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PROCESS TECHNOLOGIES, INC.
and
RADIANT ENERGY CORPORATION
as Corporations,
and
C. XXXX XXXX
as Chew
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EMPLOYMENT AGREEMENT
October 30, 1998
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EMPLOYMENT AGREEMENT
Employment agreement dated October 30, 1998 (the "Effective Date"), between
Radiant Energy Corporation and Process Technologies, Inc. (The "Corporations" or
the "Companies") and C. Xxxx Xxxx ("Xxxx").
WHEREAS the Corporations and Chew are desirous to agree on terms of the
employment relationship between now and the retirement of Chew for their mutual
benefit:
AND WHEREAS the terms of the employment relationship between the parties will
commence on the Effective Date of this Agreement;
AND WHEREAS the Corporations and Chew 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:
"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)
"Change of Control" means either (I) the occurrence of any transaction
that results in any person acting at Arm's Length from the Corporations,
obtaining shares or debt carrying that results in the execution of
significant influence on more than 50% of the votes attaching to all of
the then outstanding Corporations' shares; or (ii) the sale of all or
substantially all of the assets used in the Business to any person acting
at Arm's Length from the Corporations;
"Customer" means any Person, which in the year preceding the date of the
termination of the employment of Chew with the Corporations, has been a
customer of the Corporations or a solicited potential customer of the
Corporations;
"Person" includes, without limitation, an individual, corporation,
partnership, joint venture, association, trust, firm, unincorporated
organization or other legal or business entity;
"Subsidiary" has the meaning given to that term in the Business
Corporations Act (Ontario) as now in effect; and
"Territory" means the present geographical area of: (i) the Province of
Ontario; plus (ii) the remainder of Canada; plus (iii) the United States
of America;
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(1) or any related application of the Corporations technology
ARTICLE 2
SCOPE OF EMPLOYMENT
2.1 Employment The Corporations hereby agree to employ Chew as Employee and Chew
hereby accepts such employment on a basis as outlined in Section 2.2 until July
7, 2000. Notwithstanding Chew's resignation under section 5.5 hereunder, Chew
shall serve as non-executive Chairman and a member of the Executive Committee of
the Board of Directors of the Corporations for the remainder of his current
term, and thereafter as may be elected by the shareholders. This agreement shall
remain in full force and effect, and the obligations of the Corporations shall
continue notwithstanding Chew's resignation as Chairman of the Board of
Directors or Director of the Corporations, during the term of this agreement.
2.2 Duties and Responsibilities The duties and responsibilities of Chew shall be
on a as requested basis by management, given at least two weeks notice, to
perform the following:
2.2.1 Attend up to eight trade shows per year between the effective date and
July 7, 2000;
2.2.2. Establish contact and meet with representatives of aviation associations
at least once a year as might be required by the Corporations; and
2.2.3. Visit at least one overseas government agency as might be required by the
Corporations.
2.3 Full and Faithful Service Chew 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, Chew 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 Board of Directors, 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 Chew in an amount equal to that
provided to other directors and officers of the Corporations from time to time.
2.5 Acknowledgment Chew acknowledges that the effective performance of his
duties requires the highest level of integrity and the Corporation's complete
confidence in Chew's relationship with other employees of the Corporations and
with all persons dealt with in the course of his employment. Chew 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.
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, Chew shall be paid a base
salary, at the rate of Ninety Thousand Dollars ($90,000) per annum. The base
salary shall be paid biweekly in arrears, subject to all necessary statutory
deductions up to July 7, 2000.
4.2 Automobile and personal computer During the term of his employment as herein
designated, with the Corporations, the Corporations shall provide Chew with the
automobile currently being used by Chew. On July 7, 2000 the automobile will be
sold to Chew for $1.00 and the Companies agree to clear any and all liens on the
automobile. The Companies also agree to sell to Chew on July 7, 2000 for $1.00
the personal computer and printer currently being used by Chew. All other
automobile and computer expenses will be provided to Chew through out the term
of this agreement on the same basis as currently provided to other Senior
Management of the Companies.
4.3 Change of Control Payment to Chew under this agreement shall continue
regardless of the occurrence of a change of control.
4.4 Benefits Unless otherwise covered by another insured benefit program, Chew
will be entitled, during the course of his employment with the Corporations,
through the time Chew reaches the age of 65, 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.
