Exhibit 4.6
1
THE TIREX CORPORATION
EMPLOYMENT AGREEMENT
By and between:
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The Tirex Corporation Xxxxxxxxxx X. Xxxx
3828 St-Xxxxxxx 299 Grosvenor
Montreal and Xxxxxxxxx, Xxxxxx
Xxxxxx, Xxxxxx X0X 0X0
X0X 0X0
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(the "Corporation") (the "Employee")
* Unless context necessarily implies otherwise, all references herein
to the Corporation shall be to The Tirex Corporation, The Tirex Corporation
Canada Inc., Tirex Canada R&D Inc. and all other corporations, partnership, or
other entities, now or in the future controlled by, under common control with,
or in control of, The Tirex Corporation, jointly and severally.
Whereas the Employee has been employed by the Corporation since August 1999 and
has, since January 1, 2000 occupied the position of Public Relations and
Executive Assistant of the Corporation, and
Whereas, the Corporation desires to employ the Employee as Public Relations and
Executive Assistant to serve in such position and the Employee is willing to
accept such employment with the Corporation on the following terms and
conditions.
Now therefore, it is agreed:
1 Preamble
The preamble shall form an integral part hereof.
2 Definitions
For the purposes of this Agreement, the following terms shall have the
following meanings:
2.1. Change in Control shall mean (i) the time that the Corporation
first determines that any person and all other persons who
constitute a group (within the meaning of Section 13(d) (3) of
the Securities Exchange Act of 1934 ("Exchange Act") have
acquired direct or indirect beneficial ownership (within the
meaning of Rule 13d-3 under the Exchange Act) of twenty
percent (20%) or more of the Corporation's outstanding
securities, unless a majority of the "continuing Directors",
as that term is defined in Paragraph 2.3, approves the
acquisition not later than ten (10) business days after the
Corporation makes that determination, or (ii) the first day on
which a majority of the members of the Corporation's Board of
Directors are not "Continuing Directors".
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2.2. Constructive Termination shall mean termination by the
Corporation of the Employee's employment by reason of material
breach of this Agreement by the Corporation, such
"Constructive Termination" to be effective upon thirty (30)
days written notice thereof from the Employee to the
Corporation.
2.3. Continuing Directors shall mean, as of any date of
determination, any member of the Board of Directors of the
Corporation who (i) was a member of that Board of Directors on
January 1st, 2000, (ii) has been a member of that Board of
Directors for the two (2) years immediately preceding such
date of determination, or (iii) was nominated for election or
elected to the Board of Directors with the affirmative vote of
the greater of (x) a majority of the Continuing Directors who
were members of the Board at the time of such nomination or
election or (y) at least four Continuing Directors.
2.4. Effective Date shall mean January 1, 2000.
2.5. Termination For Cause shall mean termination by the
Corporation of the Employee's employment by the Corporation by
reason of the Employee's wilful dishonesty towards, fraud
upon, or deliberate injury or attempted injury to, the
Corporation or by reason of the Employee's wilful material
breach of this Agreement which has resulted in material injury
to the Corporation. For purposes of this paragraph, no act or
failure to act on the Employee's part shall be considered
"wilful" or "deliberate" unless done or omitted to be done, by
him not in good faith and without reasonable belief that her
action or omission was in the best interest of the
Corporation. Notwithstanding the foregoing, the Employee shall
not be deemed to have been terminated for Cause without (in
written notice to the Employee setting forth the reasons for
the Corporation's intention to terminate for Cause, (ii) an
opportunity on not less than twenty (20) days written notice
from the Corporation to the Employee for the Employee,
together with her counsel, to be heard before the full Board
of Directors of the Corporation, and (iii) delivery to the
Employee of a Notice of Termination as defined in Paragraph
7.9 hereof from the Board of Directors finding that, following
such hearing before the Board, in the good faith opinion of
such Board, the Employee was guilty of conduct set forth above
and specifying the particulars thereof in detail.
2.6. Termination for "Good Reason" shall mean termination by the
Employee of the Employee's employment by the Corporation
because of: (i) a "Change in Control", as defined in Paragraph
2.1 above, (ii) a failure by the Corporation to comply with
any material provision of this Agreement which has not been
cured within ten (10) days after notice of such non-compliance
has been given by the Employee to the Company, (iii) the
determination by the Employee that because of changes in the
composition or policies of the Board of Directors of the
Corporation, or of other events or occurrences of material
effect, that the Employee can no longer properly and
effectively discharge her responsibilities as Chief Employee
Officer of the Corporation after giving the Corporation not
less than thirty (30) days prior written notice of the
effective date of such termination, or (iv) any purported
termination of the Employee's employment which is not effected
pursuant to a Notice of Termination satisfying the
requirements of Paragraph 7.9 hereof (and for purposes of this
Agreement no such purported termination shall be effective).
