Exhibit 99.4(vi)
Memorandum of Agreement - Xxxxxx Xxxxx
MEMORANDUM OF AGREEMENT made as of this 5th day of May, 1998.
B E T W E E N:
MICRA SOUNDCARDS INC., a corporation
governed by the laws of the Province
of Ontario with offices at 000 Xxxx
Xxxxxx Xxxxx Xxxx, Xxxxxxxx Xxxx,
Xxxxxxx, Xxxxxx X0X 0X0
(hereinafter referred to as "Micra")
OF THE FIRST PART
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XXXXXX XXXXX, an individual resident at 000
Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
(hereinafter referred to as the "Xxxxx")
OF THE SECOND PART
WHEREAS Xxxxx has duly signed a non-disclosure agreement dated February
3, 1998 relating to a new concept/product referred to as "Talking Trading
Cards";
AND WHEREAS Xxxxx is aware of and acknowledges that the "Talking
Trading Cards" is the invention and exclusive property of Micra;
AND WHEREAS Xxxxx has expertise in the media and in the trading card
market in general, in terms of market trends, new products, corporate
information, they key personnel and the general value of collectible trading
cards;
AND WHEREAS Micra wishes to retain the services of Xxxxx to keep Micra
informed of key developments in the market and act as a public relations
consultant to Micra;
AND WHEREAS Micra wishes to retain the services of Xxxxx in preparing,
from time to time, press releases and arranging press conferences;
AND WHEREAS Micra wishes to retain the services of Xxxxx to assist,
from time to time, in future product launches and advise on marketing strategies
related thereto;
AND WHEREAS Xxxxx acknowledges that Micra has disclosed to Xxxxx all
current and future business plans as they relate to the "Talking Trading Cards";
and
AND WHEREAS Xxxxx has expressed its full understanding of and agreement
with said business plans;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises and the covenants and agreements hereinafter contained, and for other
good and valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), it is mutually agreed by and between the parties hereto as
follows:
1. (a) Xxxxx hereby represents and warrants the veracity and accuracy of
the first, second, third, seventh and eighth recitals set forth above and
acknowledges and agrees that Micra is relying on the veracity and accuracy of
such recitals in entering into this Agreement.
(b) Micra hereby represents and warrants the veracity and accuracy of
the fourth, fifth and sixth recitals set forth above and acknowledges and agrees
that Xxxxx is relying on the veracity and accuracy of such recitals in entering
into this Agreement.
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2. Micra hereby agrees to retain Xxxxx on a non-exclusive basis to provide such
consulting, public relations, marketing and other services as the parties hereto
may mutually agree upon from time to time in connection with the marketing and
promotion of the "Talking Trading Cards". In particular, as and when mutually
agreed upon by the parties hereto from time to time, Xxxxx agrees to:
(a) write and issue press releases with respect to the "Talking Trading
Cards";
(b) promote the "Talking Trading Cards" in his feature or regular columns;
(c) arrange for and attend at press conferences and product launches in
respect of the "Talking Trading Cards; and
(d) obtain and provide to Micra such non-confidential information with
respect to the trading card market, including with respect to
participants and new products, as may from time to time come into the
possession of Xxxxx.
3. Micra hereby undertakes and agrees to provide Xxxxx with all information,
documentation, reports and assistance which Xxxxx may require from time to time
in order to adequately perform its obligations under this Agreement.
4. Xxxxx agrees to perform its services during the term of this Agreement
honestly and in good faith with a view to the best interests of Micra. Xxxxx
further agrees to maintain in strict confidence all of Micra's current and
future plans, designs, product developments and other confidential information
pertaining to the "Talking Trading Cards" and acknowledges and agrees that all
such plans, designs, product developments and other confidential information are
and shall remain at all times the exclusive property of Micra.
5. Notwithstanding any other provision of this Agreement, Xxxxx shall not have
the authority to negotiate or enter into any negotiations with any customer,
supplier or potential customer or supplier of Micra, nor the authority to issue
press releases or reveal Micra's plans, designs or product developments, without
the prior express written consent of Micra.
