PERSONAL SERVICES AGREEMENT
EXHIBIT
10.17
THIS
AGREEMENT made effective as of the 15th day of
May, 2008.
BETWEEN:
SKYE INTERNATIONAL INC., a
public company duly incorporated pursuant to the laws of the State of Nevada,
with principal offices in the City of Scottsdale, in the State of Arizona,
together with all of its wholly owned subsidiaries from time to time operating
(hereinafter, collectively referred to as the “Corporation”).
- and
-
XXXXXXXX (XXX) X. XXXXX., an
individual currently residing in the City of Scottsdale, AZ (the
“Executive”).
RECITALS
WHEREAS, the Corporation is
engaged in the business of designing, manufacturing and marketing a line of
tankless water heaters, as well as a suite of household and consumer lifestyle
related appliances and other devices;
AND, WHEREAS, the Corporation
wishes to contract for the services of the Executive to serve as the SVP
Finance, CFO and Secretary Treasurer of the Corporation, and the Executive
wishes to be contracted by the Corporation as its SVP Finance, CFO and Secretary
Treasurer.
NOW, THEREFORE, THIS AGREEMENT
WITNESSETH, that inconsideration of the premises and covenants and
agreements hereinafter contained it is agreed by and between the parties as
follows:
ARTICLE 1 -
CONTRACT
1.1 The
Executive will, during the Term (as defined below) or any renewals thereof,
perform all of the Duties (as defined below) as the Corporation by action of its
Board of Directors shall, from time to time, reasonably assign to the
Executive.
ARTICLE 2-
TERM
2.1 Term: Subject to
the prior termination of this Agreement as provided herein, the contracting of
the Executive by the Corporation shall commence on May 15, 2008, and end on
December 31, 2008 (the “Term’).
1
2.2 Renewal: Subject to
the prior termination of this Agreement as herein provided, upon the expiration
of the Term, this Agreement shall automatically renew for successive 12 month
periods. For greater certainty, it is understood that Term shall refer to the
original term of this Agreement as defined in Article 2.1 herein and to any
renewal thereof.
ARTICLE 3 -
DUTIES
3.1 Duties: The Executive
shall, during the Term of this Agreement, perform all of the duties and
responsibilities (the “Duties’) as the Corporation shall from time to time
reasonably assign to the Executive and, without limiting the generality of the
foregoing, the Duties shall include those duties set forth in Schedule “A”
attached hereto, as from time to time reasonably amended by the Board of
Directors of the Corporation. During the Term of this Agreement, the Executive
shall devote a reasonable portion of the Executive’s time and attention to the
Duties, and shall do all in the Executives power to promote, develop and extend
the business of the Corporation and its subsidiaries and related
corporations.
3.2 Accounting: The Executive
shall truly and faithfully account for and deliver to the Corporation all money,
securities and things of value belonging to the Corporation which the Executive
may from time to time receive for, from or on account of the
Corporation.
ARTICLE 4 -
REMUNERATION
4.1 Compensation: The gross
annual cash compensation of the Executive shall be One Hundred Twenty Thousand
($120,000) US Dollars (hereinafter, the “Compensation”). All Compensation
payable hereunder shall be payable on a monthly basis in arrears. For greater
certainty, the Executive acknowledges and confirms that such Compensation
methodology is inclusive of any annual bonus or other customary emoluments,
perquisites or payments other than those specifically granted under the terms of
this Agreement
4.2 Alternate
Payment: The Executive agrees that up to 100% of
such Compensation payable in accordance with Article 4.1 above may, at the
discretion of the Executive, be paid in the form of common stock of the
Corporation representing a value at the time of payment equal to at least the
value of such unpaid (cash) Compensation (“Stock Based Payment”). For
greater certainty, any securities issued to the Executive in connection with the
Stock Based Payment shall be priced at the lowest closing bid price of the
Corporation’s securities over the ten (10) trading days prior to the issuance of
securities under such Stock Based Payment mechanism.
4.2 Health Plan: The Executive
shall also be entitled to participate, only if such plans exist, in
the Corporation’s group benefit plan, medical and family medical plan, stock
savings plan, and disability insurance plan. It is understood that all costs
associated with such plans will be borne by the Corporation.
2
4.3 Expense
Reimbursement: The Executive will be reimbursed for
reasonable business expenses, within such policy guidelines as may be
established from time to time, by the Corporation’s Board of Directors, provided
that such business expenses are incurred in the ordinary course of performing
the Duties.
