Management Agreement Management Agreement Between Poly-Pacific International Inc. And Poly-Pacific Inc. And Mr. Thomas Lam
EXHIBIT
4.4
Between
And
Poly-Pacific
Inc.
And
Xx.
Xxxxxx Xxx
 |
TABLE OF
CONTENTS
|
XXXXXX
XXX, (hereinafter "Manager") |
1 |
|
OF
THE THIRD PART |
1 |
|
SECTION
1 - INTERPRETATION |
1 |
|
1.1
Definitions |
1 |
|
1.2
Headings |
3 |
|
SECTION
2 - APPOINTMENT OF MANAGER |
3 |
|
2.1
Appointment of the Manager |
3 |
|
SECTION
3 - MANAGEMENT SERVICES |
4 |
|
3.1
Management Services |
4 |
|
3.2
Restrictions on Duties of Manager |
4 |
|
SECTION
4 - MANAGER’S FEES AND EXPENSES |
5 |
|
4.1
Management Fee |
5 |
|
4.2
Reimbursement of Expenses |
5 |
|
4.3
Payment of GST |
5 |
|
4.4
Withholding Tax |
5 |
|
SECTION
5 - STANDARD OF CARE |
6 |
|
5.1
Standard of Care |
6 |
|
SECTION
6 - INDEMNIFICATION |
7 |
|
6.1
Indemnification of Manager |
7 |
|
SECTION
7 - TERM AND TERMINATION |
7 |
|
7.1
Initial Term and Renewal Term |
7 |
|
7.2
Termination by PPI |
7 |
|
7.3
Termination by Poly-Pacific |
7 |
|
7.4
Termination of Manager for Cause |
7 |
|
7.5
For Disability or Death of Manager |
8 |
|
SECTION
8 - NON-COMPETE/NON-SOLICITATION |
9 |
|
8.1
Non-Competition |
9 |
|
8.2
Non-Solicitation |
9 |
|
8.3
Assignment of Confidential Information and Intellectual
Property |
9 |
|
SECTION
9 - MISCELLANEOUS |
10 |
|
9.1
No Partnership, Joint Venture, Trust or Agency |
10 |
|
9.2
Amendments |
11 |
|
9.3
Assignment |
11 |
|
9.4
Severability |
11 |
|
9.5
Force Majeure |
11 |
|
9.6
Governing Law |
11 |
|
9.7
Further Assurances |
12 |
|
9.8
Time of the Essence |
12 |
|
9.9
Entire Agreement |
12 |
|
9.10
Enurement |
12 |
AGREEMENT
made effective this 1st day of
January, 2002.
BETWEEN:
(hereinafter
“Poly-Pacific”)
OF THE
FIRST PART
-and-
POLY-PACIFIC
INC.,
(hereinafter
“PPI”)
OF THE
SECOND PART
- and
-
XXXXXX
XXX,
(hereinafter
"Manager")
OF THE
THIRD PART
WHEREAS
Poly-Pacific wishes to retain the Manager through PPI to provide management and
other services to Poly-Pacific;
AND
WHEREAS the Manager is willing to render such services on the terms and
conditions hereinafter set forth;
NOW
THEREFORE in consideration of the premises and the mutual covenants herein
contained, the sufficiency of which is hereby acknowledged by each of the
parties hereto, the parties hereto agree as follows:
SECTION
1 -
INTERPRETATION
1.1 Definitions
As used
herein, the following terms shall have the meanings set forth
below:
1
| 1.1.1 |
“Agreement”
means this management agreement, as amended from time to
time; |
| 1.1.2 |
“Business”
means the business currently and heretofore carried on by Poly-Pacific
consisting of plastic media blasting on a world-wide
scale; |
| 1.1.3 |
“Confidential
Information” shall mean all information, whether or not reduced to writing
and whether or not patentable or protected by copyright, which the Manager
or PPI receives, received access to, conceived or developed, in whole or
in part, directly or indirectly, in connection with and while PPI provides
management services to Poly-Pacific and while the Manager remains employed
by Poly-Pacific and includes, but is not limited
to: |
| 1.1.3.1 |
information
concerning devices, instruments, equipment, techniques and technology
