EXHIBIT 10.3
------------
Employment Agreement
Between
Xxxxxxx X. Xxxx
and
Altair International Inc.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("this Agreement") is entered into as of this
1st day of January, 1998, by and between Altair International Inc., a
corporation organized pursuant to the laws of the Province of Ontario
("Altair"), and Xxxxxxx X. Xxxx ("Long").
RECITALS
--------
Long has been employed by Altair on a part-time basis in the capacity
of President and Chief Executive Officer and has served on the board of
directors of Altair (the "Board of Directors"). Long has performed these
services in a highly satisfactory manner. Altair desires to continue employing
Long, and Long desires to continue employment, as a part-time employee on the
terms and conditions set forth below.
Long is, or may become, involved in various other business
opportunities that do not involve Altair, are in unrelated lines of business, or
have been rejected by Altair. Since Long will be a part-time employee, he
desires to be able to take advantage of any such business opportunity. Both
parties recognize and want to avoid any potential conflict of interest or
similar problem that might be generated under these circumstances.
AGREEMENT
---------
NOW THEREFORE, for and in consideration of the following mutual
promises, conditions and covenants, Altair and Long hereby agree as follows:
1. Definitions. For purposes of this Agreement, the
following terms shall have the definitions specified in this
Section 1:
(a) "Business Opportunity" shall mean any business opportunity
which, at the time the business opportunity is presented, is of the type Altair
or its subsidiaries are considering, developing, investigating, or otherwise
investing in.
(b) "Cause" shall mean any (i) material breach by Long of the
terms of this Agreement; (ii) wrongful misappropriation by Long of any money or
properties of Altair or its subsidiaries; (iii) conviction of Long for any
felony or other serious crime; (iv) chronic alcoholism or drug addiction on the
part of Long; or (v) Long's gross moral turpitude relevant to his office or
employment with the Company or its subsidiaries.
(c) "Common Stock" shall mean the common shares of Altair
(no par value).
(d) "Dilutive Event" shall mean a dividend on the
Exhibit 10.3
outstanding shares of Common Stock payable in shares of Common Stock or in
rights to acquire shares of Common Stock, a subdivision or split in the number
of shares of Common Stock, or other event that the Board of Directors reasonably
determines has the effect of diluting the value per share of shares of Common
Stock outstanding before the occurrence of such event.
(e) "Business Expenses" shall mean all costs and expenses
which this Agreement characterizes as a Business Expense or requires Long to pay
or incur on behalf of Altair and any other expenses paid or incurred in the
course of Long's employment with Altair for which executive level employees or
corporate officers or directors in the State of Wyoming are customarily
reimbursed by their employer and/or corporation.
(f) "Proprietary Information" shall mean, with respect to
Altair and its subsidiaries, to the extent produced by or on behalf of, made
available to, or obtained by Long in connection with his employment by Altair or
its subsidiaries, any (i) drawings, maps, plans, reports, or other documents
which contain data or information concerning the Altair Centrifugal Jig or any
adaption, development, derivation or variation thereof; (ii) know-how, technical
information, product development strategies or techniques regarding the Altair
Centrifugal Jig or any adaption, development, derivation, or variation thereof;
(iii) information regarding details of customer or supplier, pricing policies,
operational methods, marketing plans, inventions, research projects, or business
acquisition plans; or (iv) memoranda, notes, lists or other documents or papers,
including such items stored in computer memories by microfiche or by other
means. Notwithstanding the foregoing, Proprietary Information shall not include
customers lists, shareholder lists, broker lists, investment banker lists, and
similar mailing or facsimile lists produced by or on behalf of Altair or Long,
or otherwise obtained by Long, during the period of his employment with Altair
or its subsidiaries.
2. Part-Time Employment. Altair agrees to employ Long on a part-time
basis, and Long agrees to be so employed by Altair upon the terms and conditions
hereinafter set forth.
