PROCESS TECHNOLOGIES, INC.
and
RADIANT ENERGY CORPORATIONS
as Corporations
and
XXXXXX X. XXXXX
as Xxxxx
-------------------------------------------------------------------------------
EMPLOYMENT AGREEMENT
November 30, 1998
-------------------------------------------------------------------------------
EMPLOYMENT AGREEMENT
This Employment Agreement Dated November 30, 1998 between Radiant Energy
Corporations and Process Technologies, Inc. (The "Corporations" or the
"Companies") and Xxxxxx X. Xxxxx ("Xxxxx").
WHEREAS the Corporations and Xxxxx are desirous of entering into an
employment relationship for their mutual benefit:
AND WHEREAS the Corporations are in the process of securing equity
financing for the Corporations;
AND WHEREAS the employment relationship between the parties will commence
on the Effective Date of this Agreement;
AND WHEREAS the Corporations and Xxxxx have agreed that the terms and
conditions of the employment relationship shall be as set out herein;
NOW THEREFORE in consideration of the respective covenants 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), the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms have the
following meanings:
"Applicable Time Period" means: (i) the period commencing with the date of
the termination of Xxxxx'x employment with the Corporations and ending
immediately prior to the first anniversary of the date of such termination; plus
(ii) the period commencing on the first anniversary of Xxxxx'x termination of
employment with the Corporations and ending immediately prior to the second
anniversary of the date of such termination;
"Arm's Length" has the meaning given to that term in the Income Tax Act
(Canada) as now in effect;
"Business" means the Business presently and heretofore carried on by the
Corporations consisting of supply, financing and/or operations of radiant energy
deicing systems(1)
----------
(1) or any related application
2
"Change of Control" means either (I) the occurrence of a transaction that
results in a Person acting at Arm's Length from the Corporations obtaining
shares or debt carrying more that results in the execution of significant
influence of the Corporations than 50% of the votes attaching to all of the then
outstanding shares; or (ii) the sale of all or substantially all of the assets
used in the Business to a person acting at Arm's Lengthfrom the Corporations;
3
"Customer" means any Person which in the year preceding the date of the
termination of the employment of Xxxxx with the Corporations, has been a
customer of the Corporations or a solicited potential customer of the
Corporations;
"Person" includes, without limitation, an individual, Corporations,
partnership, joint venture, association, trust, firm, unincorporated
organization or other legal or business entity;
"Subsidiary" has the meaning given to that term in the Statues of the
State of New York as now in effect; and
"Territory" means the present geographical area of the United States of
America;
ARTICLE 2
SCOPE OF EMPLOYMENT
2.1 Employment. The Corporations hereby agrees to employ Xxxxx and Xxxxx hereby
accepts such employment on a full time basis in the position of Vice President
of Sales. The start date of such employment is the Effective Date January 4,
1999 (the "Effective Date"). This agreement is conditional on the Corporations
successfully raising new debt or equity for the Corporations. The Corporations
will inform Xxxxx no later than November 15, 1998 on its ability to satisfy this
condition.
2.2 Duties and Responsibilities. The duties and responsibilities of Xxxxx shall
consist of those necessary or incidental to perform the functions of such
aforesaid office of the Corporations. Xxxxx shall be responsible for the overall
direction and management of the Corporations Sales and Marketing efforts. Xxxxx
shall perform such other duties and exercise such powers as may from time to
time be determined by the Board of Directors of the Corporations consistent with
his position as Vice President of Sales of the Corporations.
2.3 Full and Faithful Service. Xxxxx will devote to the business and affairs of
the Corporations, all of the time and attention reasonably necessary to carry
out the duties of his position, and will ensure that he is not at any time
engaged in conduct which would constitute a conflict with the interests of the
Corporations. During his employment with the Corporations, Xxxxx shall not
engage in any other employment or gainful occupation, undertake any other
business, or become a director, officer or agent of any other Companies, firm or
individual without the express written consent of the President of the
Corporations, such consent not to be unreasonably withheld.
2.4 Liability Insurance. Subject to the by-laws of the Corporations and
applicable law, the Corporations shall purchase and maintain directors and
officers liability insurance for the benefit of Xxxxx on the same basis and in
an amount equal to that provided to the directors and officers of the
Corporations from time to time.