6. Xxxxx represents and warrants to Micra that, under applicable United States
laws, he has all registrations, licences, permits and authorizations necessary
or desirable in order to perform the services provided for hereunder. In
carrying out his obligations hereunder, Xxxxx covenants and agrees to comply
with all laws, regulations, rules and other requirements of all federal, state,
provincial, municipal, regional and other applicable regulatory authorities.
7. Xxxxx shall be compensated for his services hereunder as follows:
(a) a monthly fee of U.S. $500 to be earned as of the end of each month of
the term of this Agreement and paid within 15 days of receipt by Micra
from Xxxxx of an invoice therefor;
(b) the issuance to Xxxxx of 1,000 common shares in the issued and
outstanding share capital of Micra during each month of the term of
this Agreement;
(c) Xxxxx shall be reimbursed for all out-of-pocket expenses incurred by
Xxxxx in performing his services pursuant to this Agreement, such
reimbursement to be made within 15 days of receipt by Micra of receipts
and/or an invoice supporting such expenses, provided that all such
expenses shall have received the prior written approval of Micra;
(d) a daily fee of U.S. $500 for any event that Xxxxx attends on behalf of
or at the request of Micra related to the promotion of the "Talking
Trading Cards", provided that such event requires Xxxxx to leave his
normal place of business and that Micra shall have given its prior
written approval.
8. Unless terminated earlier pursuant to section 9 or 10, this Agreement shall
be for an initial term of 12 months commencing on May 1, 1998, subject to
possible extension at the sole discretion of Micra for a further period of 8
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months until January 31, 2000 such that, in no event, shall Micra be required to
issue to Xxxxx more than 20,000 common shares.
9. Either party may, at its election, declare this Agreement breached and,
without prejudice to any other of its rights, forthwith terminate this Agreement
by written notice to the other party upon the occurrence of any of the following
events:
(a) the substantial failure by the other party to perform any of its
obligations hereunder, which failure shall not have been cured within
thirty (30) days of such failure; or
(b) if the other party becomes insolvent or unable to discharge its
liabilities as they become due or makes an assignment for the benefit
of its creditors or a petition of bankruptcy is made against it.
10. Micra may declare this Agreement breached and, without prejudice to any
other of its rights, forthwith terminate this Agreement by written notice to
Xxxxx on the occurrence of any of the following events:
(a) any term or condition of the confidentiality agreement between Xxxxx
and Micra dated February 3, 1998 is breached; or
(b) upon Micra determining that Xxxxx is acting, or is likely to act, in a
manner detrimental to Micra.
11. In the event that the Agreement is terminated pursuant to section 9 or 10,
Micra shall be required to pay to Xxxxx only that portion of the total
remuneration payable under section 7 which has been earned and accrued up to and
until the effective date of termination. Upon the termination of this Agreement
and payment as required hereunder, Micra shall have no further obligation or
liability to Xxxxx in connection with this Agreement or its termination.
12. (a) Micra agrees to indemnify and hold Xxxxx harmless from and against any
and all losses, claims, damages, liabilities, costs or expenses (collectively
"Claims") arising out of any action or cause of action brought against Xxxxx in
connection with Xxxxx rendering services in accordance with this Agreement,
except for (i) any Claims resulting from any violation by Xxxxx of any laws,
regulations, rules or other requirements of applicable regulatory authorities,
including without limitation, any applicable libel or slander laws or rules or
regulations of the National Association of Securities Dealers, Inc., the United
States Securities and Exchange Commission or any state securities commission;
(ii) Claims resulting from any act of negligence or wilful misconduct by Xxxxx;
and (iii) any amount paid in settlement of any Claim that is settled without
Micra's prior written consent.
(b) Xxxxx hereby agrees to indemnify and hold Micra and its directors, officers
and employees harmless from and against any and all Claims resulting from (i)
any violation or alleged violation by Xxxxx of any laws, regulations, rules or
other requirements of applicable regulatory authorities including, without
limitation, any applicable libel or slander laws or rules or regulations of the
National Association of Securities Dealers, Inc., the United States Securities
and Exchange Commission or any state securities commission; or (ii) any act of
negligence or wilful misconduct by Xxxxx or any of his agents.
