Exhibit 10.29
MANAGEMENT AGREEMENT
THIS AGREEMENT effective as of the 1st day of May, 2002 (the "Effective Date").
BETWEEN:
SMARTIRE SYSTEMS INC., a company duly incorporated pursuant to
the laws of the Province of British Columbia, having an office
at 150 - 13151 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx Xxxxxxxx, X0X
0X0
(hereinafter referred to as the "Company")
OF THE FIRST PART
AND:
XXXXX X. XXXXX, businessman, of 25841 000 Xxxxxx, Xxxxx Xxxxx,
Xxxxxxx Xxxxxxxx, X0X 0X0
(hereinafter referred to as the "Manager")
OF THE SECOND PART
RECITALS
WHEREAS the Company has requested the assistance of the Manager in providing
certain management services to the Company, as hereinafter described;
WHEREAS the Manager has agreed to provide such assistance and services to the
Company in accordance with the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants set forth below, the parties hereto agree as follows:
1 DUTIES AND DEVOTION OF TIME
1.1 Duties. During the term of this Agreement the Manager shall be
responsible for the duties contained in Schedule "A" attached hereto and
incorporated herein by this reference (the "Duties").
1.2 Devotion of Time. The parties hereto acknowledge and agree that the work
of the Manager is and shall be of such a nature that regular hours may not be
sufficient and
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occasions may arise whereby the Manager shall be required to work more than
eight (8) hours per day and/or five (5) days per week. The Manager agrees that
the consideration set forth herein shall be in full and complete satisfaction
for such work and services, regardless of when and where such work and services
are performed. The Manager further releases the Company from any claims for
overtime pay or other such compensation which may accrue to the Manager.
Notwithstanding the foregoing, the Company agrees that so long as the Manager
properly discharges his duties hereunder, the Manager may devote the remainder
of his time and attention to other non-competing business and personal pursuits.
1.3 Business Opportunities the Property of the Company. The Manager agrees to
communicate immediately to the Company all business opportunities, inventions
and improvements in the nature of the business of the Company which, during the
term of this Agreement, the Manager may conceive, make or discover, become aware
of, directly or indirectly, or have presented to him in any manner which relates
in any way to the Company, either as it is now or as it may develop, and such
business opportunities, inventions or improvements shall become the exclusive
property of the Company without any obligation on the part of the Company to
make any payments therefor in addition to the salary and benefits herein
described to the Manager.
1.4 No Personal Use. The Manager shall not use any of the work the Manager
shall perform for the Company for any personal purposes without first obtaining
the prior written consent of the Company.
2 SALARY, BONUSES AND BENEFITS
2.1 Salary. In consideration of the Manager providing the services referred
to herein, the Company agrees to pay the Manager an annual base salary (the
"Annual Base Salary") of two hundred and twenty thousand dollars ($220,000) less
applicable deductions, payable bi-weekly, plus incentive compensation as set out
below, subject to increase as from time to time approved by the Board of
Directors of the Company.
2.2 Benefits. The Company shall provide, maintain and pay for:
(a) medical, dental for the Manager and his immediate family as is
provided by the Company's medical services plan or an equivalent
plan; and
(b) such extended health and other benefits for the Manager and his
immediate family as are provided to employees of the Company,
subject to the eligibility of the Manager.
2.3 Incentive Compensation Plan. The Manager shall be entitled to participate
in the EVA based incentive compensation plan which could result in an annual
bonus that would be payable in common shares of the Company.
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2.4 Payment in Cash or Shares. All payments payable by the Company to the
Manager, including the Annual Base Salary and reimbursement of expenses under
Section 4.1 hereof, shall be payable in cash or, at the election of the Manager,
and subject to the approval of the regulatory authorities, such will be paid in
whole or in part in common shares in the capital stock of the Company
("Remuneration Shares"), issued at the 10 day average closing price (for the 10
days prior to the Manager's election) of the Company's common shares on any
stock exchange or quotation system upon which the Company's common shares are
listed for trading.
