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RADIANT AVIATION SERVICES, INC.
and
RADIANT ENERGY CORPORATION
as Corporations,
and
XXXXXXX X. XXXX
as Xxxx
EMPLOYMENT AGREEMENT
November 01, 1999
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EMPLOYMENT AGREEMENT
Employment agreement dated November 01, 1999 (the "Effective Date"), between
Radiant Energy Corporation, Radiant Aviation Services, Inc. (The "Corporations"
or the "Companies") and Xxxxxxx X. Xxxx ("Xxxx").
WHEREAS the Corporations and Xxxx are desirous of entering into an employment
relationship for their mutual benefit:
AND WHEREAS the employment relationship between the parties will commence on the
Effective Date of this Agreement;
AND WHEREAS the Corporations and Xxxx 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:
"Applicable Time Period" means: (i) the period commencing with the date of
the termination of Xxxx'x employment with the Corporations and ending
immediately prior to the first anniversary of the date of such
termination; plus (ii) the period commencing on the first anniversary of
Xxxx'x termination of employment with the Corporations and ending
immediately prior to the second anniversary of the date of such
termination;
"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 Xxxx 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
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ARTICLE 2
SCOPE OF EMPLOYMENT
2.1 Employment The Corporations hereby agrees to employ Xxxx and Xxxx hereby
accepts such employment on a full time basis in the position of Vice President
of Engineering.
2.2 Duties and Responsibilities The duties and responsibilities of Xxxx shall
consist of those necessary or incidental to perform the functions of such
aforesaid executive office of the Corporations. Xxxx shall be responsible for
the overall direction and management of Engineering resources of the
Corporations. Xxxx shall perform such other duties and exercise such powers as
may from time to time be determined by the Board of Directors of the
Corporations consistent with his position as Vice President of the Corporations.
2.3 Full and Faithful Service Xxxx 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, Xxxx 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 written consent of the President of the Corporations, or other such
officer of the Corporations as the Board of Directors of the Corporations shall
direct from time to time, 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 Xxxx in an amount equal to that
provided to other directors and officers of the Corporations from time to time.
2.5 Acknowledgment Xxxx acknowledges that the effective performance of his
duties requires the highest level of integrity and the Corporation's complete
confidence in Xxxx'x relationship with other employees of the Corporations and
with all persons dealt with in the course of his employment. Xxxx 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, Xxxx shall be paid a base
salary, subject to adjustments as hereinafter provided, (the "Base Salary") at
the rate of One Hundred Thousand Dollars ($100,000) per annum, which Base Salary
shall be paid in arrears and in twenty-six (26) equal installments, subject to
all necessary statutory deductions. The Base Salary shall be reviewed from time
to time and increased annually, to account for variances to cost of living and
monetary inflation indices, as recommended by the Compensation Committee of the
Board of Directors, with no obligation to effect an increase thereof.
4.2 Performance Bonus. Xxxx will receive performance bonuses from time to time
in the form of cash as determined by the Compensation Committee of the Board of
Directors.
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4.3 Automobile During the term of his employment with the Corporations, the
Corporations shall either provide Xxxx with an automobile or provide Xxxx with
an automobile allowance sufficient for capital costs and insurance. The
automobile type will be as approved by the President of the Corporations, and
will be equivalent to current Corporation vehicles. All other automobile
expenses will be provided on the same basis as other Senior Management of the
Companies.
4.4 Stock Options Xxxx will receive stock options from time to time, based on
the recommendations of the Compensation Committee and as approved by the Board
of Directors. The terms and conditions of the Options are subject to the terms
and conditions of the Employee Stock Option Plan, as may be amended from time to
time by the Companies.
4.5 Transaction Bonus A cash bonus (the "Transaction Bonus") shall be paid to
Xxxx within sixty (60) days following a Change of Control of either of the
Corporations during the term of Xxxx'x employment, such Transaction Bonus to be
calculated under 5.2 (a), if the Change of Control occurs and Xxxx is terminated
by the Companies within two years of the Change of Control. Notwithstanding the
foregoing, Xxxx shall not be entitled to the Transaction Bonus if the Change of
Control occurs after his employment is terminated for cause.
4.6 Benefits Unless otherwise covered by another insured benefit program, Xxxx
will be entitled, during the course of his employment with the Corporations, 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.
