[LETTERHEAD OF AUCXIS CORP.]
August 29, 2001
BoomBoat Inc.
000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: President
Dear Sirs:
RE: LETTER AGREEMENT REGARDING I-THREE INC.
This letter is to confirm the terms upon which Aucxis Corp. ("Aucxis"), a
company incorporated under the laws of the State of Nevada and Boom Boat Inc.
("BoomBoat"), a company incorporated under the laws of the Province of Ontario,
agree to resolve all outstanding issues between them in connection with I-Three
Inc. ("I-3"), a company incorporated under the laws of the State of Delaware,
and in particular, (i) the status of the employees of I-3, (ii) the ownership of
all intellectual property of I-3, and (iii) the ownership of certain assets of
I-3.
This letter agreement (including all schedules and agreements attached
hereto), once executed by both parties hereto, will become a legal and binding
agreement between the parties and constitutes the entire agreement between the
parties pertaining to the subject matter of this letter agreement and supersedes
all prior agreements, understandings, negotiations and discussions, whether oral
or written. The parties acknowledge and agree that there are no conditions,
warranties, representations or other agreements between the parties in
connection with the subject matter of this agreement (whether oral or written,
express or implied, statutory or otherwise) except as specifically set out in
this letter agreement.
In consideration of the mutual covenants and agreements contained in this
letter agreement and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by each of the parties to this
letter agreement, on the terms and subject to the conditions set out in this
letter agreement, the parties covenant and agree with each other as follows:
A. EMPLOYEES
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1. SEVERANCE AMOUNT. BoomBoat and Aucxis hereby agree that the sum of one
hundred eighty-one nine hundred and forty-three dollars (CDN$181,943) in
Canadian funds (the "SEVERANCE AMOUNT") shall be the sole consideration payable
by Aucxis to BoomBoat (on behalf of the employees listed in Schedule "A-1")
hereto (each, an "EMPLOYEE" and collectively, the "EMPLOYEES") as full and final
settlement of all claims, action, causes of action and demands whatsoever, of
any kind, without limitation, BoomBoat, any of the Employees or any of their
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respective heirs, executors, administrators, assigns, affiliates, associates and
related persons or any of them, now have, or hereafter can, shall or may have by
reason of or arising out of their employment or consulting engagement with
Aucxis or I-3, as the case may be. Notwithstanding the forgoing, Aucxis or I-3,
as applicable, shall ensure that the Employees continue to receive their
existing dental, prescription eye care, drug plan and health plan benefits
(Equitable Life plan number 98340) until at least September 30, 2001.
2. ACKNOWLEDGEMENT SEVERANCE PAYMENT. BoomBoat hereby acknowledges previous
receipt from Aucxis of the sum of ninety thousand nine hundred and seventy-one
dollars (CDN$90,971) in Canadian funds (the "Initial Partial Severance Payment")
as partial payment of the Severance Amount.
3. FINAL SEVERANCE PAYMENT. In consideration for payment by Aucxis to BoomBoat
of the remaining portion of the Severance Amount (which amount has been adjusted
in accordance with the rights of set-off set out in sections C2 and C5 as
calculated in Schedule "A-3") in the sum of seventy-four thousand seven hundred
eighty-five dollars and sixty two cents (CDN$74,785.62) in Canadian funds (the
"Final Severance Payment"), BoomBoat shall deliver, or cause to be delivered, on
execution of this letter agreement, against delivery of the Final Severance
Payment, by way of certified cheque or bank draft made payable to the order of
BoomBoat, the following:
(a) a resignation as an employee of I-3 effective August 3, 2001, in the
form attached hereto as Schedule "A-3(a)", from each Employee;
(b) a full and final release, in the form attached hereto as Schedule
"A-3(b)", in favour of Aucxis and I-3, from each Employee;
(c) an acknowledgement regarding the cancellation of stock options, in the
form attached hereto as Schedule "A-3(c)", from each Employee;
(d) an assignment of the Intellectual Property (as later defined) and
waiver of all moral rights, in the form attached hereto as Schedule
"A-3(d)", from each Employee; and
(e) an agreement from each of Xxxx Xxxxxx and Xxxx Xxxxxx, in the form
attached hereto as Schedule "A-3(e)", to terminate their respective
commission agreements with Aucxis, each effective as of February 1,
2001, relating to their respective entitlement to ten percent (10%) of
the gross proceeds realized by Aucxis on the sale of I-3 derived
technology (which would include, among others, the Aucxis Toolbox
Product (as later defined)) to non-Aucxis owned companies.
In connection with the foregoing, BoomBoat acknowledges and agrees that Aucxis
shall not be obligated to pay any portion of the Final Severance Payment until
the foregoing deliveries have been made directly to Aucxis or to the solicitors
of Aucxis.
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B. INTELLECTUAL PROPERTY
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1. OWNERSHIP OF INTELLECTUAL PROPERTY. BoomBoat acknowledges and agrees that
Aucxis is the sole and exclusive owner of all right, title and interest in and
to the software and technology of I-3 and Aucxis, as the case may be, more
particularly described in Schedule "B-1" hereto (the "INTELLECTUAL PROPERTY").
2. BOOMBOAT COVENANTS. BoomBoat hereby covenants and agrees to:
(a) not contest or challenge any claim by either I-3 or Aucxis to the
title or ownership of, or a right or interest in, the Intellectual
Property;
(b) not, at any time, except as otherwise permitted hereunder, for a
period of two (2) years following the date of this letter agreement,
for any reason, within the geographic areas in which Aucxis and I-3 or
any of their respective affiliates, as the case may be, carries on
their respective businesses, for any reason whatsoever, directly or
indirectly, either alone or in conjunction with any individual or
firm, corporation, association or other entity, whether as principal,
agent, shareholder, creditor or in any other capacity, carry on or be
engaged in or be concerned with or interested in, advise, or permit
your name or any part thereof to be used in any business which is
similar or directly competes with the provision of electronic commerce
services to the financial services industry business being carried on
by Aucxis, I-3 and any of their respective affiliates, and in
particular, without limiting the generality of the foregoing, to not
compete with the Collateral Management Module ("CMM"), as more
particularly described in Schedule "B-2(b)" hereto;
(c) forever hold the "Confidential Information" (which term means
information, knowledge, data and property relating to the business and
affairs of Aucxis and I-3 which such parties wish and are entitled to
protect and includes, without limitation, computer systems, software
source code, marketing plans, patents, trade secrets or other
intellectual property, know-how, technical expertise, financial
information, forecasts, assumptions, product information, customer
information, marketing and development plans, cost and price data,
internal policies and procedures and other information relating to the
business and affairs of Aucxis and I-3) in trust and confidence for
Aucxis and I-3, as applicable, and not disclose the Confidential
Information to any person or entity without the prior written approval
of Aucxis or I-3, as applicable, or use the Confidential Information
for any purpose and that it will take all reasonable precautions to
prevent inadvertent disclosure of such Confidential Information,
including disclosure by the Employees, provided that, the obligations
of confidentiality hereunder shall not apply to any information that
(i) is or becomes information in the public domain without any act or
omission by BoomBoat or the Employees; (ii) was disclosed to BoomBoat
by a third party without breach by such third party of any obligation
to keep such information confidential; (iii) BoomBoat is obliged
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to disclose such information by any government agency or by court
order; or (iv) except as specifically permitted hereunder; and
(d) not use, other than as expressly set out in this letter agreement, any
Intellectual Property in developing the BoomBoat Toolbox Product (as
later defined) or any other product or for any other purpose, and
hereby confirms and acknowledges that it is not, as of the date of
this letter agreement, using all or any portion of the Intellectual
Property in any product or for any other purpose.
