CONSULTING AGREEMENT
THIS AGREEMENT is made as of the 1st day of December, 2001.
BETWEEN:
PETER VAISLER, a resident of the Province of Ontario (the "Consultant")
OF THE FIRST PART
- -and-
ALLIANCE RECOVERY CORPORATION, a corporation incorporated under the laws of
the State of Delaware (hereinafter referred to as the "Company")
OF THE SECOND PART
WHEREAS the Company is engaged in the business of recovering valuable
commodities from waste material; and
AND WHEREAS the Consultant has developed certain technology to be implemented by
the Company in its business and further desires to provide management services
to the Company upon and subject to the terms and conditions hereinafter set
forth; and
NOW THEREFORE WITNESS that in consideration of the respective covenants,
conditions, warranties and agreements herein contained and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged by each of the parties hereto) it is agreed by and between them as
follows:
ARTICLE 1 - APPOINTMENT AND DUTIES
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1.1 During the Term (as hereinafter defined in Article 2) and unless and
until terminated in accordance with the provisions hereof, the Company hereby
retains the Consultant, who shall act as the Interim President of the Company
and the Consultant hereby agrees to render to the Company management services
upon the terms and conditions contained herein.
1.2 During the Term of this Agreement, the Consultant shall carry out the
functions and duties as determined by the Company, the Company's articles and
by-laws, valid resolutions of the Board of Directors of the Company (the
"Board"), and valid resolutions of the shareholders of the Company and as may be
required by law. The Consultant will provide the Company with the technology he
has developed for the business, along with his know-how and industry contacts
and will facilitate the realization of the Company's business objectives.
Without limiting the nature and scope of the Consultant's duties, it will be the
Consultant's responsibility to:
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(a) establish a Business Plan, in conjunction with senior
management, which will include an overall sales and marketing
strategy, financial strategy and operating plans;
(b) assess operating personnel requirements including their
function, organization and compensation;
(c) oversee and integrate operation of design activities to
achieve corporate objectives relating to customers;
(d) coordinate all sales and marketing contracts, taking a lead
role in negotiation where appropriate;
and carry out such other duties and provide such other services as may
be agreed upon between the Consultant and the Company.
1.3 The Consultant shall use its best efforts and dedicate sufficient time
and energy to the affairs of the Company. Without restricting the generality of
the obligations set out in the foregoing sentence, the Consultant shall:
a) devote such of the Consultant's working time as is agreed on
from time to time by the Consultant and the Company and best
efforts to rendering services on behalf of the Company and to
rendering such services with competence, efficiency and
fidelity;
b) comply with the Company's policies, standards and regulations;
c) perform such reasonable duties as are necessitated by the
nature of the business or as required by the Company, and
d) promote the Company's interests to the extent permitted by
law.
The Consultant acknowledges that the Consultant's commitment to the Company is
paramount, and in the event of a conflict in scheduling or a conflict of
interest, the Consultant must give notice of said conflict to the Company.
ARTICLE 2 - TERM AND TERMINATION
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2.1 Duration
The engagement of the Consultant hereunder shall, unless earlier terminated as
provided for herein, be for at least five (5) years commencing as of the date
hereof (the "Initial Term"), and thereafter shall continue in full force and
effect for successive renewal terms of one (1) year commencing the expiry of the
Initial Term at the Company's option, on the same terms and conditions as are
herein contained, subject to any amendments as may from time to time be agreed
to in writing by the Consultant and the Company (collectively, the "Agreement
Term").
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2.2 Termination by Company
This Agreement may be terminated in the following manner in the specified
circumstances:
(a) By the Consultant, at any time, for any reason, on the giving
of ninety (90) days written notice to the Company. The Company
may waive notice, in whole or in part.
(b) By the Company, in its absolute discretion, without any notice
or pay in lieu thereof, for cause. For the purposes of this
Agreement, "cause" includes the following:
(1) any material breach of the provisions of this
Agreement by the Consultant;
(2) any conduct of the Consultant which in the opinion of
the Company, tends to bring himself or the Company
into disrepute;
(3) the commission of an act of bankruptcy by the
Consultant or compounding with his creditors
generally;
(4) any mental or physical disability or illness which
results in the Consultant being unable to
substantially perform his duties for a continuous
period of 150 days or for periods aggregating 180
days, in any period of 365 days;
Failure by the Company to rely on the provisions of this paragraph in
any given instance or instances shall not constitute a precedent or be deemed a
waiver.