2.5 Registration of Performance Bonus Shares. To ensure that any shares
issued to the Manager under paragraph 2.4 of this Agreement are freely tradable,
the Company shall register with the SEC any such shares issued. Upon or as soon
as is practical after the issuance of such shares, the Company shall file a form
S-8 or other appropriate form with the United States Securities and Exchange
Commission (the "SEC) to effect registration.
2.6 Incentive Stock Options. Upon execution of this Agreement, the Company
will issue an incentive stock option agreement for the right for the Manager to
purchase up to one hundred and fifty thousand (150,000) common shares in the
capital of the Company, with options to acquire up to fifty thousand (50,000)
common shares vesting on execution of the Stock Option Agreement which grants
the options and on each of the first and second anniversaries of such Agreement,
all subject to regulatory approval. The options will be issued in accordance
with the plan text.
3 VACATION
3.1 Entitlement to Vacation. The Company acknowledges that the Manager shall
be entitled to an annual vacation of four (4) weeks. The Manager shall use his
best efforts to ensure that such vacation is arranged with the Company in
advance such that his vacation does not unduly affect the operations of the
Company.
3.2 Increase in Vacation. The period set out in Section 3.1 above may be
increased from time to time as mutually agreed to by the Manager and the
Company's Board of Directors.
4 REIMBURSEMENT OF EXPENSES
4.1 Reimbursement of Expenses. The Manager shall be reimbursed for all
reasonable out-of-pocket expenses incurred by the Manager in or about the
execution of the Duties contained herein, including without limiting the
generality of the foregoing, all reasonable travel and promotional expenses
payable or incurred by the Manager in connection with the Duties under this
Agreement. All payments and reimbursements shall be made within two (2) weeks of
submission by the Manager of vouchers, bills or receipts for such expenses.
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5 CONFIDENTIAL INFORMATION
5.1 Confidential Information. The Manager shall not, either during the term
of this Agreement or under the provisions of Section 5.3, without specific
consent in writing, disclose or reveal in any manner whatsoever to any other
person, firm or corporation, nor will he use, directly or indirectly, for any
purpose other than the purposes of the Company, the private affairs of the
Company or any confidential information which he may acquire during the term of
this Agreement with relation to the business and affairs of the directors and
shareholders of the Company, unless the Manager is ordered to do so by a court
of competent jurisdiction or unless required by any statutory authority.
5.2 Non-Disclosure Provisions. The foregoing provision shall be subject to
the further non-disclosure provisions contained in Schedule "B" attached hereto
and incorporated hereinafter by this reference.
5.3 Provisions Survive Termination. The provisions of this section shall
survive the termination of this Agreement for a period of three years.
6 TERM
6.1 Term. This Agreement shall remain in effect until terminated in
accordance with any of the provisions contained in this Agreement.
7 TERMINATION
7.1 Termination by Manager. Notwithstanding any other provision contained
herein, the parties hereto agree that the Manager may terminate this Agreement,
with or without cause, by giving ninety (90) days' written notice of such
intention to terminate.
7.2 Resignation or Cessation of Duties. In the event that the Manager ceases
to perform all of the Duties contained herein, other than by reason of the
Manager's death or disability, or if the Manager resigns unilaterally and on his
own initiative from all of his positions this Agreement shall be deemed to be
terminated by the Manager as of the date of such cessation of Duties or such
resignation, and the Company shall have no further obligations under Section 2
hereof.
