Exhibit 10.3 - Employment Agreement - Xxxxxxx Xxxxxx
EMPLOYMENT AGREEMENT entered into on February 12, 2002, in the City of Montreal,
Province of Quebec
BETWEEN: XXXXXXX XXXXXX, domiciled and residing at:
000, Xx Xxxxx Xxxxxx, Xx.
Xxxxxxx, Xxxxxx, X0X 0X0;
(hereinafter referred to as the "Employee")
AND: EXPERTS CONSEILS XXXXXXX INC., a corporation duly incorporated under the
Canada Business Corporations Act, having its registered office at 000 XxXxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxx, X0X 0X0, represented herein by Xxxx X. Xxxxxxxxxx,
Director, duly authorized as he so declares;
(hereinafter referred to as "Dermond")
WHEREAS as of the date hereof, the Employee sold all of his shares in the share
capital of Xxxxxxx to XxXxxxxx Bay International Ltd. ("MKBY");
WHEREAS Xxxxxxx wishes to retain the Employee;
WHEREAS the Employee and Xxxxxxx are desirous of entering into an agreement for
the Employee's employment, all subject to the terms and conditions set forth in
this Agreement;
NOW IT IS HEREBY AGREED:
INTERPRETATION
Definitions
In this Agreement, the following words and expressions have the respective
meanings ascribed to them below:
"Affiliate" with respect to a Person means a Person that controls, is controlled
by or under common control with such Person. For purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise, and the terms
"controlling" and "controlled" have meaning collative to the foregoing;
"Agreement" means this employment agreement;
"Board of Directors" means the board of directors of Xxxxxxx;
"Business" means the fabrication, sale or lease of the Xxxxxxx Wind Generator
and related technology;
"Cause" shall include, but not be limited to the following, as a basis for
termination of employment, (i) wilful misconduct involving bad faith by the
Employee in respect of his obligations under this Agreement, which misconduct
causes or is intended by the Employee to cause significant injury to Xxxxxxx,
(ii) gross malfeasance, (iii) conduct by Employee which constitutes a breach of
the Employee's fiduciary duty or (iv) repeated refusal by the Employee to
perform reasonable and lawful job assignments which are not materially
inconsistent with his duties and responsibilities under this Agreement and such
failure continues for a period of ten (10) days after Xxxxxxx has given the
Employee written notice of such failure and requested the Employee to remedy
such failure.
"Commencement Date" means February 12, 2002;
"Disability" shall mean, with respect to the Employee, being physically or
mentally disabled, whether totally or partially, so that he is substantially
unable to perform his duties under this Agreement for a longer period than
twelve (12) consecutive months, or if he shall be disabled at different times
for more than twelve (12) months (whether working days or not) in any one period
of eighteen (18) consecutive months;
"Discoveries and Works" includes by way of example but without limitation,
intellectual property, trade secrets and other confidential information, patents
and patent applications, trademarks and trademark registrations and
applications, service marks and service xxxx registrations and applications,
trade names, copyrights and copyright registrations and applications;
"Employment Year" means the period beginning on February 12, 2002 and ending on
February 11, 2003, and each consecutive twelve-month period;
"Parties" means Xxxxxxx and the Employee and "Party" means one or the other as
the case may be;
"Person" means any individual, corporation, proprietorship, firm, partnership,
limited partnership, limited liability company, trust, association or other
entity;
"Restriction Period" means the period of time covering the Term plus a period
equivalent to eighteen (18) months following Employee's Termination Date;
"Subsidiary" means a corporation controlled by Xxxxxxx, or by another subsidiary
of Xxxxxxx;
"Term", "Initial Term", and "Additional Term" shall have the meaning set forth
in Section - RENV _Ref4972923
"Termination Date" means the effective date of the Employee's termination of
employment with Xxxxxxx, regardless of the reason;
"Territory" means the world.
EMPLOYMENT
Xxxxxxx hereby employs the Employee as Vice-president of Xxxxxxx as well as to:
provide technical expertise in furthering the development of the Xxxxxxx Wind
Generator;
provide technical expertise in developing off-grid power system technology; and
provide technical expertise to potential and actual customers, vendors and
partners of Xxxxxxx and its Affiliates and Subsidiaries,
as well as other duties Xxxxxxx may from time to time request, without
additional compensation. The Employee hereby accepts employment from Xxxxxxx to
perform the duties described above upon the terms and conditions set forth in
this Agreement.