having to do with the plastics media blasting business, processing, sales
and anything related to plastics media blasting and software, databases
and services, including but not limited to, source codes, object codes,
flowcharts and programs and other materials whatsoever (tangible or
intangible and machine readable or human
readable); |
| 1.1.3.2 |
information
concerning products and services in any of the fields and applications
mentioned above in subparagraph 1.1.3.1; |
| 1.1.3.3 |
information
concerning research, development and commercialization of devices,
equipment, instruments and other inventions having to do with the field
and applications described in subparagraph 1.1.3.1; |
| 1.1.3.4 |
products
and devices developed, patents, discoveries, concepts, compilations and
ideas of any nature whatsoever including, without limitation, the nature
and results of research and development activities, the software,
analytical tools to facilitate research in the field of plastics media
blasting and its processing, sales and any technology related thereto,
techniques, computer programs and models, designs, drawings, and
specifications; |
| 1.1.3.5 |
production
processes, marketing techniques and arrangements, marketing materials,
promotions, demos and publications, mailing lists, purchasing information,
pricing policies, quoting procedures, financial information, customer and
prospect names and requirements, employee, customer, supplier and
distributor data and other materials or information relating to
Poly-Pacific and Business and activities and the manner in which they do
business, including but not limited to the names of plastics companies and
firms; and |
2
| 1.1.3.6 |
any
other materials or information related to, or that is or may be used in
the Business or activities of Poly-Pacific
which: |
| 1.1.3.6.1 |
are
not generally known to others engaged in similar business or
activities; |
| 1.1.3.6.2 |
has
an economic value from not being generally known;
and |
| 1.1.3.6.3 |
is
the subject of efforts that are reasonable in the circumstances to
maintain its secrecy. |
| 1.1.4 |
"Intellectual
Property" shall have the meaning prescribed to it at subsection
9.3
herein; |
| 1.1.5 |
“Manager”
means Xxxxxx Xxx, an individual currently residing in the City of
Edmonton, in the Province of Alberta, or such other location as a result
of business reasons, the party of the third
part; |
| 1.1.6 |
“Poly-Pacific”
means Poly Pacific International Inc., the party of the first
part; |
| 1.1.7 |
"PPI"
means Poly-Pacific Inc., a corporation incorporated under the laws of the
Province of Alberta, the party of the second
part; |
| 1.1.8 |
“Services”
shall have the meaning set forth in subsection 3.1
hereof. |
1.2 Headings
The
section headings in this Agreement have been inserted for convenience of
reference only and shall not be construed to affect the meaning, construction or
effect of this Agreement.
3
SECTION
2 -
APPOINTMENT OF MANAGER
2.1 Appointment
of the Manager
Poly-Pacific
hereby appoints PPI to provide the Services to Poly-Pacific through the Manager
subject to the terms and conditions of this Agreement and PPI and the Manager
accept such appointment.
