CONSULTING AGREEMENT
THIS AGREEMENT dated for reference the 31st day of May, 2003
BETWEEN:
KEY GOLD, CORPORATION a company incorporated under the laws of
Nevada and having an office located at 0000 Xxxxxxxx, xxxxx
000, Xxxxxxx Xxxxxxxx, 00000
(the "Company")
OF THE FIRST PART
AND:
AXIOM CONSULTING CORP, a company incorporated under the laws
of British Columbia and having its registered office located
at Suite 0000-000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 0X0
(the "Consultant")
OF THE SECOND PART
WHEREAS:
A. The Company is or will be engaged in the business of marketing and
distributing a system for measuring the flow of gas in upstream petroleum
production applications (the "Business");
B. The Consultant has the qualifications and expertise to provide the services
described in section 2.1 of this Agreement (the "Services");
C. The Company wishes to engage the Consultant to provide the Services;
NOW THEREFORE THIS AGREEMENT WITNESSES that the parties mutually agree as
follows:
1. ENGAGEMENT
1.1 Subject to the terms and conditions of this Agreement, the Company engages
the Consultant to provide the Services.
1.2 The Consultant's obligation to perform the Services and the Company's
obligation to pay the remuneration to the Consultant will commence on April 1,
2004 (the "Effective Date") and will continue for a term of two years from the
Effective Date (the "Term") unless earlier terminated in accordance with Article
5.
1.3 At the end of the Term, the parties may renew this Agreement in writing for
a further term of one year or for any other term to which the parties may agree.
2. SERVICES
2.1 The Consultant will use its best efforts to provide the Services, which
include, but are not limited to: The Consultant will use his best efforts to
provide the Services, which include, but are not limited to:
(a) management of the Company and the Business, including
supervision of and liaison with staff, consultants, and
professional advisors of the Company and its subsidiaries;
(b) advice and strategic planning regarding development,
expansion, diversification and marketing of the Company and
the Business;
(c) preparing and implementing a business plan for the Comapny and
the Business;
(d) preparing, coordinating, monitoring, and reporting on a
financial plan and budget for the Company, with particular
emphasis on short and long term funding alternatives to
enhance the financial operations and position of the Company
and the Business;
(e) use organizational, presentation and communication
capabilities and consulting expertise to enhance the Business;
(f) generate and increase sales revenues of the Comapny; and
(g) any other consulting and management services that the Company
may request from time to time.
2.2 The Consultant will perform the Services in a diligent, professional, and
efficient manner to preserve and enhance the Company's corporate image and will
faithfully devote the time, effort, and ability necessary to perform the
Services.
3. CONSIDERATION
3.1 In consideration of the Services, the Company will pay to the Consultant a
fee of $7,500. (the "Fee") plus GST per month, payable on the first business day
of each month during the Term, against a monthly invoice to be delivered to the
Company by the Consultant.
3.2 The Consultant will be responsible for the payment of its own taxes on
income and otherwise as required by any government authority with respect to the
fee.
3.3 The Company will reimburse the Consultant for all travelling and other
out-of-pocket expenses actually and properly incurred by it in connection with
the provision of the Services. The Consultant will provide the Company with
receipts, statements, and vouchers for all expenses on the Company's request.
4. RELATIONSHIP OF THE PARTIES
4.1 The Services to be performed by the Consultant are personal in character and
neither this Agreement nor any rights or benefits arising thereunder are
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assignable by the Consultant. In performing the Services, the Consultant will
operate as, and will have the status of, independent consultant and will not act
or hold itself out as, or be an agent of, the Company.
