Exhbit 4.1
THE TIREX CORPORATION
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MANAGING DIRECTOR OF EUROPEAN MARKET DEVELOPMENT
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CONTRACTUAL EMPLOYMENT AGREEMENT
CONTRACTUAL EMPLOYMENT AGREEMENT, executed this first day of January 1998 to be
effective retroactively as of June 15, 1997 between the Tirex Corporation, a
Delaware corporation ("Tirex") with offices located at 000 Xx.Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx, Xxxxxx H3C IL5 and Xxxx Xxxxxxxx, Xxxx Xxx xx Xxxxxxxxx 00X,
0(0)X, 00000 Xxxxxx, Xxxxx ("Xxxxxxxx"). For purposes of this Agreement, the
term "Tirex" shall mean the Tirex corporation and 3143619 Canada Inc (known and
doing business as "Tirex Canada Inc."), and all other corporations,
partnerships, 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, Tirex is in the business of developing, manufacturing and distributing
cryogenic scrap tire disintegration equipment and processes (the "TCS-1 System")
for the recovery of rubber crumb, wire and fiber from scrap tyres and wishes to
launch the sale of its products and services in the markets of the European
Union.
WHEREAS, Xxxxxxxx has experience and substantial business and marketing
experience and contacts in the European market as well as in various other areas
in Asia and the Middle East, which can be important to Tirex.
WHEREAS, Tirex wishes to assure itself of the marketing services of Xxxxxxxx for
the period provided in this Agreement, and Xxxxxxxx is willing to provide such
services to Tirex for the same period under the terms and conditions hereinafter
provided.
NOW, THEREFORE, WITNESSETH, that for and in consideration of the premises and of
the mutual promises and covenants herein contained, the parties hereto agree as
follows:
1. TERMS AND EMPLOYMENT
1.1 Tirex agrees to and does hereby engage Xxxxxxxx, and Xxxxxxxx agrees
to and does hereby accept engagement by Tirex as Managing Director of European
Market Development for the one-year period, which commenced on June 15, 1997
(the "Engagement Period").
1.2 The terms of this Agreement shall be automatically extended for two
successive one-year periods ("Extension Periods") unless, not less than thirty
days prior to the end of the Engagement Period or the then current Extension
Period, either party shall give written notice to the other that such party does
not wish the term of this Agreement to be extended beyond the current Engagement
or Extension Period on the terms then in effect.
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2. DUTIES
2.1 Xxxxxxxx shall be responsible for undertaking and effecting
activities necessary to establish and develop markets for the TCS-1 System and
for the crumb rubber which will be produced by the operation of the TCS-1 System
throughout the European Economic Union, India, Pakistan, Saudi Arabia (the
"Territory"), and such other areas as the parties may, from time to time,
mutually agree. Such activities shall include, but not be limited to, the
following:
(a) Setting up the appropriate corporate structure and
organisation for importing and distributing the TCS-1 System
and crumb rubber into and throughout the territory;
(b) Establishing and managing a network of TCS-1 System
distributors and crumb rubber brokers in the territory;
(c) Arranging the importation and installation of TCS-1 Systems
and providing customer support as required to ensure
effective installation and maintenance of all TCS-1 Systems
in the territory;
(d) Providing after sales support to customers;
(e) Serving as a liaison with Tirex in North America on matters
of interest to Tirex, including but not limited to technical
developments in the use of crumb rubber;
(f) Representing Tirex's interests in any other activity which
Tirex may, from time to time, undertake in the Territory,
including local manufacturing and trading in crumb rubber.
2.2 Tirex will, at all times during the engagement period:
(a) provide Xxxxxxxx with appropriate support, including product
specifications, sales literature, and all other necessary
and available sales materials and
(b) ensure the all members of Tirex's technical staff in the
territory are fully trained and able to provide effective
after sales service to customers.
All such services are to be performed only upon direct authorisation
from Tirex and must be performed by Xxxxxxxx directly.
3. COMPENSATION
3.1 For all services to be rendered hereunder by Xxxxxxxx during the
engagement period, Xxxxxxxx shall receive the following compensation:
(a) a salary, payable monthly, at the annual rate of $75,000
(Canadian) commencing as of June 15, 1997.