3. Term. Unless sooner terminated as hereinafter provided, this
Agreement shall remain in full force from the effective date hereof until
midnight (Pacific Standard Time) on December 31, 2007 (the "Term").
4. Positions and Duties. Long shall devote sixty-five percent (65%) of
a forty (40) hour business week in the performance of his employment duties. His
capacities will be President and Chief Executive Officer of Altair. If elected
or appointed, Long shall also serve during all or any part of the Term in any
other office and/or as a director of Altair without any compensation other than
Exhibit 10.3
that specified in this Agreement. Subject to the terms and provisions of this
Agreement, while serving in these capacities, Long shall have such
responsibilities, duties, obligations, rights, benefits and authority as may be
specified in Altair's corporate Bylaws or delegated to him by the Board of
Directors. In addition, Long shall have the rights, duties and authority
specifically provided for in this Agreement.
5. Compensation. Long shall receive the following compensation:
(a) Salary. A monthly salary of at least US$7,600, which shall
be paid to him in one installment on or before the first business day of each
calendar month (less any amount required to be withheld and remitted on behalf
of Long to any municipal, State, Provincial, United States, or Canadian
governmental entity). The Board of Directors shall review Long's monthly salary
periodically and may increase the same in its discretion.
(b) Annual Bonus. An annual bonus in an amount to be
determined by the Board of Directors, but in no event less than ten percent
(10%) of the product obtained by multiplying by twelve (12) the amount of his
monthly salary on the date when the bonus is due. The annual bonus shall be paid
to Long no later than December 15 of each calendar year (less any amount
required to be withheld and remitted on behalf of Long to any municipal, State,
Provincial, United States, or Canadian governmental entity).
(c) Employee Benefits.
(i) Long shall arrange for medical and health
insurance and disability insurance for Long and his immediate family which is
satisfactory to him, and all reasonable premiums, deductibles, coinsurance
amounts and other costs reasonable associated with such insurance shall
constitute Business Expenses and shall be paid or reimbursed by Altair.
(ii) Long shall arrange to purchase or lease an
automobile to be used for Altair business purposes and incidental personal use.
All costs and expenses of purchasing or leasing such automobile, whether in the
form of a periodic lease or loan payment or a single lump sum payment, shall
constitute a Business Expense and shall be paid or reimbursed by Altair. All
maintenance and operating expenses associated with such automobile shall also be
Business Expenses and shall be paid or reimbursed by Altair.
(iii) Altair shall provide automobile liability
insurance protecting Long from claims for damages for bodily injury (including
wrongful death) and property damage which may arise from the use of any
automobile for Altair business purposes, with reasonable policy limits and
conditions that are acceptable to Long. When Long rents automobiles for Altair
business purposes, he may decline any additional coverage offered by rental
agencies.
Exhibit 10.3
All insurance deductible costs or other expenses of any nature which Long may
incur as the result of an accident involving an automobile used for Altair
business purposes, to the extent that such expenses are not covered by the
above-described automobile liability policy, shall constitute Business Expenses
and shall be paid or reimbursed by Altair.
(iv) To the extent eligible, Long shall be permitted
to participate in any group life, disability, stock purchase, stock incentive,
or similar benefit plan made available to other executives or employees of
Altair generally on the same terms as such other employees or executives.
(v) As long as Long remains an officer or director
of Altair, Altair shall provide directors and officers liability insurance for
Long in a form and amount which are acceptable to Long.
(d) Takeover, Merger or Consolidation.