2.5 Acknowledgment. Xxxxx acknowledges that the effective performance of his
duties requires the highest level of integrity and the Corporation's complete
confidence in Xxxxx'x relationship with other employees of the Corporations and
with all persons dealt with in the course of his employment. Xxxxx shall
diligently, faithfully and honestly serve the Corporations during the
continuance of his employment hereunder and shall use his best efforts to
promote the interests of the Corporations.
4
ARTICLE 3
CURRENCY
3.1 All amounts are in US dollars unless otherwise noted.
ARTICLE 4
REMUNERATION
4.1 Salary As remuneration for his services hereunder, Xxxxx shall be paid a
base salary, subject to adjustments as hereinafter provided, (the "Base Salary")
at the rate of Ninety Thousand Dollars ($90,000) per annum, which Base Salary
shall be paid in arrears and in twenty-six (26) equal installments, subject to
all necessary statutory deductions. Such Base Salary shall be reviewed by the
Board of Directors from time to time with no obligation to effect an increase
thereof.
4.2 Performance Bonus. Xxxxx will receive performance bonuses based on the
annual budget in the form of cash or stock options as determined by the
Compensation Committee of the Board of Directors.
4.3 Stock Options. Xxxxx will receive stock options based on the recommendations
of the Compensation Committee as approved by the Board of Directors. A stock
option equal to 50,000 options with an exercise price at $1.80 Canadian will be
awarded three months after the Effective Date of employment. The terms and
conditions of the Options are subject to the terms and conditions of the
Employee Stock Option Plan as may be amended from time to time by the Companies.
4.4 Termination Payment on Change of Control. A cash bonus (the "Termination
Payment") shall be paid to Xxxxx within sixty (60) days after termination for
any reason other than outlined in Section 5.1 (a), 5.1(b) or 5.1(c) following a
Change of Control, or if termination is within three months prior to or within
two years after a Change of Control of either of the Corporations and such
Termination Payment to be calculated under 5.2 (a).
4.5 Benefits. Unless otherwise covered by another insured benefit program, Xxxxx
will be entitled during the course of his employment with the Corporations to
participate in the employee benefit plans and programs of the Corporations which
are made available to employees of the Corporations generally from time to time
in accordance with the terms of such benefit plans and programs. The
Corporations hereby waives any qualification periods which may exist with
respect to such benefit plans and programs.
4.6 Vacation. Xxxxx shall be entitled to three (3) calendar weeks vacation leave
during each year that this Agreement is in effect at the Base Salary provided
for in Section 4.1. Such vacation shall be taken at such time or times as the
Corporations may determine having regard to the business and undertaking of the
Corporations. In the event Xxxxx'x employment is terminated, Xxxxx shall be
entitled to pro-rated vacation pay for the portion of the year that he has been
actively employed. Xxxxx shall be paid for all vacation not taken.
4.7 Automobile. During the term of his employment with the Corporations, the
Corporations shall reimburse Xxxxx for use of his personal automobile for
business purposes at a rate of $.30 per mile.
5
4.8 Expenses. During the term of his employment with the Corporations, Xxxxx
shall be reimbursed for all reasonable travel and business expenses (other than
automobile which are to be reimbursed in accordance with Sections 4.7),
including long distance charges associated with the use of a mobile telephone,
personal computer costs, business association fees, immigration legal costs and
fees incurred by him in the performance of his duties hereunder, subject to such
limitations as may be established by the Board of Directors of the Corporations
and revised by them from time to time. As a condition to the reimbursement of
such expenses, Xxxxx shall furnish to the Corporations receipts for expenses
incurred to be approved by the President, Chief Operating Officer or such
Officer of the Corporation so designated by the Board of Directors.
4.9 Moving expenses. Xxxxx will be compensated for moving expenses to the
Buffalo area to a maximum of $7,500.00, provided the expenses are incurred
within six months of the Effective Date of employment. Moving expenses are
inclusive of costs to move furniture, real estate or closing costs, air fares,
if applicable, and reasonable living expenses during the move.
4.10 Compensation for forgone bonus. The Companies agree to make a one time
payment to Xxxxx as compensation for bonuses foregone with his existing
employer. The payment equal to $40,000.00 will be made by way of a forgivable
loan. The loan will be forgiven after six months of employment with the
Companies. At Xxxxx'x option, Xxxxx may choose to receive all or a portion of
the payment in the form of stock issued from the Treasury of Radiant Energy
Corporation based on a rate per share of the then current market price, subject
to applicable regulatory requirements and approvals.
