Exhibit 10.1 - Merger Agreement
This Agreement made as of the 12th day of February, 2002, with
effective date as of December 1st, 2001, between XxXXXXXX BAY
INTERNATIONAL, LTD., incorporated in the State of Delaware,
United States of America and with administrative offices at
0000 Xxxxxxx Xxxxx, Xxxxxxxx, XX XXX 00000 (hereinafter "MKBY"),
and XXXXXXXXX XXXX, whose address is 000 XxXxxxxxx Xxx., Xxxxxxxxx,
Xxxxxx X0X 0X0 XXXXXX (hereinafter "Xxxx"), and XXXXXXX XXXXXX,
whose address is 000 Xx Xxxxx Xxxxxx, Xx. Xxxxxxx, Xxxxxx, X0X 0X0
XXXXXX (hereinafter "Mondou"), and EXPERTS CONSEILS XXXXXXX INC.,
incorporated under the laws of Canada, whose address is 000 XxXxxxxxx
Xxx., Xxxxxxxxx, Xxxxxx X0X 0X0 XXXXXX (hereinafter "Dermond").
W I T N E S S E T H :
WHEREAS, Xxxx and Mondou are collectively the owners of all of
the issued and outstanding shares of Xxxxxxx which corporation
is the owner of the technology known as the Xxxxxxx Wind Generator,
and
WHEREAS, MKBY is desirous of purchasing all of the issued and
outstanding shares of the common stock of Xxxxxxx, and
WHEREAS, Xxxx and Mondou have agreed to sell all of the issued and
outstanding shares of the common stock of Xxxxxxx, that is 125,200
class "A" shares (the "Shares") to MKBY on the terms and conditions
set out in this agreement.
NOW, THEREFORE, this agreement witnesses that in consideration of the
mutual covenants and agreements contained herein, Xxxx and Mondou, as
Sellers, and MKBY, as Purchaser, covenant and agree with each other as
follows:
1. Purchase and Sale.
A. Subject to the due fulfillment of the conditions set out in
paragraph 3 below, Xxxx and Mondou shall sell and MKBY shall
purchase all of the Shares.
B. The closing date shall be a date mutually agreed upon between
the parties but in any event, no later than 60 days from and
after the date of execution of this agreement.
2. Consideration. The consideration for the sale of the Shares
shall be:
A. The issuance to Xxxx of 50,000 shares of the common stock of
MKBY.
B. The payment to Xxxx of Twenty Five Thousand Dollars ($25,000.00)
CDN.
C. The issuance to Mondou of 50,000 shares of the common stock of
MKBY.
D. The payment to Mondou of Twenty Five Thousand Dollars
($25,000.00) CDN.
E. At closing, MKBY shall agree to pay, be liable for, perform,
observe, discharge and fully satisfy when due (i) all of the
liabilities and obligations of Xxxxxxx existing on the date of
closing, provided, however, that the liability of MKBY pursuant
to such assumption of liabilities shall not exceed Six Thousand
Canadian Dollars ($6,000.00CDN), as well as to assume and pay
(ii) Xxxxxxx'x debt owed to CAI, Affaires Corporatives
International, in the amount of $8,600.00 CDN (which includes
all applicable taxes) (the "CAI Debt").
3. Conditions.
The completion of this agreement shall be conditional upon the parties executing
the following agreements on the closing date contemporaneous with the completion
of this agreement:
A. A 5-year employment agreement between Xxxxxxx, as Employer, and
Xxxx, as Employee, in the form which is attached hereto as
Exhibit A to this agreement.
B. A 5-year employment agreement between Xxxxxxx, as Employer, and
Mondou, as Employee, in the form which is attached hereto as
Exhibit B to this agreement.
C. A royalty agreement between MKBY and Xxxx in the form which is
attached hereto as Exhibit C to this agreement.
D. A royalty agreement between MKBY and Mondou in the form which is
attached hereto as Exhibit D to this agreement.
X. Xxxx and Mondou will, on the date of closing contemporaneous
with the completion of this agreement, execute a non-competition
and non-disclosure agreement in the form which is attached
hereto as Exhibit E of this agreement.
4. Completion.
Completion shall take place on the closing date. The sale shall be completed at
the offices of Xxxxxx, de Xxxxx, attorneys for MKBY, located at 0, Xxxxx Xxxxx-
Xxxxx, Xxxxxxxx, Xxxxxx, X0X 0X0.
A. On the closing date, the parties shall mutually execute and
deliver to one another the agreements set forth in paragraph 3 A
thru E above.