----------------------------------
(i) If voting control of over thirty-five percent
(35%) of the then issued and outstanding shares of Common Stock is hereafter
acquired by an individual, group of individuals acting jointly or in concert,
entity or group of entities acting jointly or in concert through any method
(including, without limitation, merger, takeover or consolidation, regardless of
whether Altair survives the transaction) (a "Change of Control") and this
Agreement is terminated by Altair or Long for any reason within 180 days before
or at any time after the Change in Control, except upon expiration at the end of
the Term, Altair shall issue and deliver to Long 200,000 shares of Common Stock,
subject to all applicable Canadian, United States, provincial, state and local
laws and regulations, including without limitation all applicable securities
laws and any necessary approvals of stock exchanges on which the shares of
Common Stock of Altair are listed or trade. Absent a Change in Control, if this
Agreement is terminated for any reason, except (i) at the discretion of Long,
(ii) by mutual agreement of Altair and Long, (iii) upon expiration at the end of
the Term, or (iv) by Altair for Cause, Altair shall issue and deliver to Long
200,000 shares of Common Stock, subject to all applicable Canadian, United
States, provincial, state and local laws and regulations, including without
limitation all applicable securities laws and any necessary approvals of stock
exchanges on which the shares of Common Stock of Altair are listed or trade.
(ii) Each time after the effective date hereof a
Dilutive Event occurs, on the effective date of that event, the number of shares
Long is entitled to receive under this Section 5(d) shall be deemed to have been
automatically adjusted (without the need for any act by the parties), so that
the ownership share in Altair which Long is entitled to receive under this
Exhibit 10.3
Section 5(d) shall never be reduced or diluted. If, and only if, the above-
described shares of Common Stock cannot legally be delivered to Long pursuant to
this Section 5(d), then Long shall be paid, subject to all applicable Canadian,
United States, provincial, state and local laws and regulations, including
without limitation all applicable securities laws and any necessary approvals of
stock exchanges on which the shares of Common Stock of Altair are listed or
trade, an amount equal to the fair market value thereof (based on the weighted
average of the closing sale price for the Common Stock as reported by the Nasdaq
National Market for the five days preceding the date of termination), in cash
within ten (10) days after an event of termination entitling Long to receive
shares of Common Stock.
(e) Under appropriate circumstances and within the discretion
of the Board of Directors, Long shall be rewarded for exceptional performance
with royalties or bonuses based on revenues from one or more business
opportunities that are brought to Altair's attention by Long.
6. Payment of Business Expenses. Long shall pay Business Expenses using
funds from a company account owned by Altair ("Altair Bank Account") or with his
personal funds, subject to reimbursement by Altair. As requested by Altair, Long
shall submit a report to Altair describing Business Expenses paid out of the
Altair Bank Account or for which he has requested or intends to request
reimbursement. At Altair's request, the report shall be accompanied by
satisfactory evidence of Business Expenses paid from the Altair Bank Account,
such as applicable bills, invoices, receipts, and canceled checks.
7. Business Opportunities. Long shall immediately notify the Board of
Directors of any Business Opportunity which comes to his attention and which, in
Long's reasonable professional opinion, is worthy of consideration by Altair or
one of its subsidiaries. Such notice shall describe the Business Opportunity and
all pertinent business terms and conditions. For a period of thirty (30) days
after the Board of Director's receipt of such notice from Long, the Board of
Directors shall have the right and option to accept or reject the Business
Opportunity described in the notice. The decision to accept or reject such
Business Opportunity shall be within the sole and exclusive discretion of the
Board of Directors. If the Board of Directors fails to notify Long that it
accepts the Business Opportunity described in Long's notice within thirty (30)
days after Altair's receipt thereof, then Altair shall be deemed to have
rejected the same.
If the Board of Directors gives Long notice during the required thirty
(30) day period that it accepts the Business Opportunity described in Long's
notice, then Altair shall have a period of sixty (60) days after Long's receipt
of such notice from the Board of Directors during which Altair may enter into a
contract (including an option contract), or cause a subsidiary to enter into the
same, with regard to the Business Opportunity. If Altair or one of its
subsidiaries has not executed such a contract within the required sixty (60) day
Exhibit 10.3
period, then Altair shall be deemed to have rejected the Business Opportunity in
question.