DUTIES AND RESPONSIBILITIES
During the Term of this Agreement, the Employee shall devote his full time and
efforts to the performance of his duties and responsibilities under this
Agreement and to the business and affairs of Xxxxxxx, its Subsidiaries and
Affiliates, in general, and the Employee shall use his best efforts to promote
the interests thereof and shall faithfully and to the best of his ability serve
as the Vice-president of Xxxxxxx.
It is expressly understood and agreed that the Employee shall not engage in any
other business or business opportunity, whether or not such business activity is
pursued for gain, profit or other pecuniary advantage, provided however that:
the Employee may engage in personal, charitable, professional and investment
activities to the extent such activities do not conflict or interfere with the
Employee's duties and obligations under this Agreement or Employee's ability to
perform his duties and responsibilities under this Agreement; and
the Employee shall not be prevented from investing his assets in such form or
manner as will not require any substantial amount of time or services on the
part of the Employee in the operation of the affairs of the enterprises in which
such investments are made.
The Employee shall be subject to the direction of, and report only to, the Board
of Directors.
The Employee shall also perform duties commensurate with his position and such
specific duties and services as the Board of Directors shall reasonably request
consistent with the Employee's position.
It is contemplated that the Employee will be obliged from time to time and for
reasonable period of time to travel in the performance of his duties and
obligations under this Agreement. However, the principal place of employment of
the Employee which the Employee shall report for work will be at the Montreal,
Quebec office of Dermond.
TERM
Unless sooner terminated as provided for in this Agreement, the terms of the
Employee's employment shall commence on February 12, 2002 and shall continue for
five (5) year(s) (the "Initial Term"), provided, however, that the Initial Term
of the Employee's employment under this Agreement shall automatically be
extended for additional periods of twelve (12) months each (an "Additional
Term") unless and until either Xxxxxxx or the Employee shall have given the
other notice, not less than three (3) months prior to the expiration of the
Initial Term or any subsequent Additional Term, of the termination by the
notifying party of the Employee's employment effective as of the next succeeding
anniversary date of the expiration of the Initial Term or Additional Term (the
Initial Term and any Additional Term(s) are collectively referred to as the
"Term" in this Agreement).
COMPENSATION
During the Term of this Agreement, Xxxxxxx shall pay to the Employee an annual
base salary of sixty-five thousand Canadian dollars ($65,000 CDN). Such salary
shall be paid to the Employee in monthly instalments of $5,416.67 CDN (less
applicable taxes and other deductions at source), on the first business day of
each month. However, upon the completion of the first sale of a Xxxxxxx Wind
Generator by MKBY, Xxxxxxx or any of its Subsidiaries, the Employee's salary
will increase to eighty-five thousand Canadian dollars ($85,000 CDN) per year,
paid in monthly instalments, less any applicable taxes or deductions at source.
The compensation committee of the Board of Directors shall review the annual
base salary of the Employee each year and as a result of such review shall
increase the annual base salary, effective as of the commencement of each
successive Employment Year, to such greater amount as the Board of Directors may
deem reasonable in the light of the then business and financial affairs of
Xxxxxxx and such other factors as in the then circumstances of Xxxxxxx may be
appropriate.
EXPENSES
Xxxxxxx shall reimburse the Employee for all necessary and reasonable expenses
incurred by him in the performance of his duties under this Agreement. The
Employee shall, on being so required, provide Xxxxxxx with vouchers or other
evidence of actual payment of the said expenses in a form satisfactory to
Xxxxxxx.
BENEFITS
Employee Plans
During the Term of this Agreement, the Employee shall participate in all
employee benefit and insurance plans or programs established by Xxxxxxx in its
full discretion and from which he is not excluded from participating by reason
of the terms and conditions in the respective plans or programs.
Vacation
The Employee shall be entitled to four (4) weeks paid vacation in each
Employment Year to be taken at such times as may be appropriate having regard to
the requirements of Xxxxxxx'x business. The Employee shall not be entitled to
carry forward from one year to another untaken vacation time unless expressly
agreed between Xxxxxxx and the Employee.
RETURN OF DOCUMENTS AND PROPERTY
Upon the termination of Employee's employment with Xxxxxxx, or at anytime upon
the request of Xxxxxxx, Employee (or his heirs or personal representatives)
shall deliver to Xxxxxxx (a) all documents and materials (including without
limitation, computer files) containing trade secrets or other confidential
information relating to the business and affairs of Xxxxxxx, and (b) all
documents, materials and other property (including, without limitation, computer
files) belonging to Xxxxxxx, which in either case are in the possession or under
the control of Employee (or his heirs or personal representatives).
