Exhibit 10.2
CONSULTING AGREEMENT
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ACCOUNTING, ENGINEERING, OPERATING AND GENERAL ADMINISTRATIVE SERVIES
THIS AGREEMENT dated for reference and intended effective from the 1st day of
April, 2000 (the "Effective Date")
BETWEEN:
PLANET EARTH OPERATING SERVICES INC., a corporation formed under the
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Canada Business Corporations Act and having an address in care of 6943
Mornington Street, Millbank, Ontario
(the "Consultant")
AND:
THERMO TECHTM TECHNOLOGIES INC., a body corporate having an address
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2380 Brampton Street, Hamilton, Ontario
(the "Company")
RECITALS:
A. The Company has agreed to retain the services of the Consultant to
provide and contract out to the Company the consulting services described in
Schedule "A" attached hereto (the "Services") and the Consultant agrees to
provide the Services tot eh Company, in accordance with the terms and conditions
contained herein;
B. The Consultant is an independent contractor and is not an employee nor
agent of nor partner nor joint venturer with the Company;
C. The Company has also requested that the Consultant enter into customary
confidentiality provisions, and the Consultant has agreed to do so, to specifiy
the obligations of confidentiality which the Consultant has agreed to accept as
a condition of the Consultant being engaged to perform the Services.
THIS AGREEMENT WITNESSES THAT in consideration of the premises, and other good
and valuable consideration, the receipt and sufficiency of thich is hereby
acknowledged, the parties agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1. Definitions
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In this Agreement, including the recitals and any schedules, the following
words and expressions have the following meanings unless the context otherwise
requires:
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(a) "Confidential Information" means all information or data which may
before or after the date of this Agreement be delivered to the
Consultant by the Ccompany or by any affiliate of the Company or which
may otherwise come within the knowledge of the Consultant or which may
be developed y the Consultant or any subsidiary or affiliate of the
Consultant or any employuee of any of them in connection with the
Services or from any of the other Confidential Information or which
relates to the Company including, without limiting the generality of
the foregoing, all information or data regarding manufacturing
processes, programs, plants, products, costs, equipment, operations,
distribution, marketing or customers relating to the products, all
technical information, procedures, processes, diagrams,
specifications, improvements, formulations, plans and data relating to
the foregoing and all documents delivered by the Company or any
affiliate of either of them which are marked as confidential or as
proprietary information.
(b) "Services" means all services which the Consultant may provide from
time to time for the Company including, without limitation, those
provided in Schedule "A" hereto.
1.2 Entire Agreement
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This Agreement supersedes all previous invitations, proposals, letters,
correspondence, negotiations, promises, agreements, covenants, conditions,
representations and warranties with respect to the subject matter of consulting
services as set out in the Agreement. There is no representation, warranty,
collateral term or condition affecting this Agreement for which any party can be
held responsible in any way, other than as expressed in writing in this
Agreement.
1.3 Amendments
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No change or modification of this Agreement will be valid unless it is nin
writing and signed by each party to this Agreement.
1.4 Invalidity of Particular Provision
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It is intended that all of the provisions of this Agreement will be fully
binding and effective between the parties. In the event that any particular
provision or provisions or a part of one or more is found to be void, voidable
or unenforceable for any reason whatsoever, then the particular provision or
provisions or part of the provision will be deemed severed from the remainder of
this Agreement. The other provisions of this Agreement will not be affected by
the severance and will remain in full force and effect.
1.5 Governing Law
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The place of making, execution and delivery of this Agreement shall be and
shall be deemed to be the Province of Ontario. However, this Agreement will be
governed by and construed in accordance with the laws of the Province of British
Columbia and the laws of Canada applicable therein.
