Contract
EXHIBIT
10.19
AGREEMENT dated as of this 1st day of January, 2009
between ILUT N.A. Inc., with an address at 0000 Xxxx Xxxxx Xxxxxx Xxxxxxxxx,
Xxxx 00000 (“ILUT”), Novamerican Steel Canada Inc., a Canadian corporation with
a principal place of business at 0000 Xxxxx Xxxxxx, Xxxxx XxXxxxx, Xxxxxx X0X
0XX0 (“NOVAMERICAN”) and American Steel and Aluminum Company Corporation, a
Massachusetts corporation with a principal place of business at 0000 Xxxxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 (“ASA”). Each of ILUT,
NOVAMERICAN and ASA may hereafter be referred to herein as a “Party” and,
together, as the “Parties.”
WHEREAS, NOVAMERICAN and ASA wish to retain ILUT to
perform services for them and ILUT wishes to provide such services to
NOVAMERICAN and ASA on the terms herein below specified.
NOW, THEREFORE, pursuant to the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto intending to be
legally bound do hereby agree as follows:
1. SERVICES
(a) ILUT
agrees to provide the services for NOVAMERICAN and ASA as further described in
Schedule “A” hereto (the “Services”).
(b) ILUT
shall determine the method, details, and means of performing the Services
described in Section 1(a) above, and neither NOVAMERICAN nor ASA shall control
the manner or determine the method by which ILUT accomplishes the Services
except to the extent necessary to coordinate ILUT’s performance in time, space
or function with that of other persons engaged by NOVAMERICAN or ASA to achieve
a common goal.
(c) ILUT
shall devote such time, attention and energy as may be necessary to render the
Services hereunder in a professional, competent and ethical
manner.
2. TERM
AND TERMINATION
(a) Unless
sooner terminated in accordance with Section 2(b), this Agreement shall commence
on January 1, 2009 and shall continue until December 31, 2009 (“Initial
Term”). Thereafter, unless sooner terminated in accordance with
Section 2(b), this Agreement will be automatically extended on a month-to-month
basis. (“Extended Term”).
(b) This
Agreement may be terminated by any Party with or without cause by providing the
other Parties with 60 days’ written notice of
termination.
(c) Upon
the effective date of termination, ILUT shall immediately cease performing
Services for NOVAMERICAN or ASA, as the case may be, regardless of the status of
completion of any project(s) or task(s) then underway. Upon
termination of this Agreement by a party, the sole obligation of NOVAMERICAN or
ASA, as the case may be, will be to pay ILUT for the percentage of effort
completed by ILUT prior to the effective date of
termination.
3. COMPENSATION
FOR SERVICES; REIMBURSEMENT OF EXPENSES
(a) ILUT’s
compensation for the Services described in Schedule A shall be $140,000 USD per
month for the Initial Term. Based upon the work performed during a
calendar month for each party, ILUT will send to NOVAMERICAN and/or ASA an
invoice for payment due reflecting their respective share of the
$140,000. The invoice shall also include the reimbursement due for
expenses incurred during the period under section 3(b)
below. NOVAMERICAN and ASA will pay these invoices electronically as
directed by ILUT upon receipt. ILUT’s compensation for the
Extended Term shall be mutually agreed by the Parties prior to the
commencement of the Extended Term.
(b) NOVAMERICAN
and ASA will reimburse ILUT for pre-approved reasonable travel, lodging, meals,
and other out-of-pocket expenses incurred in connection with the Services and in
accordance with NOVAMERICAN’s and ASA’s established policies and which are
supported by adequate documentation. In an effort to reduce expenses
and upon the agreement of the Parties, NOVAMERICAN and ASA can make appropriate
arrangements to provide certain legal, travel and lodging accommodations to ILUT
and to pay for such expenses directly, for example by obtaining the appropriate
immigration documentation to perform services in Canada, through the lease of
apartments for lodging and cars for travel, instead of through the reimbursement
of expenses to ILUT.