4.4 Vehicle: During the
Term hereof the Corporation shall provide the Executive with reimbursement of
vehicle operating and insurance costs. For greater certainty the
Executive shall NOT be entitled to any other automobile allowance
4.5 Options: The Executive
shall be entitled, upon the execution hereof, to receive 500,000 common share
purchase warrants exercisable at $0.50 for a period of 5 years from the date of
issuance thereof. Such options shall bear piggy-back registration
rights in connection with the filing by the Corporation of any registration
statement with the US Securities and Exchange Commission.
ARTICLE 5-BENEFITS AND
HOLIDAYS
5.1 The
Executive shall be entitled to four (4) weeks paid holidays during each year of
the Term. Holidays must be taken at times that are satisfactory to the
Corporation, acting reasonably, and must be taken within the year to which the
holiday relates and holidays not taken shall be deemed to have been taken and no
other compensation shall be payable by the Corporation. For greater clarity it
is understood that for the purpose of determining the number of holidays for
which the Executive is entitled, each year of the Term will commence on January
1st and end on December 31st.
ARTICLE
6-CONFIDENTIALITY
6.1 Non-Disclosure: The Executive
shall not, either during the continuance of the Executive’s contract hereunder
or at any time after termination of the Executive as consultant to the
Corporation, for any reason whatsoever (except in the proper course of carrying
out the Duties, or otherwise required by law), divulge to any person whomsoever,
and shall use the Executive’s best endeavors to prevent the publication or
disclosure of:
|
6.1.1
|
Any
confidential information concerning the business or finances of the
Corporation or any other corporation, person or entity for which he is
directed to perform services hereunder or of any of their dealings,
transactions or affairs, including, without limitation, personal and
family matters which may come to the Executive’s knowledge during or in
the course of the Executive’s contract:
or
|
|
6.1.2
|
Any
trade secrets, know-how, inventions, technology, designs, methods,
formula, processes, copyrights, trademarks, trade xxxx applications,
patents, patent applications or any other proprietary information and/or
data of the Corporation (herein collectively called “Intellectual
Property”).
|
3
ARTICLE 7 - INVENTIONS AND
PATENTS
7.1 If
the Executive contributes to any invention whether patentable, patented, or not
(an “Invention”), any intellectual property, or any improvement or modification
to any Invention or intellectual property then the Executive’s contribution
thereto and the Invention, intellectual property or improvement thereof shall,
without the payment of any additional compensation in any form whatsoever,
become the exclusive property of the Corporation. The Executive shall execute
any and all agreements, assurances or assignments that the Corporation may
require and the Executive shall fully cooperate with the Corporation in the
filing and prosecution of any patent applications. The Executive hereby
reiterates and confirms the application of this Article to all such Inventions,
intellectual property and improvements that have been made during the tenancy of
that certain consulting position with the Corporation’s
subsidiaries.
ARTICLE 8 - RESTRICTIVE
COVENANT
8.1 Period of
Application: The Executive will not at any time during
the Term, or during any renewal thereof, and for a period of two (2) years
following the expiration or termination of the Executive’s contract for whatever
cause, compete in the United States, directly or indirectly, with any of the
businesses carried on by the Corporation, its subsidiaries or
affiliates:
|
8.1.1
|
As
a principal, partner employee;
|
|
8.1.2
|
As
an officer, director or similar official of any incorporated or
unincorporated entity engaged in any such competing business (the “Other
Entity”);
|
|
8.1.3
|
As
a consultant or advisor to any Other
Entity;
|
|
8.1.4
|
As
a holder of shares or debt instrument of any kind of any Other
Entity;
|
|
8.1.5
|
In
any relationship described in subsections 81.1 through 8.1.4 of this
section with any incorporated or unincorporated entity which provides
services for or necessarily incidental to the business of an Other
Entity:
|
without
the prior express written consent of the Corporation, which consent may be
withheld by the Corporation for any reason or for no reason.
8.2 Independent Legal
Advice: Notwithstanding the provisions of Article
8.3 below, the Executive acknowledges and agrees that the time frames for which
the aforesaid covenant shall apply have been considered by the Executive who has
taken independent legal advice with respect thereto and the restraint and
restriction of and on the future activities of the Executive are reasonable in
the circumstances.
8.3 Amendment of Time
Periods: The parties agree that if the time frames
set out in this Article are found to unenforceable by a court of competent
jurisdiction, the time frames will be amended to the time frames as established
by a court of competent jurisdiction.
4
8.4 Injunctive
Relief: The Executive acknowledges that any
breach of Articles 6, 7 & 8 will cause irreparable harm to the Corporation,
for which the Corporation cannot be compensated by damages. The Executive agrees
that in the event of a breach of the covenant contained in Articles 6, 7, &
8, the Corporation shall not be restricted to seeking damages only, but shall be
entitled to injunctive and other equitable relief.