2.7. Termination Other Than For Cause shall mean termination by the
Corporation of the Employee's employment by the Corporation
(other than in a Termination for Cause) and shall include
"Constructive Termination", as that term is defined in
Paragraph 2.1.
2.8. Termination Upon a Change in Control shall mean a termination
by the Corporation of the Employee's employment with the
Corporation within 120 days following a Change in Control, as
that term is defined in Paragraph 2.1.
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2.9. Voluntary Termination shall mean termination by the Employee
of the Employee's employment by the Corporation other than (i)
Constructive Termination, (ii) Termination upon a Change in
Control, (iii) Termination for Good Reason, and (iv)
termination by reason of the Employee's death or disability as
described in Paragraphs 7.4 and 7.5.
3 Employment
3.1 During the term of this Agreement, the Employee agrees to be
employed by the Corporation and to serve as its Public
Relations and Executive Assistant and the Corporation agrees
to employ and retain the Employee in such capacity.
4 Extent of Services
4.1 The Employee shall devote most of her working time, attention
and energies to the performance of her duties and shall not be
engaged in any other business activity, whether or not pursued
for gain, without the consent of the Company. The Employee
shall at all times faithfully and to the best of her ability
perform her duties under this Agreement. The duties shall be
rendered at the office of Corporation's office in Montreal,
Quebec, or at such other place or places and at such times as
the needs of the Corporation may from time-to-time dictate.
5 Term
5.1 The term of this Agreement shall be deemed to have begun on
the Effective Date, and shall continue for the three (3) year
period which commenced on the Effective Date and shall end on
December 31, 2003. The Agreement shall thereafter be extended
for additional periods of one (1) year unless one party
notifies the other of its intention not to extend the
Agreement, at least four (4) months before the end of the
initial term or of any subsequent extension term.
5.2 The parties mutually agree that each party to this Agreement
shall have the right to review this Agreement annually and,
subject to Articles 7.3, 7.8 and 8.1 following, to propose
modifications thereto.
6 Salary, Benefits and Bonus Compensation
6.1 Base Salary. As payment for the services to be rendered by the
Employee as provided in Sections 3 and 4, the Corporation
agrees to pay to the Employee a Base Salary for the twelve
(12) calendar months beginning the Effective Date at the rate
of seventeen dollars (CDN$17.00) per hour payable bi-weekly,
subject to annual review and increase, as the Board of
Directors shall determine.
6.2 Bonuses. The Employee shall be eligible to receive a
discretionary bonus for each year (or portion thereof) during
the term of this Agreement and any extensions thereof, with
the actual amount of any such bonus to be determined in the
sole discretion of the Board of Directors based upon its
evaluation of the Employee's performance during such year. All
such bonuses shall be reviewed annually by the Compensation
Committee, if any shall be in existence. Such bonuses shall be
paid either in cash or by fully paid up shares of the
Corporation.
6.3 Additional Benefits. During the term of this Agreement, the
Employee shall be entitled to the following fringe benefits:
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6.3.1 Employee Benefits.
The Employee shall be eligible to participate in such
of the Corporation's benefits and deferred
compensation plans as are now generally available or
later made generally available to Employees,
including, without limitation, the Corporation's
Stock Option Plan, profit sharing plans, annual
physical examinations, dental and medical plans,
personal catastrophe and disability insurance,
financial planning, retirement plans and
supplementary Employee retirement plans, if any. For
purposes of establishing the length of service under
any benefit plans or programs of the Corporation, the
Employee's employment with will be deemed to have
commenced on the Effective Date.
6.3.2 Vacation.
The Employee shall be entitled to reasonable vacation
time for each year during the term of this Agreement
and any extensions thereof.
6.3.3 Automobile.
The Employee shall be compensated for the use of her
automobile at the rate of 0.50 per kilometre which
rate shall be increased, at the end of each year,
with the increase in the cost of living index
(general - all products and services - Montreal
region).