3. AUCXIS ACKNOWLEDGEMENT. In connection with the non-competition covenant set
out in section B2(b) above, Aucxis and I-3 hereby acknowledge that BoomBoat is
developing a toolset product (the "BOOMBOAT TOOLBOX PRODUCT"), more particularly
described in Schedule "B-3A" hereto, which product will, notwithstanding the
non-competition covenant of the Employees in the employment agreements and
BoomBoat in this letter agreement, compete with the toolbox product of Aucxis
(the "AUCXIS TOOLBOX PRODUCT") described on Schedule "B-3B". Aucxis and I-3 each
acknowledge and agree that any software or other intellectual property
independently developed by BoomBoat since August 3, 2001 (the "BOOMBOAT IP") is
the sole and exclusive property of BoomBoat. BoomBoat acknowledges and agrees
that the BoomBoat IP does not make use of any source code forming part of the
Intellectual Property. BoomBoat further acknowledges and agrees that the
acknowledgement and agreement of Aucxis and I-3 set out in this section in no
way acts as, or intended to act as, a transfer or release to BoomBoat, or in any
way gives BoomBoat any right, title, interest or ownership in, or to, any of the
Intellectual Property notwithstanding that BoomBoat is entitled to use a portion
of the Intellectual Property in accordance with the terms of this letter
agreement in the development of the BoomBoat Toolbox Product.
4. AUCXIS CONSENT. Subject to section B6, Aucxis and I-3 hereby consent to the
development by BoomBoat of the BoomBoat Toolbox Product and, solely in
connection with the development and exploitation of such product (at any time
from August 3, 2001 onwards), consent to the use by BoomBoat in such development
process of any idea, concept, trade secret, confidential information and/or
business method or process developed in connection with, or used or related to,
the Aucxis Toolbox Product which forms part of the Intellectual Property.
Notwithstanding the foregoing, BoomBoat shall not be entitled to, and Aucxis
does not consent to, the use by BoomBoat of any other portion of the
Intellectual Property including, but not limited to, source code related to the
Aucxis Toolbox Product. Aucxis and I-3 acknowledge and agree that the BoomBoat
Toolbox Product being developed by BoomBoat will provide substantially the same
(and perhaps even identical) functionality and solutions as the Aucxis Toolbox
Product. Notwithstanding the similarity of the BoomBoat Toolbox Product and the
Aucxis Toolbox Product, Aucxis and I-3 both agree not to take any legal action
whatsoever against BoomBoat (or its successors and assigns) with respect to the
development and the exploitation of the BoomBoat Toolbox Product, provided that,
such exploitation and development is in compliance with the terms and conditions
of this letter agreement.
5. NO TRANSFER. Aucxis and I-3 each agree that it will not sell, transfer,
assign, pledge, license or otherwise dispose of (collectively referred to as a
"TRANSFER") the Aucxis Toolbox Product or any of the Intellectual Property
related specifically thereto (the "AUCXIS PRODUCT"), to any
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Competitor (as such term is later defined)of BoomBoat at any time on or before
August 29, 2003 (the "TRANSFER EXPIRY DATE"). For the purpose of this section,
the term "Competitor" shall mean any person or entity which is engaged in the
exploitation of any product which competes directly with, and targets the same
customer base as, the BoomBoat Toolbox Product. Following the Transfer Expiry
Date, Aucxis shall be entitled to consummate a Transfer of the Aucxis Product
with any party, provided that, Aucxis shall have first offered to BoomBoat a
right to purchase the Intellectual Property and/or the Aucxis Product on the
same terms and conditions as Aucxis proposes to consummate the Transfer with a
third party and, by 5:00 p.m. (Toronto time) on the tenth (10th) business day
following the date on which Xxxxxx has delivered to BoomBoat a written notice
setting out the terms of the offer related to the Transfer Aucxis has not
received a written notice from BoomBoat advising that it wishes to exercise its
right of first refusal to purchase the Intellectual Property and/or the Aucxis
Product. Auxcis and I-3 acknowledge and agree that the foregoing right of first
refusal in favour of BoomBoat applies in the event of insolvency or bankruptcy
of Aucxis or I-3, as the case may be. For greater certainty, nothing in this
section shall prevent either Aucxis or I-3 at any time prior to the Transfer
Expiry Date from consummating a Transfer of the Aucxis Product and/or
Intellectual Property related thereto with any person or entity which is not a
Competitor of BoomBoat (a "NON-COMPETITOR") without having to comply with the
right of first refusal provision set out in the preceding sentence, provided
that, Aucxis shall give written notice to BoomBoat of any proposed Transfer to a
Non-Competitor of the Aucxis Product and/or Intellectual Property related
thereto prior to the Transfer Expiry Date and, in the event that BoomBoat,
within three (3) business days of the delivery of such notice, advises Aucxis
that such Non-Competitor is in fact a Competitor then the right of first refusal
provisions contained in this section shall apply in respect of such proposed
Transfer.
6. AUCXIS COVENANT. In consideration of the payment by BoomBoat to Aucxis of a
fee (the "BOOMBOAT FEE"), in an amount equal to one percent (1%) of all revenues
actually received by BoomBoat (net of returns and refunds) from the date hereof
to and including August 29, 2006 (the "FEE EXPIRY DATE"), Aucxis and I-3 hereby
agree to not enforce the non-competition covenants contained in this letter
agreement and the employment agreements with respect to the development and
exploitation of the BoomBoat Toolbox Product. For greater certainty, Aucxis
shall be entitled to enforce the non-competition covenant contained in this
letter agreement and/or the employment agreements in the event that BoomBoat (a)
competes with the CMM, (b) uses any of the Intellectual Property other than as
provided herein and/or (c) fails to pay the BoomBoat Fee in accordance with the
terms of section B7 below.
7. CALCULATION AND PAYMENT OF BOOMBOAT FEE.
(a) On the first (1st) day of September, December, March and June in each
twelve (12) month period following the date hereof up to and including
September 1, 2006, BoomBoat shall calculate, or cause to be
calculated, the BoomBoat Fee payable to Aucxis in respect of the three
(3) month period ending on the last day of the month immediately
preceding the calculation date, provided that, the calculation made on
September 1, 2006 shall be in respect of the three month period ending
on the Fee Expiry Date.
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(b) Not later than the tenth (10th) business day following each
calculation referred to in the preceding subsection, BoomBoat shall
deliver, or cause to be delivered, to Aucxis of a certified cheque or
bank draft made payable to the order of Aucxis representing the
BoomBoat Fee payable in respect of the preceding three (3) month
period together with a written notice signed by a senior officer of
BoomBoat which sets out the BoomBoat Fee payable in respect of such
period and the computation by which such BoomBoat Fee was calculated.
(c) From the date hereof to and including the Fee Expiry Date, BoomBoat
covenants to keep accurate records documenting all revenues earned by
BoomBoat in respect of sales related to the BoomBoat Toolbox Product
for the purpose of determining the BoomBoat Fee and covenants to
retain such records for a period of three (3) years from the Fee
Expiry Date.