(c) By the Company in its absolute discretion and for any reason
on giving the Consultant ninety (90) days advance notice in
writing or on paying to the Consultant the equivalent
termination pay in lieu of notice.
(d) By the Consultant, in its absolute discretion, without any
notice, for cause. For the purposes of this Agreement, "cause"
includes the following:
(1) any material breach of the provisions of this
Agreement by the Company;
(2) any conduct of the Company which in the opinion of
the Consultant, tends to bring himself or the Company
into disrepute;
(3) the commission of an act of bankruptcy by the Company
or compounding with his creditors generally;
The parties understand and agree that the giving of notice or the payment of pay
in lieu of notice by the Company to the Consultant on termination of the
Consultant's employment shall not prevent the Company from alleging cause for
the transaction.
On termination of employment the Consultant shall immediately resign all offices
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held (including directorships) in the company and, except as provided in this
Agreement, the Consultant shall not be entitled to receive any severance payment
or compensation for loss of office or otherwise by reason of the resignation. If
the Consultant fails to resign as mentioned, the Company is irrevocably
authorized to appoint some person in his name and on his behalf to sign any
documents or do any things necessary or requisite to give effect to it.
ARTICLE 3 - COMPENSATION
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3.1 Compensation
(a) As compensation for the services of the Consultant hereunder, the
Company shall pay the Consultant the sum of U.S. Two Hundred and Fifty
Thousand (U.S. $250,000.00) Dollars per annum. In the event that the
Company terminates this Agreement prior to the completion of the
Initial Term as specified in section 2.1, the Consultant shall be fully
compensated for his services for the entire Initial Term of this
Agreement, unless the Company hires the Consultant as an employee of
the Company.
(b) The Consultant shall not be entitled to any benefits except as may be
separately agreed upon in writing between the Consultant and the
Company.
3.2 Benefits
The Consultant shall be entitled to six (6) weeks paid vacation per
annum.
3.3. Business Expenses
(a) The Consultant shall be reimbursed by the Company for all reasonable
expenses actually and properly incurred by the Consultant and, if
appropriate (described in (b)), where prior approval has been granted
by the Company, in connection with the performance of the duties of the
Consultant herein contained, and the Company shall make the
reimbursement required hereby promptly after being advised by the
Consultant of the amounts thereof. The Consultant will be reimbursed by
the Company for such expenses only when the Consultant provides
receipts or other documentary evidence of such expenses to the
accountants of the Company. Where the Consultant cannot provide
receipts or other documentary evidence of such expenses, the Company
will reimburse the Consultant for only such reasonable expenses as the
Company may determine in its sole discretion.
(b) All expenses in excess of ten thousand dollars ($10,000) must be
approved by the Company prior to the time said expenses are incurred.
ARTICLE 4 - CONFIDENTIALITY
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4.1 The Consultant acknowledges that all items created or used by the
Consultant in providing services to the Company under this agreement, or
furnished by the Company to the Consultant, and all equipment, automobiles,
credit cards, books, records, reports, files, manuals, literature, confidential
information or other materials shall remain and be considered the exclusive
property of the Company at all times and shall be surrendered to the Company, in
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good condition, promptly on the termination of this Agreement irrespective of
the time, manner or cause of the termination.
4.2 The Consultant shall not be obligated to keep in confidence nor shall
it incur any liability for disclosure of information to a third party (the
"recipient") of the nature aforesaid which:
(i) was permitted to be disclosed by the Company;
(ii) has been public or is otherwise within the public domain at
the time of its disclosure to the recipient; or
(iii) comes into the public domain without any breach of this
Agreement.
ARTICLE 5 - USE OF TECHNOLOGY
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5.1 The Consultant has developed technology which shall be utilized by the
Company to recover valuable commodities from waste material (the "Technology").
The Consultant agrees to allow the Company to utilize the Technology without
cost for the duration of his appointment as an officer and/or director of the
Company.
5.2 In the event that the Consultant ceases to be an officer and/or
director of the Company, the Company shall be obligated to pay the Consultant
for its past and continued use of the Technology up to a maximum of the
replacement cost of the Technology. The replacement cost of the Technology shall
be calculated in accordance with the valuation of the Technology as determined
by the Company's engineers.