6.4 Reimbursement for Expenses.
During the term of this Agreement, the Corporation shall
reimburse the Employee for reasonable and properly documented
out-of-pocket business and/or entertainment expenses incurred
by the Employee in connection with her duties under this
Agreement.
7 Termination
7.1 Termination For Cause.
Termination For Cause may be effected by the Corporation in
accordance with the procedures set forth in Paragraph 2.5 at
any time during the term of this Agreement and shall be
effected by written notification to the Employee in accordance
with Paragraph 7.9 below. Upon the effectiveness of a
Termination For Cause, the Employee shall promptly be paid all
accrued salary, bonus compensation to the extent earned,
vested deferred compensation (other than pension plan or
profit sharing plan benefits which will be paid in accordance
with the applicable plan), any benefits under any plans of in
which the Employee is a participant to the full extent of the
Employee's rights under such plans, accrued vacation pay and
any appropriate business expenses incurred by the Employee in
connection with her duties hereunder, all to the date of
termination, but the Employee shall not be paid any other
compensation or reimbursement of any kind.
7.2 Termination Other Than For Cause.
Notwithstanding anything else in this Agreement, the
Corporation may effect a Termination Other Than For Cause at
any time upon giving written notice to the Employee of such
termination. Upon the effectiveness of any Termination Other
Than For Cause, the Employee shall promptly be paid all
accrued salary, bonus compensation to the extent earned,
vested deferred compensation (other than pension plan or
profit sharing plan benefits which will be paid in accordance
with the applicable plan), any benefits under any plans of in
which the Employee is a participant to the full extent of the
Employee's rights under such plans (including accelerated
vesting, if any, of awards granted to the Employee under the
Corporations' stock option plan), accrued vacation pay and any
appropriate business expenses incurred by the Employee in
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connection with her duties hereunder, all to the date of
termination, and all severance compensation as provided in
Paragraph 8.1.
7.3 Termination For Good Reason.
Notwithstanding anything else in this Agreement, the Employee
may effect a Termination for Good Reason at any time upon
giving written notice to the Corporation of such termination
in accordance with the provisions of Paragraph 7.9 hereof.
Upon the effectiveness of any Termination for Good Reason, the
Employee shall promptly be paid all accrued salary, bonus
compensation to the extent earned, vested deferred
compensation (other than pension plan or profit sharing plan
benefits which will be paid in accordance with the applicable
plan), any benefits under any plans of in which the Employee
is a participant to the full extent of the Employee's rights
under such plans (including accelerated vesting, if any, of
awards granted to the Employee under stock option plan),
accrued vacation pay and any appropriate business expenses
incurred by the Employee in connection with her duties
hereunder, all to the date of termination, and all severance
compensation as provided in Paragraph 8.1.
7.4 Termination by Reason of Disability.
If, during the term of this Agreement, the Employee fails to
perform her duties under this Agreement on account of illness
of physical or mental incapacity, and such illness or
incapacity continues for a period of more than twelve (12)
consecutive months, the Corporation shall have the right to
terminate the Employee's employment hereunder by written
notification to the Employee and payment to the Employee of
all accrued salary, bonus compensation to the extent earned,
vested deferred compensation (other than pension plan or
profit sharing plan benefits which will be paid in accordance
with the applicable plan), any benefits under any plans of in
which the Employee is a participant to the full extent of the
Employee's rights under such plans, accrued vacation pay and
any appropriate business expenses incurred by the Employee in
connection with her duties hereunder, all to the date of
termination, with the exception of medical and dental benefits
which shall continue through the expiration of this Agreement,
but the Employee shall not be paid any other compensation or
reimbursement of any kind.
7.5 Death.
In the event of the Employee's death during the term of this
Agreement, the Employee's employment shall be deemed to have
terminated as of the last day of the month during which her
death occurs and the Corporation shall promptly pay to her
estate or such beneficiaries as the Employee may from time to
time designate all accrued salary, bonus compensation to the
extent earned, vested deferred compensation (other than
pension plan or profit sharing plan benefits which will be
paid in accordance with the applicable plan), any benefits
under any plans of in which the Employee is a participant to
the full extent of the Employee's rights under such plans,
accrued vacation pay and any appropriate business expenses
incurred by the Employee in connection with her duties
hereunder, all to the date of termination, but the Employee's
estate shall not be paid any other compensation or
reimbursement of any kind.