DISCOVERIES AND WORKS
All Discoveries and Works made or conceived by Employee during his employment by
Xxxxxxx, jointly or with others, that relate to the present or anticipated
activities of Xxxxxxx, or are used or usable by Xxxxxxx shall be owned by
Xxxxxxx. Employee shall (a) promptly notify, make full disclosure to, and
execute and deliver any documents requested by Xxxxxxx to evidence or better
assure title to Discoverie s and Works in Xxxxxxx, as so requested, (b) renounce
any and all claims, including but not limited to claims of ownership and
royalty, with respect to all Discoveries and Works and all other property owned
or licensed by Xxxxxxx, (c) assist Xxxxxxx in obtaining or maintaining for
itself at its own expense Canadian and foreign patents, copyrights, trade secret
protection or other protection of any and all Discoveries and Works, and (d)
promptly execute, whether during his employment with Xxxxxxx or thereafter, all
applications or other endorsements necessary or appropriate to maintain patents
and other rights for Xxxxxxx and to protect the title of Xxxxxxx thereto,
including but not limited to assignments of such patents and other rights. Any
Discoveries and Works which, within six (6) months after the Termination Date,
are made, disclosed, reduced to a tangible or written form or description, or
are reduced to practice by Employee and which pertain to the business carried on
or products or services being sold or developed by Xxxxxxx at the time of such
termination shall, as between Employee and Xxxxxxx be presumed to have been made
during Employee's employment by Xxxxxxx.
DEATH
The Employee's employment under this Agreement shall terminate upon his death.
In the event of the termination of the Employee's employment as a result of his
death, Xxxxxxx shall promptly pay to any one or more beneficiaries designated by
the Employee pursuant to a notice to Xxxxxxx or, failing such designation, to
the Employee's estate, the annual base salary provided for in this Agreement
through the conclusion of the month in which such termination occurs.
DISABILITY
The Employee's employment under this Agreement may be terminated as a result of
Disability at the option of Xxxxxxx by notice to the Employee, such termination
to be effective upon the receipt by the Employee of such notice. In the event of
the termination of the Employee's employment as a result of Disability, Xxxxxxx
shall pay the Employee two (2) times his full annual base salary less any credit
for sick pay or other benefits received by the Employee deriving from any
private medical insurance or other similar arrangements entered into by Xxxxxxx.
TERMINATION FOR CAUSE BY XXXXXXX
The Employee's employment under this Agreement may be terminated by Xxxxxxx for
Cause. In the event that the Employee's employment under this Agreement shall
validly be terminated by Xxxxxxx for Cause pursuant to this Section - RENV-
Ref497222905-12, Xxxxxxx shall promptly pay accrued but unpaid salary and
reimburse or pay any other accrued but unpaid amounts due under this Agreemen t
as of the date of termination, and thereafter Xxxxxxx shall have no further
obligations under this Agreement.
TERMINATION WITHOUT CAUSE
Xxxxxxx may terminate the Employee's employment at any time or any reason other
than those specified in Sections - RENV -Ref756526 -10, RENV-Ref756527-11 and
RENV-Ref497222905-12 hereof or for no reason whatsoever, by paying the Employee,
in lieu of applicable notice, the amount equivalent to his salary for the
remaining of the Term, on a prorated basis, which is to be no less than a
minimum of three (3) months of salary and no more than a maximum of twenty-four
(24) months salary, in effect at the time of Employee's termination, to be paid
within forty-five (45) days after the Termination Date.
CONFLICT OF INTEREST
During the Term of this Agreement, the Employee shall not, either directly or in
conjunction with any person, firm, association, syndicate, company or
corporation as principal, agent, shareholder, or in any other manner whatsoever,
carry on or be engaged in, or advise, lend money to, guarantee the debts or
obligations of, or permit his name or any part of it to be used or employed by
any person, firm, association, syndicate, company or corporation engaged in any
business in competition with the business then carried on by Xxxxxxx or a
Subsidiary, provided that the holding of not more than two per cent (2%) of the
issued shares of a public company listed on any recognized stock exchange in
Canada or traded in the Canadian over-the-counter market, shall not be deemed a
breach of this covenant.
