Exhibit10.2

 

(a)

The Company engages the Contractor to provide consulting services in the nature and amount requested by the Company (the “Services”) relating to the Company’s patent infringement litigation. The Contractor represents and warrants to the Company that the Contractor has and will have the required skills and experience to perform the Services.  The Contractor hereby accepts such engagement.

 

(b)

The Contractor will provide progress reports every 2 weeks and will seek approvals for litigation strategy and settlement negotiations.

 

(c)

Nothing herein shall preclude the Contractor from acting in a similar or any other capacity for any other person, firm or company so long as such activities do not prevent the Contractor from fulfilling all of the Contractor’s obligations to the Company under this Agreement and the Contractor does nothing in connection with such activities that adversely affects the interests of the Company.

 

(d)

The Contractor may add or substitute another individual to perform all or part of the Services only with the prior written consent of the Company.  Such consent may be granted or withheld at the sole discretion of the Company and on any such conditions as the Company may determine.

 

(a)

This Agreement will be effective commencing Monday, May 4, 2009 and will continue in force until terminated pursuant to the provisions of Section 7 of this Agreement.

 

(b)

The provisions of this Agreement shall govern all transactions between the Company and the Contractor and his employees, unless otherwise agreed to in writing by both parties.

 

(a)

The Company shall pay to the Contractor for the provision of the Services a fee of USD$3000.00 per month and 5% of any proceeds realized by the company from any patent litigations efforts that have been initiated prior to the termination of this agreement.

 

(b)

The Contractor shall remit  invoices to the Company for the Services provided on on the first of each month. The Company shall pay such invoices within 5 days of receipt.

 

(c)

The Contractor shall be responsible for the payment of all expenses incurred by the Contractor in providing the Services, including without limitation, office, telephone, travel, entertainment, mileage and vehicle expenses unless agreed to in advance by the Company. The Company will be responsible for out of province travel expenses which will be agreed upon in advance by both parties.

 

(a)

claims regarding the failure of the Contractor or any of his employees to comply with applicable laws, regulations or orders;

 

(b)

claims regarding any act, omission or misconduct on the part of the Contractor or any of his employees;

 

(c)

claims regarding any breach of any obligation of the Contractor contained in this Agreement;

 

(d)

claims regarding workplace safety insurance benefits, bodily injury, death or property damage of or caused by the Contractor or any of his employees; and

 

(e)

claims regarding the employment and/or termination of employment of any person employed by the Contractor including any claim by such person based on any alleged employment relationship between such person and the Company.

 

(a)

In the performance of this Agreement, the Contractor will at all times act in the Contractor’s own capacity and right as an independent contractor.  The Company will not be required to pay for or maintain any employee benefits including but not limited to workplace safety insurance, Canada Pension Plan, employer health tax, employment insurance and other similar levies nor to make withholdings and remittances for income tax in respect of any remuneration payable by the Company to the Contractor or by the Contractor to any person employed by the Contractor, pursuant to this Agreement or otherwise.  The Contractor will be solely responsible for making all such contributions, premium payments and income tax remittances in conformity with all applicable statutory requirements.

 

(b)

The Contractor and his employees are not employees of the Company and shall not be entitled to receive from the Company any benefits whatsoever.  The Contractor agrees that neither the Contractor or any of his employees are entitled to any of the rights and benefits afforded to the Company’s employees, including but not limited to participation in any of the Company’s group insurance plans, vacation pay, overtime pay, termination pay or severance pay.

 

(c)

Unless authorized in writing by the Company, the Contractor and any of his employees shall not act nor purport to be acting as the legal agent of the Company and shall not enter or purport to enter into any agreements on behalf of the Company or otherwise bind or purport to bind the Company.

/s/ David Warkentin

DAVID WARKENTIN

By:

/s/ David Dodge

DAVID DODGE

CHIEF FINANCIAL OFFICER

 

(a)

“Services” shall have the meaning assigned to that term by the Independent Contractor Agreement to which this Restrictive Covenant Agreement is attached as Appendix “B”.

 

(b)

“Confidential Information” includes any information relating to the private or confidential affairs of the Company or relating to any secrets of the Company in connection with the Services and, without limiting the generality of the foregoing, includes:

 

(i)

information or material that is not generally available to or used by others, or the utility or value of which is not generally known or recognized, whether or not the underlying details are in the public domain;

 

(ii)

any information disclosed to the Company by a third party that the Company is obligated to treat as confidential or proprietary;

 

(iii)

any proprietary information belonging to the Company;

 

(iv)

information regarding the Company’s business, operations, financing, strategies, methods and practices, including marketing strategies, product mix, product pricing, sales, margins, pay and compensation for staff, and any other information regarding the financial affairs of the Company; and

 

(v)

the identity of the Company’s clients, business partners, licensees, agents and suppliers, and the nature of the Company’s relationships with such clients, partners, licensees, agents and suppliers.

 

(a)

The Company and its subsidiary and affiliated companies have invested substantial time, money and resources in developing the Confidential Information.  The Company will provide the Covenantor with the Confidential Information that the Company believes is necessary in order for the Covenantor to perform the Services.

 

(b)

In as much as the disclosure or use of Confidential Information could be detrimental to the best interests of the Company, the Covenantor hereby confirms and agrees that the Covenantor shall not copy, use or disclose to others any Confidential Information that the Covenantor acquires or creates while providing the Services either during the provision of the Services or at any time thereafter, as long as such Confidential Information remains confidential or proprietary.

 

(a)

the Company has a material interest in preserving and protecting the relationships that it has developed with its employees and other persons connected with the Company’s business, against impairment by the Covenantor;

 

(b)

the restrictive covenants set out in numbered paragraphs  and 3 above are fair and reasonable and are reasonably required for the protection of the Company’s business;

 

(c)

the Covenantor’s agreement to such restrictive covenants constitutes a material inducement to the Company to enter into the Independent Contractor Agreement to which this Restrictive Covenant Agreement is attached as Appendix “B”;

 

(d)

the Company would not have been prepared to agree to enter into the Independent Contractor Agreement to which this Restrictive Covenant Agreement is attached as Appendix “B” absent such an inducement;

 

(e)

the restrictive covenants contained in this Restrictive Covenant Agreement shall each be construed as independent of any other portion of this Restrictive Covenant Agreement;

 

(f)

if any provision of this Restrictive Covenant Agreement is determined to be invalid or unenforceable in whole or in part, and cannot be amended in accordance with s. 5(g) below, such invalidity or unenforceability will attach only to such provision or part thereof and the remaining part of such provision and all other provisions of this Restrictive Covenant Agreement will continue in full force and effect;

 

(g)

if any provision of this Restrictive Covenant Agreement is held by a court of competent jurisdiction to be excessively broad as to duration, activity, geography, or subject, such court will deem and interpret such provision to be valid and enforceable to the maximum duration, activity, geographic extent and subject permissible under applicable law;

 

(h)

all defences to the strict enforcement by the Company of the restrictive covenants contained in this Restrictive Covenant Agreement are waived by the Covenantor; and

 

(i)

without prejudice to any and all other rights of the Company, in the event of the Covenantor’s violation or attempted or threatened violation of any of the restrictive covenants contained in this Restrictive Covenant Agreement, an injunction or other like remedy would be the only effective method to protect the Company’s rights and property as set out in this Restrictive Covenant Agreement, and that an interim injunction may be granted immediately upon the commencement of any suit against the Covenantor by the Company.

/s/ David Warkentin

DAVID WARKENTIN

By:

/s/ David Dodge

DAVID DODGE

CHIEF FINANCIAL OFFICER