4.5 Expenses During the term of his employment with the Corporations, Chew shall
be reimbursed for all reasonable travel and business expenses (other than
automobile which are to be reimbursed in accordance with Section 4.2), including
charges associated with the use of personal or mobile telephones used for
business related to the Companies, personal computer costs, business association
fees, 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, Chew shall furnish to the Corporations, receipts
for expenses incurred, to be approved by the Vice President -Engineering or
Officer designated by the Board of Directors.
4.6 Contingency The obligations of the Corporations hereunder are contingent
upon completion of the next phase of financing. Until such completion, Chew
shall receive all current remuneration. The Corporations shall notify Chew per
section 9.2 at such time as the next phase of financing is complete, at which
time this contingency shall be deemed removed, and the obligations of the
Corporations under this agreement shall commence.
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:
(i) by the Corporations, at any time, for cause, in which case Chew's employment
shall terminate immediately upon receipt of a written notice from the
Corporations to Chew setting out the cause for termination, and the Corporations
shall pay to Chew 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 Chew; (b) willful violation of Companies policy or code of conduct
adopted by the Board of Directors; or (c) final judgment convicting Chew of an
indictable offense under criminal statute; or
(ii) by the Corporations for any reason other than in 5.1 (i) and at any time
upon payment to Chew of the termination payments provided for in Section 5.2.
5.2 Termination Payments If Chew's employment with the Corporations is
terminated pursuant to Subsection 5.1 (ii), the Corporations shall:
(i) continue Chew's Base Salary as outlined in Paragraph 4.1, and continue all
benefit arrangements as outlined in this agreement.
(ii) provide Chew clear, and unencumbered, title and possession of his then
current company automobile, computer and printer, as provided under Section 4.2.
5.3 Release of Claims Upon the expiry of this Agreement, upon notice being given
pursuant to Section 5.1(i); or upon the payment of the amounts referred to in
Section 5.1(ii); as the case may be, the employment of Chew shall be wholly
terminated and this Agreement shall cease to have any further effect save and
except in respect of Articles 6, 7 and 8 which shall continue in full force and
effect for a concurrent period as determined in Section 5.2 (i), plus an
additional 2 years. Upon any such termination, Chew 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.
5.4 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 Chew for early termination of this Agreement, said amount being liquidated
damages and not a penalty.
5.5 Resignation Chew agrees that upon execution of this agreement, he shall
immediately tender his resignation from any position he may hold as an officer
of the Corporations or its subsidiaries.
ARTICLE 6
CONFIDENTIALITY
6.1 Confidential Information Chew 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 them a commercial
advantage over others. Except as may be required by law, Chew agrees to not use,
directly or indirectly, for his own account or for the account of any person,
firm, corporation or other entity or disclose to any person, firm, corporation
or other entity, the Corporations' 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.
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 Chew 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 Chew 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 Chew 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 Chew, Chew 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.
ARTICLE 7
NON-COMPETITION AND NON-SOLICITATION
7.1 Non-Competition Chew 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 (a) where Chew is
terminated by the Corporations for cause or (b) where Chew is terminated by the
Corporations other than for cause, during the relevant monthly period for which
Chew received termination payments pursuant to Subsection 5.2(i) or (ii), 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:
(i) 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;
(ii) interfere or attempt to interfere with the Business or persuade or attempt
to persuade any Customer, employee or supplier of the Corporations or their
Subsidiaries to discontinue or alter such Person's relationship with the
Corporations or their Subsidiaries;
(iii) directly or indirectly, canvas, solicit or attempt to solicit, accept or
supply goods or services to any Customer, except on behalf of and for the
benefit of the Corporations or its Subsidiaries except with respect to a
business not the same as or similar to the Corporations Business; or
(iv) 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 Chew's employment.
7.2 Exception Provided that nothing construed herein shall prohibit Chew from
holding for investment purposes only up to 5% of the issued publicly traded or
privately held shares of any 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 Chew 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. Chew 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 Chew
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.
9.2 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:
00 Xxxxxx Xxxxx,
Xxxxxxx Xxxx, XX
00000
(b) To Chew:
X.X. Xxx 0000
Xxxxxxxxxxxxx, 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 Chew without the prior
written consent of the Corporations, which consent may be withheld for any
reason.
9.8 Benefit This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, legal personal
representatives, successors and permitted assigns.
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 Chew 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 CORPORATION
Per:
Per:
PROCESS TECHNOLOGIES, INC.
Per:
Per:
SIGNED, SEALED AND DELIVERED )
IN THE PRESENCE OF: )
)
)
)
___________________________________ ________________________________________
WITNESS C. Xxxx Xxxx