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ARTICLE 2
REMUNERATION
2.1 Remuneration
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The Remuneration of the Consultant shall be at the rates and on the terms
specified in Schedule "B" hereto. All Financial determinations made under or
pursuant to this Agreement shall be made and finally determined by the Chief
Financial Officer of the Consultant, acting reasonably, or failing his
determination, by the chartered accountants of the Consultant, acting
reasonably, and in either case in accordance with Generally Accepted Accounting
Principles as promulgated from time to time by the Canadian Insitute of
Chartered Accountants.
2.2 Reimbursement of Expenses
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The Consultant shall be fully reimbursed by the Company for all expenses,
disbursements and other costs (collectively, "Expenses") for goods or services
of third parties, agents, suppliers, sub-consultants, employees and other
consulting professionals, as reasonably determined and as such amounts are
incurred, committed to or otherwise required by the Consultant, except if such
goods, services or amounts are specifically set out in paragraph 2(A) of
Schedule "A" as being comprised in the aggregate Remuneration to and overhead of
the Consultant. If and so often as cash-flow circumstances of the Consultant
require, the Consultant shall be entitled to require from time to time that the
Company provide advances of the Expenses to the Consultant or directly to others
all as designated by the Consultant. For greater certainty, but without
limiting the extent of the reimbursable Expenses, such Expenses shall include
all postage, printing, mailing, proxy solicitation, shareholder communications
and other related and ancillary communications expenses arising during the term
of this Agreement, regardless of media.
2.3 Consultant Not Employee
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The parties agree that the Consultant and employees, agents,
sub-consultants, officers, directors and other representatives of the Consultant
are not employees of the Company and, as such, save as required by law, there
shall be no deductions for any statutory withholdings, including but without
limitation, withholdings for income tax, Canada Pension Plan, Unemployment or
Employment Insurance or Worker's Compensation.
2.4 Statutory Withholdings
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The Consultant agrees to make and remit all statutory withholdings as may
be required by it in respect of the Consultants' other employees,
sub-consultants, officers or directors who may be involved in performance of the
Services for the Company. At the request of the Company, the Consultant shall
provide to the Company satisfactory evidence of such statutory withholdings
having been made.
2.5 No Participation in Plans
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The Consultant and its employees, agents, sub-consultants, officers,
directors and other representatives shall not be entitled to participate in any
medical, dental, extended health or group life insurance plans of the Company.
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2.6 Insurance
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The Consultant agrees to maintain adequate and appropriate liability
insurance coverage in respect of the services to be performed by the Consultant
including, without limiting the generality of the foregoing, any required
Worker's Compensation registration. At the request of the Company, the
Consultant shall provide satisfactory evidence to the Company of all such
coverage.
2.7 No Partnership
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This Agreement will not be construed as creating a partnership, joint
venture or agency relationship between the parties or any other form of legal
association which would impose liability upon one party for any act or failure
to act by the other party.
ARTICLE 3
CONFIDENTIALITY
3.1 General Obligation of Confidentiality
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The Consultant acknowledges that the Confidential Information consists
entirely of information and knowledge which is the exclusive property of the
Company or its subsidiaries and affiliates or persons from whom the Company has
obtained its rights. The Consultant will treat the Confidential Information
obtained by it in strict confidence and will not disclose the Confidential
Information made available to it unless otherwise required by law, except as
previously approved in writing by the Company. The Consultant will protect such
Confidential Information from disclosure by exercising a standard of care as may
reasonably be expected to preserve its secret and confidential nature. All
documents containing Confidential Information are the property of the Company.
Without limiting the generality of the foregoin, the Consultant hereby transfers
to the Company the property rights in all documents which now or hereafter may
contain the Confidential Information.
3.2 Use of Confidential Information
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The Consultant will not use the Confidential Information for any purpose
other than as contemplated by this Agreement or except as contemplated in any
other agreement or agreements in writing between or among (A) the Consultant or
its respective affiliates, and (B) the Company or its respective affiliates.