4.7 Vacation Xxxx shall be entitled to 15 days vacation leave during each year
that this Agreement is in effect, at the Base Salary provided for in Section
4.1. Such vacation shall be taken at such time or times as the Corporations may
determine having regard to the business and undertaking of the Corporations. In
the event Xxxx'x employment is terminated, Xxxx shall be entitled to pro-rated
vacation pay for the portion of the year that he has been actively employed.
Additionally, Xxxx shall be paid for all vacation not taken.
4.8 Expenses During the term of his employment with the Corporations, Xxxx shall
be reimbursed for all reasonable travel and business expenses (other than
automobile which are to be reimbursed in accordance with Section 4.3), including
charges associated with the use of personal or mobile telephones, 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, Xxxx
shall furnish to the Corporations, receipts for expenses incurred, to be
approved by the President, or other such officer of the Corporations as
determined by the Board of Directors.
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 Xxxx'x employment
shall terminate immediately upon receipt of a written notice from the
Corporations to Xxxx setting out the cause for termination, and the Corporations
shall pay to Xxxx 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 Xxxx; (b) willful violation of Companies policy or code of conduct
adopted by the Board of Directors; or (c) final judgment convicting Xxxx of an
indictable offense under criminal statute; or
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(ii) by the Corporations, upon the death of Xxxx, in which case his employment
pursuant to this Agreement shall terminate on the date of death.
(iii) by the Corporations, if Xxxx is unable to discharge his duties hereunder
by reason of illness, disease, mental or physical disability or otherwise, for
an aggregate of six (6) months in any one (1) calendar year, whether or not
consecutive, in which case his employment pursuant to this Agreement shall
terminate at the end of such six (6) month period; or
(iv) by the Corporations for any reason other than in 5.1 (i) (ii) or (iii) and
at any time upon payment to Xxxx of the termination payments provided for in
Section 5.2.
5.2 Termination Payments If Xxxx'x employment with the Corporations is
terminated pursuant to Subsection 5.1 (iv), the Corporations shall:
(i) continue Xxxx'x Base Salary and all benefit arrangements in effect at the
date of termination for a period of three (3) years, following Xxxx'x
termination and
(ii) pay to Xxxx within thirty (30) days of termination, a lump sum amount equal
to the average annual Performance Bonus paid to Xxxx during the course of his
employment, prorated for a period of three (3) years and
(iv) provide Xxxx clear, and unencumbered, title and possession of his then
current company automobile, as provided under Section 4.3.
5.3 Release of Claims Upon the expiry of this Agreement, upon notice being given
pursuant to Section 5.1(i); upon the death of Xxxx as referred to in Section
5.1(ii); upon the expiration of the period referred to in Section 5.1(iii); or
upon the payment of the amounts referred to in Section 5.1(iv); as the case may
be, the employment of Xxxx 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 1 year. Upon any such
termination, Xxxx 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.
5.5 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 Xxxx for early
termination of this Agreement, said amount being liquidated damages and not a
penalty.
5.6 Resignation on Termination Xxxx agrees that upon any termination of his
employment with the Corporations, he shall immediately tender his resignation
from any position he may hold as an officer or director of the Corporations or
its subsidiaries.
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ARTICLE 6
CONFIDENTIALITY
6.1 Confidential Information Xxxx 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, Xxxx 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 Xxxx 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 Xxxx 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 Xxxx 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 Xxxx, Xxxx 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 Xxxx covenants 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 Xxxx is
terminated by the Corporations for cause, during the Applicable Time Period or
(b) where Xxxx is terminated by the Corporations other than for cause, during
the relevant monthly period for which Xxxx 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
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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 Xxxx'x employment.
7.2 Exception Provided that nothing construed herein shall prohibit Xxxx 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 covenant 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 Xxxx 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. Xxxx 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 Xxxx
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 Xxxx:
000 Xxxxxx Xxxxxxxx Xxxxx
Xxxxxxxxx, 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
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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 Xxxx 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 Xxxx 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.
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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:
RADIANT AVIATION SERVICES, INC.
Per:
Per:
SIGNED, SEALED AND DELIVERED )
IN THE PRESENCE OF: )
)
)
)
)
___________________________________ ________________________________________
WITNESS Xxxxxxx X. Xxxx
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