13. Xxxxx hereby covenants and agrees that it will not make any Claim whatsoever
against any or all of the directors, officers or shareholders of Micra and that
it will not make any Claim against Micra other than in respect of the
compensation payable pursuant to section 7 hereof. Xxxxx further acknowledges
and agrees that Micra has neither represented nor guaranteed a market for or
assigned a value to the common shares of Micra to be issued to Xxxxx pursuant to
paragraph 7(b) and that the certificates representing such shares shall include
an appropriate legend indicating that such shares are subject to applicable
resale restrictions in the United States and Canada.
14. Nothing in this Agreement shall be construed to constitute Xxxxx as a
partner, employee, or agent of Micra; nor shall either party have any authority
to bind the other in any respect, it being intended that Xxxxx is, and shall
remain an independent contractor.
15. This Agreement (i) shall not be assigned by either party hereto without the
prior written consent of the other party and (ii) shall enure to the benefit of
and be binding upon the respective successors and permitted assigns of the
parties.
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16. Time shall in all respects be of the essence of this Agreement.
17. Any notice, document or other communication required or permitted by this
Agreement to be given by a party hereto shall be in writing and will be
sufficiently given if delivered personally, or if sent by prepaid ordinary mail
posted in Canada or the United States, or if transmitted by any form of
telecommunication (which is tested prior to transmission, confirms to the sender
the receipt of the entire transmission by the recipient and reproduces a
complete written version of the transmission at the point of reception) to such
party addressed as follows:
(a) if to Micra, at:
Micra SoundCards Inc.
000 Xxxx Xxxxxx Xxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxxx Xxxxxxxxxx
Telecopier: (000) 000-0000
(b) if to Xxxxx, at:
Xxxxxx Xxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx
00000
Telecopier: (000) 000-0000
Any notice so mailed shall be deemed to have been given on the third business
day after deposit in a post office or public letterbox. Neither party shall mail
any notice, request or other communication hereunder during any period in which
Canadian or United States postal workers are on strike or if such strike is
imminent and may reasonably be anticipated to affect the normal delivery of
mall. Notice transmitted by a form of recorded telecommunication or delivered
personally shall be deemed given on the day of transmission or personal
delivery, as the case may be. Any party may from time to time notify the other
in the manner provided herein of any change of address which thereafter, until
changed by like notice, shall be the address of such party for all purposes
hereof.
18. The parties agree to execute and deliver to each other such further
instruments and other written assurances and to do or cause to be done such
further acts or things as may be necessary or convenient to carry out and give
effect to the provisions of this Agreement or as any of the parties may
reasonably request in order to carry out the transactions contemplated herein.
19. This Agreement sets forth the entire agreement among the parties hereto
pertaining to the specific subject matter hereof and replaces and supersedes all
prior Agreements (other than the non-disclosure agreement between the parties
dated February 3, 1998), understandings, negotiations and discussions, whether
oral or written, of the parties hereto, and there are no warranties,
representations or other agreements, whether oral or written, express or
implied, statutory or otherwise, between the parties hereto in connection with
the subject matter hereof except as specifically set forth herein.
20. No supplement, modification, waiver or termination of this Agreement shall
be binding unless executed in writing by the party to be bound thereby.
21. This Agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario and the federal laws of Canada applicable
therein and Xxxxx hereby agrees to attorn to the exclusive jurisdiction of the
Courts of the Province of Ontario in the event of any dispute or litigation
arising.
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22. This Agreement may be executed and delivered in one or more counterparts
and/or via facsimile transmission, each of which when taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement on the
date first above written.
MICRA SOUNDCARDS INC.
Per: (signed) "Xxxxxx Xxxxxxxxxx")
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Authorized Signing Officer
SIGNED, SEALED AND DELIVERED
in the presence of: )
)
_______________________________ ) (signed) "Xxxxxx Xxxxx"
Witness ---------------------------------
) Xxxxxx Xxxxx