3.3 Prohibition on Copying
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The Consultant will not copy, modify or part with the Confidential
Information except with the written approval of the Company, except that the
Consultant is permitted to make a reasonable number of copies of the
Confidential Information for the specific purposes authorized by this Agreement.
All such copies remain the property of the Company.
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3.4 Officers and Employees
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The Consultant may disclose the Confidential Information only to those of
its officers, directors, agents, sub-contractors, professional advisors,
employees and others (as the case may be, each an "individual" for the purposes
of this Section 3.4) whose duties require them to know the same. The Consultant
will notify such individuals of the obligations contained in this Agreement with
respect to confidentiality and restrictions on its use. If requested by the
Company, the Consultant will require each such individuals to whom Confidential
Information is disclosed to execute and to deliver to the Company the written
agreement of such individual to be bound personally by all of the terms an
conditions of this Agreement, such agreement to be in a form and on terms
satisfactory to the Company, acting reasonably. The Consultant will require and
direct such individuals to exercise a standard of care sufficient to preserve
the confidential nature of the Confidential Information.
3.5 Exceptions
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Any obligations specified in this Article 3 will not apply to the following:
(a) any information which is presently in the public domain;
(b) any information which subsequently becomes part of the public domain,
except and unless it is proven by the Company that such becoming aprt
of the public domain was the direct result of proven acts or omissions
of the Consultant or any officer, director, employee or agent of the
Consultant, as the case may be; or
(c) any information which is required by a Court of competent jurisdiction
to be disclosed.
3.6 Injunctive Relief
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The Consultant acknowledges that irreparable harm may result to the Company
if the Consultant breaches its obligations under this Article. The Consultant
acknowledges that such a breach may not properly be compensated by an award of
damages. Accordingly, the remedy for any such breach may included, in addition
to other available remedies and damages, injunctive relief or other equitable
relief enjoining such breach at the earliest possible date.
ARTICLE 4
GENERAL OBLIGATIONS OF THE CONSULTANT
4.1 The Company's Ownership of Rights
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The Consultant acknowledges and agrees as follows with respect to the
ownership of rights by the Company and the imitation of the Consultants' rights:
(a) Nothing contained in this Agreement shall be construed as an
assignment to the Consultant of any right, title or interest in the
Confidential Information. All right, title and interest relating to
the Confidential Information is expressly reserved by the Company.
(b) The Consultant acquires no rights in any inventions or developments or
work products, including, but not limited to, documents, drawings,
written materials, programs, designs, discs, tapes and other storage
or retrieval media (the "Work Products") resulting from, derived from
or otherwise related to the performance of the Services by the
Consultant or the confidential Information. All such inventions,
developments and Work Products are the property of the Company. The
Consultant will promptly and duly execute and deliver and cause its
officers and employees to promptly and duly execute and deliver to the
Company such further documents and assurances and take such further
action as the Company may from time to time request in order to more
effectively carry out the intent and purpose of this section, and to
establish and protect the rights, interests and remedies of the
Company.
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(c) The Consultant will not and the consultant will cause its officers and
employees not to any time apply for any copyright, trade mark, patent
or other intellectual property protection which would affect the
ownership by the Company of any rights in the intellectual property
associated with the confidential Information or the Work Products or
file any document with any government authority anywhere in the world
or take any other action which could affect such ownership of any
intellectual property associated with the Confidential Information of
the Work Products or aid or abet anyone else in doing so.