SECTION
3 -
MANAGEMENT SERVICES
3.1 Management
Services
PPI shall
provide and perform for Poly-Pacific the following services (the “Services”)
through the Manager:
| 3.1.1 |
advice
and consultation concerning the affairs of Poly-Pacific, its business
planning, support, guidance and policy making;
|
| 3.1.2 |
provide
the services of a senior officer of PPI to act as Manager of Poly-Pacific,
who shall, unless the parties otherwise agree, be Xxxxxx
Xxx; |
| 3.1.3 |
advising
on cash management and investment services including arranging, assisting
and negotiating banking and financing arrangements for Poly-Pacific;
|
| 3.1.4 |
reports
to Poly-Pacific directors with respect to the business and affairs of
Poly-Pacific as may be requested by Poly-Pacific directors;
|
| 3.1.5 |
generally
provide such other services as may be required by Poly-Pacific in the
conduct of its business and affairs. |
3.2 Restrictions
on Duties of Manager
During
the term of this Agreement, PPI shall:
| 3.2.1 |
not
seek, charge or receive fees, commissions or other compensation in
connection with the Services, other than the fees and reimbursement
amounts specifically provided for herein;
and |
| 3.2.2 |
maintain
separate bank accounts for its own funds and shall not commingle its own
funds with any funds of Poly-Pacific. |
4
SECTION
4 -
MANAGER’S FEES AND EXPENSES
4.1 Management
Fee
| 4.1.1 |
Poly-Pacific
shall pay to PPI, in connection with the Services provided for by the
Manager, for as long as the Manager is located in and is a resident of
Canada, an annual management fee of eighty thousand Canadian dollars
(CAN$80,000.00) which shall be paid in monthly installments on the last
day of each month with a mid-month advance, or on such intervals as may be
agreed upon between the parties, less all deductions or withholdings
required by law. |
| 4.1.2 |
Poly-Pacific
shall pay PPI, in connection with the Services provided for by the
Manager, for as long as he is located in and is a resident of the United
States of America, an annual management fee of eighty thousand US dollars
(US$80,000.00) which shall be paid in monthly installments on the last day
of each month with a mid-month advance, or on such intervals as may be
agreed upon between the parties, less all deductions or withholdings
required by law. |
| 4.1.3 |
Paragraphs
4.1.1
and 4.1.2
are mutually exclusive. |
4.2 Reimbursement
of Expenses
Poly-Pacific
shall be solely responsible for all out-of-pocket costs and expenses incurred by
PPI in carrying on its obligations or duties under this Agreement.
4.3 Payment
of GST
All
amounts payable to PPI pursuant to this Agreement shall be exclusive of any
goods and services tax or similar tax required to be paid thereon pursuant to
the Excise
Tax Act (Canada)
or otherwise (collectively, “GST”) and PPI shall be paid, in addition to such
amounts, all GST imposed on PPI with respect to such amounts.
4.4 Withholding
Tax
Poly-Pacific
shall withhold from amounts payable to PPI or the Manager pursuant to this
Agreement all amounts required to be so withheld pursuant to the Income
Tax Act
(Canada).
5
SECTION
5 -
BENEFITS
5.1 Poly-Pacific
shall provide PPI in connection with the Manager's services, a car allowance in
the amount of eight hundred dollars ($800.00) per month, in the currency of the
country in which the Manager is resident, which PPI shall apply to insurance,
repairs, maintenance, registration and operating costs.
5.2 Subject
only to such limitation or restriction as may relate to the Manager personally,
Poly-Pacific shall include the Manager in all of its employee benefit plans,
including, without limiting the generality of the foregoing, its medical,
health, dental and insurance plans and shall pay all costs and expenses of same
on behalf of the Manager.
5.3 The board
of directors of Poly-Pacific or any duly authorized committee of same may, in
their sole discretion, award a bonus to PPI in connection with the services of
the Manager at any time throughout the Term, if it is deemed
appropriate.
5.4 The board
of directors of Poly-Pacific or any duly authorized committee of same may, in
their sole discretion, grant to the Manager stock options pursuant to
Poly-Pacific's stock option plan at any time throughout the Term on the terms
and conditions the board of directors deem appropriate, all of which is subject
to the rules and procedures of the Canadian Venture Exchange.
5.5 The
Manager shall be entitled to six (6) weeks paid vacation by PPI during the
course of each fiscal year of PPI. PPI shall take into account the staffing
requirements of Poly-Pacific and the need for the timely performances of the
Services.
SECTION
6 -
STANDARD OF CARE
6.1 Standard
of Care
In the
provision of the Services to Poly-Pacific by PPI and the Manager hereunder, both
PPI and the Manager shall exercise the degree of care, diligence and skill that
a reasonably prudent advisor or manager having responsibility for the manager of
a similar business would exercise in comparable circumstances.
