Exhibit 10.17
BUSINESS CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement (the "Agreement"), is entered into and
effective as of the 1st day of July, 2003 by and between Xxxx Xxxxxxxxx
(hereinafter referred to as, "Consultant"), and Inyx Canada, Inc., (hereinafter
referred to as, "Client") (collectively referred to herein as the "Parties").
Inyx Canada, Inc. is a subsidiary of a US corporation (Inyx, Inc. or the
"Company").
Preliminary Statement: The Client desires to be assured of the association and
services of the Consultant in order to avail itself of the Consultant's
experience, skills, abilities, knowledge, and background to facilitate Strategic
Business Acquisitions, Business & Corporate Development, Sales & Marketing and
Development of Distribution Channels and is therefore willing to engage
Consultant upon the terms and conditions set forth herein. Consultant desires to
be assured, and Client desires to assure Consultant, that, if Consultant
associates with Client and allocates its resources necessary to provide Client
with its services, Consultant will be paid the consideration described herein
and said consideration will be nonrefundable, regardless of the circumstances.
Consultant agrees to be engaged and retained by Client upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties hereto agree as
follows:
1. Engagement
Client hereby engages Consultant on a non-exclusive basis, and Consultant
hereby accepts the engagement to become a business Consultant to Client and
to render such advice, consultation, information, and services to Client
regarding business matters including, but not limited to the following:
Consultant will assist Client in Strategic Business Acquisitions, Business
& Corporate Development, Sales & Marketing and Development of Distribution
Channels.
Consultant, on behalf of Client, will liaise with key customers as
identified by Client.
Consultant, at Client's request, will act as Client's agent and will
generate new sales leads and negotiate new contracts in order to materially
grow the business.
Consultant will assist Client in the development and/or refinement of
company's web site and other marketing information.
Consultant will assist Client in future acquisitions, negotiating terms and
structure, and assisting in due diligence and documentation.
Consultant will assist Client in the development of sales and marketing
plans for new acquisitions and the proper integration of said acquisitions
into the overall corporate strategy and development of distribution
channels.
Notwithstanding that Consultant's services will always be through Client,
Client can direct Consultant to provide services to Client's US parent or
other affiliates of the Company.
Client and Consultant shall mutually agree, in writing, for any additional
duties that Consultant may provide to Client for compensation paid or
payable by Client under this agreement. Although there is no requirement to
do so, such additional agreement(s) may be attached hereto and made part
hereof by written amendments to be listed as "Exhibits" beginning with
"Exhibit A" and initialed by both parties.
2. Compensation to Consultant
(all figures in C$ and GST will be charged in addition to figures shown).
2.1 Engagement Fee/Signing Bonus. As express consideration for Consultant
entering into this Agreement, Client will pay Consultant $46,500.
2.2 Monthly Compensation. From July 1 to December 31, 2003, Client to pay
Consultant $12,250.00 every month, $6,125.00 on the 15th of the month and
$6,125.00 on the last day of the month. Starting from January 1, 2004,
Consultant and Client to mutually agree on the monthly cash compensation,
said compensation not to be below $10,000 per month.
2.3 Company Stock and Stock Option Plan. Consultant is eligible for receipt of
Stock Options and / or Stocks from time to time at the discretion of the
Compensation Committee of the Company. Stock referred to is Inyx, Inc.
Stock. Therefore Inyx Canada, Inc. will cause parent, Inyx, Inc. to issue
said Stock Options or Stocks to Consultant as the case may be. In the case
of Stock Options, the vesting period of granted Stock Options shall be at
the latest, 1/3 vest immediately at the date of granting, 1/3 vest 6 months
from the date of granting and 1/3 vest one year from the date of granting.
In the case of Stocks, when issued, said shares shall be restricted shares,
although at the earliest availability, Client shall register such shares
with the U.S. Securities and Exchange Commission (the "SEC") on a Form S-8
or a similar registration statement.
Notwithstanding anything else herein, each Option will vest completely on
the date the Client provides the Consultant with notice that a `Change of
Control' has occurred, such notice not to be unreasonably withheld. `Change
of Control' has occurred when a shareholder or shareholders of the Client,
holding at least a majority of the outstanding issued Shares, has agreed to
transfer or sell such shareholder's or shareholders' Shares constituting
such controlling interest to a bona fide third party purchaser acting at
arm's length to such shareholder or shareholders.
2.4 Bonuses. Consultant is eligible for bonuses based on performance and at the
discretion of the CEO of the Company. These bonuses are to be paid either
in Stocks and / or cash, at the option of the Consultant. In the case of
Stocks, when issued, said shares shall be restricted shares, although at
the earliest availability, Client shall register such shares with the U.S.
Securities and Exchange Commission (the "SEC") on a Form S-8 or a similar
registration statement.