ARTICLE 5
NON-COMPETITION
5.1 Non-Competition and Non-Solicitation
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The Consultant shall not, without the prior written consent of the Company
during the term of this Agreement, within Canada (the "Prohibited Area"):
(a) undertake to perform on behalf of any other entity any service that
would materially and directly conflict with the performance of the
Services under this Agreement;
(b) directly or indirectly engage in or become financially interested in
any entity that carries on a business the same as, or is similar to,
the business carried on by the Company or any of its subsidiaries as
such business was during the term of this Agreement and in respect of
which the Consultant performed the Services (collectively the
"Prohibited Businesses") that will materially and substantially
interfere or compete with the Prohibited Businesses of the Company or
of its subsidiaries, or of their respective successors or assigns;
(c) actively divert or attempt to divert any business of, or any customers
(collectively, "Customers") of the Company or of any of its
subsidiaries, to any other competitive establishment, by material
direct or indirect inducement, provided that if such customers
voluntarily solicit the Consultant in such respect, then the
Consultant and such customers will not be prevented by this Agreement
or otherwise from entering into agreements or arrangements where y
such customers engage the Consultant as the Consultant's customer or
of that of another with whom the Consultant transacts business or has
contractual relations;
(d) actively, whether directly or indirectly, impair or seek actively to
impair the reputation of the Company, nor any relationships that the
Company has with its employees, customers, suppliers, agents or other
parties (collective, "Suppliers") with which the Company does business
or has contractual relations provided that if such Suppliers
voluntarily solicit the Consultant in such respect, then the
Consultant and such Suppliers will not be prevented by this Agreement
or otherwise from entering into agreements or arrangements whereby
such Suppliers engage the Consultant as the Consultant's Suppliers or
of that of another with whom the Consultant transacts business or has
contractual relations; or
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(e) directly or indirectly, in any way, solicit, hire away from the
Company the services of any current employee or other consultant,
officer, director, agent of the Company (each, an "Individual"), or
persuade or attempt to persuade any such Individual to terminate his
or her employment with or engagement by the Company, provided that if
such Individual voluntarily resigns from or is dismissed from (with or
without cause) his employment or engagement by the Company, the
Company, Consultant and such Individual will not be prevented by this
Agreement or otherwise from entering into agreements or arrangements
whereby such Individual is hired or engaged by the Company or
Consultant as an employee or other sub-consultant, officer, director,
agent of the Company or Consultant, respectively.
ARTICLE 6
INDEMNITY
6.1 Indemnity
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The Consultant will defend, indemnify and save harmless the Company from
and against all actions, proceedings, demands, claims, liabilities, losses,
damages, judgments, costs and expenses including, without limiting the
generality of the foregoing, reasonable legal fees and disbursements on a
solicitor and his own client basis (together with all applicable taxes) which
the Company may be liable to pay or may incur, acting reasonably, by reason of a
breach of the terms of this Agreement or any liability that the Company may
incur, acting reasonably, to any lawful authority for source deductions, goods
and services tax and any other remittance obligations arising with respect to
payment to the Consultant pursuant to this Agreement.
ARTICLE 7
TERM
7.1 This Agreement will take effect on the Effective Date and will continue
in full force and effect on a fixed-term and irrevocable basis for an initial
term of 18 consecutive months and thereafter renew and extend automatically on a
successive year-to-year basis, unless the Company serves upon the Consultant 180
days advance written notice prior to the anniversary date of this Agreement,
that the Company terminate this Agreement.
7.2 Notwithstanding any other provision of this Agreement, the Consultant
may, at any time, give 30 days' advance written notice to the Company of the
Consultant's intention to terminate this Agreement, with or without the
necessity of cause or reason therefore, and on the expiration of such 30 day
notice period this Agreement shall be terminated. Such notice may expire on any
day of the month and any Remuneration or other amounts payable to the Consultant
under this Agreement shall be proportioned and paid to the date of such
termination.
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7.3 The Company may terminate this Agreement without written notice under
Section 7.1 of this Agreement or otherwise, only if:
(a) the Consultant has grossly and persistently neglected its duties under
this Agreement, having been given not less than 90 days of reasonable
and specific written notice thereof and then a successive reasonable
opportunity to cure or commence to cure, acting reasonably, such
neglect, provided no event has occurred or is continuing in the nature
of force majeure, in which event of force majeure the period to cure
or commence to cure such neglect shall be extended commensurately with
the continuing event of force majeure; or
(b) the Consultant has been convicted of a crime which related directly to
the performance of this Agreement.