ARTICLE 5
TERMINATION OF EMPLOYMENT
5.1 Terms and Conditions. Subject to Section 9.10, this Agreement and the
employment contemplated hereunder may be terminated in the following manner and
in the following circumstances:
(a) by the Corporations, at any time, for cause, in which case Xxxxx'x
employment shall terminate immediately upon receipt of a written notice from the
Corporations to Xxxxx setting out the cause for termination and the Corporations
shall pay to Xxxxx his Base Salary up to the date of termination. "Cause" shall
include, but not be limited to, (a) gross negligence or a willful act of
misfeasance or malfeasance in respect of the duties and responsibilities
assigned to Xxxxx; (b) willful violation of Companies policy or code of conduct
adopted by the Board of Directors; or (c) final judgment convicting Xxxxx of an
indictable offense under criminal statute;
(b) by the Corporations, upon the death of Xxxxx, in which case his
employment pursuant to this Agreement shall terminate on the date of death;
(c) by the Corporations, if Xxxxx is unable to discharge his duties
hereunder by reason of illness, disease, mental or physical disability or
otherwise, for an aggregate of six (6) months in any one (1) year, whether or
not consecutive, in which case his employment pursuant to this Agreement shall
terminate at the end of such six (6) month period; or
(d) by the Corporations for any reason other than in 5.1 (a) (b) or (c)
and at any time upon payment to Xxxxx of the termination payments provided for
in Section 5.2.
6
5.2 Termination Payments. If Xxxxx'x employment with the Corporations is
terminated pursuant to Subsection 5.1 (d), the Corporations shall:
(a) continue Xxxxx'x Base Salary and continue all benefit arrangements in
effect at the date of termination for a period of two (2) years less any amounts
due under Article 4.4, following Xxxxx'x termination and shall pay to Xxxxx
within thirty (30) days of termination a lump sum amount equal to the average
annual Performance Bonus paid to Xxxxx during the course of his employment, pro-
rated for a period of two (2) years. If employment is terminated within one year
after the Effect Date of employment and amounts are not due under Article 4.4
the Corporation shall continue Xxxxx'x Base Salary and continue all benefit
arrangements in effect at the date of termination for a period of one (1) years.
5.3 Release of Claims. Upon the expiry of this Agreement upon notice being given
pursuant to Subsection 5.1 (a); upon the death of Xxxxx as referred to in
Subsection 5.1 (b); upon the expiration of the period referred to in Subsection
5.1 (c); or upon the payment of the amounts referred to in Subsection 5.1 (d);
as the case may be, the employment of Xxxxx shall be wholly terminated and this
Agreement shall cease to have any further effect save and except in respect of
Sections 6, 7 and 8 which shall continue in full force and effect. Upon any such
termination, Xxxxx shall have no claim against the Corporations for damages,
termination pay, severance pay, pay in lieu of notice of termination, statutory
or otherwise, except in respect of payment of remuneration earned, due and owing
to the effective date of termination plus any amount payable under Section 5.2.
5.5 Reasonableness. The parties hereto acknowledge and agree that there are no
implied rights whatsoever with respect to the termination of this Agreement and
employment contemplated hereunder. The parties further acknowledge and agree
that if any of the payments referred to in Section 5.2 are made, it constitutes
a reasonable estimate of the damages that might be suffered by Xxxxx for early
termination of this Agreement, said amount being liquidated damages and not a
penalty.
5.6 Resignation on Termination. Xxxxx agrees that upon any termination of his
employment with the Corporations, he shall immediately tender his resignation
from any position he may hold as an officer or director of the Corporations or
its subsidiaries.
ARTICLE 6
CONFIDENTIALITY
6.1 Confidential Information. Xxxxx acknowledges that during the course of
employment with the Corporations, he will be exposed to secret and confidential
business information belonging to the Corporations which gives it a commercial
advantage over others. Except as may be required by law, Xxxxx agrees to not
use, directly or indirectly, for his own account or for the account of any
person, firm, Corporations or other entity or disclose to any person, firm,
Corporations or other entity, the Corporation's proprietary information
disclosed or entrusted to him or developed or generated by him in the
performance of his duties hereunder, including but not limited to information
relating to the Corporation's organizational structure, operations, business
plans, technical projects, pricing data, business costs, research data results,
inventions, trade secrets, customers lists or other work produced, developed by
or for the Corporations, whether on the premises of the Corporations or
elsewhere.