4. INDEPENDENT
CONTRACTOR
(a) ILUT,
in the performance of this Agreement, is acting as an independent contractor and
not an employee, agent, partner or joint venture partner of NOVAMERICAN or ASA
and shall not hold itself out as such or knowingly permit another to rely on
such belief. Nothing in this Agreement is intended or shall be
construed to create any association, partnership, joint venture or employment
relationship between the Parties. In addition, ILUT shall not enter
into any contract or commitment on behalf of NOVAMERICAN or ASA or bind
NOVAMERICAN or ASA in any respect whatsoever.
(b) Neither
ILUT nor any employee or agent of ILUT shall be entitled to any benefits
provided to any employee of NOVAMERICAN or ASA. It shall be the sole
responsibility of ILUT to report as income any compensation received hereunder
and to make requisite tax filings and payments to the appropriate national,
federal, state or local tax authority. Neither NOVAMERICAN or ASA
will withhold or pay on behalf of ILUT (a) national, federal, provincial or
local income taxes or (b) any other payroll tax of any kind.
(c) No
Party by virtue of this Agreement will have any right, power, or authority to
act or create any obligation, expressed or implied, on behalf of any other
Party.
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(d) Nothing
herein is intended to preclude ILUT’s simultaneous or subsequent engagement by
third parties provided only that such services do not interfere with ILUT’s
obligations under this Agreement or present a conflict of interest, and are
consistent with ILUT’s duties of confidentiality set forth in Section
8.
5. FACILITIES;
SUPPORT
If the Services are most conveniently performed on
NOVAMERICAN’s or ASA’s premises, NOVAMERICAN and ASA, as the case may be, shall
make reasonable efforts to provide to ILUT adequate space as may be reasonably
required by the nature of the Services to be performed. ILUT shall
otherwise be responsible to provide such supplies, equipment, support and
facilities as it may require to perform the Services and shall be responsible
for all costs and expenses thereof.
6. INDEMNIFICATION;
LITIGATION
(a) ILUT
shall indemnify and hold harmless (including reasonable attorneys’ fees)
NOVAMERICAN and ASA, their corporate affiliates, and any employee or agent
thereof against all liability to third parties arising from, related to or in
connection with the provision of Services under this Agreement; provided,
however, that such indemnification shall be limited to the amount of
compensation paid to ILUT under this Agreement. In no event shall
ILUT be liable to NOVAMERICAN or ASA for any indirect, special or consequential
damages in connection with or arising out of this Agreement or the performance
of the Services.
(b) ILUT
shall notify NOVAMERICAN or ASA, as the case may be, immediately of any actual
or threatened claim or suit that ILUT discovers may be lodged against
NOVAMERICAN or ASA, or its officers, directors or employees. Failure
to provide prompt notification of a claim shall not serve as a waiver of ILUT’s
indemnification rights hereunder.
7. REPRESENTATIONS
AND WARRANTIES
ILUT warrants and represents that it has full right
and power to enter into this Agreement and that the performance of its
obligations hereunder do not and will not violate any other agreement to which
it is a party or by which it is bound. ILUT warrants and represents that it will
comply with all applicable laws and regulations of the United States and Canada,
or any state, province or other government authority or agency, in the
performance of Services hereunder. ILUT warrants and represents that
it will pay all taxes levied or based upon the income of ILUT or the fees
payable to ILUT under this Agreement.
8. CONFIDENTIALITY
(a) ILUT
understands and agrees that during the course of performing the Services, it
will or may receive, develop and be exposed to Confidential Information, as
hereinafter defined, of NOVAMERICAN and ASA. ILUT agrees not to
disclose, transfer, use or distribute Confidential Information, in whole or in
part, in any form, for any purpose other than in
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connection
with performing the Services under this Agreement, without the prior written
consent of NOVAMERICAN or ASA, as the case may be.
