EXHIBIT 10.3
THIS AGREEMENT DATED THE 1ST DAY OF APRIL, 2003
BETWEEN:
COMMONWEALTH XXXXXX HOLDINGS LTD.
(the "Corporation"),
OF THE FIRST PART
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CORRTECH CONSULTING GROUP,
a Corporate Partnership
(the "Consultant"),
OF THE SECOND PART
CONSULTING AGREEMENT
WHEREAS the Corporation is the registered owner of all of the issued
common shares of Corrpro Canada, Inc. and, in turn, owns certain other entities
(the "Subsidiaries).
AND WHEREAS the Corporation intends to continue to operate the
Subsidiaries;
AND WHEREAS the Consultant is in the business of providing managerial,
administrative, engineering, marketing and technical services (the "Consulting
Services");
AND WHEREAS the Corporation desires the Consultant to render the
Consulting Services to the Corporation, its Subsidiaries and Affiliates in
accordance with provisions of this contract;
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AND WHEREAS the Consultant is a corporate partnership consisting of the
corporations listed in Schedule "A' attached hereto;
AND WHEREAS the corporate members of the partnership shall make available
the key individuals listed on Schedule "B" (the "Key Individuals") attached
hereto to supply to the Corporation the Consulting Services;
NOW THEREFORE WITNESSETH that in consideration of the recitals and mutual
covenants and agreements contained herein and other good and valuable
consideration, the parties hereto agree as follows:
1. SERVICES
(a) ENGAGEMENT
The Corporation hereby engages the Consultant and the Consultant
hereby agrees to render, at the request of the Corporation
Consulting Services to the Corporation, its Subsidiaries and
Affiliates, to the best of its ability, and upon the terms and
conditions hereinafter set forth.
(b) DUTIES
(i) The Consultant shall provide, through the Key
Individuals, to standards acceptable to the Corporation
such management, administrative, engineering,
marketing, and technical services as are necessary to
ensure the continued operations of the Corporation, the
Subsidiaries, and the Affiliates.
(ii) In the event any of the Key Individuals are unable or
fail for any reason to perform the Consulting Services
as requested of that Key Individual to standards
acceptable to the
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Corporation, then the Consultant may designate a third
person or persons of equal or greater ability and
qualifications to provide the consulting services the
Key Individual is unable to provide.
(iii) It is understood and agreed that a Key Individual shall
not be substituted without the written consent of the
Corporation and agreement as to adjustment in
compensation, if any.
2. COMPENSATION
(a) As compensation for all services rendered by the Consultant,
pursuant to this Agreement, the Corporation shall pay to the
Consultant or such designates, a monthly sum which is agreed to
from time to time being a base of Sixty Six Thousand Thirty One
Dollars and Sixty Six Cents ($66,031.66) (CDN) plus Goods and
Services Tax ("G.S.T.").
(b) All such compensation shall be payable without deductions
whatsoever. The Consultant shall be responsible for the remission
of any and all taxes with respect to compensation paid to the
Consultant by the Corporation under this Agreement. The Consultant
shall indemnify the Corporation for any and all taxes and other
liabilities which the Corporation may hereafter incur as a result
of the Consultant's or any of the Key Individuals' failure to
report and pay any taxes due on taxable amounts paid to or on
behalf of the Consultant by the Corporation.
(c) As additional compensation, the parties contemplate that the
Consultant may be entitled to bonuses from time to time, based on
the performance of the Corporation, the Subsidiaries and as
mutually agreed upon by the parties.
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3. TERMS
(a) The parties hereto acknowledge that the term of this Agreement shall
be for a period of one (1) year commencing on the lst day of April, 2003
and ending on the 31st day of March, 2004, unless sooner terminated
pursuant to this Agreement.
4. OPERATION OF SUBSIDIARIES
(a) Insofar as it is the intent that the Consultant shall provide
Consulting Services directly to the Corporation, its subsidiaries,
and Affiliates, the parties hereto acknowledge that all consulting
services rendered to the Corporation are governed and bound by this
Agreement.
(b) The Corporation shall guarantee the due performance and obligations
of all agreements that the subsidiaries and the Affiliates may
enter into with Consultant pursuant hereto.
5. TIME COMMITMENT AND PERFORMANCE
(a) The Consultant shall ensure that such key Individuals that perform
services pursuant to this Agreement shall devote their best efforts
and substantially all of their business time, attention and skill
to the performance of the Consulting Services hereunder and shall
do so at all times in a manner consistent with the intention of
this Agreement and in accordance with good managerial,
administrative, engineering, marketing and technical practice,
including without limitation, the adherence to professional rules
of conduct.