(d) BoomBoat hereby agrees, upon the request and expense of Aucxis, to
provide Aucxis and its financial advisors reasonable access to the
books and records of BoomBoat as may be necessary to verify the
BoomBoat Fee payable in respect of any period contemplated by
subsection B7(a) above, provided that, such audit right shall expire
on August 29, 2007. If an audit discloses that any amount due to
Aucxis has not been paid in respect of a particular period on the
appropriate date, then BoomBoat shall pay, or cause to be paid, to
Aucxis the deficient amount (the "Deficiency Amount") by way of
certified cheque or bank draft payable to the order of Aucxis not
later than 5:00 p.m. (Toronto time) on the tenth (10th) business day
(the "Deficiency Payment Expiry Time") following delivery (or deemed
delivery) of a written notice by Aucxis to BoomBoat setting forth the
calculation of the Deficiency Amount, unless BoomBoat has delivered to
Aucxis prior to the Deficiency Payment Expiry Time of a written notice
(the "Deficiency Disagreement Notice") stating that it has a bona fide
disagreement with the Deficiency Amount. The Deficiency Disagreement
Notice shall state the reason for the disagreement and the parties
shall attempt to resolve the disagreement through mutual negotiation.
If the matter has not been resolved within thirty (30) days of receipt
(or deemed receipt) of the Deficiency Disagreement Notice, then either
party shall be entitled to refer the matter to arbitration in
accordance with the provisions set out in section D1 below.
8. TRANSFER OF CMM KNOWLEDGE
(a) In consideration for the Final Severance Payment, following execution
of this letter agreement, XxxxXxxx agrees to transfer, or cause to be
transferred, at its own cost, at such time and to such location as
Aucxis may direct in writing, any material relating to the CMM (the
"CMM MATERIAL") currently in the possession of BoomBoat or any of its
employees, agents or representatives (which includes any Employee).
Until such time as the CMM Material has been transferred, BoomBoat
agrees to maintain the CMM Material in its current state in a safe and
secure environment.
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(b) In the event that the CMM Material in not in a transferable form,
BoomBoat agrees to provide, at its own cost, all necessary assistance
to convert the CMM Material from its current form as of the date of
this letter agreement into a form (including, but not limited to,
converting such information into written form and/or copying such
information to machine readable disks and/or cd-roms) capable of
transfer to Aucxis or to such other party as Aucxis may direct in
writing. BoomBoat further acknowledges and agrees that some form of
transfer will include the transfer of knowledge from the Employees
and/or other employees of BoomBoat familiar with the CMM Material to
such persons designated by Aucxis so as to ensure that such persons
have a reasonable understanding of the CMM Material and are capable of
supporting the CMM Material (which includes, without limitation,
making modifications, bypasses, de-bugging, work-arounds, repairs,
replacements, conversions or corrections necessary to permit the CMM
Material to operate compatibly and reliably, in conformance with its
specifications) without any further assistance from BoomBoat (or its
employees). In connection with the foregoing, subject to subsection
B8(c) below, BoomBoat covenants and agrees to make available, at its
own cost, all necessary qualified persons to support (by means of
in-person consultations, telephone and on-line support) the transfer
of the CMM Material, for such reasonable length as time as is required
(not to exceed 250 hours) to fully transfer all knowledge related to
the CMM Material in the manner described above.
(c) In connection with the transfer of knowledge described in this
section, Aucxis acknowledges and agrees that such knowledge relates
only to the CMM Material as it exists as of the date of this letter
agreement and does not include any knowledge which would be required
to further develop or enhance all or any portion of the CMM. In the
event that Aucxis requires additional support, such support shall be
provided by BoomBoat in accordance with the terms and conditions of
the services agreement to be entered into among BoomBoat and Aucxis on
the date hereof, in the form attached hereto as Schedule "B8(c)".
(d) In connection with the transfer of CMM Material, BoomBoat covenants
that to its knowledge, after due inquiry, the CMM Material does not,
and will not upon transfer, contain any "backdoor" or concealed access
or any "software locks" or similar undocumented devices which, upon
the occurrence of a certain event, the passage of a certain amount of
time or the taking of any action (or the failure to take any such
action) by or on behalf of Aucxis or any third party, will cause the
CMM Material, or any portion thereof, to be destroyed, erased, damaged
or otherwise rendered inoperable or inaccessible. BoomBoat further
covenants that, upon written notice from Aucxis of the successful
transfer of the CMM Material to Aucxis or its designees, it will
immediately destroy, or cause to be destroyed, all "back-up" or
"archival" copies of the CMM Material.
C. ASSETS/FURNITURE/LEASED SPACE
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1. SALE OF EQUIPMENT. Subject to the terms and conditions contained in this
section C, Aucxis hereby sells to BoomBoat, and BoomBoat hereby purchases from
Aucxis on the date hereof, the equipment listed in Schedule "C-1" hereto (the
"Equipment").
2. PURCHASE PRICE FOR EQUIPMENT. The purchase price (the "EQUIPMENT PURCHASE
PRICE") payable by BoomBoat for the Equipment shall be the sum of $29,879.50
plus GST, as set forth on Schedule "C-1". The Equipment Purchase Price shall be
paid and satisfied by BoomBoat by the delivery on the second anniversary of the
date of letter agreement (the "PAYMENT DATE") of a certified cheque or bank
draft made payable to the order of Aucxis or as it may otherwise direct in
writing. Notwithstanding that the payment shall only occur on the Payment Date,
the parties agree that the goods and service tax payable in respect of the
transfer of the Equipment in the amount of $2,091.56 (the "GST") shall be due
and payable upon execution of this letter agreement. The parties further agree
that Aucxis shall be entitled to set-off the GST against the amount owing by
Aucxis to BoomBoat hereunder in respect of the Final Severance Payment. To
secure the payment of the Equipment Purchase Price, BoomBoat hereby grants
Aucxis a security interest in the Equipment and authorizes Aucxis to file a
registration under the Personal Property Security Act (Ontario) to evidence such
security interest.
3. USE OF EQUIPMENT. Upon execution of this letter agreement until the Payment
Date, BoomBoat shall pay to Aucxis a monthly fee in the sum of $248.99 (the
"EQUIPMENT FEE"), representing ten percent (10%) of the Equipment Purchase Price
calculated annually. The Equipment Fee shall be paid and satisfied by BoomBoat
in advance on first (1st) day of each month by way of certified cheque or bank
draft payable to the order of Aucxis or as it may otherwise direct in writing.
4. FURNITURE. On the execution of this letter agreement, Aucxis shall sell to
BoomBoat and BoomBoat shall purchase from Aucxis, the furniture listed in
Schedule "C-4" hereto (the "FURNITURE").
5. PURCHASE PRICE FOR FURNITURE. The purchase price (the "FURNITURE PURCHASE
PRICE") payable by BoomBoat for the Furniture shall be the sum of $7,931.69 plus
GST. The Furniture Purchase Price shall be paid and satisfied by BoomBoat by the
delivery on the Payment Date of a certified cheque or bank draft made payable to
the order of Aucxis or as it may otherwise direct in writing. Notwithstanding
that the payment shall only occur on the Payment Date, the parties agree that
the goods and service tax payable in respect of the transfer of the Furniture in
the amount of $555.22 (the "GST") shall be due and payable upon execution of
this letter agreement. The parties further agree that Aucxis shall be entitled
to set-off the GST against the amount owing by Aucxis to BoomBoat hereunder in
respect of the Final Severance Payment. To secure the payment of the Furniture
Purchase Price, BoomBoat hereby grants Aucxis a security interest in the
Furniture and authorizes Aucxis to file a registration under the Personal
Property Security Act (Ontario) to evidence such security interest.
6. Use of Furniture. Upon execution of this letter agreement until the Payment
Date, BoomBoat shall pay to Aucxis a monthly fee in the sum of $66.09 (the
"Furniture Fee"), representing ten percent (10%) of the Furniture Purchase Price
calculated annually. The Furniture Fee shall be paid and satisfied by BoomBoat
in advance on first (1st) day of each
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month by way of certified cheque or bank draft payable to the order of Aucxis or
as it may otherwise direct in writing.
