreement.
14.00 ENUREMENT
-8-
14.01 The provisions of this Agreement shall enure to the benefit of and be
binding upon the administrators, successors and assigns of the Consultant and
the Company.
15.00 HEADINGS FOR CONVENIENCE ONLY
15.01 The division of this Agreement into articles and sections is for
convenience of reference only and shall not affect the interpretation or
construction of this Agreement.
IN WITNESS WHEREOF this Agreement has been executed by the parties hereto as of
the date first above written,
BRC MANAGEMENT INC.
Per:______________________________________
A.S.O.
I have the authority to bind the corporation
EQUILAR CAPITAL CORPORATION
Per:_______________________________________
A.S.O.
I have the authority to bind the corporation