If and when Altair rejects a Business Opportunity or is deemed to have
rejected it as provided in this Section 7, then neither Altair nor one of its
subsidiaries shall have, acquire or assert any right, title, interest, claim or
demand therein or thereto. Long may thereafter independently pursue and take
advantage of such rejected Business Opportunity on his own personal behalf and
entirely free and clear of the terms and provisions of this Agreement and of any
duty or responsibility to Altair or its subsidiaries.
8. Proprietary Information. All Proprietary Information shall be and
remain the sole property of Altair or its subsidiaries, except for Proprietary
Information which is in or later enters (through no fault of Long) the public
domain. For a period of one (1) calendar year after any termination or
expiration hereof, Long shall not disclose such Proprietary Information to any
third party, except as required by law or with the prior consent of Altair, or
exploit such Proprietary Information for his own benefit or the benefit of any
person or entity other than Altair or its subsidiaries.
It is acknowledged by the parties that, as a result of the performance
of Long's duties under this Agreement, Long shall necessarily gain knowledge of
or relating to Business Opportunities or related information. Subject only to
the provisions of Sections 7 and 8, nothing in this Agreement shall be
interpreted, applied or construed so as to prevent Long from enjoying the full
use and benefit of his knowledge, comprehension, intuition, consciousness,
awareness, perception, insight, expertise, and experience.
9. Other Capacities. Subject to the provisions of Section 4 of this
Agreement, upon full disclosure to the Board of Directors, Long shall be
entitled to accept and hold positions as an officer, director, partner, manager,
member, or any position comparable to the foregoing in any other corporation,
partnerships, limited liability companies, or other entities, whether domestic
or foreign.
10. Express Limitations. Subject to the terms and conditions of this
Agreement, it is expressly understood and agreed by the parties that this
Agreement shall not limit Long's ability to pursue development or investment
opportunities other than Business Opportunities, or to pursue any Business
Opportunity Altair and its subsidiaries reject or are deemed to have rejected.
So long as he complies with the terms of this Agreement, Long shall never be
deemed to have any conflict of interest with Altair or its subsidiaries, or to
have breached any express or implied duty or obligation (fiduciary or otherwise)
to either Altair or its subsidiaries. The provisions hereof that are related to
non-competition, conflicts or interest, and to the handling and treatment of any
written or oral confidential or proprietary information or trade secrets are
expressly agreed to in lieu of and as a substitute for any other obligation or
Exhibit 10.3
obligations (fiduciary or otherwise) with regard to non-competition, conflicts
of interest or the handling or treatment of confidential or proprietary
information or trade secrets which might be implied by law or imposed by
applicable statutory or common law as the result of the past, present, or future
relationship or relationships between Altair and Long. No implied covenants of
any sort are either contained herein or intended by the parties.
11. Termination. This Agreement may be terminated:
(a) By the mutual consent of Altair and Long;
(b) By Altair for Cause; or
(c) Subject to the provisions of Section 5(d) hereof, at any
time by Long or Altair with ninety (90) days prior notice to the other party.
No notice of termination by Altair shall relieve Altair of its
obligation to pay Long the compensation and provide Long the benefits which are
due to him pursuant to Sections 5(a), 5(b), and 5(c) of this Agreement for
periods prior to the effective date of termination. All indemnifications and
obligations set forth herein shall survive any termination or expiration hereof,
and the other terms and provisions hereof shall so survive to the extent
necessary in order to give full effect thereto.
12. Indemnification. Altair agrees to and hereby assumes all liability
for and indemnifies, protects, saves, and holds Long harmless from and against
any and all losses, costs, expenses, attorneys' fees, claims, demands,
liabilities, suits and actions of every kind and character which may be imposed
upon or incurred by Long on account of, arising directly or indirectly from, or
in any way connected with or related to Long's activities as an officer and
member of the Board of Directors of Altair, except as arise as a result of the
fraud, felonious conduct, gross negligence or acts of gross moral turpitude on
the part of Long.