B. On the closing date, Xxxx and Mondou shall deliver to MKBY's
representatives duly executed forms of stock transfer together
with accompanying certificates in respect of the Xxxxxxx shares,
and the resignations of all directors of Xxxxxxx.
C. On the closing date, MKBY shall deliver to Xxxx and Mondou the
cash payments and the agreement to assume the outstanding
obligations of Xxxxxxx referred to in section 2 above.
D. The MKBY shares shall be delivered to Xxxx and Mondou in
accordance with section 2 above within three (3) business days
following the granting of a prospectus exemption by the Quebec
Securities Commission.
5. Representations, Warranties and Covenants of Xxxx, Mondou and Xxxxxxx.
In consideration of this agreement, Xxxx, Mondou and Xxxxxxx represent
and warrant to MKBY as follows:
X. Xxxxxxx is a corporation duly incorporated, duly organized and
validly subsisting under the laws of Canada and is authorized,
qualified and licensed to own its properties and to carry on its
businesses as presently owned and carried on by it.
B. The Shares owned by Xxxx and Mondou and which are to be
transferred to MKBY, are validly issued and outstanding as fully
paid and non-assessable shares and are the only issued and
outstanding shares of Xxxxxxx. Xxxx and Mondou are the sole
beneficial and registered owners of the Shares with good and
valid title to said shares. There is no contract, agreement,
option or other right of any person or entity binding upon or
which at any time in the future may become binding upon Xxxxxxx
to sell, transfer, assign, pledge, charge, mortgage or in any
other way dispose of or encumber any of the Shares. No person or
entity has any contract, agreement, option or any right or
privilege capable of becoming a contract including convertible
securities, warrants or convertible obligations of any nature
for any purchase, subscription, allotment or issuance of any of
the unissued shares in the share capital of Xxxxxxx.
C. The Board of Directors of Xxxxxxx has duly authorized and
approved the transactions contemplated by this agreement and any
and all agreements, documents or instruments to be executed
and/or delivered in connection herewith and the performance of
its obligations hereunder and thereunder. No other corporate
action by Xxxxxxx or otherwise is required in connection with
the foregoing.
X. Xxxxxxx has no subsidiaries or interest in the shares of any
other company wheresoever incorporated.
X. Xxxx and Mondou are the sole inventors of the Vertical Axis
Windmill and Self-Erecting Structure Therefor and wind generator
technology related to said wind generator and off-grid power
system technology (the "Invention") and all intellectual
property rights thereto related (collectively the "Intellectual
Property") and they have developed the Invention exclusively for
the benefit of Xxxxxxx.
X. Xxxx and Mondou have duly assigned the rights in the
Intellectual Property to Xxxxxxx and Xxxxxxx is the exclusive
and complete owner of the Intellectual Property. To the best of
their knowledge, no third party has any right or title to the
Intellectual Property.
X. Xxxx, Mondou and Xxxxxxx have duly applied for a patent
application in Canada on or about January 24, 2002 in order to
adequately protect the Invention and Xxxx, Mondou and Xxxxxxx
have not acted in any manner as to invalidate the patent
application or render the patent unenforceable, such as, but not
limited to, public disclosuer of the Invention beyond the legal
delays.
H. All persons to whom the Invention has been disclosed have signed
a non-disclosure agreement.
I. The Intellectual Property is free and clear of any hypothec,
lien or encumbrance of any nature.
J. As of the date hereof, Xxxxxxx, Xxxx and Mondou have taken all
reasonable and proper steps to safeguard the trade secrets and
confidential information of Xxxxxxx'x Intellectual Property.
K. All liabilities, including contingent liabilities of Xxxxxxx as
of the closing date, shall be disclosed to MKBY and listed on
Schedule A to this agreement. At the closing date, Xxxxxxx
shall have no liabilities other than the liabilities disclosed
on Schedule A to this agreement and further, such liabilities
shall not exceed the sum of Six Thousand Canadian Dollars
($6,000.00CDN) as of the date of closing, with the exception of
the CAI Debt.
L. Without limiting the generality of the foregoing, Xxxxxxx is not
engaged in any litigation nor aware of any contract, claim,
notice matter or thing on the part of any third party which
might reasonably be expected to lead to the threat of litigation
whether successful or not.
X. Xxxx and Mondou jointly and severally hereby covenant and agree
with MKBY to hold harmless and indemnify both MKBY and Xxxxxxx
in respect of any breach of or non-fulfillment of any
representation, warranty, covenant or agreement on the part of
Xxxx and Mondou under this agreement.