7. LEASED SPACE. BoomBoat acknowledges and agrees that Aucxis has no obligation
to provide any space to BoomBoat or its employees and that BoomBoat shall be
solely responsible for locating, securing and paying for its own space.
D. GENERAL
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1. ARBITRATION PROCEDURES.
(a) Dispute Resolution. The parties hereby agree that they will use
reasonable best efforts to resolve any disputes arising out of this
letter agreement in a co-operative and expeditious manner. To this
effect, following notice by any party to the other of a disagreement
(which shall include any failure to agree upon a matter to be agreed
upon) the parties hereto shall consult and negotiate with one another
in good faith in an effort to reach a just and equitable solution. If
those attempts fail after a period of thirty (30) days from the time
the parties have been notified in writing of the disagreement, then
every such disagreement shall be referred to arbitration in the
English language in the City of Toronto, Ontario pursuant to the
Arbitration Act (Ontario), as amended from time to time, to be held
before a single arbitrator who is mutually agreed to by the parties,
provided that, if the parties are unable to agree on an arbitrator
within fifteen (15) days of receipt of the written notice, the
arbitrator shall be chosen by a judge of an Ontario court. The parties
agree to take all necessary steps to ensure that the arbitration is
completed, and an award rendered within 90 days of the submission of
the dispute to arbitration.
(b) Cost of Arbitration. Notwithstanding the failure of any party to
participate in the arbitration proceedings, the arbitrator may proceed
to make an award and the costs of the arbitration shall be borne as
determined by the arbitrator.
(c) Arbitration Award. The parties acknowledge and agree that the award of
the arbitrator shall be the sole and exclusive remedy of the parties
and shall be enforceable in a court of competent jurisdiction.
Notwithstanding the foregoing, the parties shall be entitled to seek
injunctive relief or other equitable remedies from any court of
competent jurisdiction. Except where clearly prevented by the issue in
dispute, the parties agree to continue performing their respective
obligations under this letter agreement and the other related
agreements entered into in connection with this letter agreement while
the dispute is being resolved unless and until such obligations are
terminated or expire in accordance with the provisions hereof.
2. REPRESENTATIONS AND WARRANTIES.
(a) Aucxis and I-3 jointly and severally represent and warrant to BoomBoat
as follows:
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(i) Each of Aucxis and I-3is a corporation validly subsisting under
the laws of the jurisdiction of its corporation and it has the
corporate power to enter into and perform all of its obligations
contained in this letter agreement;
(ii) This letter agreement has been duly authorized, executed and
delivered by Aucxis and I-3 and is a legal, valid and binding
obligation of each of Aucxis and I-3, enforceable against Aucxis
and I-3 in accordance with its terms, subject to bankruptcy,
insolvency and other laws affecting the rights of creditors
generally, and the qualification that equitable remedies,
including, without limitation, specific performance and
injunction, may be granted only in the discretion of a court of
competent jurisdiction.
(iii) Aucxis and/or I-3 are the sole legal and beneficial owners of
the Intellectual Property, the Equipment and Furniture and have
good and marketable title thereto, free and clear of all liens,
pledges, charges, security interests, claims, ownership
interests or encumbrances of any kind.
(iv) There is no suit, action, dispute civil or criminal litigation,
claim, arbitration or legal, administrative or other proceeding
or governmental investigation (collectively "Claims"), pending
or threatened against Aucxis or I-3 relating to the Intellectual
Property, the Equipment or the Furniture. To the best of their
knowledge, after due inquiry, there are no facts known to Aucxis
or I-3 which are likely to give rise to any such Claims. There
is not presently outstanding against Aucxis or I-3 any
judgements, executions, order , injunction, decree, or rule of
any court, administrative agency, governmental authority or
arbitrator which affects the Intellectual Property, the
Equipment or the Furniture.
(v) The sale of the Equipment and the Furniture does not require the
consent of any party other than Aucxis or I-3 and does not
violate the terms of any agreement to which either of Aucxis and
I-3 are a party.
(b) BoomBoat represents and warrants to Aucxis and I-3 as follows:
(i) BoomBoat is a corporation validly subsisting under the laws of
the Province of Ontario and it has the corporate power to enter
into and perform all of its obligations contained in this letter
agreement; and
(ii) This letter agreement has been duly authorized, executed and
delivered by BoomBoat and is a legal, valid and binding
obligation of BoomBoat, enforceable against BoomBoat in
accordance with its terms, subject to bankruptcy, insolvency and
other laws affecting the rights of creditors generally, and the
qualification that equitable remedies, including, without
limitation, specific performance and injunction, may be granted
only in the discretion of a court of competent non-exclusive
jurisdiction.
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3. APPLICABLE LAW. This letter agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the Province of Ontario and the federal laws of Canada applicable therein. The
parties hereby attorn to the non-exclusive jurisdiction of the courts of the
Province of Ontario.
4. BINDING AGREEMENT. This letter agreement shall enure to the benefit of and be
binding upon the parties and their respective successors, heirs and legal
representatives, as the case may be, and permitted assigns.
5. ASSIGNMENT. Neither party may assign this letter agreement or any of its
rights or obligations hereunder without the prior written consent of the other
party.
6. AMENDMENT. This letter agreement may not be amended or modified in any
respect except by written instrument signed by all the parties hereto.
7. SEVERABILITY. If any provision of this letter agreement is determined by a
court of competent jurisdiction to be invalid, illegal or unenforceable in any
respect, such determination shall not impair or affect the validity, legality or
enforceability of the remaining provisions hereof, and each provision is hereby
declared to be separate, severable and distinct.
8. TIME OF ESSENCE. Time shall be of the essence in this letter agreement.
9. FURTHER ASSURANCES. The parties shall sign such further and other papers and
documents, and cause such meetings to be held, votes cast, resolutions passed,
by-laws enacted, all necessary steps and proceedings to be done, and shall cause
all other acts and things done and performed as may be necessary and desirable
to give full force and effect to this letter agreement and every part hereof.
10. CURRENCY. Unless otherwise indicated, all dollar amounts referenced in this
letter agreement shall be in Canadian funds.
11. NOTICE PROVISION. Any notice or other communication under this letter
agreement shall be in writing and shall be considered given when delivered by
hand, when telecopied upon confirmation of receipt, one (1) day after being sent
by overnight courier service or four (4) days after being mailed by registered
mail, return receipt requested, except in the event of an interruption in postal
service, in which case the time when notice would otherwise be deemed given
shall be extended by a the number of days during which such interruption
continues, to the parties at the addresses set forth below, or at such other
address as a party may specify by notice to the other in accordance with this
provision:
If to Aucxis:
Aucxis Corp.
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx, X0X 0X0
Attention: President
Xxxxxxxxx: (000) 000-0000
If to BoomBoat:
BoomBoat Inc.
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx, X0X 0X0
Attention: President
Xxxxxxxxx: (000) 000-0000
With a copy to:
Goodmans LLP
000 Xxxxx Xx.
Xxxxx 0000
Xxxxxxx, XX
X0X 0X0
Attention: Xxx Xxxxxx
Xxxxxxxxx: (000) 000-0000
or to such other address as may be given in writing by either party hereto to
the other, and shall be deemed to have been received if delivered, on the date
of delivery, and if faxed or delivered by bonded courier, on the first business
day following the faxing, or bonded courier delivery thereof.