5. TERMINATION
5.1 The Company may terminate this Agreement without prior advance notice on the
occurrence of any default by the Consultant by giving written notice to the
Consultant specifying the nature of the default. A default will be defined as
the occurrence of any one or more of the following, any of which is deemed to be
"just cause" for termination of this Agreement:
(a) the Consultant's continued failure or negligence to perform
any of the Services in the manner or within the time required
or the continued breach of or default in any of the
Consultant's covenants, duties, or obligations 30 days after
the Company delivers a written demand for substantial
performance to the Consultant, which demand specifically
identifies the manner in which the Consultant has not
performed the Services or the nature of the breach or default;
(b) the Company acting reasonably determines the Consultant or any
of its shareholders, directors, officers, agents, employees,
or consultants (collectively, the "Consultant's Associates")
has violated the confidentiality of any information as
provided for in this Agreement or has become of unsound mind
or is declared incompetent to handle his own personal affairs;
(c) any dishonesty or misconduct on the part of the Consultant or
any of the Consultant's Associates that materially affects the
Company;
(d) the conviction of the Consultant or any of the Consultant's
Associates for any crime involving moral turpitude, fraud, or
misrepresentation; or
(e) the Consultant becomes bankrupt or makes any arrangement or
composition with its creditors.
On termination of this Agreement for any reason, the Consultant will immediately
deliver to the Company all data and documents pertaining to the Company or its
affiliates (collectively, the "Companies") or their business and affairs,
including without limitation all correspondence, reports, records, contracts,
and data bases related to the Companies, and anything included in the definition
of "Confidential Information" set out in section 6.1 of this Agreement.
5.2 At the request of the Company, on termination of this Agreement for any
reason, the Consultant or any of the Consultant's Associates will forthwith
resign any position that it then holds with the Company or any of their
affiliates.
6. CONFIDENTIALITY
6.1 For the purposes of this Article 6, "Confidential Information" includes
without limitation:
(a) trade secrets concerning the business and affairs of the
Companies, data, know-how, ideas, past and current supplier
and customer lists, current and anticipated customer
requirements, price lists, market studies, business plans,
computer software and programs (including object code and
source code), computer software and database technologies,
systems, structures and architectures (and related formulae,
compositions, processes, improvements, devices, inventions,
discoveries, concepts, designs, methods, and information), and
any other information, however documented, that is a trade
secret; and
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(b) information concerning the business and affairs of the
Companies, which includes historical financial statements,
financial projections and budgets, historical and projected
sales, capital spending budgets and plans, the names and
backgrounds of key personnel, and personnel training and
techniques and materials, however documented; and
(c) records, memoranda, notes, analyses, compilations, reports,
studies, summaries, manuals, and other material prepared by or
for the Companies containing or based, in whole or in part, on
any information included in the foregoing.
6.2 The Consultant acknowledges and agrees that all Confidential Information
delivered to or prepared, produced, compiled, developed, known, or obtained by
the Consultant, directly or indirectly, whether before or after the date hereof,
belongs exclusively to the Companies, which will be entitled to all rights,
interests, profits, or benefits in respect thereof.
6.3 The Consultant will not disclose at any time any Confidential Information to
any person, firm, partnership, corporation, or business not expressly authorized
in writing by the Company for that purpose. The Consultant will comply with any
directions that the Company may make to ensure the safeguarding or
confidentiality of all Confidential Information.
6.4 The Consultant will not disseminate or distribute any of the Confidential
Information to the media, members of the public, shareholders of the Company,
prospective investors, members of the investment or brokerage community,
securities regulators, or any other third party, without the Company first
reviewing and approving the Confidential Information before dissemination or
distribution.
6.5 The Consultant will not make any copies, summaries, or other reproductions
of any Confidential Information without the Company's express written
permission, provided that the Company permits the Consultant to maintain one
copy of the Confidential Information for its own use during the Term.
6.6 The Consultant will not, either directly or indirectly, use for its own
benefit or for the benefit of any third party any Confidential Information.
6.7 The Consultant acknowledges and agrees that Confidential Information is and
will be of a special and unique character, the loss of which cannot be
reasonably, readily, or accurately calculated in monetary terms. Accordingly,
the Companies will be entitled to injunctive or other equitable relief to
prevent or cure any breach or threatened breach of this Agreement by the
Consultant. Resort to equitable relief, however, will not be construed to be a
waiver of any other right or remedy that the Companies may have for damages or
otherwise.
