EXHIBIT 10.2 CONSULTING CONTRACT ------------------- THIS AGREEMENT is made as
of the 31st day of March, 2002. BETWEEN:
THIS AGREEMENT is made as of the 31st day of March, 2002.
KATHLER HOLDINGS INC.
OF THE FIRST PART
OF THE SECOND PART
VIAVID BROADCASTING, INC.,
a Nevada corporation
OF THE THIRD PART
A. The Company wishes to contract for the services of the Consultant.
B. The Principal is an employee of the Consultant.
C. The Consultant has agreed to accept such contract for services upon the
terms and conditions of this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the mutual
covenants herein contained, the parties hereto agree as follows:
1.1 APPOINTMENT. The Company hereby contracts for the services of the Consultant
and the Consultant hereby agrees with the Company to perform services for the
Company in accordance with the terms and conditions of this Agreement. The
Consultant agrees to provide the services of the Principal to provide the
services as contemplated in this Agreement and the Principal agrees to perform
such services as an employee of the Consultant. The Consultant shall not use the
services of any party other than the Principal, whether as employee or
contractor, to provide such services without the prior written consent of the
Company, which approval will not be unreasonably withheld.
1.2 SCOPE OF DUTIES. The Consultant will cause the Principal to act as a
director of the Company and will have the following responsibilities and duties
to the Company to be provided as the consultant services (the "Consultant
A. exercising general direction and supervision over the marketing
and development of the business of the Company;
B. providing direction to the management of the Company;
C. assisting with the day to day operations of the Company;
D. performing such other duties and observing such instructions as
may be reasonably assigned to him from time to time by the Board
of Directors; and
E. generally at all times abiding by all lawful directions given to
him by the Board of Directors of the Company.
1.3 BEST EFFORTS. The Consultant shall at all times use its best efforts to
advance the interests f the Company, and shall faithfully, industriously, and to
the best of its abilities, perform the responsibilities and duties described
1.4 COVENANTS AND RESTRICTIONS. The Consultant covenants and agrees with the
Company that the Consultant will not engage in any activities which would bring
the Company's reputation into disrepute.
1.5 WARRANTIES AND REPRESENTATIONS. The Consultant and the Principal warrant and
represent to the Company as follows and acknowledges that the Company is relying
upon these warranties and representations in entering into this Agreement:
(a) the Consultant and the Principal have the necessary expertise to
effectively provide the Consultant Services;
(b) the Consultant and the Principal are not aware of any matter
which would prevent the Consultant and/or the Principal from
carrying out their duties and obligations pursuant to this
(c) neither the Consultant nor the Principal is subject to any review
by any securities regulatory body.
1.6 INDEPENDENT CONTRACTS. The Consultant and the Principal shall at all times
be independent contractors and shall not at any time be or be deemed to be
employees of the Company. The Consultant and the Principal acknowledge that they
are not employees of the Company and that the execution of this Agreement shall
not give rise to any employment with the Company.
2.1 INITIAL TERM. The initial term of this Agreement shall be one (1) year,
commencing on the date first above written, subject to earlier termination as
2.2 RENEWAL. This Agreement shall be renewed for further terms of such duration
and upon such terms and conditions as the Consultant and the Company may
mutually agree upon in writing.
3. PAYMENT FOR THE CONSULTANT SERVICES
3.1 The Company shall pay to the Consultant a consultant fee in consideration
for the Consultant Services equal to the sum of $10,000 CDN. per month (the
3.2 Federal Goods and Services Tax on the Consultant Fee shall be payable by the
Company in addition to the Consultant Fee.
3.3 The Consultant may be granted, subject to the approval of the Company's
shareholders and compliance with all securities regulatory legislation,
incentive stock options to purchase shares in the Company in such amounts and at
such times as the Board of Directors of the Company, in their absolute
discretion, may from time to time determine.
3.4 The Consultant Fee shall be payable by the Company to the Consultant on the
last business day of each month during the term of this Agreement.
3.5 The parties agree that the Consultant Fee provided for in paragraph 3.1
hereof is intended to include reimbursements for all expenses incurred by the
Consultant in connection with its duties hereunder save and except for expenses
directly related to the performance of the Consultant's duties as director of
the Company and the Consultant shall bear the cost of its own expenses, except
for any reasonable travel and promotional expenses and other specific expenses
incurred by the Consultant with the prior written approval of the Company.
4. CONFIDENTIAL INFORMATION AND NON-DISCLOSURE. The Consultant and the Principal
acknowledge and agree with each other that all information connected with the
Company's technology, including without limitation, all computer software, trade
secrets, information, data, inventions, discoveries, improvements,
modifications, developments, technical manuals, or process-flow manuals, data,
customer information and pricing information is confidential, and the Consultant
and the Principal each jointly and severally covenant and agree with the Company
to use its best efforts to ensure that such information does not become public
knowledge and undertakes not to disclose such information or any part thereof to
any other person except to its consultants and employees as may be necessary to
carry out its rights and obligations under this Agreement. The Consultant hereby
further covenants and agrees with the Company that the Consultant shall require
each and every one of its employees or consultants who are provided with any
information in respect of the Company's technology or related knowledge to sign
confidentiality agreements which shall be in a form acceptable to the Company.