ARTICLE 9- TERMINATION OF
CONTRACT
9.1 For Cause
Termination: The Corporation may terminate this
Agreement at any time for cause. The term “for cause” shall include any one or
more of the following:
|
9.1.1
|
A
significant and continuing breach or failure or a continual breaching or
failing to observe any of the provisions
herein;
|
|
9.1.2
|
An
act of dishonesty fundamentally detrimental to the well-being of the
Corporation;
|
|
9.1.3
|
Any
act of gross negligence relating to completing the
Duties;
|
|
9.1.4
|
The
commission of a felony offence for which the Executive is convicted, which
significantly impairs the Executive’s ability to perform the Duties and
responsibilities hereunder or which materially adversely affects the
reputation enjoyed by the Corporation;
or
|
|
9.1.5
|
The
failure to comply with reasonable instructions, orders and directions of
the Board of Directors of the Corporation in so far as such instructions,
orders and directions are not inconsistent with the Duties, or are, in the
reasonable opinion of the
Executive:
|
|
9.1.5.1
|
In
any way demeaning or likely to result in diminution of the value of the
Executives services in the future.
|
|
9.1.5.2
|
Likely
to result in the conduct of an illegal
act.
|
|
9.1.5.3
|
Inconsistent
with any court order or other governmental order or
directive.
|
|
9.1.5.4
|
Inconsistent
with any shareholders’ resolution passed at any duly convened meeting of
shareholders.
|
provided
that, with respect to each 9.1.1 through 9.1.5 above, the Executive shall be
notified within five (5) business days from the date of any such alleged breach
and provided a reasonable opportunity to respond thereto. For greater
certainty, the Corporation shall not be entitled to utilize any such provision
to terminate this Agreement in respect of any action by the Executive that was:
(i) not specifically brought to the attention of the Executive within such five
(5) day period (ii) specifically required to be performed by direction of the
board, directly or indirectly (iii) this dissemination of information required
to be reported in the normal course with the Securities and Exchange Commission
or any other competent governmental entity having jurisdiction over the
Executive or the Corporation, or (iv) honestly and faithfully performed by the
Executive for the benefit of the Corporation.
5
9.2 Disability During
Term: In the event that the Executive becomes
physically or mentally disabled and is unable to perform the Duties for a period
of three (3) months, as confirmed by a doctor’s certificate, the Corporation
shall be entitled to terminate this Agreement without further compensation upon
sixty (60) days written notice to the Executive. In the case of the death of the
Executive, all obligations of the Corporation under this Agreement shall cease
immediately; provided that, this provision shall not affect any right, benefit
or entitlement accruing to the Executive and/or his estate under any of the
Corporation’s benefit plans or stock option agreements which arise as a result
of the Executive’s prior performance hereunder or his death.
9.3 Termination by
Executive: The Executive may terminate this
Agreement, and the contract created herein, by giving at least Ninety (90) days
prior written notice of such intention to the Corporation. After the expiry of
such notice, all obligations, except for the obligations of the Executive under
Articles 6, 7 and 8 hereof, which shall continue as provided in those Articles,
of the Corporation and the Executive under this Agreement shall
cease.
ARTICLE 10-OTHER AGREEMENTS
IN RESPECT OF TERMINATION
10.1
Consequence of
Termination: In the
event of the termination of this Agreement for cause or otherwise
howsoever:
|
10.1.1
|
The
Executive shall resign as a director and/or officer of the Corporation or
any subsidiary or related corporation and the Executive hereby appoints
the Corporation as its attorney in fact for the purpose of executing any
and all such documents to give effect to the foregoing;
and
|
|
10.1.2
|
The
Executive hereby authorizes the Corporation and any subsidiary or related
corporation to set off against and deduct from any and all amounts owing
to the Executive by way of salary, allowances, accrued leave, long service
leave, reimbursements or any other emoluments or benefits owing to the
Executive by the Corporation and any subsidiary or related corporation,
any reasonable amounts owed by the Executive to the Corporation or any
subsidiary or related corporation.
|
10.2 Application of Agreement
after Termination: Notwithstanding any termination of this
Agreement for any reason whatsoever, whether with or without cause, all of the
provisions of Articles 6, 7 and 8 and any other provisions of this Agreement
necessary to give efficacy and effect thereto shall continue in full force and
effect following the termination of this Agreement.