CONFIDENTIALITY
During the Term of this Agreement and for a period of two (2) years thereafter,
the Employee shall keep secret and retain in strictest confidence, and shall not
use for his benefit or for the benefit or others, directly or indirectly, any
and all confidential information relating to Xxxxxxx and its Subsidiaries of
which the Employee shall obtain knowledge by reason of his employment under this
Agreement, including, without limitation, trade and business secrets or any
other non-public or proprietary information concerning the business, customer
lists, financial plans or projections, pricing policies, marketing plans or
strategies, business acquisition or divestiture plans, new personnel acquisition
plans, technical processes, inventions and other research projects, and except
in connection with the performance of his duties under this Agreement, he shall
not disclose any such information to anyone outside Xxxxxxx and any of its
Subsidiaries, except as required by law (provided prior written notice is given
by the Employee to Xxxxxxx) or except with the prior written consent of Xxxxxxx,
unless such information is known generally to the public or the trade through
sources other than the unauthorized disclosure by the Employee.
NON-COMPETITION AND NON-SOLICITATION
The Employee acknowledges and understands that (i) he is entering into this
Agreement and specifically agreeing to the provisions of this Section RENV-
Ref531161599 -16 contemporaneously with a transaction in which the Employee's
shares in Xxxxxxx, and one of the material assets represented in the value of
said share purchase, was the goodwill of Xxxxxxx, (ii) he has access to
Xxxxxxx'x clients, channels for developing clients and recruiting executives for
employment, and other confidential information of Xxxxxxx, (iii) he has direct
substantial responsibility to maintain Xxxxxxx'x business relationship with
clients of Xxxxxxx whose affairs he handles, (iv) the non-competition and non-
solicitation provisions set forth in this Section RENV - Ref531161599-16
constitute a material part of the consideration received by Xxxxxxx under this
Agreement, (v) due to the specific nature and limited market for Xxxxxxx'x
activities, the definition of Territory as set forth in subsection RENV-
Ref1209391-1., RENV-Ref1209397-p hereof is reasonable and justified, (vi) it
would be unfair to Xxxxxxx if the Employee were to appropriate for himself or
for others the benefits of Xxxxxxx'x many years of developing such business
relationships, especially when the Employee enjoys a relationship with clients
of Xxxxxxx as a result of his being introduced to the client's personnel as the
representative of Xxxxxxx, (vii) it would be unfair to Xxxxxxx if the Employee
were to appropriate for himself or for others the benefits of the business,
personnel and other confidential information which Xxxxxxx has developed in the
conduct of its business, and (viii) it is therefore fair that reasonable
restrictions as set forth below should be placed on certain activities of the
Employee after his employment with Xxxxxxx terminates.
The Employee shall not, without the prior written consent of Xxxxxxx, at any
time during the Restriction Period, either individually or in partnership or
jointly or in connection with each other or any Person, as principal, agent,
consultant, lender, contractor, employer, employee, investor or shareholder, or
in any other manner, directly or indirectly, anywhere within the Territory:
advise, manage, carry on, establish, acquire control of, work for, perform,
render, or engage in, any business or service or activity that is similar to or
competitive with the Business or any portion of the Business; or
invest in or lend money to, or guarantee the debts or obligations of, any
business or service or activity, or any Person engaged in any business or
service or activity, that is similar to or competitive with the Business or any
portion of the Business; or
permit the Employee's name or any part thereof to be used or employed by any
Person that operates, is engaged in or has an interest in any business or
service or activity that is similar to or competitive with the Business or any
portion of the Business. Without limiting the effect of the foregoing, competing
with or competitive with the Business, includes without limitation, directly or
indirectly, engaging in or permitting the solicitation or sale of any products
or services of the type included within the meaning of term Business as of the
termination of the Employee's employment with Xxxxxxx.
The Employee shall not during the Restriction Period, without the written
consent of Xxxxxxx, directly or indirectly (as owner, principal, agent, partner,
officer, employee, independent contractor, consultant, stockholder, or
otherwise), (i) solicit any Client (as this term is defined below) for a purpose
or objective of providing to such Client, or obtaining an engagement from such
Client to provide, any services, businesses or activities included within the
term or (ii) solicit for employment or otherwise induce any employee employed by
Xxxxxxx or any of its Affiliates at the date of termination of the Employee's
employment with Xxxxxxx to leave such employ or offer to employ or employ such
employee. The term "Client" shall mean one or more of the following:
any current or former client or customer of Xxxxxxx or its Affiliates;
any current client or current customer of Xxxxxxx or its Affiliates if at any
time since the Commencement Date the Employee had contact with such client or
customer, or personally solicited such client or customer, or rendered services
to such client or customer, or otherwise developed any relationship with such
client or customer, or
any former client or former customer of Xxxxxxx or its Affiliates who was,
during the thirty-six (36) months preceding the Termination Date, a client or
customer of Xxxxxxx or its Affiliates, if at any time since the Commencement
Date the Employee had contact with such client or customer, or solicited such
client or customer, or rendered services to such client or customer, or
otherwise developed any relationship with such client or customer.