13. Independent Counsel. Long has been advised to consult with
independent counsel and has consulted with independent counsel or has had an
opportunity to consult with independent counsel with respect to the advisability
of executing this Agreement.
14. Notices. All notices, requests, statements, deliveries, reports,
payments, consents, or other communications from or to a party to this Agreement
which are required, permitted or made necessary by the terms hereof shall be
written. All such communications shall be either delivered personally or sent by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to Long:
Exhibit 10.3
Xxxxxxx X. Xxxx
00 Xxxxxx Xxx
Xxxx, XX 00000
If to Altair:
Altair International Inc.
0xx Xxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X0X0
Attn: Xx Xxxxxxx
Either of the parties may change its respective address for
notice from time to time by giving notice of such change to the other party in
the manner specified in this section. Communications sent by registered mail,
certified mail, or by express courier shall be deemed to have been given and
received on the date of the receipt indicated on the return receipt therefore.
15. Modification. Subject to the provisions of Section 5 hereof, this
Agreement may not be extended, supplemented, modified, or otherwise altered
except by written instrument executed by Long and authorized representatives of
Altair.
16. Assignment. Long shall not assign all or any of his rights or
duties hereunder without the prior consent of Altair, and any assignment made
without such consent shall be void.
17. Governing Law and Severability. This Agreement, and its validity,
interpretation and enforcement, shall be governed by the laws of the State of
Wyoming, except those concerning conflicts of law. The individual provisions of
this Agreement are severable. If any such individual provision is contrary to or
in conflict with any requirement or principle of applicable statutory or common
law, then that provision and the remainder of this Agreement shall be construed
so as to give effect to the intent of the parties.
18. No Waiver. No waiver of any breach of or default in any of the
terms and provisions of this Agreement shall be considered valid unless in
writing, and no such waiver shall be deemed to constitute or be construed as a
waiver of any subsequent breach or default of the same, similar, or dissimilar
nature.
19. Sole Agreement. This Agreement and the exhibits incorporated herein
contain and set forth the entire agreement between the parties with respect to
the subject matter hereof. All previous agreements between the parties with
respect to the subject matter hereof are expressly rescinded and replaced
hereby. No prior written or prior or contemporaneous oral promises,
representations, or agreements of any nature whatsoever regarding the subject
matter hereof shall be binding upon the parties.
Exhibit 10.3
20. Interpretation. If necessary to give effect to the terms and
provisions herein, references to the singular shall include the plural and
references to the neuter gender shall include the masculine and/or the feminine
genders. In the event of any conflict between the terms and provisions of this
Agreement and the terms and provisions of the corporate Bylaws of Altair (as the
same may be amended from time to time), the terms and provisions of this
Agreement shall control to the fullest extent possible.
21. Cumulative Remedies. The remedies and conditions hereof are
intended to be cumulative and non-exclusive. Use of any one or more remedies
provided herein shall not preclude the use of any other remedies provided herein
or any other remedies that may be available by statute or through applicable
common law.
22. Multiple Counterparts. This Agreement may be signed in any number
of counterparts, all of which taken together shall constitute a fully-executed
agreement.
23. Attorneys' Fees. In the event of any litigation between the parties
regarding the interpretation or enforcement hereof, the court shall award
reasonable attorneys' fees to the party, which prevails by enforcing the terms
of this Agreement.
Exhibit 10.3
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day and year first above written.
Xxxxxxx X. Xxxx, an individual
----------------------------------------------
Altair International Inc.,
an Ontario corporation
By: Its Board of Directors
----------------------------------------------
Xxxxx X. Xxxxx
----------------------------------------------
Xxxxxx X. Xxxxxxx
----------------------------------------------
Xxxxxx Xxxxxxx
ATTEST:
---------------------------------
Xxxxx X. Xxxxx, Secretary