6.8 If the Consultant breaches any of the provisions of this Article 6, the
Companies or any of them will be entitled to damages from the Consultant and, in
addition to its rights to damages and any other rights any of the Companies may
have, to obtain injunctive or other equitable relief to restrain any breach or
threatened breach or otherwise to specifically enforce the provisions of this
Article 6, it being agreed that money damages alone would be inadequate to
compensate the Companies and would be an inadequate remedy for such breach. The
remedies afforded to the Companies by this Agreement will be cumulative and not
alternative and will be in addition to and not in substitution for any other
rights and remedies available to the participants at law or in equity, including
the remedy of injunctive relief.
7. OTHER INTERESTS
7.1 The Company is aware that the Consultant has now and will continue to have
financial interests in other companies and businesses and the Company recognizes
that these companies and businesses will require a certain portion of the
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Consultant's time. The Company agrees that the Consultant may continue to devote
time to those outside interests, provided that those interests do not conflict
with in any way the time required for the Consultant to perform its duties under
this Agreement.
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8. NOTICES
8.1 Any notice required or permitted to be given under the provisions of this
Agreement must be in writing and may be given by delivering it or by mailing it
by prepaid, registered, or certified mail or by sending it by fax or other
similar form of communication, in each case addressed as follows:
(a) If to the Company at:
Key Gold, Corporation.
0000 Xxxxxxxx, xxxxx 000
Xxxxxxx, Xxxxxxxx
00000
Fax No.: 000 000-0000
(a) If to the Consultant at:
Axiom Consulting Corp.
Suite 0000-000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Fax No.: (000) 000-0000
8.2 Any notice, if delivered, will be deemed to have been given and received on
the day it was delivered, and if mailed, will be deemed to have been given and
received on the fifth business day following the day of mailing, except that if
postal service is disrupted, any notice will be deemed to be received only when
actually received and, if sent by fax or other similar form of communication,
will be deemed to have been given or received on the day it was so sent.
8.3 Any party may at any time give to the other party notice in writing of any
change of address of the party giving such notice and from and after the giving
of such notice, the address or addresses specified will be deemed to be the
address of such party for the purposes of giving notice.
9. FURTHER ASSURANCES
9.1 Each party will at any time and from time to time, on the request of the
other, sign and deliver other documents and do other things that the other party
may reasonably request to evidence, carry out, and give full effect to the
terms, conditions, intent, and meaning of this Agreement.
10. ENUREMENT
10.1 This Agreement is binding on the parties to this Agreement, and will enure
to the benefit of the Companies and their successors and assigns, and the
Consultant and its successors and permitted assigns.
11. WAIVER
11.1 The rights and remedies of the parties to this Agreement are cumulative and
not alternative. Neither the failure nor any delay by any party in exercising
any right, power, or privilege under this Agreement will operate as a waiver of
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such right, power, or privilege, and no single or partial exercise of any such
right, power, or privilege will preclude any other or further exercise of such
right, power, or privilege or the exercise of any other right, power, or
privilege. To the maximum extent permitted by applicable law,
(a) no claim or right arising out of this Agreement can be
discharged by one party, in whole or in part, by a waiver or
renunciation of the claim or right unless in writing signed by
the other party;
(b) no waiver that may be given by a party will be applicable
except in the specific instance for which it is given; and
(c) no notice to or demand on one party will be deemed to be a
waiver of any obligation of that party or of the right of the
party giving the notice or demand to take further action
without notice or demand as provided in this Agreement.
12. SEVERABILITY
12.1 If any provision of this Agreement is determined to be void or
unenforceable in whole or in part, that provision will be deemed not to affect
or impair the validity of any other provision of this Agreement and the void or
unenforceable provision will be severable from this Agreement.
13. GOVERNING LAW
13.1 This Agreement will be governed by and construed in accordance with the
laws of British Columbia and the parties irrevocably attorn to the courts of
British Columbia.
IN WITNESS WHEREOF the parties have signed this Agreement as of the day
and year first above written.
KEY GOLD, CORPORATION
Per:
--------------------------
Authorized Signatory
AXIOM CONSULTING CORP.
Per:
--------------------------
Authorized Signatory
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