All such information shall be returned to the Company upon termination of this
4.2 NON-COMPETITION. Each of the Consultant and the Principal shall not during
the term of this Agreement and during the period which is one year after the
date of the termination of this Agreement, either alone or in partnership or
jointly or in conjunction with any person or persons, including without
limitation, any individual, firm, association, syndicate, company, corporation
or other business enterprise, as principal, agent, shareholder, or in any other
manner whatsoever, carry on or be engaged in or concerned with or interested in
or advise, lend money to, guarantee the debts or obligations of or permit their
names to be used or employed by any person or persons, including without
limitation, any individual, firm, association, syndicate, company, corporation
or other business enterprise, engaged in or concerned with or interested in an
operation or undertaking which is in any way competitive with the business of
the Company without having obtained the express written consent of the Company.
The Consultant and the Principal acknowledge and agree the geographical
restrictions contained herein are reasonable in light of the nature of the
Company's technology and business. The Consultant and the Principal further
agree to not:
(a) carry on, be engaged in or concerned with or interested in any
business, operation or undertaking which is in any way
competitive with the business of the Company anywhere in Canada
and in the United States where the business of the Company is
carried on; and
(b) attempt to solicit any suppliers, customers or employees of the
business of the Company away from the Company.
4.3 Any and all inventions and improvements on which the Consultant or the
Principal may conceive or make, during the term of this Agreement, relating, or
in any way, pertaining to or connected with any of the matters which have been,
are or may become the subject of the company's investigations, or in which the
Company has been, is, or may become interested, shall be the sole and exclusive
property of the Company, and the Consultant will, whenever requested by the
Company, execute any and all applications, assignments and other instruments
which the company shall deem necessary in order to apply for an obtain letters
of patent for U.S. or foreign countries for the inventions or improvements and
in order to assign and convey to the Company the sole and exclusive right, title
and interest in and to the inventions or improvements, all expenses in
connection with them to be borne by the Company. The Consultant's obligations to
execute the papers referred to in this paragraph shall continue beyond the
termination of this Agreement with respect to any and all inventions or
improvements conceived or made by him during the term of this Agreement, and the
obligations shall be binding on the assigns, executors, administrators or other
legal representatives of the Consultant. All inventions and discoveries relating
to the business of the Company and all knowledge and information which the
Consultant may acquire during his engagement shall be held by the Consultant in
trust for the benefit of the Company.
5.1 TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate this
Agreement at any time for just cause, provided that a reasonable written notice
of three business days has been first given by the Company to the Consultant. In
this Agreement, in addition to any cause permitted by law, "just cause" with
respect to termination by the Company includes:
(a) the Consultant's or the Principal's material default, misconduct,
breach or non-observance of any provision of this Agreement;
(b) the inability of the Consultant to provide the services of the
Principal to perform the Consultant Services;
(c) the attempted assignment of this Agreement by the Consultant, in
breach of this Agreement, or the sale of any interest in the
Consultant by the Principal or any change in directors of
officers of the Consultant;
(d) the dissolution, insolvency or the bankruptcy of the Consultant
or the Principal.
5.2 TERMINATION BY THE CONSULTANT. The Consultant may terminate this Agreement
for just cause at any time without notice to the Company, or without just cause
by providing 90 days' notice in writing to the Company. In this Agreement, in
addition to any cause permitted by law, "just cause" with respect to termination
by the Consultant includes:
(a) the Company's material default, misconduct, breach or
non-observance of any provision of this Agreement;
(b) the dissolution, insolvency or bankruptcy of the Company.
5.3 TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company may terminate this
Agreement at any time without cause, in which event the Company will pay to the
Consultant and the Principal, an amount equal to thirty six months of the
Consultant Fee, plus any Consultant Fee and expenses payable to the date of
5.4 SURVIVAL OF OBLIGATIONS. The obligations of the Consultant and the Principal
set forth in sections 4.1, 4.2 and 4.3 of this Agreement will survive
termination of this Agreement for any reason.
6. OTHER PROVISIONS
6.1 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Province of British Columbia.
6.2 NOTICE. Any notice required or permitted to be given under this Agreement
shall be in writing and may be delivered personally or by telex or telecopier,
or by prepaid registered post addressed to the parties at the above-mentioned
addresses or at such other address of which notice may be given by either of
such parties. Any notice shall be deemed to have been received, if personally
delivered or by telex or telecopier, on the date of delivery and, if mailed as
aforesaid, then on the seventh business day after and excluding the day of
6.3 PERSONAL NATURE. This Agreement is a contract for services and may not be
assigned in whole or in part by the Consultant or the Principal.
6.4 WHOLE AGREEMENT. This Agreement supersedes any previous agreement,
arrangement or understanding, whether written or oral between the parties hereto
and constitutes the entire agreement between the parties and may only be amended
6.5 SEVERABILITY. In the event that any provision of this Agreement that is held
to be unlawful or unenforceable, such provision will be severable and the
remaining terms and conditions of this Agreement remain in force and effect.
6.6 TIME OF ESSENCE. Time is of the essence of this Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement as of the day and
year first above written.
SIGNED, SEALED AND DELIVERED
BY BRIAN KATHLER
In the presence of:
________________________________ /S/ "Brian Kather"
Signature BRIAN KATHLER
KATHLER HOLDINGS INC.
by its authorized signatory:
/s/ "Brian Kather"
VIAVID BROADCASTING, INC.
By its authorized signatory:
/s/ "Paul Watkins"