ARTICLE 11 -
GENERAL
11.1 Partial Invalidity &
Severability: Each article, paragraph, clause,
sub-clause and provision of this Agreement shall be severable from each other
and if for any reason any article, paragraph, clause, sub-clause or provision is
invalid or unenforceable, such invalidity or unenforceability shall not
prejudice or in any way affect the validity or enforceability of any other
article, paragraph, clause, sub-clause or provision. This Agreement and each
article, paragraph, clause, sub-clause and provision hereof shall be read and
construed so as to give thereto the full
effect thereof subject only to any contrary provision of the law to the extent
that where this Agreement or any article, paragraph, clause, sub- clause or
provision hereof would but for the provisions of this paragraph have been read
and construed as being void or ineffective, it shall nevertheless be a valid
agreement, article, paragraph, clause, sub-clause or provision as the case may
be to the full extent to which it is not contrary to any provision of the
law.
6
11.2 Monies: All references to monies in this Agreement shall be deemed to mean lawful monies of the United States of America.
11.3 Entire
Agreement: This Agreement, the Schedules and any
addenda attached hereto or referenced herein, constitute the complete and
exclusive statement of the agreement of the Parties with respect to the subject
matter of this Agreement, and replace and supersede all prior agreements and
negotiations by and between the Parties. Each Party acknowledges and agrees that
no agreements, representations, warranties or collateral promises or inducements
have been made by any Party to this Agreement except as expressly set forth
herein or in the Schedules and any addenda attached hereto or referenced herein,
and that it has not relied upon any other agreement or document, or any verbal
statement or act in executing this Agreement.
11.4 Binding Effect: This
Agreement shall be binding on the Parties and their successors and assigns;
provided, however, that neither Party shall assign, delegate or transfer, in
whole or in part, this Agreement or any of its rights or obligations arising
hereunder without the prior written consent of the other Party. Any
purported assignment without such consent shall be null and void.
11.5 Waiver: The failure
of either party at any time to require strict performance by the other party of
any provision hereof shall in no way affect the full right to require such
performance at any time thereafter. Neither shall the waiver by either party of
a breach of any provision hereof be taken or held to be a waiver of any
succeeding breach of such provision or as a waiver of the provision
itself.
11.6 Captions: The captions contained in this
Agreement are inserted only as a matter of convenience or reference and in no
way define, limit, extend or describe the scope of this Agreement or the intent
of any of its provisions.
11.7 Construction: Since both Parties have engaged in
the drafting of this Agreement, no presumption of construction against any Party
shall apply.
11.8 Section
References: All references to Sections or Schedules
shall be deemed to be references to Sections of this Agreement and Schedules
attached to this Agreement, except to the extent that any such reference
specifically refers to another document. All references to Sections
shall be deemed to also refer to all subsections of such Sections, if
any.
11.9 Governing Law and
Jurisdiction: This
Agreement and the interpretation of its terms shall be governed by the laws of
the State of Arizona, without application of conflicts of law principles. The
Parties hereby agree that the State and Federal Courts with jurisdiction over
disputes arising in Maricopa County shall have exclusive jurisdiction over any
litigation hereunder.
7
11.10 Assignment: This
Agreement shall ensure to the benefit of and be binding upon the parties hereto,
their heirs, administrators, successors and legal representatives. This
Agreement may be assigned by the Corporation but may not be assigned by the
Executive.
11.11 Notice: All notices
to be given by either party hereto shall be delivered or sent by telegram,
facsimile or cable to the following address or such other address as may be
notified by either party:
|
11.11.1
|
If
to the Corporation to:
|
|
11.11.2
|
If
to the Executive to:
Xxxxxxxx
(xxx) X. Xxxxx
0000
X. 00xx
Xxxxxx
Xxxxx
000
Xxxxxxxxxx,
XX 00000
|
11.12 Dispute
Resolution
|
|
11.12.1
|
The
Parties shall use good faith efforts to resolve disputes, within twenty
(20) business days of notice of such dispute. Such efforts
shall include escalation of such dispute to the corporate officer level of
each Party.
|
|
|
11.12.2
|
If
the Parties cannot resolve any such dispute within said twenty (20)
business day period, the matter shall be submitted to arbitration for
resolution. Arbitration will be initiated by filing a demand at
the Phoenix, AZ regional office of the American Arbitration Association
(“AAA”).
|
|
|
11.12.3
|
Disputes
will be heard and determined by a panel of three arbitrators. Each Party
will appoint one arbitrator to serve on the panel. A neutral arbitrator
will be appointed by the AAA.
|
|
|
11.12.4
|
Within
fifteen (15) business days following the selection of the arbitrator, the
Parties shall present their claims to the arbitrator for determination.