7.3 Termination by Company. The Company may terminate this agreement at any
time for just cause without further obligation. In the event of termination for
any reason other than for just cause within ninety (90) days of commencing
employment, the Company, at its option, will either (a) continue to pay the
salary under Clause 2.1 and provide benefits under Clauses 2.2 until three (3)
months from the date of termination or (b) pay three (3) months' salary under
Clause 2.1 in lieu of notice. In the event of termination for any reason other
than for just cause upon completion of ninety (90) days of employment, but
within one (1) year of employment, the Company, at its option, will either (a)
continue to pay the salary under clause 2.1 and provide the
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benefits under Clauses 2.2 until six (6) months from the date of termination or
(b) pay six (6) months' salary under Clause 2.1 in lieu of notice. In the event
of termination for any reasons other than for just cause upon completion of one
(1) year of employment, the Company, at its option, will either (a) continue to
pay the salary under Clause 2.1 and provide the benefits under Clauses 2.2 until
one (1) year from the date of termination or (b) pay one (1) year's salary under
Clause 2.1 in lieu of notice. Any stock options that have been granted but that
have not yet vested shall immediately vest at the date of the final payment, and
may be exercised for a period of 30 days only after the final payment.
7.4 Death. In the event of the death of the Manager during the term of this
Agreement, this Agreement shall be terminated as of the date of such death, and
the Manager's spouse, if living, or surviving children shall be entitled to the
termination allowance stated in Section 7.3 hereof.
7.5 Disability. In the event that the Manager will during the term of this
Agreement by reason of illness or mental or physical disability or incapacity be
prevented from or incapable of performing the Duties hereunder, then the Manager
shall be entitled to receive the remuneration provided for herein at the rate
specified hereinbefore for the period during which such illness, disability or
incapacity will continue, but not exceeding six (6) successive months. If such
illness, disability or incapacity continues or will continue for a period longer
than six (6) successive months, then this Agreement may, at the option of the
Directors of the Company, forthwith be terminated, and the Manager shall be
entitled to the termination allowance stated in Section 7.3 hereof.
7.6 Termination Payments. Any payments made by the Company to the Manager
upon the termination of this Agreement shall be made in cash, or, if the Company
does not have available funds, in equal monthly cash instalments over one year,
or in Remuneration Shares, or in a combination of cash and Remuneration Shares,
subject to regulatory approval. All payments required to be made by the Company
to the Manager pursuant to Section 7 hereof shall be made in full.
8 RIGHTS AND OBLIGATIONS UPON TERMINATION
8.1 Rights and Obligations. Upon termination of this Agreement, the Manager
shall deliver up to the Company all documents, papers, plans, materials and
other property of or relating to the affairs of the Company, other than the
Manager's personal papers in regard to his role in the Company, which may then
be in the Manager's possession or under his control.
9 CLOSING
9.1 Closing Date. This Agreement shall be effective as of May 1, 2002.
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9.2 Conditions of Closing. The parties hereto agree that it shall be a
condition of the execution of this Agreement that prior to or contemporaneously
with the execution of this Agreement:
(a) this Agreement shall be approved by the Board of Directors of the
Company.
10 NOTICES AND REQUESTS
10.1 Notices and Requests. All notices and requests in connection with this
Agreement shall be deemed given as of the day they are received either by
messenger, delivery service, or mailed by registered or certified mail with
postage prepaid and return receipt requested and addressed as follows:
(a) if to the Company:
SmarTire Systems Inc.
150 - 00000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
with a copy to:
XXXXX, XXXXXX
Xxxxx 000-000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Xxxxxxx Xxxxxx
(b) If to the Manager:
Xxxxx Xxxxx
00000 000 Xxxxxx
Xxxxx Xxxxx, XX
X0X 0X0
or to such other address as the party to receive notice or request so designates
by written notice to the others.
11 INDEPENDENT PARTIES
11.1 Independent Parties. This Agreement is intended solely as a management
services agreement and no partnership, agency, joint venture, distributorship or
other form of agreement is intended.
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12 AGREEMENT VOLUNTARY AND EQUITABLE
12.1 Agreement Voluntary. The parties acknowledge and declare that in
executing this Agreement they are each relying wholly on their own judgement and
knowledge and have not been influenced to any extent whatsoever by any
representations or statements made by or on behalf of any other party regarding
any matters dealt with herein or incidental thereto.