(b) Confidential
Information shall include, but is not specifically limited to NOVAMERICAN’s and
ASA’s business affairs, strategic plans and financial
information. Confidential Information shall not include any
information that: (i) at the time of disclosure or thereafter is generally
available to and known by the public (other than as a result of disclosure
directly or indirectly by ILUT in violation of its obligations under this
Agreement); (ii) was available to ILUT on a non-confidential basis from a source
other than NOVAMERICAN or ASA or their affilates, provided that such source is
not and was not bound by a confidentiality obligation with NOVAMERICAN or ASA;
or (iii) has been independently acquired or developed by ILUT without violating
any of its obligations under this Agreement.
(c) Upon
demand by NOVAMERICAN or ASA, as the case may be, or upon termination of this
Agreement, ILUT shall promptly, and in no event later than fifteen (15) calendar
days, return all Confidential Information, and any and all copies of the same,
belonging to NOVAMERICAN or ASA or generated by ILUT for the benefit of
NOVAMERICAN or ASA, and shall thereafter make no further use of them, or of any
information contained in those documents, whether in whole or in
part. Notwithstanding anything to the contrary herein, ILUT may
retain one copy of Confidential Information for records retention
purposes.
(d) ILUT
acknowledges that Confidential Information is valuable to NOVAMERICAN and ASA
and that a breach of its obligations under this Section 8 cannot be fully
compensated by monetary damages in connection with any effort by NOVAMERICAN or
ASA to obtain equitable enforcement of this Section 8.
(e) The
provisions of this Section 8 shall survive the expiration or termination of this
Agreement for any reason.
9. TITLE
IN WORK PRODUCT
(a) ILUT
agrees that all inventions, improvements, developments, technical information,
skill and know-how, patentable or unpatentable, which ILUT makes and that are
directly developed for or related to NOVAMERICAN or ASA (individually and
collectively referred to as “Work Product”) shall be, upon creation, the
exclusive property of NOVAMERICAN or ASA (or its designated affiliate), as the
case may be. All rights therein, including any patents, copyrights,
trademarks and trade secret rights, and the rights to register or apply
therefor, in or relating to Work Product (including all derivative works and
improvements thereto), shall likewise be the exclusive property of such
Party. All Work Product comprising copyrightable subject matter is
agreed to be work made for hire pursuant to the Copyright Act of 1976 as from
time to time amended. To the extent any such Work Product is deemed
other than a work made for hire, ILUT shall assign, and hereby assigns, in
perpetuity, all rights it has or may have, in the Work Product (including all
derivative works and improvements thereto), to NOVAMERICAN or ASA, as the case
may be.
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(b) ILUT
shall, promptly at the request of NOVAMERICAN or ASA, execute any and all
documentation reasonably requested by such Party to assign, evidence, perfect,
register and enforce such Party’s rights in and ownership of all patents,
copyrights and other intellectual property relating to the Work Product in any
and all countries, including without limitation, the execution of additional
instruments of conveyance and assisting such Party with applications for
patents, copyrights or other intellectual property
registrations.
(c) As
part of performing the Services, ILUT may utilize certain preexisting,
proprietary software, methodologies, tools, specifications or other materials
which may have been developed by or licensed to ILUT, or which may be separately
developed for future use by ILUT, in each case independent and separate of this
Agreement and without reference to NOVAMERICAN’s or ASA’s proprietary rights or
confidential information (collectively, “ILUT Proprietary
Rights”). ILUT hereby grants to NOVAMERICAN, ASA and their
affiliates, a fully paid-up, royalty-free, worldwide, non-exclusive and
irrevocable license to use the ILUT Proprietary Rights as part of the Services
or any Work Product.
(d) ILUT
represents, warrants and covenants to NOVAMERICAN and ASA that the Work Product
and all Services do not and will not infringe or misappropriate the patent,
copyright, trademark, trade secret, or other intellectual property rights of any
third party.