ARTICLE 6 - GENERAL
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6.1 Headings
The headings in this Agreement are included for convenience of reference only
and shall not constitute a part of this Agreement for any other purpose.
6.2 Notices
Any notice or other document required or permitted to be given hereunder shall
be in writing and may be given by personal delivery or transmitted by facsimile
or other electronic means of communication, or sent by prepaid registered mail,
in the case of the Company to:
Alliance Recovery Corporation
2929 Front Street
Monroe, Michigan 48161
Tel: (519) 646-3975
Fax: (519) 473-6507
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and in the case of the Consultant to:
Peter Vaisler
1133 St. Anthony Road
London, Ontario
N6H 2P9
Tel: 519 657-7742
Fax: 519 473-6507
Any such notice or other document delivered personally shall be deemed to have
been received by and given on the date of such delivery (provided that such day
is a business day and, if not, on the next following business day), or, if made
or given by facsimile or other electronic means of communication, on the first
business day following the transmittal thereof, and any notice sent by prepaid
registered mail shall be deemed to have been given on the fourth business day
following the date of mailing (provided, however, that if there shall be,
between the time of mailing and the actual date of receipt, a mail strike,
slowdown or other labour dispute which might reasonably be anticipated to affect
the delivery of such notice by mail, then such notice shall only be effective if
delivered in person or by facsimile or other electronic means of communication
as aforesaid). Either party may at any time give notice to the other party of
any change of address, facsimile number or otherwise in accordance with the
foregoing provisions.
6.3 Time
Time shall be of the essence of this Agreement.
6.4 Waiver
This Agreement may not be modified, supplemented or amended except by instrument
in writing signed by the parties hereto or by their respective successors or
permitted assigns. No waiver of any of the provisions of this Agreement, in
whole or in part, by either party shall be deemed or shall constitute a waiver
of any other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
6.5 Severability
If any covenant or provision herein contained is prohibited in whole or in part
in any jurisdiction, such covenant or provision shall, as to such jurisdiction,
be ineffective to the extent of such prohibition without invalidating the
remaining covenants and provisions hereof therein and shall, as to such
jurisdiction, be severed from this Agreement to the extent of such prohibition.
6.6 Currency
All monetary amounts referred to herein shall, unless specifically stated
otherwise, refer to the lawful currency of the United States.
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6.7 Assignment
This Agreement shall not be assigned or transferred, in any manner whatsoever,
by the Consultant.
6.8 Interpretation
This Agreement shall be construed and enforced in accordance with, and the
respective rights of the parties shall be governed by, the laws of the Province
of Ontario and the federal laws of Canada applicable therein.
6.9 Independent Legal Advice
The Parties acknowledge that this provision shall serve as notice to each party
of being advised to arrange for such independent legal advice with respect to
this Agreement, each of the matters herein and the implications thereof, as each
party may independently deem necessary, and that each party has either obtained
such independent legal advice or waives the right thereto by signing this
Agreement.
6.10 Entire Agreement
This Agreement, as modified, supplemented or amended from time to time, along
with any agreements or other documents to be delivered pursuant hereto, sets
forth the entire agreement and understanding of the parties in respect of the
matters contemplated herein and supersedes all prior agreements, arrangements
and understandings relating to the subject matter hereof.
6.11 Undertaking
The parties hereto shall with reasonable diligence do all such things and
provide its reasonable assurances as may be required to complete the
transactions contemplated herein, and each party shall provide such further
documents or instruments required by the other party as may be reasonably
necessary or desirable to effect the purposes of this Agreement and to carry out
its provisions, whether before or after the execution hereof.
6.12 Counterparts and Facsimile
This Agreement may be executed by the Parties hereto in one or more counterparts
by original or facsimile signature, each of which when so executed shall be
deemed an original and all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF the parties have executed this agreement as of the date first
above written.
ALLIANCE RECOVERY CORPORATION
By: /s/ Peter Vaisler
------------------------------------------
Peter Vaisler, President
I have authority to bind Alliance
Recovery Corporation
/s/ Peter Vaisler
- ----------------------- ------------------------------------------
WITNESS PETER VAISLER