7.6 Voluntary Termination.
In the event of a Voluntary Termination, the Corporation shall
promptly pay all accrued salary, bonus compensation to the
extent earned, vested deferred compensation (other than
pension plan or profit sharing plan benefits which will be
paid in accordance with the applicable plan), any benefits
under any plans of in which the Employee is a participant to
the full extent of the Employee's rights under such plans,
accrued vacation pay and any appropriate business expenses
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incurred by the Employee in connection with her duties
hereunder, all to the date of termination, but no other
compensation or reimbursement of any kind.
7.7 Termination Upon a Change in Control.
In the event of a Termination Upon the effectiveness of a
Change in Control, the Employee shall immediately be paid all
accrued salary, bonus compensation to the extent earned,
vested deferred compensation (other than pension plan or
profit sharing plan benefits which will be paid in accordance
with the applicable plan), any benefits under any plans of in
which the Employee is a participant to the full extent of the
Employee's rights under such plans (including accelerated
vesting, if any, of any awards granted to the Employee under
the Corporation's Stock Option Plan), accrued vacation pay and
any appropriate business expenses incurred by the Employee in
connection with her duties hereunder, all to the date of
termination and all severance compensation as provided in
Paragraph 8.1.
7.8 Constructive Termination.
The Employee may give notice to the Corporation that the
Corporation has effected a Constructive Termination of the
Employee's employment by reason of the Corporation's material
breach of this Agreement, by written notification to the
Corporation in accordance with Paragraph 7.9 below. Upon the
effectiveness of any Constructive Termination, the Employee
shall immediately be paid all accrued salary, bonus
compensation to the extent earned, vested deferred
compensation (other than pension plan or profit sharing plan
benefits which will be paid in accordance with the applicable
plan), any benefits under any plans of in which the Employee
is a participant to the full extent of the Employee's rights
under such plans (including accelerated vesting, if any, of
any awards granted to the Employee under the Corporation's
Stock Option Plan), accrued vacation pay and any appropriate
business expenses incurred by the Employee in connection with
her duties hereunder, all to the date of termination, and all
severance compensation provided in Paragraph 8.1.
7.9 Notice of Termination.
The Corporation may effect a termination of this Agreement
pursuant to the provisions of this Section upon giving thirty
(30) days written notice to the Employee of such termination.
The Employee may effect a termination of this Agreement
pursuant to the provisions of this Section upon giving thirty
(30) days written notice to the Corporation of such
termination.
8 Severance Compensation
8.1 Severance Compensation in the Event of: Termination Other Than
for Cause Pursuant to Paragraph 7.2; Termination for Good
Reason Pursuant to Paragraph 7.3; Termination Upon a Change in
Control Pursuant to Paragraph 7.7; or a Constructive
Termination Pursuant to Paragraph 7.8. In the event the
Employee's employment is terminated by a Termination Other
Than for Cause pursuant to Paragraph 7.2, by a Termination for
Good Reason pursuant to Paragraph 7.3, by a Termination upon a
Change in Control pursuant to Paragraph 7.7, or by a
Constructive Termination pursuant to Paragraph 7.8, the
Employee shall be paid as severance compensation 6 months of
her yearly Base Salary at the rate payable at the time of such
termination. In addition to the above Severance Compensation,
the Employee shall be entitled to an additional amount
equivalent to four (4) months of her Base Salary at the rate
payable at the time of such termination, for each year of
service to the Corporation, as Employee from and after January
1, 2000 (in the event that the termination occurs before
January 1st of any given year, the additional Severance
Compensation of four (4) months per year shall be prorated for
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the number of months elapsed. The Employee shall also be
entitled to an accelerated vesting of any awards granted to
the Employee under the Corporation's Stock Option Plan or any
other employee or to the extent provided in the stock -
Employee compensation plans then in effect, stock option or
other affiliated agreement, if any, entered into at the time
of grant or award. The Employee shall continue to accrue
retirement benefits and shall continue to enjoy any benefits
under any plans of in which the Employee is a participant to
the full extent of the Employee's rights under such plans,
including any perquisites provided under this Agreement,
though the remaining term of this Agreement; provided,
however, that the benefits under any such plans of in which
the Employee is a participant, including any such perquisites,
shall cease upon re-employment by a new employer.
8.2 No Severance Compensation Upon Other Termination.
In the event of Termination For Cause pursuant to Paragraph
7.1, or termination by reason of the Employee's Disability or
Death pursuant to Paragraphs 7.4 or 7.5, or Voluntary
Termination pursuant to Paragraph 7.6 hereof, neither the
Employee nor her estate shall be paid any severance
compensation.