2.5 Office and Ancillary Equipment. Client to provide Consultant with a laptop
computer and mobile phone for its exclusive use to enable Consultant to
perform its duties. Client will pay said mobile phone's monthly bills.
Client will provide an office for Consultant's exclusive use at location
designated by Client at its sole discretion. If Client designates that no
office can be provided and that Consultant shall work from its personal
residence, then Client to provide Consultant, at Client's expense,
phone/fax service, fax machine, printer and any other office equipment
deemed necessary for Consultant to carry out its duties.
2.6 Expenses. Client shall reimburse Consultant for reasonable expenses
incurred in performing its duties pursuant to this Agreement (including
printing, postage, express mail, photo reproduction, travel, lodging, and
long distance telephone and facsimile charges); provided, however, that for
any expenses over $1,000, Consultant must receive prior written approval
from Client. Such reimbursement shall be payable within seven days of
Consultant's invoice.
2.7 Additional Fees. Client and Consultant shall mutually agree upon any
additional fees that Client may pay in the future for services rendered by
Consultant under this Agreement. Such additional agreement(s) may, although
there is no requirement to do so, be attached hereto and made a part hereof
as Exhibits beginning with Exhibit A.
2.8 Benefits. Consultant to fully participate in Client's health and benefit
plan to include the normal benefits including medical, dental, orthodontic
and eye-care for Consultant and its family as well as appropriate life
insurance for the beneficiaries designated by Consultant. Benefits to
continue for one year after termination date as outlined in Section 7
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3. Indemnification
The Client agrees to indemnify and hold harmless Consultant against any and
all liability, loss and costs, expenses or damages, including but not
limited to, any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever or howsoever caused by reason of any
injury (whether to body, property, personal or business character or
reputation) sustained by any person or to any person or property, arising
out of any act, failure to act, neglect, any untrue or alleged untrue
statement of a material fact or failure to state a material fact which
thereby makes a statement false or misleading, or any breach of any
material representation, warranty or covenant by Client or any of its
agents, employees, or other representatives. Nothing herein is intended to
nor shall it relieve either party from liability for its own willful act,
omission or negligence. All remedies provided by law, or in equity shall be
cumulative and not in the alternative.
4. Confidentiality
4.1 Consultant and Client each agree to keep confidential and provide
reasonable security measures to keep confidential information where release
may be detrimental to their respective business interests. Consultant and
Client shall each require their employees, agents, affiliates, other
licensees, and others who will have access to the information through
Consultant and Client respectively, to first enter appropriate
non-disclosure Agreements requiring the confidentiality contemplated by
this Agreement in perpetuity.
4.2 Consultant will not, either during its engagement by the Client pursuant to
this Agreement or at any time thereafter, disclose, use or make known for
its or another's benefit any confidential information, knowledge, or data
of the Client or any of its affiliates in any way acquired or used by
Consultant during its engagement by the Client. Confidential information,
knowledge or data of the Client and its affiliates shall not include any
information that is, or becomes generally available to the public other
than as a result of a disclosure by Consultant or its representatives. In
addition, Consultant shall not perform similar services provided for herein
to any person identified by Client as a direct competitor of the Client
(this list not to be unreasonably restrictive or all encompassing).
5. Miscellaneous Provisions
5.1 Amendment and Modification. This Agreement may be amended, modified and
supplemented only by written agreement of Consultant and Client.
5.2 Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. The obligations of either
party hereunder cannot be assigned without the express written consent of
the other party.
5.3 Governing Law; Venue. This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with the
laws of the Province of Ontario, without regard to its conflict of law
doctrine. Client and Consultant agree that if any action is instituted to
enforce or interpret any provision of this Agreement, the jurisdiction and
venue shall be the City of Xxxxxxx, Xxxxxxx, Xxxxxx.
5.4 Attorneys' Fees and Costs. If any action is necessary to enforce and
collect upon the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees and costs, in addition to any other
relief to which that party may be entitled. This provision shall be
construed as applicable to the entire Agreement. If any legal costs arise
from Consultant carrying out its service to Client, Client to cover
Consultant's attorneys' fees and costs.
5.5 Survivability. If any part of this Agreement is found, or deemed by a court
of competent jurisdiction, to be invalid or unenforceable, that part shall
be severable from the remainder of the Agreement.
5.6 Facsimile Signatures. The Parties hereto agree that this Agreement may be
executed by facsimile signatures and such signature shall be deemed
originals. The Parties further agree that within ten (10) days following
the execution of this Agreement, they shall exchange original signature
pages.