12. COUNTERPARTS AND FACSIMILE. This letter agreement may be executed by the
parties in any number of separate counterparts each of which, when so executed
and delivered, shall be an original, but all such counterparts shall together
constitute one and the same instrument. Counterparts may be executed either in
original or faxed form and the parties adopt any signatures received by a
receiving fax machine as original signatures of the parties, provided, however
that any party providing its signature in such manner shall promptly forward to
the other party an original of the signed copy of this letter agreement which
was so faxed.
-13-
To indicate your agreement to be bound by the terms and conditions set out
in this letter agreement, please sign where indicated below and return a copy of
this letter agreement to the attention of Xxxx Xxxxxx of Xxxxx, Xxxxxxx &
Xxxxxxx LLP by facsimile at (000) 000-0000.
Yours very truly,
AUCXIS CORP.
Per:
--------------------------------------------------
I have the authority to bind the Corporation
I-THREE INC.
Per:
------------------------------------------------
I have the authority to bind the Corporation
The undersigned xxxxxx agrees to the terms and conditions set out in this letter
agreement and to be bound by and carry out the terms set out herein.
Dated this __ day of August, 2001.
BOOMBOAT INC.
Per:
-------------------------------------------------
I have the authority to bind the Corporation
SCHEDULE A-1
LIST OF EMPLOYEES
PAYROLL NUMBERS AT JULY 15, 2001
Payroll Consulting Annual Amount Monthly Amount
(CDN$) (CDN$) (CDN$) (CDN$)
Xxxxx Xxxxxx 6,708.33 Nil 160,999.92 13,416.66
Xxxxx Xxxxxx Nil 6,666.67 160,000.08 13,333.34
Xxxxx Xxxxxxx 4,166.67 Nil 100,000.08 8,333.34
Xxxxxx Xxxxxxxxx Nil 3,611.29 86,670.95 7,222.58
Xxxxx Xxxxxx 2,500.00 Nil 60,000.00 5,000.00
Xxxxxxxx Xxxxxxxxxx 3,333.33 Nil 79,999.92 6,666.66
Xxxxxx Stolea 3,500.00 Nil 84,000.00 7,000.00
Xxxxxx Xxxxxxx 2,500.00 Nil 60,000.00 5,000.00
Xxxx Xxxxxxx 2,916.67 Nil 70,000.08 5,833.34
Xxxxxxx Xxxx 3,333.33 Nil 79,999.92 6,666.66
Xxxx Xxxxxx 4,166.66 2,083.00 149,991.84 12,499.32
Total 1,091,662.79 90,971.90
FUNDING AMOUNT PAYABLE TO BOOMBOAT: $181,943.80
==============
SCHEDULE A-3
CALCULATION OF FINAL SEVERANCE PAYMENT
Final Severance Payment $90,971.00
Less: GST Equipment (7% of $29,879.50) $2,091.56
GST Furniture (7% of $7,931.69) 555.22
Payment of Netra Machines (inc. taxes) $8,538.60
----------
Subtotal $79,785.62
Less loan advance/payment 5,000.00
ADJUSTED FINAL SEVERANCE PAYMENT $74,785.62
SCHEDULE A-3(a)
FORM OF RESIGNATION
TO: I-THREE INC. ("I-3")
AND TO: AUCXIS CORP. ("Aucxis")
Reference is made to that certain letter agreement dated on or about August
29, 2001 (the "Letter Agreement") between Aucxis, I-3 and BoomBoat Inc., which
sets out such parties agreement as to, among other things, the status of the
employees of I-3.
I hereby tender my resignation as an employee of Aucxis or I-3, as the case
may be, such resignation to take effect as of August 3, 2001. Furthermore, I
acknowledge and agree that all compensation owing to me by either Aucxis or I-3,
as the case may be, has been paid in full save and except the reimbursement of
any outstanding expenses properly incurred in the course of my employment which
I agree to promptly submit for reimbursement in accordance with the standard
policies of Aucxis or I-3, as applicable. I further acknowledge and agree that I
have executed and delivered to Aucxis a copy of the full and final release and
acknowledgement contemplated by the Letter Agreement.
Notwithstanding my resignation, I acknowledge and agree that I will
continue to be bound by the company property, non-competition, non-solicitation
and confidential information provisions contained in my employment agreement, a
copy of which is attached hereto as Schedule "A", subject to the exception set
out in the Letter Agreement which permits BoomBoat Inc. to pursue the
development and exploitation of a product referred to in the Letter Agreement as
the BoomBoat Toolbox Product.
I have been afforded an opportunity to obtain independent legal advice in
connection with the execution of this document and confirm that either such
advice has been obtained or that I do not wish to obtain such independent legal
advice.
DATED this day of August, 2001.
----------
---------------------------------
Print Name:
SCHEDULE A-3(b)
FORM OF FULL AND FINAL RELEASE
WHEREAS Aucxis Corp. ("AUCXIS"), I-Three Inc. ("I-3") and BoomBoat
Inc. ("BOOMBOAT") have entered into a letter of agreement dated August 29, 2001
(the "LETTER AGREEMENT") pursuant to which the parties have agreed to resolve
all outstanding issues between them regarding, among other things, employee
status, intellectual property ownership and asset ownership;
AND WHEREAS it is a condition of the transactions contemplated by the
Letter Agreement that the undersigned resign as an employee of I-3 and that this
full and final release be executed by the undersigned and delivered to I-3 and
Aucxis;
AND WHEREAS in consideration for, among other things, the resignation
of the employees of I-3 (which includes the undersigned), Aucxis has delivered
to BoomBoat on behalf of the employees of I-3 (which includes the undersigned),
a severance payment in the amount of one hundred eight-one thousand nine hundred
and forty-three dollars (CDN$181,943) in Canadian funds (the "SEVERANCE
PAYMENT"), half of which amount has been previously delivered to BoomBoat and
the other half is to be delivered upon execution and delivery of the Letter
Agreement together with, among other things, this full and final release;
NOW THEREFORE, I, THE UNDERSIGNED, [NAME OF EMPLOYEE], (hereinafter
referred to as the "Releasor" which term includes my heirs, executors,
administrators, successors and assigns), in consideration of the payment by
AUCXIS and I-3 (hereinafter collectively referred to as the "RELEASEES" and
individually, the "RELEASEE" which terms includes their respective servants,
officers, directors, agents, employees, shareholders, successors, assigns and
related and affiliated companies) of the Severance Payment to BoomBoat and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by the undersigned, in full satisfaction of all claims and
demands of the Releasor against the Releasees, hereby release and forever
discharge the Releasees of and from all manner of actions, causes of actions,
suits, debts, dues, accounts, bonds, covenants, contracts, claims and demands
whatsoever which against the said Releasees the Releasor ever had, now has or
can, shall or may hereafter have for or by reason of any cause, matter or thing
whatsoever existing up to the present time, and more particularly, but without
restricting the generality of the foregoing, all claims and demands arising in
or out of or in any way connected with the employment of the Releasor by the
Releasees or the obligations, statutory, contractual or otherwise, of the
Releasees to the Releasor in respect of the resignation by the Releasor from
such employment, including, without limiting the generality of the foregoing,
any entitlement to any medical, dental and disability benefit plans, wages,
vacation pay, termination pay, severance pay or any other payment under the
EMPLOYMENT STANDARDS ACT, R.S.O. 1990, E.14 as amended, and any and all claims
under the ONTARIO HUMAN RIGHTS CODE, R.S.O., 1990, H.19 as amended, or any other
applicable legislation, save and except the entitlements specifically provided
for in the Letter Agreement.