9 Confidentiality
9.1 The Employee agrees that all confidential and proprietary
information relating to the business of the Corporation shall
be kept and treated as confidential both during and after the
term of this Agreement, except as may be permitted in writing
by the Corporation's Board of Directors or as such information
is within the public domain or comes within the public domain
without any breach of this Agreement.
9.2 The Employee acknowledges that he will develop and be exposed
to information that is or will be confidential and proprietary
to the Corporation. The information includes customer lists,
technology designs, plans and information, marketing plans,
pricing data, product plans, software, and other intangible
information. Such information shall be deemed confidential to
the extent not generally known within the trade. The Employee
agrees to make use of such information only in the performance
of her duties under this Agreement to maintain such
information in confidence and to disclose the information only
to persons with a need to know.
10 Withholdings
All compensation and benefits to the Employee hereunder shall be
reduced by all federal, provincial, state, local and other withholdings
and similar taxes and payments required by applicable law.
11 Indemnification
In addition to any rights to indemnification to which the Employee is
entitled to under the Corporation's Articles of Incorporation and
Bylaws, the Corporation shall indemnify the Employee at all times
during and after the term of this Agreement to the maximum extent
permitted under all laws applicable for any act or omission of the
Employee, either in her capacity of employee or of Officer, and shall
pay the Employee's expenses in defending any civil or criminal action,
suit, or proceeding in advance of the final disposition of such action,
suit or proceeding, to the maximum extent permitted under such
applicable laws. Such indemnification shall apply for whatever cause of
action, instituted by any person whatsoever.
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12 Notices
Any notices permitted or required under the Agreement shall be
delivered by hand, certified mail, or recognized overnight courier, in
all cases with written proof or receipt required, addressed to the
parties as set forth below and shall be deemed given upon receipt
to the Corporation at:
The Tirex Corporation
0000 Xx-Xxxxxxx
Xxxxxxxx
Xxxxxx, Xxxxxx X0X 0X0
to the Employee at:
Xxxxxxxxxx X. Xxxx
000 Xxxxxxxxx
Xxxxxxxxx. Xxxxxx
Xxxxxx X0X 0X0
or at any other address as any party may, from time to time, designate
by notice given in compliance with this Paragraph.
13 Law Governing
The Agreement shall be governed by and construed in accordance with the
laws of the Province of Quebec.
14 General
14.1 Titles and Captions.
All sections, titles or captions contained in this Agreement
are for convenience only and shall not be deemed part of the
context nor effect the interpretation of this Agreement.
14.2 Entire Agreement.
This Agreement contains the entire understanding between and
among the parties and supersedes any prior understandings and
agreements among them respecting the subject matter of this
Agreement.
14.3 Agreement Binding.
This Agreement shall be binding upon the heirs, executors,
administrators, successors and assigns of the parties hereto.
14.4 Computation of Time.
In computing any period of time pursuant to this Agreement,
the day of the act, event or default from which the designated
period of time begins to run shall be included, unless it is a
Saturday, Sunday or a legal holiday, in which event the period
shall begin to run on the next day which is not a Saturday,
Sunday, or legal holiday, in which event the period shall run
until the end of the next day thereafter which is not a
Saturday, Sunday or legal holiday.
14.5 Pronouns and Plurals.
All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, singular or plural
as the identity of the person or persons may require.
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14.6 Presumption.
This Agreement or any section thereof shall not be construed
against any party due to the fact that said Agreement or any
section thereof was drafted by said party.
14.7 Further Action.
The parties hereto shall execute and deliver all documents,
provide all information and take or forbear from all such
action as may be necessary or appropriate to achieve the
purposes of the Agreement.
14.8 Parties in Interest.
Nothing herein shall be construed to be to the benefit of any
third party, nor is it intended that any provision shall be
for the benefit of any third party.
14.9 Savings Clause.
If any provision of this Agreement or the application of such
provision to any person or circumstance shall be held invalid,
the remainder of this Agreement or the application of such
provision to persons or circumstances other than those as to
which it is held invalid shall not be affected thereby.
Signed this 21st day of January, 2000, in Xxxxxxxx, Xxxxxx, Xxxxxx
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For and on behalf of For and on behalf of
The Tirex Corporation The Employee
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Xxxx X Xxxxxxxx, xx Xxxxxxxxxx X. Xxxx
President & CEO
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