ARTICLE 8
GENERAL
8.1 Arbitration
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All disputes arising out of or in connection with this contract, or in
respect of any defined legal relationship associated therewith or derived
therefrom, shall be referred to and finally resolved by arbitration under the
Rules of the British Columbia International Commercial Arbitration Centre. The
appointing authorities shall be the British Columbia International Commercial
Arbitration Centre. The case shall be administered b the British Columbia
International Commercial Arbitration Centre in accordance with its "Procedures
for Cases Under the BCICAC Rules". The place of arbitration shall be Vancouver,
British Columbia, Canada.
8.2 Notices
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Any notice, direction, request or other communication required or
contemplated by any provision of this Agreement shall be given in writing and
shall be given by delivering or faxing same to the Company or the Consultant, as
the case may be, as follows:
(a) To the Consultant at:
the registered office of the Consultant
Attention: the President
(b) To the Company at:
the registered office of the Company
Attention: the President
Any such notice, direction, request or other communication shall be deemed to
have been given or made on the date on which it was delivered or, in the case of
fax, on the next business day after receipt of transmission. Either party may
change its fax number or address for service from time to time by notice in
accordance with the foregoing.
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8.3 Assignment
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This Agreement is assignable and may be sub-contracted or delegated in
performance either in whole or in part, and from time to time, by the Consultant
on giving reasonable notice thereof to and obtaining the consent thereto of
Company, which consent must not be denied or delayed unreasonably. It is
acknowledged that the Consultant or its affiliates might in future become a
reporting issuer or publicly-traded entity. Accordingly, no change in the
persons or entities who are the owners of the shares of the Consultant nor any
change in the persons having effective control, directly or indirectly, of the
Consultant shall be deemed nor shall operate in any event as an assignment,
sub-contract or delegation requiring the consent of the Company. However, any
change which might occur without such consent or any assignment, sub-contract or
delegation occurring by reason of operation of law such as upon a bankruptcy or
amalgamation shall be deemed an event of default under this Agreement.
8.4 Waiver
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No failure or delay on the part of any party inexercising any power or
right under this Agreement will operate as a waiver of such power or right, nor
will any single or partial exercise of any such right or power preclude any
further or other exercise of such right or power under theis Agreement. NO
modification or waiver of any provision of this Agreement and no consent to any
departure by any party from any provision of this Agreement will be effective
unless it is in writing. Any such waiver or consent will be effective only in
the specific instance and for the specific purpose for which it was given. No
notice to or demand on any party in any circumstances will entitle such party to
any other or further notice or demand in similar or other circumstances.
8.5 Advice
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Each party confirms and agrees that it has been duly advised (and fully and
fairly informed with respect to such matters) to obtain all necessary and
independent legal, accounting, taxation, financial and other applicable
professional advise and counsel prior to entering to this Assignment and the
transaction referenced herein. Each such party has either obtained all such
advice and counsel or has determined to its own satisfaction, having been fully
and fairly informed therein, not to seek such advice and counsel.
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8.6 Counterparts, General
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This Agreement may be executed by fax or in counterparts and each such
counterpart or facsimile shall be, when taken together, considered one
agreement. Subject to the restrictions on transfer contained in this Agreement,
this Agreement shall enure to the benefit of and be binding on the parties and
their respective heirs, executors, administrators, successors and assigns.
INWITNESS WHEREOF the parties have duly executed and delivered this Agreement.