6
SECTION
7 -
INDEMNIFICATION
7.1 Indemnification
of Manager
The
Manager and any person who, at the request of the Manager, is serving or shall
have served as a director, officer or employee of the Manager shall be and is
hereby indemnified and saved harmless by Poly-Pacific against all losses,
claims, damages, liabilities, obligations, costs and expenses (including
judgments, fines, penalties, amounts paid in settlement and counsel and
accountant’s fees) of whatsoever kind or nature incurred by or asserted against
any of such indemnified parties in any way arising from and related in any
manner to this Agreement or the provision of Services hereunder, unless such
indemnified party is found liable for or guilty of fraud, willful default or
gross negligence. The foregoing right of indemnification shall not be exclusive
of any other rights to which the Manager or any person referred to in this
Section may be entitled as a matter of law or equity or which may be lawfully
granted to such person. The Manager declares that it holds the rights and
benefits provided to its directors, officers or employees in trust for and on
behalf of such persons.
SECTION
8 -
TERM AND TERMINATION
8.1 Initial
Term and Renewal Term
This
Agreement shall be in effect for a term of two (2) years unless and until it is
terminated as herein provided and shall automatically be renewable for one
additional year on the same terms and conditions.
8.2 Termination
by PPI
PPI shall
be entitled to terminate this Agreement and the Manager’s appointment, and all
authority hereunder shall be terminable at any time on 180 days’ prior written
notice to Poly-Pacific.
8.3 Termination
by Poly-Pacific
This
Agreement and the Manager’s appointment and all authority hereunder shall be
terminable at any time on 180 day’s prior written notice from
Poly-Pacific.
7
8.4 Termination
of Manager for Cause
Poly-Pacific
may terminate the services of the Manager without notice or any payment in lieu
of notice for cause which, without limiting the generality of the foregoing,
shall include:
| 8.4.1 |
if
there is a repeated and demonstrated failure on the part of the Manager to
perform the material duties of the Manager's position in a competent
manner and where the Manager fails to substantially remedy the failure
within a reasonable period of time after receiving written notice of such
failure from Poly-Pacific; |
| 8.4.2 |
if
the Manager is convicted of a criminal offence involving fraud or
dishonesty; |
| 8.4.3 |
if
the Manager or any member of his family makes any personal profit arising
out of or in connection with a transaction to which Poly-Pacific is a
party or with which it is associated without making disclosure to and
obtaining the prior written consent of
Poly-Pacific; |
| 8.4.4 |
if
the Manager fails to honour his fiduciary duties to Poly-Pacific,
including the duty to act in the best interests of Poly-Pacific;
or |
| 8.4.5 |
if
the Manager disobeys reasonable instructions given in the course of his
services to the Chairman by the board of directors of Poly-Pacific that
are not inconsistent with the Manager's position and not remedied by the
Manager within a reasonable period of time after receiving written notice
of such disobedience. |
8.5 For
Disability or Death of Manager
This
Agreement may be immediately terminated by Poly-Pacific by notice to PPI if the
Manager becomes permanently disabled. The Manager shall be deemed to have become
permanently disabled if in any year during the term of this Agreement, because
of ill health, physical or mental disability, or for other causes beyond the
control of the Manager, the Manager has been continuously unable or unwilling or
has failed to perform the Manager's duties for 120 consecutive days, or if,
during any year of the employment period, the Manager has been unable or
unwilling or has failed to perform his duties for a total of 180 days,
consecutive or not. This Agreement shall terminate without notice or payment in
lieu thereof upon the death of the Manager.
8.6 If the
Agreement is terminated for any other reason other than the reasons set forth or
referred to in sections 8.4 and
8.5 above,
PPI shall be entitled to receive two (2) years management fees.
8
SECTION
9 -
NON-COMPETE/NON-SOLICITATION
9.1 Non-Competition
PPI and
the Manager shall not at any time within two (2) years from the termination of
this Agreement, either solely or jointly with, or as agent for any other person,
directly, carry on or be concerned or interested in carrying on any business
which directly competes with the Business of Poly-Pacific, within the area where
the Business of Poly-Pacific is carried out or such other area that a court of
competent jurisdiction determines is reasonable having regard to the nature and
extent of Poly-Pacific's Business, except as Poly-Pacific may agree in
writing.