7
6.2 Exceptions. The provisions of Section 6.1 shall not apply to any
proprietary, confidential or secret information which is, at the commencement of
the term of this Agreement or at some later date, publicly known under
circumstances involving no breach of this Agreement.
6.3 Property and Documents. Xxxxx acknowledges, understands and agrees that all
memoranda, notes, records, charts, formulae, client lists, price lists,
marketing plans, financial information and other documents made, received, held
or used by Xxxxx during the course of his employment or as a consultant to the
Corporations, shall be the property of the Corporations and shall be delivered
by Xxxxx to the Corporations upon request at any time during the course of
employment and upon the termination of his employment as hereinbefore provided.
With respect to all confidential information and other documents of the
Corporations held by Xxxxx, Xxxxx acknowledges that he is in a position of trust
and subject to a fiduciary duty to use the information only in the interests of
the Corporations and its business.
6.4 Inventions and Improvements Xxxxx agrees to promptly disclose, fully and in
confidence to the Corporations, and hereby assigns and transfers to the
Corporation all of his right, title and interest (if any) in and to, all
inventions, procedures. improvements, upgrades, designs, or discoveries
(collectively, the "Inventions") made or conceived by Xxxxx during the term of
this Agreement either solely, or jointly with others, in the performance of the
employment or with the use of the Companies' time, equipment, material,
supplies, concepts, ideas, facilities or related to or suggested by trade secret
information, other private or confidential matters acquired during the term of
his employment, the business of the Companies, the Companies' actual or
demonstrably anticipated business plans, processes or research and development;
provided that any Inventions which do not relate to the business of the
Companies or the Companies' actual or demonstrably anticipated business plans,
processes or research and development or which do not result from any work
performed by Xxxxx for the Companies shall remain the sole and exclusive
property of Xxxxx.
ARTICLE 7
NON-COMPETITION AND NON-SOLICITATION
7.1 Non-Competition. Xxxxx convenants and agrees that, except on behalf of and
for the benefit of the Corporations or its Subsidiaries, he shall not (without
the prior written consent of the Corporations, such consent not to be
unreasonably withheld), while in the employ of the Corporations and (I) where
Xxxxx is terminated by the Corporations for cause, during the Applicable Time
Period or (ii) where Xxxxx is terminated by the Corporations other than for
cause, during the relevant monthly period for which Xxxxx received termination
payments pursuant to Subsection 5.2(a) or (b), either individually or in
partnership or in conjunction with any Person as employee, employer, principal,
agent, joint venture, partner, shareholder or other equity holder, independent
contractor, licenser, licensee, franchiser, franchisee, distributor, consultant,
supplier, trustee or by or through any Corporations, Companies, cooperative,
partnership, trust entity with juridical personality, unincorporated association
or in any other manner whatsoever:
(a) carry on or be engaged in, have any financial or other interest in or
be otherwise commercially involved in any endeavor, activity or business in all
or part of the Territory which is substantially the same as or in competition
with the Business;
(b) interfere or attempt to interfere with the Business or persuade or
attempt to persuade any Customer, employee or supplier of the Corporations of
its Subsidiaries to discontinue or alter such Person's relationship with the
Corporations or its Subsidiaries;
8
(c) directly or indirectly, canvas, solicit or attempt to solicit, accept
or supply goods or services to any Customer which includes the solicitation of
potential customers, except on behalf of and for the benefit of the Corporations
or its Subsidiaries or except with respect to a business not the same as or
similar to the Business; or
(d) employ, offer employment to or solicit the employment or engagement of
or otherwise entice away from the employment of the Corporations any individual
employed by the Corporations at the date of termination of Xxxxx'x employment.
7.2 Exception. Provided that nothing construed herein shall prohibit Xxxxx from
holding for investment purposes only up to 5% of the issued publicly traded
shares of the Corporations a Companies engaged in a business the same as or
similar to the Business presently carried on by the Corporations.
7.3 Severability. If any convenant or provision in this Article 7 is determined
to be void or unenforceable in whole or in part, it shall not be deemed to
affect or impair the validity of any other covenant or provision hereof, which
provisions shall remain in full force and effect.
ARTICLE 8
REASONABLENESS
8.1 Reasonableness. Xxxxx agrees that all restrictions contained in Articles 6
and 7 are reasonable and valid and all defenses to the strict enforcement
thereof by the Corporations are hereby waived. Xxxxx agrees and acknowledges
that the breach of the provisions of Articles 6 and 7 by him would cause
irreparable harm to the Corporations which would not be adequately
compensationable in damages and Xxxxx hereby consents to an injunction being
issued restraining any breach or further breach of the provisions hereof without
prejudice to any other remedy the Corporations may have.