12.2 Agreement Equitable. The parties further acknowledge and declare that
they each have carefully considered and understand the provisions contained
herein, including, but without limiting the generality of the foregoing, the
Manager's rights upon termination and the restrictions on the Manager after
termination and agree that the said provisions are mutually fair and equitable,
and that they executed this Agreement voluntarily and of their own free will.
13 CONTRACT NON-ASSIGNABLE; INUREMENT
13.1 Contract Non-Assignable. This Agreement and all other rights, benefits
and privileges contained herein may not be assigned by the Manager.
13.2 Inurement. The rights, benefits and privileges contained herein,
including without limitation the benefits of Sections 2 and 7 hereof, shall
inure to the benefit of and be binding upon the respective parties hereto, their
heirs, executors, administrators and successors.
14 ENTIRE AGREEMENT
14.1 Entire Agreement. This Agreement represents the entire Agreement between
the parties and supersedes any and all prior agreements and understandings,
whether written or oral, among the parties. The Manager acknowledges that he was
not induced to enter into this Agreement by any representation, warranty,
promise or other statement, except as contained herein.
14.2 Previous Agreements Cancelled. Save and except for the express provisions
of this Agreement, any and all previous agreements, written or oral, between the
parties hereto or on their behalf relating to the services of the Manager for
the Company are hereby terminated and cancelled and each of the parties hereby
releases and further discharges the other of and from all manner of actions,
causes of action, claims and demands whatsoever under or in respect of any such
agreements.
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15 WAIVER
15.1 Waiver. No consent or waiver, express or implied, by either party to or
of any breach or default by the other party in the performance by the other of
its or his obligations herein shall be deemed or construed to be a consent or
waiver to or of any breach or default of the same or any other obligation of
such party. Failure on the part of either party to complain of any act or
failure to act, or to declare the other party in default irrespective of how
long such failure continues, shall not constitute a waiver by such party of its
or his rights herein or of the right to then or subsequently declare a default.
16 SEVERABILITY
16.1 Severability. If any provision contained herein is determined to be void
or unenforceable in whole or in part, it is to that extent deemed omitted. The
remaining provisions shall not be affected in any way.
17 AMENDMENT
17.1 Amendment. This Agreement shall not be amended or otherwise modified
except by a written notice of even date herewith or subsequent hereto signed by
both parties.
18 HEADINGS
18.1 Headings. The headings of the sections and subsections herein are for
convenience only and shall not control or affect the meaning or construction of
any provisions of this Agreement.
19 GOVERNING LAW
19.1 Governing Law. This Agreement shall be construed under and governed by
the laws of the Province of British Columbia and the laws of Canada applicable
therein.
20 EXECUTION
20.1 Execution in Several Counterparts. This Agreement may be executed by
facsimile and in several counterparts, each of which shall be deemed to be an
original and all of which shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
1st day of May, 2002.
SMARTIRE SYSTEMS INC.
Per: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Authorized Signatory
SIGNED by XXXXX X. XXXXX in the presence of: )
)
)
X. Xxxxx )
------------------------------------- )
Name )
)
)
150 - 13151 Vanier Place ) /s/ Xxxxx Xxxxx
------------------------------------- ) ----------------------------
Address ) XXXXX X. XXXXX
)
)
Richmond, B.C. )
------------------------------------- )
)
)
H.R. Manager )
------------------------------------- )
Occupation )
)
This is page 9 of Agreement dated above for reference the 1st day of May, 2002.
SCHEDULE "A"
MANAGER'S DUTIES
1.0 The Manager shall be appointed as the Chief Operating Officer of the
Company, and the Manager shall faithfully, honestly and diligently serve the
Company and each of the Company's subsidiaries.
2.0 MANAGEMENT TEAM PARTICIPATION
As a member of the senior management team, deals with major policy and
operational issues and provides leadership to SmarTire's overall business.