9.2 Non-Solicitation
PPI and
the Manager further agree and acknowledge that they shall not, for a period of
two (2) years following the termination of this Agreement, directly or
indirectly, either as employer, consultant, agent, principal, partner,
co-venturer, shareholder, proprietor, investor, financier, employee, director,
or in any other individual or representative capacity:
| 9.2.1 |
solicit,
encourage or facilitate clients or customers of Poly-Pacific, or any of
its affiliates, to alter, modify, vary, diminish or cease their client or
customer relationship with Poly-Pacific, or any of its
affiliates; |
| 9.2.2 |
solicit,
induce, encourage or facilitate other employees or consultants of
Poly-Pacific, or any of its affiliates, to leave the employment of, or
consulting relationship with, Poly-Pacific, or any of its
affiliates. |
PPI and
the Manager acknowledge and agree that the covenants contained in this Agreement
are reasonably required to protect the interests of Poly-Pacific, and its
affiliates, and do not materially impact, or affect, PPI or the Manager's
ability to obtain other service arrangement or employment nor work harshly upon
them.
9.3 Assignment
of Confidential Information and Intellectual Property
Any
concept, idea, invention or improvement or design made or process or information
discovered or copyright work or trade xxxx or trade name ("Intellectual
Property") relating to the Business or Poly-Pacific or capable of being used or
adapted for use by Poly-Pacific created by the Manager or PPI or communicated to
the Manager or PPI by any other employee of Poly-Pacific, its subsidiaries,
associates or affiliates, during the term of this Agreement and one (1) year
after the termination of this Agreement shall belong to and be the absolute
property of Poly-Pacific. Furthermore, the Manager and PPI shall assign to the
Poly-Pacific all Confidential Information and Intellectual Property whether it
is capable of being patented or registered or not and whether or not it is made
or discovered in the course of the provision of the Services unless such
Confidential Information or Intellectual Property was in existence prior to the
commencement of a similar business by any subsidiary, associate or affiliate of
Poly-Pacific.
9
Both PPI
and the Manager hereby assign and agree to assign to Poly-Pacific all of their
right, title and interest in and to all Confidential Information or Intellectual
Property conceived or reduced to practice during the term of this Agreement and
for one (1) year after the termination of this Agreement, all applications
disclosing any such Confidential Information or Intellectual Property, and all
letters certificates of grants upon such Confidential Information or
Intellectual Property. PPI and the Executive further agree to sign promptly and
return to Poly-Pacific all assignments and documents required to properly enable
Poly-Pacific to establish its rights.
The
Manager acknowledges that prior to the Effective Date, he was employed by
Poly-Pacific, during which time of employment certain inventions and works may
have been conceived and produced by him. The Manager and PPI acknowledge and
agree that the assignment obligations as prescribed in this Section
9 apply
also to the Confidential Information and Intellectual Property conceived and
produced during his earlier time of employment with Poly-Pacific.
Both PPI
and the Manager hereby irrevocably appoints Poly-Pacific be their attorney in
their names and on their behalf to execute and do any such instrument or thing
and generally to use their names for the purpose of giving to Poly-Pacific the
full benefit of this Section
9 and a
certificate in writing signed by any director or by the secretary for the time
being of Poly-Pacific that any instrument or act falls within the authority
hereby conferred shall be conclusive evidence that such is the case and any
third party shall be entitled to rely on such certificate without further
enquiry.
SECTION
10 -
MISCELLANEOUS
10.1 No
Partnership, Joint Venture, Trust or Agency
The
parties to this Agreement are not and shall not be deemed to be partners or
joint venturers with one another pursuant to this Agreement and nothing herein
shall be construed so as to impose any liability as such on any of
them.
The
parties to this Agreement agree that PPI and the Manager shall perform their
obligations under this Agreement as independent contractors and shall not be,
and shall not be deemed to be, a trustee for or agent of any person, whether or
not a party hereto, in connection with the discharge by PPI and the Manager of
such obligations.