-2-
AND FOR SAID CONSIDERATION the Releasor further agrees not to make any
claim, or commence, institute or maintain any action, proceeding or appeal
against any person or corporation in which any claim could arise for
contribution or indemnity under the provisions of any statute or otherwise from
the Releasees with respect to any matter subject to the release hereunder;
AND THE RELEASOR, XXXXXX DECLARES that it fully understands the nature
and terms of this Release, that the consideration stated herein is the sole
consideration for this Release and that it voluntarily accepts the said
settlement for the purpose of making full and final compromise, adjustment and
settlement of all claims as aforesaid.
IT IS UNDERSTOOD AND AGREED that the said payment is deemed to be no
admission whatsoever of liability on the part of the Releasee.
IT IS UNDERSTOOD AND AGREED that the Releasor shall not provide any
person outside of his immediate family and his professional advisors with any
information concerning the terms of this Release unless otherwise required by
law.
IT IS UNDERSTOOD AND AGREED that the Releasor, hereby agrees to save
harmless and indemnify the Releasees from all charges, taxes and penalties which
may be made by Canada Customs and Revenue Agency requiring the Releasees to pay
income tax under the Income Tax Act (Canada), in respect of income tax payable
by the Releasor in excess of the amounts previously withheld; and in respect of
any and all charges, taxes or penalties which may be made on behalf of or
related to the Human Resources Development Canada Commission or the Canada
Pension Commission with respect to any amounts which may, in the future be found
to be payable by the Releasees in respect of the Releasor, subject always to any
rights to appeal against such assessment or reassessment.
AND THE RELEASOR AGREES that this Release shall be binding on the
undersigned and the undersigned's heirs, successors, assigns, executors and
administrators.
IN SIGNING THIS RELEASE, the Releasor acknowledges that the Releasor
has been given sufficient time to consider the Releasor's actions and to seek
such independent legal or other advice as the Releasor deems appropriate. The
Releasor further acknowledges that no representation of fact or opinion threat
or inducement has been made or given by the Releasees to the Releasor to induce
the signing of this Release.
IN WITNESS WHEREOF I have executed this Release this day of August,
2001.
---------------------------- -------------------------------
Witness: [NAME OF EMPLOYEE]
SCHEDULE A-3(c)
FORM OF ACKNOWLEDGEMENT
CANCELLATION OF OPTIONS
TO: AUCXIS CORP (formerly e-Auction Global Trading Inc.)(the "Corporation")
--------------------------------------------------------------------------------
WHEREAS the undersigned, as an employee of I-Three Inc. ("I-3") being a
wholly owned subsidiary of the Corporation, was granted that number of options
set forth below (collectively, the "OPTIONS") to acquire an aggregate of [INSERT
NUMBER] common shares in the capital of the Corporation pursuant to the terms of
the 1999 Stock Option Plan of the Corporation, as adopted June 1, 1999 (the
"STOCK OPTION PLAN");
Date of Grant Number of Options Exercise Price Expiry Date
------------- ----------------- -------------- -----------
[INSERT INFORMATION]
AND WHEREAS the Corporation, I-3 and BoomBoat Inc. ("BOOMBOAT") have
entered into a letter agreement dated as of the date hereof (the "LETTER
AGREEMENT"), pursuant to which such parties have agreed to resolve their
outstanding issues in connection with, inter alia, the status of the employees
of I-3;
AND WHEREAS it is a condition of the Letter Agreement that, inter alia, the
undersigned resign from his employment with I-3 and to tender the Options for
cancellation;
AND WHEREAS the undersigned has resigned, effective August 3, 2001, from
his employment with I-3;
AND WHEREAS notwithstanding the provisions contained in Section 5.6 of the
Stock Option Plan in relation to the exercise of options by a holder upon such
holder ceasing to provide services as an employee, officer, director or
consultant to the Corporation or a subsidiary of the Corporation, the
undersigned has agreed to cancel all of the Options effective as of the date
hereof;
NOW THEREFORE, IN CONSIDERATION of the payment of the Severance Amount (as
such term is defined in the Letter Agreement) by Aucxis to BoomBoat and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the undersigned, the undersigned hereby agrees, acknowledges and
confirms that all of the Options are hereby terminated and cancelled and of no
further force and effect as of and effective from the date hereof.
DATED this day of August, 2001
-------------------------- -----------------------------
Name of Witness: [INSERT NAME OF EMPLOYEE]
SCHEDULE A-3(d)
FORM OF ASSIGNMENT AND WAIVER OF MORAL RIGHTS
WHEREAS the person whose name is printed, and whose signature appears, at
the end of this document (the "ASSIGNOR"), was engaged as an employee or
contractor by I-Three Inc. ("I-3"), a Delaware company and wholly owned
subsidiary of Aucxis Corp. ("AUCXIS"), a Nevada company, to assist with the
development of certain software, technology and related documents more
specifically described in Schedule "A" hereto (the "TECHNOLOGY");
AND WHEREAS Aucxis, I-3 and BoomBoat Inc. have entered into a letter
agreement dated as of the date hereof (the "Letter Agreement"), pursuant to
which such parties have agreed to resolve their outstanding issues in connection
with, inter alia, the status of the employees and contractors of I-3;
AND WHEREAS it is a term of the Letter Agreement that, inter alia, the
Assignor will resign from I-3 and deliver this Assignment and Xxxxxx;
AND WHEREAS the Assignor has resigned from I-3, effective August 3, 2001;
NOW THEREFORE, in consideration of the sum of $1.00 and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the undersigned;
1. The Assignor, for purposes of this document, defines Intellectual Property
as all writings, drawings, designs, processes, databases, computer
programs, inventions, copyright, domain names, trade-marks, trade secrets,
patents and other proprietary rights in or related to the Technology,
including, without limitation, any patent, copyright or trade-mark
applications filed in respect of the Intellectual Property, that the
Assignor has or may have in Canada, the United States of America and all
other countries in the world. For the purposes of this agreement,
Intellectual Property does not include anything that the Assignor has
developed or conceived for BoomBoat Inc. since August 3, 2001, but does
however, include any ideas, concepts, trade secrets, confidential
information and/or business processes developed by the Assignor in
connection with the Aucxis Toolbox Product (as described in the Letter
Agreement), notwithstanding that BoomBoat Inc. has been granted a right to
use such Intellectual Property in the development and exploitation of the
BoomBoat ToolBox Product (as described in the Letter Agreement).
2. The Assignor does hereby grant, sell, assign and transfer to Aucxis the
Assignor's entire world wide right, title and interest in and to all the
Intellectual Property.
3. Forthwith upon execution of this Assignment, the Assignor shall cause to be
transmitted to Aucxis the requisite information and/or form to give effect
to the foregoing assignment, including without limitation the transfer of
any registrations or ownership interests.
4. The Assignor does hereby waive, in favour of Aucxis, any and all moral and
other rights the Assignor may have in or to the Intellectual Property,
including but not limited to: the right to restrain or claim damages for
any distortion, mutilation or other modification of the Intellectual
Property; the right to restrain use or reproduction of the Intellectual
-2-
Property in connection with any product, service, cause or institution; the
right to the integrity of the Intellectual Property; and the right to be
associated by name with the Intellectual Property, or to remain anonymous
in relation to the Intellectual Property.
5. The Assignor acknowledges that, after this assignment, the Intellectual
Property and all proprietary rights therein shall be the property of Aucxis
and no license or other rights to the Intellectual Property are granted to
the Assignor or retained by Assignor.
6. The Assignor represents and warrants that he or she has the right to make
this Assignment and Waiver and has not assigned or licensed the
Intellectual Property previously.
7. This Assignment and Waiver shall be interpreted and construed in accordance
with the laws of the Province of Ontario and the federal laws of Canada
applicable therein. If any provision of this Assignment and Waiver is
invalid, unenforceable, in conflict with, or in violation of, the law of
the governing jurisdiction or any other relevant jurisdiction, such
provision shall be inoperative and the validity of the remaining provisions
shall not be affected.