Upon the termination of the Employee's employment for whatever reason, the
Employee shall deliver to Xxxxxxx all documents, papers, records, accounts of
all and any description relating to the affairs of Xxxxxxx within his possession
or under his control, it being the intention of the Employee and Xxxxxxx that
all such notes or memoranda made by the Employee during the course of his
employment under this Agreement shall be the property of Xxxxxxx and shall be
left at its registered office or principal place of business upon the
termination of the Employee's employment.
WITHHOLDING
Xxxxxxx shall be entitled to withhold from any and all amounts payable to the
Employee under this Agreement such amounts as from time to time be required to
be withheld pursuant to applicable tax laws and regulations.
GENERAL PROVISIONS
Further Assurances
Each of the parties upon the request of any other party, whether before or after
the date hereof, shall do, execute, acknowledge and deliver or cause to be done,
executed, acknowledged or delivered all such further acts, deeds, documents,
assignments, transfers, conveyances, powers of attorney and assurances as may be
reasonably necessary or desirable to effect complete consummation of the
transactions contemplated by this Agreement.
Successors in Interest
This Agreement and the provisions hereof shall enure to the benefit of and be
binding upon the Parties and their respective successors and assigns.
Notices
Any notice, direction or other instrument required or permitted to be given
hereunder shall be in writing and given by delivery or sent by (i) registered or
certified mail, (ii) reputable overnight courier, (iii) personal delivery, (iv)
telecopier or similar telecommunication device and addressed:
in the case of Xxxxxxx at:
Experts Conseils Xxxxxxx Inc.
c/x XxXxxxxx Bay International, Ltd.
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx
X.X.X. 00000
Attention: Xx. Xxxx X. Xxxxxxxxxx
Telecopier: (000) 000-0000
in the case of the Employee at:
Xxxxxxx Xxxxxx
000 Xx Xxxxx Xxxxxx,
Xx. Xxxxxxx, Xxxxxx
X0X 0X0
Telecopier: (000) 000-0000
Any notice, direction or other instrument given as aforesaid shall be deemed to
have been effectively given and received, if sent by mail on the fourth (4th)
business day following such mailing, if sent by telecopier or similar
telecommunications device on the next business day following such transmission
or, if delivered, to have been given and received on the date of such delivery.
Any party may change its address for service by written notice given as
aforesaid.
Amendments
This agreement may not be amended except by written instrument duly executed by
or on behalf of all parties hereto.
Language
The Parties hereby acknowledge that they have requested that this Agreement and
all related documents be drawn up in the English language. Les parties aux
presentes reconnaissent qu'elles ont exige que la presente convention et tous
les documents qui s'y rattachent soient rediges en anglais.
Governing Laws
This Agreement shall be governed by and construed in accordance with the Laws of
the Province of Quebec and the Laws of Canada applicable therein. The Parties
agree to submit to the jurisdiction of the Courts of Quebec, District of
Montreal.
Gender
Any reference in this Agreement to any gender shall include all genders and
words used herein importing the singular number only shall include the plural
and vice versa.
Headings
The division of this Agreement into articles, sections, subsections and other
subdivisions and the insertion of headings are for convenience of reference only
and shall not affect or be utilized in the construction or interpretation
hereof.
Severability
Any article, section, subsection or other subdivision of this Agreement or any
other provision of this Agreement which is, or becomes, illegal, invalid or
unenforceable shall be severed herefrom and shall be ineffective to the extent
of such illegality, invalidity or unenforceability and shall not affect or
impair the remaining provisions hereof, which provisions shall be severed from
any illegal, invalid or unenforceable article, section, subsection or other
subdivision of this Agreement or any other provision of this Agreement.
Waiver
No waiver of any of the provisions of this Agreement shall be deemed to
constitute a waiver of any other provision (whether or not similar) nor shall
such waiver constitute a continuing waiver unless otherwise expressly provided
in a written document duly executed by the party to be bound thereby.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and year
first above written.
EXPERTS CONSEILS XXXXXXX INC.
per: /s/ Xxxx X. Xxxxxxxxxx
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Xxxx X. Xxxxxxxxxx
Director
Witness: /s/ XXXXXXX XXXXXX
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XXXXXXX XXXXXX