Within ten (10) business days of the presentation of the claims of the
Parties to the arbitrator, the arbitrator shall issue a written opinion.
To the extent the matters in dispute are provided for in whole or in part
in this Agreement, the arbitrator shall be bound to follow such provisions
to the extent applicable. In the absence of fraud, gross misconduct or an
error in law appearing on the face of the determination, order or award
issued by the arbitrator, the written decision of the arbitrator shall be
final and binding upon the Parties. The prevailing Party in the
arbitration proceeding shall be entitled to recover its reasonable
attorneys' fees, costs and expenses including reasonable travel-related
expenses.
|
8
11.13 Counterparts: This Agreement may be
executed by facsimile and delivered in one or more counterparts, each of which
shall be deemed to be an original and all of which, taken together, shall be
deemed to be one agreement.
IN WITNESS WHEREOF, the
parties have duly executed this Agreement at the City of Scottsdale, AZ on the
date first written above.
 |
|||
| SKYE INTERNATIONAL, INC. | |||
|
|
|||
|
Per:
|
/s/ "Xxxx
X. Xxxxxxx"
|
||
|
Xxxx
X. Xxxxxxx, Chairman
|
|||
|
|
|||
|
SIGNED, SEALED AND DELIVERED in
the )
presence of: Xxxxxxx
Xxxx
)
)
)
)
)
)
"Xxxxxxx
Xxxx"
)
Witness
|
"Xxx X. Xxxxx"
Xxxxxxxx (Xxx) X. Xxxxx
|
9
Schedule
A
Duties
(as taken
from the SKYE Organizational Manual)
|
SVP
Finance, CFO and Secretary Treasurer
(Vice
Chair – Executive Management Team)
(Chair
– Management Team)
|
| Reports to: |
President
and Board (when requested)
|
|
Direct
Reports:
|
All
Vice Presidents
|
|
Liaison:
|
Chair
of audit Committee
|
|
Job
Description:
|
President
and C.E.O
|
|
Review
& Comp:
|
Corporate
Governance Committee
|
|
Accountability:
|
Audit
Committee
President
and C.E.O
|
This
position is chiefly responsible for all financial affairs of the company and for
recording all Board business and maintaining the books and records of the
company. This position coordinates all public dissemination of
financial information and is the responsible party for ensuring compliance with
local, state and federal laws regarding financial reporting.
The
specific duties include, but are not limited to:
|
1.
|
As
a member of the Executive Management Team, directs overall business and
organizational policies; develops, recommends and implements through
subordinates; prepares financial budgeting and performance targets for
presentation to the Board of
Directors.
|
|
2.
|
Responsible
for overall company financial and budgetary coordination, financial
oversight, financial reporting, and development of short-term and
long-term budgets
for presentation to the Board of Directors, organizational and operational
planning activities and
growth.
|
|
3.
|
Member
of the Executive Management Team, responsible for overseeing and reporting
progress of all financial matters to the Board of
Directors.
|
|
4.
|
Monitoring
performance relative to established financial objectives and
systematically monitoring and evaluating operating results and reporting
same to the Executive Management
Team.
|
|
5.
|
Presents,
together with the President, Balance sheet, operating and capital
expenditure budgets to Board of Directors for
approval.
|
A-1
|
6.
|
Formulates,
together with the President, the Corporation’s near term and long-range
strategic plans and submits them to the Board of Directors for
approval.
|
|
7.
|
Directs
all employees involved in the financial aspects of the
business.
|
|
8.
|
Promotes
positive relations with external auditors, banks, lenders, brokerage firms
and any other third parties providing financial or financial
administration services or products to the
company.
|
|
9.
|
Directs
the establishment of fair and appropriate financial policies for approval
by the Board of Directors.
|
|
10.
|
Responsible
for the overall financial management of the
Corporation.
|
|
11.
|
Responsible
for the daily financial, banking, capital raising and financial reporting
affairs of the Corporation.
|
|
12.
|
Responsible
for ensuring operational compliance with policies and procedures adopted
by the Board of Directors.
|
|
13.
|
Is
the primary responsible party for ensuring systemic adherence to
Xxxxxxxx-Xxxxx 404 processes.
|
|
14.
|
Any
other duty reasonably assigned by the President or the Board of
Directors.
|
|
15.
|
Records
and maintains all records related to the Board of
Directors.
|
|
16.
|
Ensures
proper maintenance of corporate
records.
|
|
17.
|
Responsible
for developing and maintaining internal process and monitoring of systems
to ensure compliance with SOX and
GAAP.
|
A-2