8. The Assignor agrees to execute and deliver all further documents or do such
things as may be required or deemed by Aucxis to be advisable to give full
effect to this Assignment and Waiver.
9. This Assignment and Waiver shall be irrevocable and shall enure to the
benefit of and be binding upon myself and my successors and assigns.
Dated this day of August, 2001.
NAME OF EMPLOYEE: __________________________________
---------------------------------------- -----------------------
Signature of Witness: [Signature of Employee]
Print name: ___________________________
Address: _____________________________
SCHEDULE "A"
TECHNOLOGY IN WHICH INTELLECTUAL PROPERTY EXISTS
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SCHEDULE A-3(e)
FORM OF TERMINATION AGREEMENT
TERMINATION AGREEMENT
THIS AGREEMENT is made as of the 29th day of August, 2001.
BETWEEN:
XXXXX XXXXXX
(hereinafter referred to as "Xxxxxx")
- and -
XXXXX XXXXXX
(hereinafter referred to as "Dingle")
- and -
AUCXIS CORP., a corporation incorporated
under the laws of the State of Nevada
(hereinafter referred to as "Aucxis")
WHEREAS Xxxxxx and Xxxxxx have each entered into a commission agreement
(the "Commission Agreements") with Aucxis relating to their respective
entitlement to ten percent (10%) of the gross proceeds realized by Aucxis on the
sale of I-Three Inc. derived technology (which would include, among others, the
Aucxis toolbox product) to non-Aucxis owned companies;
NOW THEREFORE in consideration of the premises and other good and valuable
consideration, receipt and sufficiency of which is hereby acknowledged by each
of the parties hereto:
1. Each of Xxxxxx, Xxxxxx and Aucxis hereby agree to terminate the
Commission Agreements, such termination to take effect on the date first stated
above.
2. Each of Xxxxxx, Xxxxxx and Aucxis acknowledge and agree that
notwithstanding any provision contained in the Commission Agreements, this
termination will mutually release the parties from all further rights and
obligations contained therein, without limitation.
3. Each of Xxxxxx and Xxxxxx acknowledge and agree that they are not owed
any commissions pursuant to their respective Commission Agreements and that
following the
2
execution of this Termination Agreement, each of Xxxxxx and Xxxxxx shall
immediately cease to have any rights to commissions pursuant to their respective
Commission Agreements.
4. This Termination Agreement may be executed by the parties in any number
of separate counterparts each of which, when so executed and delivered, shall be
an original, but all such counterparts shall together constitute one and the
same instrument. This Termination Agreement may be executed by facsimile. Actual
executed copies of this Termination Agreement shall be substituted forthwith
after execution for the copies executed by facsimile.
IN WITNESS WHEREOF the parties have each executed this Termination
Agreement as of the date first written above.
AUCXIS CORP.
Per:
----------------------------
Name:
Title:
------------------------------- ------------------------------------
Witness Xxxxx Xxxxxx
------------------------------- ------------------------------------
Witness Xxxxx Xxxxxx
SCHEDULE B-1
DESCRIPTION OF INTELLECTUAL PROPERTY
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SCHEDULE B-2(b)
DESCRIPTION OF COLLATERAL MANAGEMENT MODULE
The Collateral Management Module delivers the necessary tools to
distribute, allocate and manage a buyers financial collateral enabling
guaranteed bids for real-time trade. The Collateral Management Module is
designed to increase the purchasing power for buyers while guaranteeing payment
for sellers within online marketplaces. The Module is a real time credit
reservation system that links 'digital procurement tokens', in effect a digital
payment guarantee, to marketplace transactions securing a reservation against a
financial instrument such as cash, lines of credit, bank guarantees, letters of
credit and other forms of generally accepted credit including goodwill.
SCHEDULE B-3A
DESCRIPTION OF BOOMBOAT TOOLBOX PRODUCT
BoomBoat will be developing an enterprise ready real-time messaging
platform built specifically to allow enterprises to utilize their existing
technology through integration efforts to create real-time solutions. The
integration capability encompasses enterprise application integration (eAi) and
business to business integration (B2Bi). The platform is made up of the
following components, a multi-cast capable message based router (i3 Router
Converter Technology), a user interface for solution creation, a set of adapters
to databases and other applications to expose functionality (i3 Adapters), and
an administration console for monitoring (i3 Sandbox). A portal framework
component to the platform is also contemplated (the i3 Portal Builder) that
effectively acts as an amalgamator of information from the multi-cast message
router.
This software platform will be targeted and sold to system integrators, end
user enterprise customers, infrastructure providers (classified as middleware
and transport companies), and to hardware providers. The applicability will be
global in nature and non-industry specific.
SCHEDULE B-3B
DESCRIPTION OF AUCXIS TOOLBOX PRODUCT
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SCHEDULE B-8(c)
FORM OF SERVICES AGREEMENT
THIS SERVICES AGREEMENT (hereinafter referred to as "Agreement") sets forth
the terms and conditions of the Agreement between
Aucxis Corp. (hereinafter referred to as the "Client") having its
registered office at 000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx X0X 0X0
-AND-
BoomBoat Inc. (hereinafter referred to as the "Contractor") having its
registered office at 000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx X0X 0X0
The Contractor and the Client agree as follows:
THE SERVICES
The following outlines the nature of the services to be performed by the
Contractor:
The Contractor will, as part of this Agreement, provide the services of Xxxxx
Xxxxxx, Xxxxx Xxxxxxx and Xxxxxx Xxxxxx (collectively "Key Personnel") as needed
by the Client. The Client and Contractor agree that the Key Personnel are
critical to the ongoing services to be provided by the Contractor. It is
expected that the Client will require 25% of time of the Key Personnel. An
operations agreement and personnel forecast will be completed by both parties
within 60 days of signing of this agreement.
Should the Client make a written request (by email or letter) of the Contractor
for work to be done, and should the Contractor not respond within 24 hours of
the request, then the Contactor shall pay to the client the sum of $1,500.00 per
day until the response is completed. (Unless otherwise noted, all currency
references will be in Canadian dollars.)
LOCATION OF WORK
The services will be performed at the address of the Client as set out above or
at any other location as mutually agreed to by the Client and the Contractor.
Due to the nature of the consulting services being provided, these services will
be performed by the Contractor during the Client's usual business hours, which
are 8 a.m. to 6 p.m., Monday to Friday.
QUALITY OF SERVICES
The Contractor's services will be reviewed periodically against the objectives
as mutually agreed upon. New objectives may be established and assigned by the
Client periodically throughout the term of this Agreement.
2
CLIENT
The representative of the Client will be the President or such other persons as
may be designated to the Contractor by the Client.
INDEPENDENT CONTRACTOR
The Contractor, in providing the services, will be an independent contractor and
neither the Contractor nor its employees, agents or subcontractors are
employees, agents or subcontractors of the Client. Furthermore, this Agreement
shall not be deemed to constitute any partnership, joint venture, master
servant, employer employee, principal agent or any other relationship apart from
an independent contractor status providing an independent service to the Client.
The Contractor is responsible for all claims and payments and filings with
respect to income tax, Canada or Quebec Pension payments, Unemployment Insurance
payments and Worker's Compensation payments as well as the cost of any health or
other benefits it may wish to secure for itself or its employees.
FEES
The Contractor will present to the Client each month, an invoice for the
services provided, together with a summary in respect of the hours worked by the
Contractor during such period and such other documentation in support of such
invoice as the Client may reasonably request.