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(b) a sales commission of eight per cent (8%) of the purchase
price of all sales of TCS-1 Systems within the territory
which shall be payable, on a pro rata basis, within two
weeks of receipt by Tirex of payments therefor, provided
however that Tirex shall deduct, from the amount of any
sales commissions due under this paragraph, all salary
payments made or payable to Xxxxxxxx pursuant to sub
paragraph 3.1(a) above.
3.2 In the event that this Agreement is terminated by Tirex prior to the
end of the Engagement Period or any Extension Period, pursuant to Tirex's notice
that it does not wish to extend this Agreement, as provided in paragraph 1.2
above, and Xxxxxxxx gives written notice to Tirex, within thirty days of his
receipt of such notice, that he objects to the termination of this Agreement,
then the 8% sales commission provided under subparagraph 3.1 (b) above, shall be
payable to Xxxxxxxx on all sales of the TCS-1 System in the territory for a
period of two years following such termination.
4. REIMBURSEMENT OF EXPENSES
During the engagement period, Tirex shall reimburse Xxxxxxxx for
properly documented expenses paid by him on behalf, or for the account, of Tirex
in the course of carrying out his duties hereunder. Such reimbursements shall
not be made for any expenses other than those listed below and the amount
reimbursed for any permitted category of the expense shall not exceed the
following:
Office rent $20,000
Office and marketing assistant 25,000
Advertising and publicity 20,000
Multi-lingual translation of product
information (excluding both English & French) 15,000
Legal costs 10,000
Travel to potential clients 15,000
Attendance at trade shows 10,000
5. TERMINATION
This Agreement may be terminated at any time prior to the end of the
Engagement Period or any Extension Period, by mutual written Agreement of the
parties and pursuant to the following:
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5.1 FOR CAUSE. The Company may terminate the Employee's employment at any
time "for cause" with immediate effect upon delivering written notice to the
Employee. For purposes of this Agreement, "for cause" shall include: (a)
embezzlement, theft, larceny, material fraud, or other acts of dishonesty; (b)
material violation by employee of any of his obligations under this Agreement;
(c) conviction of or entrance of a plea of guilty or NOLO CONTENDERE to a felony
or other crime which has or may have a material adverse effect on the Employee's
ability to carry out his duties under this Agreement or upon the reputation of
the Company; (d) conduct involving moral turpitude; (c) gross insubordination or
repeated insubordination after written warning by the President of the Company;
or (f) material and continuing failure by the Employee to perform the duties
described in Section 2 above in a quality and professional manner for at least
thirty (30) days after written warning by the Board of Directors or the
President of the Company. Upon termination for cause, the Company's sole and
exclusive obligation will be to pay the Employee his compensation earned through
the date of termination, and the Employee shall not be entitled to any
compensation after the date of termination.
5.2 UPON DEATH. In the event of the Employee's death during the term of the
this agreement, the Company's sole and exclusive obligation will be to pay to
the Employee's spouse, if living, or to his estate, if his spouse is not then
living, the Employee's compensation earned through the date of death.
5.3 UPON DISABILITY. The Company may terminate the Employee's employment
upon the Employee's total disability. The Employee shall be deemed to be totally
disabled if he is unable to perform his duties under this Agreement by reason of
mental or physical illness or accident for a period of three consecutive months.
Upon termination by reason of the Employee's disability, the Company's sole and
exclusive obligation will be to pay the Employee his compensation earned through
the date of termination.
6. SECRETS
Xxxxxxxx agrees that any trade secrets or any other like information of
value relating to the business and/or field of interest of Tirex or any of its
affiliates, or of any corporation or other legal entity in which Tirex or any of
its affiliates has an ownership interest of more than twenty-five per cent
(25%), including but not limited to, information relating to inventions,
disclosures, processes, systems, methods, formulae, patents, patent
applications, machinery, materials, research activities and plans, costs of
production, contract forms, prices, volume of sales, promotional methods, list
of names or classes of customers, which he has heretofore acquired during his
engagement by Tirex or any of its affiliates; or which he may hereafter acquire
during the Engagement Period and the three-year period beginning after
termination of the Engagement Period as the result of any disclosures to him, or
in any other way, shall be regarded as held by Xxxxxxxx and his personnel, if
any, in a fiduciary capacity solely for the benefit of Tirex, its successors or
assigns, and shall not at any time either during the term of this Agreement or
thereafter, be disclosed, divulged, furnished, or made accessible by Xxxxxxxx
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and his personnel, if any, to anyone, or be otherwise used by them, except in
the regular course of business of Tirex or its affiliates. Information shall for
the purposes of this Agreement be considered to be secret if not known by the
trade generally, even though such information may have been disclosed to one or
more third parties pursuant to distribution agreements, joint venture agreements
and other agreements entered into by Tirex or any of its affiliates.