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5.7 Arbitration
All disputes, controversies, or differences between client, consultant, or
any of their officers, directors, legal representatives, attorneys,
accountants, agents or employees, or any customer or other person or
entity, arising out of, in connection with or as a result of this
agreement, shall be resolved through arbitration rather than through
litigation. With respect to the arbitration of any dispute, the undersigned
hereby acknowledge and agree that:
A. Arbitration is final and binding on the parties;
B. The parties waive their right to seek remedy in court, including their
right to jury trial;
C. Pre-arbitration discovery is generally more limited and different from
court proceeding;
D. The arbitrator's award is not required to include factual findings or
legal reasoning and any party's right of appeal or to seek
modification of ruling by the arbitrators is strictly limited;
E. This arbitration provision is specifically intended to include any and
all statutory claims which might be asserted by any party;
F. Each party hereby agrees to submit the dispute for resolution to the
Arbitration Dispute Resolution Institute of Canada within five (5)
days after receiving a written request to do so from the other party;
G. If either party fails to submit the dispute to arbitration on request,
then the requesting party may commence an arbitration proceeding, but
is under no obligation to do so;
H. Any hearing scheduled after an arbitration is initialed shall take
place in the City of Xxxxxxx, Xxxxxxx, Xxxxxx;
I. If either party shall institute a court proceeding in an effort to
resist arbitration and be unsuccessful in resisting arbitration or
shall unsuccessfully contest the jurisdiction of any arbitration forum
located in the City of Xxxxxxx, Xxxxxxx, Xxxxxx, over any matter which
is the subject of this agreement, the prevailing party shall be
entitled to recover from the losing party its legal fees and any
out-of-pocket expenses incurred in connection with the defense of such
legal proceeding or its efforts to enforce its rights to arbitration
as provided for herein;
J. The parties shall accept the decision of any award as being final and
conclusive and agree to abide thereby;
K. Any decision may be filed with any court as a basis for judgment and
execution for collection.
5.8 Term/Termination
This Agreement is an agreement for the term of twenty four (24) months
ending June 30, 2005 and is effective as of the date first written above.
Thereafter, this Agreement shall automatically be renewed for successive
one-year periods every July 1st, commencing with the first of July 2005,
unless either of Client or Consultant move to terminate as per below.
Client may terminate this Agreement with written notice to Consultant 180
days prior to termination date. At termination date, Client to pay
Consultant severance of twelve (12) months compensation in a lump sum and
benefits to continue for one year from date of termination. Notwithstanding
the foregoing, it is expressly agreed by Client that any compensation
(whether in the form of cash, shares or stock options) previously tendered
to the Consultant shall not be refundable. Any non-vested stock options
held by consultant at termination date will immediately vest. These vested
options will not terminate until 90 dates after termination date.
Consultant can terminate agreement at any time with 30 days written notice
to Client. Finally, if after a Change of Control as defined in Section 2.3,
Client elects not to continue Consultant's Agreement, then Agreement will
be terminated upon Client's written notification to Consultant and
severance will apply as above as well as continuation of benefits for one
year as per above.
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6. Relocation
If Client requests Consultant to relocate and Consultant agrees with the
request, then Client to pay for all of Consultant's legal, immigration,
moving and selling expenses. If Consultant's relocation is contingent upon
contract continuation, then Consultant has right of first refusal. If
Consultant elects not to relocate, then Agreement will terminate as of the
date Consultant informs Client in writing of its decision not to relocate.
Severance and benefits stipulated in Section 7 will take effect.
7. Representations, Warrants and Covenants
The Client represents, warrants and covenants to the Consultant as follows:
The Client has the full authority, right, power and legal capacity to enter
into this Agreement and to consummate the transactions which are provided
for herein. The execution of this Agreement by the Client and its delivery
to the Consultant, and the consummation by it of the transactions which are
contemplated herein have been duly approved and authorized by all necessary
action by the Client's Board of Directors and no further authorization
shall be necessary on the part of the Client for the performance and
consummation by the Client of the transactions which are contemplated by
this Agreement.
The business and operations of the Client have been and are being conducted
in all material respects in accordance with all applicable laws, rules and
regulations of all authorities which affect the Client or its properties,
assets, businesses or prospects. The performance of this Agreement shall
not result in any breach of, or constitute a default under, or result in
the imposition of any lien or encumbrance upon any property of the Client
or cause acceleration under any arrangement, agreement or other instrument
to which the Client is a party or by which any of its assets are bound. The
Client has performed in all respects all of its obligations which are, as
of the date of this Agreement, required to be performed by it pursuant to
the terms of any such agreement, contract or commitment.
8. Counterparts
This Agreement may be executed simultaneously in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be duly executed, all as of the day and year
first above written.
CLIENT: CONSULTANT:
Inyx Canada, Inc.
/s/ Xxxx Xxxxxxxxxx /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxxx Xxxx Xxxxxxxxx
Vice President, Finance
Inyx, Inc.
Agreed to by Inyx, Inc.
/s/ Xxxx Xxxxxxx
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Dr. Xxxx Xxxxxxx
Chairman
Inyx, Inc.
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