ARTICLE 9
GENERAL
9.1 Entire Agreement. This Agreement and the terms hereof shall constitute the
entire agreement between the parties hereto with respect to all of the matters
herein and the parties hereto acknowledge and agree that its execution has not
been induced by, nor do either of the parties hereto rely upon or regard as
material, any representations or writings whatsoever not incorporated herein and
made a part hereof. This Agreement shall not be amended, altered or qualified
except by an agreement in writing signed by both of the parties hereto. This
Agreement supersedes any prior agreements which are hereby canceled and
supersedes all previous understandings, negotiations, and representations with
respect hereto, whether oral or written.
9
9.2 Notice. Any notice to be given hereunder shall be given in writing and shall
be deemed to have been duly given if delivered by hand or mailed by first-class
mail, postage prepaid and addressed to the recipient as follows:
(a) To the Corporations:
o 00 Xxxxxx Xxxxx,
Xxxxxxx Xxxx, XX
00000
(b) To Xxxxx:
o 000 Xxxxxxxx Xxxx
Xxxxxxxx Xxx, XX 00000
Any such notice, if mailed, shall be deemed to have been received on the fifth
business day next following the date of mailing and, if delivered, on the date
of delivery. Either party may, by notice given in accordance with the foregoing,
change his or its address for the purposes of this Agreement. In the event of a
postal strike in progress, notice shall be given only by delivery by hand in
accordance with this Section 9. In the event of a postal strike occurring within
5 business days after the giving of notice by mail as hereinbefore set out, such
notice shall be deemed ineffective and thereafter, during the continuance of the
postal strike, notice shall be effective only if delivered by hand.
9.3 Further Assurances. The parties hereto and each of them hereby consents and
agrees to do such things, attend such meetings and to execute such further
documents and assurances as may be deemed necessary or advisable from time to
time in order to carry out the terms and conditions of this Agreement in
accordance with its true intent.
9.4 Waivers. No waiver of any breach of default of any of the provisions hereof
shall be effective unless in writing and signed by the party to be charged with
such waiver. No waiver shall be deemed a continuing waiver or waiver in respect
of any subsequent breach of default, either of a similar or different nature,
unless expressly so stated in writing.
9.5 Severability. If any provision of this Agreement is determined to be illegal
or unenforceable, in whole or in part, such illegal or unenforceable provision
or part thereof, shall be severable from this Agreement and shall not affect the
remaining provisions hereof.
9.6 Headings. The insertion of headings and the division of this Agreement into
Sections and Subsections is for convenience of reference only and shall not
affect the interpretation hereof.
9.7 Assignment. This Agreement may not be assigned by Xxxxx without the prior
written consent of the Corporations, which consent may be withheld for any
reason.
9.8 Ennourement. This Agreement shall endure to the benefit of and be binding
upon the parties hereto and their respective heirs, executors, legal personal
representatives, successors and permitted assigns.
10
9.9 Governing Law. This Agreement shall be governed by and interpreted and
enforced in accordance with the laws of the State of New York and the federal
laws of the United States of America applicable therein. Any litigation or
arbitration to resolve any dispute concerning this agreement shall take place
within Erie County, New York.
9.10 Survival. The provisions of Articles 6, 7 and 8 shall survive the
termination of this Agreement.
9.11 Independent Legal Advice. Xxxxx hereby represents and warrants to the
Corporations that he had the opportunity to seek and was not prevented nor
discouraged by the Corporations from seeking independent legal advice prior to
the execution of this Agreement and that, in the event that he did not avail
himself of that opportunity prior to signing this Agreement, he did so
voluntarily without any undue pressure and agrees that his failure to obtain
independent legal advice shall not be used by him as a defense to the
enforcement of his obligations under this Agreement.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed
with effect as of the date first above written.
RADIANT ENERGY CORPORATIONS
Per: ___________________________________
Per: ___________________________________
PROCESS TECHNOLOGIES, INC.
Per: ___________________________________
Per: ___________________________________
SIGNED, SEALED AND DELIVERED )
IN THE PRESENCE OF: )
)
)
)
)
----------------------------------- ----------------------------------------
WITNESS Xxxxxx X. Xxxxx
