1
EXHIBIT 6.5
SECONDMENT AGREEMENT
THIS SECONDMENT AGREEMENT (the "Agreement") is made as of the 1st day of
December, 1998, by and between KRIDA OVERSEAS INVESTMENTS TRADING LIMITED, an
entity formed under the laws of Cyprus whose registered office is at c/o BDO
International, 00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxx CY - 1519
(the "EMPLOYING COMPANY"), and NUPRO INNOVATIONS, INC., a Delaware corporation
whose registered office is at 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxx 00000 (the "SECONDEE COMPANY").
RECITAL
WHEREAS, to assist the Secondee Company in the conduct of its business,
the Employing Company is prepared to provide the services of one or more
employees from time to time (individually, an "EMPLOYEE" and collectively, the
"EMPLOYEES") to the Secondee Company on the terms set out below.
NOW, THEREFORE, in consideration of the mutual promises and obligations
of the parties contained herein and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
AGREEMENT
1. INTERPRETATION. In this Agreement:
1.1 "SECONDMENT" means the secondment established by this Agreement.
1.2 The headings are for convenience only and shall not affect the
interpretation hereof.
1.3 Unless the content otherwise requires, words importing the singular
only shall import the plural and vice versa.
2. DURATION. Subject to the terms hereof, the term of this Agreement shall
commence on the date first written above and shall continue until the fifth
anniversary of the date of this Agreement ("Initial Term"). Thereafter, the term
of this Agreement shall automatically be extended for successive five (5) year
periods unless (i) either the Employing Company or the Secondee Company gives
ninety (90) days written notice to the other of its intention to terminate this
Agreement at any time following the Initial Term or (ii) pursuant to Section 7
of this Agreement. Notwithstanding anything in this Agreement to the contrary,
in no event shall the Secondee Company be entitled to terminate this Agreement
during the Initial Term.
3. SERVICES.
3.1 The Employing Company shall cause the Employees to perform all such
services and duties as are agreed upon between Employing Company and Secondee
Company.
3.2 The Employing Company shall cause the Employees during the term of
each of their Secondments to act or serve as an officer, authorized signatory,
nominee or in any other
2
personal capacity on behalf of the Secondee Company or its subsidiaries, as may
be required by Secondee Company or as any authorized representative thereof may
designate from time to time on its behalf and the Employing Company shall cause
each such Employee to resign all or any such appointments upon the termination
of his Secondment.
3.3 The Employing Company will second the Employees on the terms under
which each of them is from time to time employed by the Employing Company, as
set forth in the Employment Contract between the Employing Company and each
Employee. From time to time, the Employing Company will notify the Secondee
Company of any changes which are made to the same during the continuance of this
Agreement.
3.4 In the event of a conflict between the terms under which any
Employee is employed by the Employing Company and the terms of this Agreement,
the former shall prevail unless agreed otherwise by the relevant Employee.
4. DUTIES OF THE SECONDEE COMPANY. Subject to Sections 3.3 and 3.4 above,
the Secondee Company shall observe all the terms under which the Employees are
employed by the Employing Company as if it were the actual employer of the
Employees and it will not do or omit to do anything which would cause the
Employing Company to breach any of its obligations to the Employees.
5. NO EMPLOYMENT. Nothing in this Agreement will create the relationship
of Employer and Employee between the Secondee Company and the Employee, who
shall remain at all times the Employee of the Employing Company, nor will it
create the relationship of Employer and Employee between the Secondee Company
and the Employing Company, who shall be considered for all purposes an
independent contractor.
6. PAYMENT FOR SERVICES.
6.1 The Secondee Company shall pay the Employing Company for the
Employees services to the Secondee Company in accordance with the amounts and
the terms set forth in Schedule 6.1, which may be amended from time to time by
the parties and which by this reference is made part of this Agreement (the
"Service Fees").
6.2 The Employing Company shall submit invoices to the Secondee Company
in respect of the amount due each month and shall show separately all Service
Fees each month payable with respect to each such Employee.
6.3 In addition to the Service Fee payable to the Employing Company
pursuant to Section 6.1 above, the Secondee Company shall pay, discharge,
indemnify and keep the Employing Company indemnified against all expenses and
disbursements which the Secondee Company considers to have been reasonably and
properly incurred by the Employees in connection with the performance and
discharge of their duties on behalf of the Secondee Company and accompanied by
the supporting invoices and receipts in respect of such expenses and
disbursements.