Solidifies the mandate of each member of the senior management team and how
these roles support the attainment of SmarTire's business objectives.
3.0 CORPORATE STRATEGIC PLAN
Working with the President and CEO and members of the executive team, formulates
a corporate Strategic Plan that charts the future course for the company. The
plan sets out a future vision, identifies priority issues that must be addressed
in order to realize that vision and sets short, medium, and long-term objectives
and strategies.
Submits to the CEO a quarterly analysis of progress in achieving objectives,
sets out rationale for variances and recommends modifications to the plan for
the remaining year.
This plan will be updated on an annual basis and will act as the framework in
which the business is operated. The achievement of the key objectives in the
plan will be the primary responsibility of the COO.
4.0 ORGANIZATION AND MANAGEMENT OF STAFF
Develops and maintains an effective organizational structure that reflects
operational needs and prescribes the responsibilities of staff as they relate to
the accomplishment of the objectives established in the Corporate Strategic
Plan.
Ensures the development of a strong, effective executive team that works as a
cohesive unit in the achievement of the business objectives.
5.0 LEADERSHIP
Provides strong leadership to the company's employees in order to capitalize on
the full potential of this critical resource. Stimulates, motivates, guides and
directs all personnel to contribute fully to the realization of SmarTire's
vision and objectives. Develops a highly visible presence throughout all sites
of the company.
Provides strong leadership to the executive team to ensure they function as a
highly coherent and effective group.
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MANAGER'S DUTIES (CONT'D)
6.0 MARKET RESEARCH
Identifies SmarTire's market and product needs through effective market
research. In the process, develops an understanding of the market opportunity
targeted by the company, including prime competitors, competitive pricing,
product strategies and other factors that influence the buying decisions of each
major customer group.
7.0 PRODUCT DEVELOPMENT
Provides active leadership on product development based on information gathered
through market research, feedback from customers and knowledge of the industry.
Through the Managing Director, North America and the Director, Technical
Operations, ensures the achievement of goals and objectives for engineering and
manufacturing operations as set out in the Corporate Strategic Plan.
8.0 SALES & MARKETING
Ensures development of a marketing strategy for the business and works with
staff to effectively sell the products and services that the organization
provides to its potential customers.
Through the Managing Directors, ensures the achievement of goals and objectives
for sales and marketing as set out in the Corporate Strategic Plan.
Takes a personal role in developing and maintaining relationships with
prospective and current customers to further build these relationships and the
ensuing profitable business.
9.0 RELATIONSHIP WITH BUSINESS PARTNERS AND STAKEHOLDERS
Develops positive and productive working relationships with key business
partners, suppliers and other product and service providers.
Forges strategic alliances where appropriate to support business opportunities.
10.0 FINANCE
Through the Chief Financial Officer, ensures the achievement of goals and
objectives established for the financial function as set out in the Corporate
Strategic Plan.
11.0 HUMAN RESOURCES
Works with the Human Resources Manager, to ensure the achievement of goals and
objectives established for the human resources function as set out in the
Corporate Strategic Plan.
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MANAGER'S DUTIES (CONT'D)
12.0 EXTERNAL COMMUNICATIONS
Through the Corporate Communications Manager, ensures the effective
communication of information concerning SmarTire's strategies, objectives and
performance externally to create a positive profile for the organization in the
industry and investment community.
13.0 RELATIONSHIP WITH BUSINESS PARTNERS AND STAKEHOLDERS
Develops positive and productive working relationships with key business
partners, suppliers and stakeholders. Forges strategic alliances where
appropriate to support business opportunities.
14.0 INDUSTRY TRENDS
Develops and maintains an understanding of the tire sensor market, the prime
competitors and competitive pricing, product strategies and other factors that
influence the buying decisions of each major customer group. Recommends product
and service modifications as appropriate. With this knowledge, positions the
business to capitalize on emerging opportunities and to address relevant issues.