(b) The consultant shall ensure that each Key Individual;
(i) specializing in a branch of professional engineering shall at
all time be a member of the Association of Professional
Engineers;
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(ii) specializing in a branch of engineering technology shall at
all times be a member of the Association of Engineering
Technologists;
(iii) specializing in accounting services shall at all times be a
member of a recognized accounting body in Canada.
6. CONFIDENTIAL INFORMATION
(a) The Consultant will have access to the Corporation's confidential
information including, without limitation, customer lists and
information and data or relating to its customers. Such information
and data is understood to include all information and data relating
to the Corporation's or the customer's project and administrative
files, drawings, sketches, plans, designs and business data. The
Consultant agrees to accept and retain such information and data in
confidence and, at all times during or after the termination of this
Agreement, not to disclose or reveal such information and data to
others and to refrain from using such information and data for
purposes other than those authorized by the Corporation. At the
request of the Corporation, the Consultant will promptly turn over
to the Corporation all of the Corporation's written or descriptive
material in the Consultant's possession or under its control. This
section is not intended to restrict the use by the Consultant of its
own intellectual property which does not relate to the Corporation's
confidential information after the termination hereof.
(b) All project and administrative files, drawings, sketches, plans,
designs, trade secrets and any other documentation or data furnished
to or prepared by the Consultant in connection with this Agreement
shall be the property of the Corporation.
(c) The consultant shall, after termination of this Agreement for any
reason whatsoever unless
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terminated by the Corporation, upon reasonable notice and upon
payment of reasonable expenses by the Corporation, furnish such
information and proper assistance to the Corporation as may be
reasonably required by the Corporation in connection with any
litigation in which it is or may become a party other than
litigation by the Corporation against the Consultant, its Partners,
or the Key Individuals.
7. POST-TERMINATION OBLIGATIONS
(a) The consultant has carefully read and considered the provisions of
this Section and, having done so, agrees that the restrictions set
forth in this Section are fair and reasonable and are reasonably
required for the protection of the interests of the Corporation. The
Consultant, during the term of this Agreement, further acknowledges
and agrees that it will be assigned duties that will give it
knowledge of confidential and proprietary information which relates
to the conduct and details of the Corporation's business including
the Corporation's customers and marketing programs, and which may
result in irreparable injury to the Corporation if the Consultant
should engage in competition with the Corporation involving the
Corporation's Existing Customers or Prospective Customers.
(b) The Consultant agrees with, and for the benefit of, the Corporation
that the Consultant shall not without the prior written approval of
the Corporation during the term of this Agreement with the
Corporation or at any time within the period of time set forth below
following the date of termination of this Agreement however caused,
either directly or as a partner, joint venturer, shareholder, or
otherwise in conjunction with any person or persons, firm,
association, syndicate, company or corporation, as principal, agent,
consultant, investor or in any other
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manner whatsoever, directly or indirectly, carry on, be engaged in,
be interested in, or by concerned with, or permit its name or any
part thereof to be used or employed by any such person or persons,
firm association, syndicate, company or corporation, carrying on,
engaged in, interested in, or concerned with, a business which is
similar to the Business and which involves any Existing Customer or
any Prospective Customer for a period of one (1) Year following the
termination of this Agreement:
(i) the Provinces of British Columbia, Alberta, Saskatchewan and
Manitoba;
(ii) any Province of Canada in which the Business is or may in the
future be carried on;
(iii) any Province of Canada;
(iv) Canada;
(v) any state in the United States of America in which the
Business or may in the future be carried on;
(vi) the United States of America;
(vii) any part of the world in which the Business is or may in the
future be carried on; or
(viii) the world.
(c) The Consultant represents and warrants to the Corporation that it
has not previously signed a confidentiality or non-completion
agreement of any kind whatsoever with another party which would
impair its ability to carry out its duties hereunder.
8. MEANINGS
For the purposes of this Agreement as referenced in Articles 6 and 7, the
following terms will have the
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meanings set out below:
(a) "Business" shall mean those businesses carried on by the
Corporation, its Subsidiaries and Affiliates (for purposes of this
Section, any entity Ten (10%) Percent or more of which is owned by
the Corporation) directly or indirectly of the Corporation from time
to time;
(b) "Existing Customers" means an individual, firm, body corporate,
joint venture or trust with whom the Corporation, its Subsidiaries
and Affiliates is currently conducting Business or in the past has
conducted Business; and
(c) "Prospective Customer" means an individual, firm, body corporate,
joint venture or trust with whom the Corporation, its Subsidiaries
and Affiliates is currently discussing Business or to whom or in
connection with whom the Corporation, its Subsidiaries and
Affiliates has made a proposal regarding Business.
9. TERMINATION BY THE CORPORATION
This Agreement may be terminated at the option of the Corporation upon the
happening of any of the following events:
(a) the dissolution of the Consultant;
(b) upon the consultant becoming bankrupt or insolvent;
(c) upon the failure of the Consultant to comply with any of the
substantive terms and conditions of this Agreement.