2
3
7. EARLY TERMINATION
7.1 If at any time during the effectiveness of this Agreement
following the Initial Term:
7.1.1 the Employee commits any act or makes any omission (whether
or not in connection with the Secondment) which would entitle the Secondee
Company to dismiss him summarily if he were employed by the Secondee Company on
the terms and conditions under which he is employed by the Employing Company; or
7.1.2 the Employee's employment with the Employing Company shall
have terminated, including but without limitation, by voluntary resignation from
his employment with the Employing Company; or
7.1.3 the Employee shall neglect or fail or refuse to carry out his
duties in accordance with the Secondment;
then either party hereto shall be entitled to terminate this Agreement with
respect to such Employee by giving summary notice in writing to the other party.
7.2 The Employing Company shall be entitled to terminate this Agreement
without notice and without payment in lieu of notice if at any time following
the Initial Term:
7.2.1 the Secondee Company shall become insolvent or be dissolved
or go into liquidation or enter into or make any arrangement or composition with
its creditors or any of them or suffer any distress or execution to be levied on
its goods or if any receiver or liquidator (or the equivalent) be appointed over
any of its assets or undertakings; or
7.2.2 there is any change in the ownership or control of the
Secondee Company; or
7.2.3 any law, or regulation is enacted or promulgated whereby the
Secondee Company and/or the Employee is restricted or prohibited from carrying
out its duties under this Agreement.
7.3 Notwithstanding anything in this Section 7 to the contrary, in no
event shall the Secondee Company be entitled to terminate this Agreement during
the Initial Term.
8. TERMINATION. Any termination hereunder shall be without prejudice to
either party's rights against the other for any prior breach by such party of
any of its obligations under this Agreement.
9. ASSIGNMENT. Neither party shall assign or delegate any of the duties of
the parties or the Employee hereunder, without the prior written consent of the
other party.
10. DISCIPLINARY MATTERS. If any disciplinary grievance or problem (a
"DISCIPLINARY ISSUE") arises with respect to the Employee during the Secondment,
the Secondee Company will notify the Employing Company of the Disciplinary Issue
and the Employing Company shall then deal with such Disciplinary Issue in
accordance with the Employer's disciplinary procedure.
3
4
11. NOTICES. All notices and other communications hereunder shall be in
writing and shall be given to the other party in person, transmitted by
facsimile, or mailed by registered or certified mail (return receipt requested)
at the address for such party first set forth above or to such other address as
either party shall have furnished to the other in writing in accordance
herewith. Notices and communications shall be effective on the earlier of (a)
the date actually received, (b) the date that is five (5) days after their
mailing as provided herein, or (c) the date of their transmission via facsimile.
12. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Arizona without regard to its
principles of conflicts of laws and each of the parties hereto submits to the
non-exclusive jurisdiction of the Arizona Courts as regards any claim or matter
arising under this Agreement.
13. NO WAIVER. The failure of a party to enforce at any time any of the
provisions of this Agreement or to exercise any right or option provided herein
or to require at any time performance by a party of any of the provisions of
this Agreement, shall not be construed to be a present or future waiver of such
provision. Any such failure shall not effect the validity of this Agreement or
any provision thereof, or the right of a party thereafter to enforce any
provision.
14. MODIFICATION. No waiver, modification, amendment, or discharge of this
Agreement or of any of its provisions shall be valid unless the same is in
writing and signed by both parties.
15. ENTIRE AGREEMENT. This Agreement forms the entire agreement between the
parties and may not be modified or varied except with the consent in writing of
the parties.
[Remainder of Page Intentionally Left Blank]
4
5
IN WITNESS WHEREOF, this Agreement was entered into the day and year
first above written.
"EMPLOYING COMPANY"
KRIDA OVERSEAS INVESTMENTS
TRADING LIMITED, A CYPRUS ENTITY
By: _____________________________________
Name: ___________________________________
Its: ___________________________________
"SECONDEE COMPANY"
NUPRO INNOVATIONS, INC., A DELAWARE CORPORATION
By: _____________________________________
Name: ___________________________________
Its: ___________________________________
5
6
SCHEDULE 6.1
To
SECONDMENT AGREEMENT
Between
KRIDA OVERSEAS INVESTMENT TRADING LIMITED
And
NUPRO INNOVATIONS, INC.
Employee's Name Service Fee Payment Term
--------------- ----------- ------------
Xxxx Xxxxxxxxxxx $150,000 per year $12,500 per month
"Employing Company"
KRIDA OVERSEAS INVESTMENTS TRADING
LIMITED, a Cyprus entity
Date: By:
------------- ------------------------------
Name:
------------------------------
Its:
------------------------------
"Secondee Company"
NUPRO INNOVATIONS, INC.,
a Delaware corporation
Date: By:
------------- ------------------------------
Name:
------------------------------
Its:
------------------------------
6