X. Xxxx and Mondou hereby covenant and agree with MKBY to use
reasonable efforts to obtain and, on and after completion of the
transaction contemplated hereby, deliver to MKBY all financial,
intellectual property, know-how, knowledge, business and related
documents and materials held by Xxxx and Mondou or Xxxxxxx.
X. Xxxx, Mondou and Xxxxxxx hereby covenant and agree to continue
to take all reasonable and proper steps to safeguard the trade
secrets and confidential information of Xxxxxxx as outlined
above up to and following the completion of the transactions
contemplated hereby.
X. Xxxxxxx is entitled to the exclusive and uninterrupted use of
the Intellectual Property without payment of any royalty or
fees. No person has any right, title or interest in any of the
Intellectual Property other than Xxxxxxx. No person has
challenged the validity of Xxxxxxx'x rights to any of the
Intellectual Property. To the best of their knowledge, neither
the Intellectual Property nor the conduct of Xxxxxxx'x business
infringes upon the industrial or intellectual property rights of
any other person, nor has any other person infringed upon
Xxxxxxx'x rights to the Intellectual Property.
6. Representations, Warranties and Covenants of MKBY. In consideration of
this agreement, MKBY represents and warrants to Xxxx and Mondou as
follows:
A. MKBY is a corporation duly incorporated and is in good standing
under the laws of the State of Delaware and is authorized,
qualified and licensed to own its properties and to carry on its
businesses as presently owned and carried on by it.
B. The Board of Directors of MKBY has duly authorized and approved
the transaction contemplated by this agreement and any and all
agreements, documents or instruments to be executed and/or
delivered in connection herewith and the performance of its
obligations hereunder and thereunder. No other corporate action
by MKBY or otherwise is required in connection with the
foregoing.
C. When issued to Xxxx and Mondou pursuant to paragraph 2 above,
the MKBY shares shall be fully paid and non-assessable shares in
the capital of MKBY and will be owned by Xxxx and Mondou
respectively as beneficial and registered owner with good and
valid title thereto, free and clear of any and all liens or
encumbrances.
7. Acknowledgement and Representation Regarding the MKBY Shares.
Xxxx and Mondou each individually acknowledge that the MKBY shares have
not been registered under the Securities Act of 1933 ("SA-1933") and are
being issued under an exemption under the SA-1933. In accordance
therewith, Xxxx and Mondou each individually represent to MKBY that:
X. Xxxx and Mondou each individually are acquiring the MKBY shares
for investment for their own account only and not with a view
for reselling same. Neither Xxxx nor Mondou intend to divide
their participation with others or to resell or otherwise
dispose of all or any part of the MKBY shares unless and until
each determine at some future date on the basis of information
not currently at their disposal or conditions not currently
existing, that such resale or disposition is advisable.
B. In no event will either Xxxx or Mondou sell the MKBY shares
prior to the registration of the MKBY shares under the SA-1933
unless such sale is made pursuant to a valid exemption under the
SA-1933 including without limitation the exemption established
in Rule 144 adopted by the Securities and Exchange Commission.
8. Mutual Undertakings.
A. The parties hereto agree that the terms of this agreement and
all matters arising under it shall be confidential to the
parties and their advisors and no disclosure of the terms or
contents of this agreement shall be made to any third party
except as required for the implementation or authorization of
this agreement and its completion.
B. The parties shall execute and procure the execution of all such
further documents or other things as shall be required to secure
the full performance and implementation of the terms of this
agreement and shall undertake all such further acts as shall be
necessary to bring into effect the terms of this agreement,
including but not limited to any filings required under any
Securities Acts of any of the Canadian jurisdictions in relation
to the issuance of MKBY shares to each of Xxxx and Mondou in
accordance with section 2 of this agreement.
C. The representations and warranties of the parties set out in
this agreement or any other agreement, certificate or instrument
delivered pursuant to this agreement shall survive the
completion of the transactions contemplated herein.
9. General.
A. Any notice to be delivered hereunder shall be in writing signed
by a party or a duly authorized representative of a party
serving such notice and shall be delivered to the other party or
parties by hand or facsimile or by registered post to the
address shown above or such other address as shall be specified
for service. In the case of service by post, such notice shall
be deemed to be received seven days after dispatch.
B. This agreement and all matters arising under it shall be subject
to the laws and application of said laws of the Province of
Quebec and laws of Canada applicable therein, and the parties
hereby submit to the exclusive venue in the Province of Quebec
to resolve any disputes arising hereunder. The parties agree
that if a dispute arises, they will submit same to arbitration
pursuant to the applicable provisions of the Code of Civil
Procedure of Quebec and said decision will be binding upon
both.