(e) Neither
NOVAMERICAN or ASA will have any obligation or liability with respect to or
arising out of its receipt of and/or use and/or disclosure of any and all Work
Product or any other materials, tools, processes, inventions, technical
information, know-how, data, drawings, documents, prototypes, or models which
ILUT at any time discloses or furnishes to it in connection with the Services
covered by this Agreement. Additionally, ILUT shall defend,
indemnify and hold harmless NOVAMERICAN, ASA and their directors, officers,
affiliates, customers, employees and agents from and against any suit,
proceeding, claim, costs, losses and damages (including reasonable attorneys’
fees) relating to any actual or alleged claim of infringement or
misappropriation of any intellectual property right or a trade secret relating
to any Work Product developed or delivered by ILUT or that relates to the
performance of Services by ILUT or any materials supplied or used by
ILUT.
10. MISCELLANEOUS
(a) This
Agreement constitutes the entire Agreement between the Parties hereto pertaining
to the subject matter hereof, and supersedes all negotiations, preliminary
agreements and all prior and contemporaneous discussions and understandings of
the Parties in connection with the subject matter hereof.
(b) No
amendment, waiver, change or modification of any of the terms, provisions or
conditions of this Agreement shall be effective unless made in writing and
signed or initialed by the Parties. Waiver of any provision of this
Agreement shall not be deemed a waiver of future compliance therewith and such
provision shall remain in full force and effect.
(c) Notice
pursuant to any provision in this Agreement requiring written notice shall be
delivered by certified mail, return receipt requested.
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(d) In
the event any provision of this Agreement is held invalid, illegal or
unenforceable, in whole or in part, the remaining provisions of this Agreement
shall not be affected thereby and shall continue to be valid and enforceable and
if, for any reason, a court finds that any provision of this Agreement is
invalid, illegal or unenforceable as written, but that by limiting such
provision it would become valid, legal or enforceable, then such provision shall
be deemed to be written and shall be construed and enforced as so
limited.
(e) This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware. Words and phrases herein shall be construed as in
the singular or plural number and as masculine, feminine or neuter gender,
according to the context. The titles or captions or Sections of this
Agreement are provided for convenience or reference only and shall not be
considered a part hereof for purposes of interpreting or applying this Agreement
and such titles or captions do not define, limit, extend, explain or describe
the meaning, scope or extent of this agreement or any of its terms or
conditions.
(f) This
Agreement may not be assigned by a Party hereto without the written consent of
the other Party. This Agreement shall be binding upon and inure to
the benefit of the Parties hereto and their respective legal representatives,
heirs, successors and assigns. Nothing in this Agreement, express or
implied, is intended to confer upon any party, other than the Parties hereto
(and their respective heirs, legal representatives, successors and assigns), any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
(g) This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument, and in making proof hereof, it shall not be necessary to produce or
account for more than one such counterpart.
IN WITNESS WHEREOF, the Parties hereto have caused
this Agreement to be executed by their duly authorized officers as of the date
and year first above written.
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ILUT
N.A. INC.
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NOVAMERICAN
STEEL CANADA INC.
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By:
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/s/
Illegible
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By:
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/s/
Xxxxxxx Xx Xxxxxxxx
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Title:
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President
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Title:
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President
and Chief Executive Officer
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AMERICAN
STEEL AND ALUMINUM CORPORATION
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By:
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/s/ Xxxxxxx Xx
Xxxxxxxx
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Title:
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President
and Chief Executive Officer
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SCHEDULE
A
The
Services described in Section 1(a) shall include the following:
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·
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Provide
advice, guidance and training to employees in the assessment and redesign
of:
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o
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Current
measurement systems
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o
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Organizational
structure
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o
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Manufacturing
processes
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o
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Procurement
processes
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o
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Sales
processes
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o
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The
use of statistical process control
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o
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Project
management
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