10
10.2 Amendments
This
Agreement shall not be amended or varied in its terms by oral agreement or by
representations or otherwise except by instrument in writing executed by the
duly authorized representatives of the parties hereto or their respective
successors or assigns.
10.3 Assignment
Neither
PPI or the Manager may assign, pledge or encumber their interest in this
Agreement nor assign any of the rights or duties of PPI or the Manager under
this Agreement without the prior written consent of Poly-Pacific.
The
parties herein further agree and recognize that Poly-Pacific will have full
authority to assign this Agreement to any one of Poly-Pacific's subsidiaries,
associates, affiliates or related entities or persons (as those terms are
defined in the Income
Tax Act (Canada). PPI and
the Manger specifically understand and agree that such assignment will not
create a termination of this Agreement and will not create a requirement for the
Manger to relocate. Both PPI and the Manger further recognize and agree that
upon such assignment occurring, the Manager shall report to, and take directions
from, the assignee.
10.4 Severability
The
provisions of this Agreement are severable. In the event of the unenforceability
or invalidity of any one or more of the terms, covenants, conditions or
provisions of this Agreement under applicable law, such unenforceability or
invalidity shall not render any of the other terms, covenants, conditions or
provisions hereof unenforceable or invalid; and the parties agree that this
Agreement shall be construed as if such an unenforceable or invalid term,
covenant or condition was never contained herein.
10.5 Force
Majeure
No party
shall be deemed to be in default in respect of non-performance of its
obligations hereunder, if any, so long as its non-performance is due to strike,
walk out, industrial disturbance, storm, fire, flood, explosion, lightning,
tempest, act of God or the Queen’s enemies, governmental restraint, or any other
cause (whether similar or dissimilar to those enumerated) beyond its control;
provided that lack of finance shall in no event be deemed to be a cause beyond
the party’s control.
11
10.6 Governing
Law
The
provisions of this Agreement shall be governed by and construed in accordance
with the laws of the Province of Alberta.
10.7 Further
Assurances
Each
party hereto agrees to execute any and all documents and to perform such other
acts as may be necessary or expedient to further the purpose of this Agreement
and the transactions contemplated hereby.
10.8 Time
of the Essence
Time
shall be of the essence in respect of this Agreement.
10.9 Entire
Agreement
This
Agreement constitutes the entire agreement between the parties hereto, and
supersedes all prior agreements, in respect of the subject matter
hereof.
10.10 Enurement
This
Agreement shall enure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns.
IN
WITNESS WHEREOF the parties hereto have executed this Agreement by their proper
officers duly authorized in that behalf as of the day and year first above
written.
|
| ||
|
per |
/s/
Xxxxx Xxx | |
|
per |
/s/
Xxxx Xxxx | |
| POLY-PACIFIC INC. | ||
| SIGNED,
SEALED AND DELIVERED in the presence of:
/s/
X X Xxxxx |
)
)
)
) |
/s/ Xxxxxx Xxx |
| WITNESS | ) | XXXXXX XXX |
12
AFFIDAVIT OF
EXECUTION
|
CANADA
PROVINCE
OF ALBERTA
TO
WIT: |
)
)
) |
I,
Xxxxxxx Xxxxx, of the City of Edmonton, in the Province of
Alberta,
MAKE OATH AND SAY: |
1. THAT I
was personally present and did see XXXXXX XXX named in the annexed instrument,
who is personally known to me to be the person named therein, duly sign and
execute the same for the purpose named therein.
2. THAT the
same was executed at the City of Edmonton, in the Province of Alberta, and that
I am the subscribing witness thereto.
3. THAT I
know the said XXXXXX XXX and he is in my belief of the full age of eighteen
years.
|
SWORN
BEFORE ME at
the City of Edmonton, in the Province of Alberta, this 5thday
of July, 2002.
/s/
Xxxxx Xxxxx |
)
)
)
)
)
)
) |
/s/
X X Xxxxx |
|
A
Commissioner for Oaths in and for the Province of Alberta |
13