The Hourly rate for services will be as follows:
Year 1 - Salary and benefits + $15/hour for Overhead
Year 2 - 1.5 x Salary and benefits +$15/hour for Overhead
For greater clarity, the hourly rate for year one will be:
NAME SALARY AND OVERHEAD HOURLY RATE
BENEFITS
Xxxxx Xxxxxx $76.92 $15.00 $91.92
Xxxxx Xxxxxxx $49.56 $15.00 $64.56
Xxxxxx Stolea $41.87 $15.00 $56.87
For greater clarity, the hourly rate for year two will be:
NAME SALARY AND OVERHEAD HOURLY RATE
BENEFITS
Xxxxx Xxxxxx $76.92 $15.00 $130.38
Xxxxx Xxxxxxx $49.56 $15.00 $89.34
Xxxxxx Stolea $41.87 $15.00 $77.81
3
Work within a week beyond 40 billable hours will not be invoiced. Invoices will
state separately the amount of such tax payable by the Client. The Client will
pay all invoices within 30 days of receipt of the invoice.
INDEMNITY
The Contractor will indemnify and hold harmless the Client, its directors,
officers, employees, successors and assigns from and against any and all taxes
which may be imposed and any and all liabilities and losses (including
judgments, penalties, interest, damages, costs and expenses, including legal
expenses) which may be occasioned by any breach or claim by the Contractor of
any representation, warranty, or other provision of this Agreement or arising
out of failure by the Client to deduct and withhold from any payments made by it
to the Contractor hereunder any amounts required or permitted to be deducted and
withheld pursuant to any applicable laws. The Client shall have the right to
offset any amounts owing to it by the Contractor pursuant to this indemnity
against any amounts owing by the Client to the Contractor pursuant to this
Agreement to the extent permitted by law.
AUTHORIZED EXPENSES
The Contractor will normally be responsible for all expenses incurred in
connection with the provision of services under the Agreement. However, the
Client will reimburse the Contractor for reasonable travel and/or out-of-pocket
expenses authorized by the Client and incurred by the Contractor directly
resulting from the provision of the services.
LIMITATION ON THE CONTRACTOR
The Contractor shall have no authority to enter into, incur, make change,
enlarge or modify any contract, liability, or agreement, obligation,
representations, guarantee, warranty or commitment on behalf of the Client or
its affiliated companies unless expressly requested to do so in writing by duly
authorized representatives of the Client in the performance of services
contemplated under this Agreement.
ADHERENCE TO CLIENT'S PROFESSIONAL OBLIGATIONS
The Contractor agrees to abide by the Client's policies with respect to
confidential information, independence, and software use. A separate Contractor
Confidentiality Agreement will be in effect during this contract and will
survive this contract as detailed in that separate agreement.
This Agreement does not restrict the Contractor from providing similar services
to other entities, however, the Contractor shall not engage in any
consultations, agency or employment for any person, partnership or corporate
entity other than the Client which would result in a conflict of interest during
the term of this Agreement without the written authorization and permission of
the Client.
4
TERMINATION OF AGREEMENT
This Agreement may be terminated at any time during the contract period for any
reason upon 30 days written notice by either the Contractor or Client.
The Contractor, upon request by the Client or upon the termination of this
contract, will immediately return to the Client any and all Client property
including equipment and information provided to the Contractor by the Client
during the contract term.
CHANGES
Any changes to the terms contained in this Agreement will only be made by means
of an agreement in writing signed by the Client and the Contractor.
This Agreement will be governed by the laws of Ontario. The Contractor and the
Client have executed this Agreement.
BoomBoat Inc.
Dated: ____________________ By:__________________
Name:
Title:
Accepted and acknowledged Aucxis Corp. on the same date.
Aucxis Corp.
By: _________________________________
Name:
Title
SCHEDULE C-1
LIST OF EQUIPMENT
USER NAME COMPUTER MHZ (MB) GB) MODEL NEW VALUE
Xxxxxx X. Dell Dimension PIII-860 256 19 $1,729 550% $864.50
4100
Xxxxxx X. Dell Dimension PIII-800 256 9 $1,729 550% $864.50
4100
Xxxx Xxxxxx Power Mac PIII-500 256 10 $5,000 650% $3,250.00
Xxxx Xxxxxxx (laptop) Toshiba PIII-450 256 11.2 n/a $1,249 550% $624.50
Satellite Pro 4200
Xxxxxxxxx X. Dell Dimension PIII-500 256 6 n/a $1,249 550% $624.50
XPS T500
Xxxxx X. (laptop) Toshiba PIII-450 256 6 n/a $1,249 550% $624.50
Satellite Pro 4200
PCI Development Dell Dimension PIII-500 256 13 n/a $1,249 550% $624.50
XPS T500
Admin/fax Dell Dimension PIII-500 256 13 n/a $1,249 550% $624.50
XPS T500
Xxxxxxx X. Xxxx Dimension PIII-500 256 19 n/a $1,249 550% $624.50
XPS T500
Dani P. Dell Dimension PIII-1000 256 19 $1,729 550% $864.50
4100
Xxxx X. (laptop) Toshiba PIII-450 256 6 n/a $1,249 550% $624.50
Satellite Pro 4200
Xxxxxx Scaletchi Dell Inspiron 3500 PIII-333 256 6 n/a $2,500 550% $1,250.00
Xxxx X. (laptop) Dell PIII-700 256 10 $5,000 665% $3,250.00
Inspiron 4000
Xxxx X. (laptop) Dell PIII-633 256 11 n/a $5,000 665% $3,250.00
Inspiron 5000
$17,965.00(plus
taxes)
QUANTITY DESCRIPTION SPEED REPLACEMENT CURRENT VALUE ($)
1 Sun 5s 360 512 GB Admin 4000 50% 2,000.00
1 Sun 5s 360 512 GB Oracle 4000 50% 2,000.00
1 Netra X1 400 512 GB 2995 50% 1497.50
1 Netra X1 400 512 GB 2995 50% 1497.50
1 Netra X1 400 512 GB 2995 50% 1497.50
1 Netra X1 400 512 GB 2995 50% 1497.50
1 Netra X1 400 512 GB 2995 50% 1497.50
1 Netra X1 400 512 GB 2995 50% 1497.50
1 Dell 2450 500 512 n/a 2500 50% 1,250.00
1 RAID 6GB 5079 50% 2539.50
1 Dell L400 C 400 128 GB Firewall 900 50% 250.00
1 Dell L400 C 400 128 GB DHCP/DNS 900 50% 250.00
1 Dell XPS PII-500 256 GB RVRD/LDAP 700 50% 500.00
1 Sun clone mail 50% 500.00
1 Nortel Switch 1900 50% 950.00
1 Nortel Switch 1900 50% 950.00
1 APCC UPS 1450 50% 725.00
$20,899.50
(plus taxes)
SCHEDULE C-4
LIST OF FURNITURE
ITEM DESCRIPTION QUANTITY INVOICE AMOUNT DISCOUNT DISCOUNTED
FACTOR AMOUNT
Desk L-Shaped ($800/ea) 7 $5,600.00 50% $2,800
Desk Rectangular 6 $3,000.00 50% $1,500
($500/ea)
Chair Casters ($306.18/ea) 15 $4,592.70 50% $2,296.35
Chair Guest ($180.59/ea 4 $722.36 50% $361.18
File Cabinets ($177.12) 11 $1,948.32 50% $974.16
----------------------------------------------
Total Cost (excluding taxes) $15,863.38 $7,931.69
----------------------------------------------
GST 7% $1,110.44 $555.22
---------------
TOTAL $8,486.91