SCHEDULE "B"
NON-DISCLOSURE PROVISIONS
1. CONFIDENTIAL INFORMATION AND MATERIALS
(a) "Confidential Information" shall mean, for the purposes of this
Agreement, non-public information which the Company designates as
being confidential or which, under the circumstances surrounding
disclosure ought reasonably to be treated as confidential.
Confidential Information includes, without limitation, information,
whether written, oral or communicated by any other means, relating to
released or unreleased Company software or hardware products, the
marketing or promotion of any product of the Company, the Company's
business policies or practices, and information received from others
which the Company is obliged to treat as confidential. Confidential
Information disclosed to the Manager by any subsidiary and/or agents
of the Company is covered by this Agreement.
(b) Confidential Information shall not include that information defined as
Confidential Information hereinabove which the Manager can exclusively
establish:
(i) is or subsequently becomes publicly available without breach of
any obligation of confidentiality owed to the Company;
(ii) became known to the Manager prior to disclosure by the Company
to the Manager;
(iii) became known to the Manager from a source other than the
Company other than by the breach of any obligations of
confidentiality owed to the Company; or
(iv) is independently developed by the Manager.
(c) Confidential Materials shall include all tangible materials containing
Confidential Information, including, without limitation, written or
printed documents and computer disks or tapes, whether machine or user
readable.
2. RESTRICTIONS
(a) The Manager shall not disclose any Confidential Information to third
parties for a period of three (3) years following the termination of
this Agreement, except as provided herein. However, the Manager may
disclose Confidential Information during bona fide execution of the
Duties or in accordance with judicial or other governmental order,
provided that the Manager shall give reasonable notice to the
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Company prior to such disclosure and shall comply with any applicable
protective order or equivalent.
(b) The Manager shall take reasonable security precautions, at least as
great as the precautions he takes to protect his own confidential
information, to keep confidential the Confidential Information, as
defined hereinabove.
(c) Confidential Information and Materials may be disclosed, reproduced,
summarized or distributed only in pursuance of the business
relationship of the Manager with the Company, and only as provided
hereunder.
3. RIGHTS AND REMEDIES
(a) The Manager shall notify the Company immediately upon discovery of any
unauthorized use or disclosure of Confidential Information or
Materials, or any other breach of this Agreement by the Manager, and
shall co-operate with the Company in every reasonable manner to aid
the Company to regain possession of said Confidential Information or
Materials and prevent all such further unauthorized use.
(b) The Manager shall return all originals, copies, reproductions and
summaries of or relating to the Confidential Information at the
request of the Company or, at the option of the Company, certify
destruction of the same.
(c) The parties hereto recognize that a breach by the Manager of any of
the provisions contained herein would result in damages to the Company
and that the Company could not be compensated adequately for such
damages by monetary award. Accordingly, the Manager agrees that in the
event of any such breach, in addition to all other remedies available
to the Company at law or in equity, the Company shall be entitled as a
matter of right to apply to a court of competent jurisdiction for such
relief by way of restraining order, injunction, decree or otherwise,
as may be appropriate to ensure compliance with the provisions of this
Agreement.
4. MISCELLANEOUS
(a) All Confidential Information and Materials are and shall remain the
property of the Company. By disclosing information to the Manager, the
Company does not grant any express or implied right to the Manager to
or under any and all patents, copyrights, trademarks, or trade secret
information belonging to the Company.
(b) All obligations created herein shall survive change or termination of
any and all business relationships between the parties for a period of
three years after such termination.
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(c) The Company may from time to time request suggestions, feedback or
other information from the Manager on Confidential Information or on
released or unreleased software belonging to the Company. Any
suggestions, feedback or other disclosures made by the Manager are and
shall be entirely voluntary on the part of the Manager and shall not
create any obligations on the part of the Company or a confidential
agreement between the Manager and the Company. Instead, the Company
shall be free to disclose and use any suggestions, feedback or other
information from the Manager as the Company sees fit, entirely without
obligation of any kind whatsoever to the Manager.