PLANET EARTH OPERATING THERMO TECHTM TECHNOLOGIES
SERVICES INC. by its authorized INC. by its authorized
signatory: signatory:
/S/ Perry Smith /S/ Edwin Kroeker
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Authorized Signatory Authorized Signatory
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SCHEDULE "A"
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SERVICES
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The Consultant covenants and agrees with the Company
as follows:
1. The Consultant has and shall use its specific knowledge and expertise
relating to the supply and provision of staff, labour and related materials
and services with respect to the businesses of the Company as heretofore
carried out by the Company directly;
2. The Consultant will provide, as available and as required by the Company:
(A) management services to the Company with respect to and the direct
provision of, the Consultant bearing its own overhead therefore from the
Remuneration described in Schedule "B", business transportation and
logistics, courier services, banking, operational administration, office
services, general accounting, public relations, financial and treasury
management services and for such tasks will provide tot eh Company
reasonable and sufficient office premises, office and computer equipment,
business machines, telecommunications, utilities, insurance and related
customary overheads at the 20136 Fraser Highway, Langley, B.C. location of
the Business or at such alternative or satellite location or locations in
Canada as the Consultant may from time to time reasonably determine, but
excluding such items as are not in the ordinary course of the Consultant to
provide or which are outside the ordinary course of business of the
Company, and
(B) services to select and manage, and the consultant shall have the
exclusive prerogative and opportunity so do to, the third-party provision
to the Company as principal or hirer of all engineering, research and
design services, legal services, audit and management information systems
services and all other professional business or consulting services
required by the Company, the cost of which, for greater certainty, shall be
borne by the Company solely and not by the Consultant, as reimbursable
Expenses under the Agreement.
Subject to the Consultant's election to reduce the Services as set out in
paragraph 5 of Schedule "B", all such Services described in the preceding
provisions of this paragraph 2 of Schedule "A" shall be provided to such
standards of service and timeliness, with such promises, equipment and
levels of staffing and proficiency and as were heretofore carried out or
self-supplied by the Company directly immediately prior to the engagement
of the Consultant under this Agreement.
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SCHEDULE "B"
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REMUNERATION
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The remuneration (the "Remuneration") of the Consultant shall be determined by
the Consultant and be paid to the Consultant by the Company, for each month or
part calendar month (each, a "Month") of the term of this Agreement, by payments
pre-paid, as set out below, or earlier as the Consultant reasonably requires, as
follows:
on April 1, 2000, with respect to the first 9 months of the term of this
Agreement from April 1, 2000 to and including December 1, 2000:
1. CAD $300,000 for each of the first through ninth Months, plus applicable
GST and any applicable other taxes, for an aggregate of CAD$2,700,000; and
2. an advance against reimbursable Expenses under this Agreement of
CAD$300,000,
and on October 31, 2000, with respect to the second 9 months of the term of this
Agreement, from January 1, 2001 to September 30, 2001:
3. CAD$3000,000 for each of the ninth through eighteenth Months plus
applicable GST and any other applicable taxes, for an aggregate of
CAD$2,700,000;
but if the payment in paragraph 3 above is not made to the Consultant when due
on October 31, 2000, then the Consultant shall be entitled to elect at any time
and from time to time during the remaining term of the Agreement:
4. to terminate the Agreement pursuant to Section 7.2 of the Agreement; or
5. to reduce the level of the Consultant's own Services provided to the
Company (for any part or all of the period from January 1, 2001 to
September 30, 2001) to a level of such Services equivalent to that
aggregate level of such Services which would be made available to the
Company by the Consultant on the basis of an aggregate payment to the
Consultant per Month of CAD$200,000 plus applicable GST and all other
applicable taxes, determined by the Consultant on a cost-plus basis, name
[(115%) X (the cost per Month which is reasonably estimated by the
Consultant as the aggregate, together with all applicable overheads and
taxes, but without duplication, of all of the Consultant's direct and
indirect costs, outlays and expenses, allocable overheads and items of
amortization and depreciation with respect to the provision of the Services
by the Consultant for such Month)].
On entering into this Agreement, the Company shall pay as fully pre-paid,
non-refundable and deemed earned remuneration, the amount due under paragraph 1
of this Schedule "B" and, as an advance against reimbursable Expenses, the
amount due under paragraph 2 of this Schedule "B".
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