10. TERMINATION BY THE CONSULTANT
The Agreement may be terminated at the option of the Consultant upon the
happening of any of the
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following events:
(a) upon the Corporation becoming bankrupt or insolvent;
(b) upon the Corporation failing to perform its duties hereunder in a
manner required by the Consultant, including the due performance by
any of its Subsidiaries and Affiliates.
11. ARBITRATION
All disputes and questions which shall arise during the term of this
Agreement between the Corporation and the Consultant touching this
Agreement or the construction or application thereof or any clause or
thing herein contained or as to any manner in any way relating to the
rights, duties and liabilities of any party under this Agreement shall be
referred to a single arbitrator in case the parties agree upon one;
otherwise to two arbitrators, one to be appointed by each party. The two
arbitrators so appointed shall by instructed to attempt to reach agreement
on a third arbitrator and that third arbitrator, together with the
arbitrators appointed by the disputants, shall determine all questions. In
the event that the parties appointed are unable to agree on an arbitrator,
then the parties, or either of them, may apply to any Justice of the Court
of Queen's Bench of Alberta, to appoint the third arbitrator and in all
other respects the provisions of the Arbitrators Act of the Province of
Alberta shall apply.
12. SEVERABILITY
The provisions contained in this Agreement are severable and in the event
any provision shall be held to be invalid, unenforceable or overbroad, in
whole or in part, by a court of other entity of competent jurisdiction,
the remainder of such provision and of this Agreement shall not be
affected thereby and shall remain in full force and effect.
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13. This Agreement supersedes all previous agreements between the parties.
14. NOTICES
Any notice, direction or other instrument required or permitted to be
given under the provisions of this Agreement shall be in writing and may
be given by the delivery of same or sending by facsimile transmission to
the parties:
(a) In the case of the Corporation to:
Xx. Xxxxxx X. Xxx
Corrpro Companies, Inc.
0000 Xxxx Xxxxx Xxxx
XXXXXX, Xxxx 00000
Fax: (000) 000-0000
and to:
Xxxxxx X. Xxxxx, Q.C.
Xxxxxxx and Company
Barristers and Solicitors
1400, 00000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx X0X 0X0
Fax: (000) 000-0000
or to such other person or address as the Corporation shall furnish
to the Consultant in writing pursuant to the above.
(b) In the case of the Consultant to:
x/x Xxxxx X. Xxxxxx, X.X.
Xxxxxxxx Xxxxxxxx Xxxxxx & Xxxxxx
Barristers and Solicitors
000, 0000 - 000 Xxxxxx
Xxxxxxxx, Xxxxxxx X0X 0X0
Fax: (000) 000-0000
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and to:
c/o Xxxxx X. Xxxxxxxx
Corrtech Partnership
00000 - 000 Xxxxxx
Xxxxxxxx, Xxxxxxx X0X 0X0
Fax: (000) 000-0000
or to such other person or address as the Consultant shall furnish
to the Corporation in writing pursuant to the above.
Any such notice, direction or other instrument shall:
(a) If delivered, be handed to an adult person at the designated
address, and shall be deemed to have been given or received on the
day on which it was so delivered if delivered prior to 3:00 o'clock
P.M. (local time) on a Business Day. If delivered after 3:00 P.M.
(local time) or if not a Business Day, then it shall have been
deemed to have been given or received on the Business Day next
following the day of delivery.
(b) If mailed, shall be mailed by prepaid registered or certified post
from a post office within the Province of Alberta, and shall be
deemed to have been given or received on the fifth (5th) Business
Day following the date of mailing.
(c) If sent by facsimile transmission, it shall be deemed to have been
given or received on the next Business Day following the day of
confirmed transmission. "Business Day" where used in this Agreement
shall mean a day in which the offices of the Provincial Government
of Alberta are open for business.
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15. SUCCESSORS AND ASSIGNS
The provisions hereof shall enure to the benefit of and shall be binding
upon the parties hereto, their successors and assigns.
16. JURISDICTION AND APPLICABLE LAW
The parties hereto agree that this contract shall be government and
construed in accordance with the laws of the Province of Alberta.
17. AMENDMENT
The parties hereto covenant and agree to execute such further and other
undertakings as may be required to properly give effect to the intention
of this Agreement.
18. TIME
Time is of the essence in this Agreement.
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IN WITNESS WHEREOF the parties hereto have hereunto affixed their
corporate seals by the hands of their proper officers in that behalf as
of the date and year first above written.
COMMONWEALTH XXXXXX HOLDINGS LTD. CORRTECH CONSULTING GROUP
PER: PER:
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PER: PER:
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