7. NON-COMPETITION
Unless this Agreement is terminated by Tirex prior to the end of the
Engagement Period or any Extension Period, without cause and over the objections
of Xxxxxxxx, during the two years following the termination of this Agreement,
Xxxxxxxx will not provide consulting services either as a consultant or as an
employee, either directly or otherwise to any business which is, or is preparing
or intending to be, in competition with Tirex.
8. ASSIGNMENT
8.1 This Agreement may be assigned by Tirex as part of the sale of
substantially all of its business; provided, however, that the purchaser shall
expressly assume all obligations of Tirex under this Agreement. Further, this
Agreement may be assigned by Tirex to an affiliate, provided that any such
affiliate shall expressly assume all obligations of Tirex under this agreement,
and provided further that Tirex shall then fully guarantee the performance of
the Agreement by such affiliate. Xxxxxxxx agrees that if this Agreement is so
assigned, all the terms and conditions of this Agreement shall obtain between
such assignee and himself with the same force and effect as if said Agreement
had been made with such assignee in the first instance.
8.2 This Agreement is personal to Xxxxxxxx and may not be assigned by
him.
9. ENTIRE UNDERSTANDING
This Agreement contains the entire understanding between the parties and
supersedes all prior and collateral communications, reports, agreements, and
understandings between the parties. No change, modification, alteration, or
addition to any provision hereof shall be binding unless in writing and signed
by authorized representatives of both parties. This Agreement shall apply in
lieu of and notwithstanding any specific statement associated with any
particular information or data exchanged, and the duties of the parties shall be
determined exclusively by the aforementioned terms and conditions.
Notwithstanding the foregoing, the parties agree that certain provisions of this
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Agreement may be changed or amended for the purpose of accommodating tax
considerations of the parties without affecting the basic terms and conditions
of this Agreement.
10. SURVIVAL OF CERTAIN AGREEMENTS
The covenants and agreements set forth in Articles 4 and 5, hereof,
shall survive the expiration of the Engagement Period and shall survive
termination of this Agreement and remain in full force and effect.
11. NOTICES
11.1 All notices required or permitted to be given hereunder shall be
delivered by hand, certified mail, or recognized overnight courier, in all cases
with written proof of receipt required, addressed to the parties as set forth
below and shall be deemed given upon receipt as evidenced by written and dated
receipt of the receiving party.
11.2 Any notice to Tirex or to any assignee of Tirex shall be addressed
as follows:
The Tirex Corporation
000 Xx. Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx
Xxxxxx X0X 0X0
11.3 Any notice to Xxxxxxxx shall be addressed as follows,
Xx. Xxxx Xxxxxxxx
Gran Xxx xx Xxxxxxxxx 00X, X(0)X
00000 Xxxxxx, Xxxxx
11.4 Either party may change the address to which notice to it is to be
addressed, by notice as provided herein.
12. APPLICABLE LAW
This Agreement shall be interpreted and enforced in accordance with the laws of
the State of Delaware.
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13. INTERPRETATION
Whenever possible, each Article of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any Article is
unenforceable or invalid under such law, such Article shall be ineffective only
to the extent of such unenforceability or Invalidity, and the remainder of such
Article and the balance of this Agreement shall in such event continue to be
binding and in full force and effect.
14. PRIOR AGREEMENTS
This Agreement supersedes and cancels any and all prior agreements, whether
written or oral, between the parties.
15. ARBITRATION
In the event of any dispute among the parties hereto with respect to this
Agreement, the matters at issue will be submitted to the International Chamber
of Commerce in Geneva for arbitration, and the findings of the latter will be
binding on both Parties.
IN WITNESS WHEREOF, the parties hereto have executed the above Agreement as of
the day and year first above written.
The Tirex Corporation
By \s\ XXXXXXX X. XXXXX
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Xxxxxxx X.Xxxxx
\s\ XXXX XXXXXXXX
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Xxxx Xxxxxxxx
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