C. This agreement constitutes the entire agreement between the
parties pertaining to the subject matter of this agreement and
supersedes all prior agreements, understandings, negotiations
and discussions whether oral or written. There are no
conditions, warranties, representations or other agreements
between the parties in connection with the subject matter of
this agreement (whether oral or written, express or implied,
statutory or otherwise) except as specifically set out in this
agreement.
D. The parties hereby acknowledge that they have requested that
this agreement and all related documents be drawn up in the
English language. Les parties aux presentes reconnaissent
qu'elles ont exige que la presente convention et tous les
documents qui s'y rattachent soient rediges en anglais.
IN WITNESS WHEREOF, this agreement has been executed by the parties
as of the 12th day of February 2002, with effective date as of
December 1, 2001.
XxXXXXXX BAY INTERNATIONAL, LTD.
per: /s/ Xxxx X. Xxxxxxxxxx
President
EXPERTS CONSEILS XXXXXXX, INC.
XXXXXXX XXXXXX
per: /s/ Xxxxxxx Xxxxxx
Vice-President
XXXXXXXXX XXXX
per: /s/ Xxxxxxxxx Xxxx
President
SCHEDULE A
Disclosure of Xxxxxxx'x liabilities pursuant to section 5(K)
EXHIBIT A
Employment Agreement with Xxxx
EXHIBIT B
Employment Agreement with Mondou
EXHIBIT C
Royalty Agreement with Xxxx
EXHIBIT D
Royalty Agreement with Mondou
EXHIBIT E
Non-Competition and Non-Disclosure Agreement
================================================================================
SCHEDULE A - Disclosure of Xxxxxxx'x liabilities pursuant to section 5(K)
Xxxxxxx as of February 12, 2002
Bank Account: $ 132.04
Accounts Receivable:
TPS,TVQ Return $ 598.22
MKBY Invoice#01-12-1 $15,141.82
MKBY Invoice#01-02-2 $36,329.91
------------
TOTAL Bank account and Receivables $52,201.99
Accounts Payable
Third Party:
Xxxxxxx contibution to business plan $ 8,626.87 (CAI Invoice #2860)
Patent Filing $ 5,606.15 (Xxxxxxxx Xxxx Xxxxx #000000)
Xxxx Xxxxxx $ 148.85 (invoice 02/04/02)
--------------
TOTAL Third Party $14,381.87
Shareholders:
Xx. Xxxxxxxx Xxxx $20,307.09
Xx. Xxxxxxx Xxxxxx $19,021.51
--------------
TOTAL Sharholders Payable $39,710.47
==============
TOTAL Accounts Payable $53,710.47
NET: ($1,508.48)
DETAILS DUE TO SHAREHOLDERS:
Xx. X. Xxxx Xx. X. Xxxxxx Total
Invoice to MKBY #01-12-1 $ 7,075.00 $ 5,925.00 $13,000.00
Advance, Nov 13 $ 550.00 $ 550.00 $ 1,100.00
Advance, Dec 20 $ 325.00 $ 325.00 $ 650.00
Invoice to MKBY #01-2-2
Services Dec.1-31 $ 5,416.67 $ 5,416.67 $10,833.34
Services Jan.1-31 $ 5,416.67 $ 5,416.67 $10,833.34
Services Feb.1-11 $ 1,354.17 $ 1,354.17 $ 2,708.34
Expenses, trip to Alaska $ 106.73 $ - $ 106.73
Meetings with Xxxxxx, DeBilly $ 62.85 $ 34.00 $ 96.85
-------------- -------------- ------------
Total, Shareholders Payable $20,307.09 $ 19,021.51 $39,328.60
================================================================================
EXHIBIT A - Employment Agreement - Xxxxxxxxx Xxxx
EMPLOYMENT AGREEMENT entered into on February 12, 2002, in the City of Montreal,
province of
Quebec.
BETWEEN: XXXXXXXXX XXXX, domiciled and residing at 000 XxXxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxx, X0X0X0;
(hereinafter referred to as the "Employee")
AND: EXPERTS CONSEILS XXXXXXX INC., a corporation duly incorporated under the
Canada Business Corporations Act, having its registered office at 000 XxXxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxx, X0X 0X0, represented herein by Xxxx X. Xxxxxxxxxx,
director, duly authorized as he so declares;
(hereinafter referred to as "Dermond")
WHEREAS as of the date hereof, the Employee sold all of his shares in the share
capital of Xxxxxxx to XxXxxxxx Bay International Ltd. ("MKBY");
WHEREAS Xxxxxxx wishes to retain the Employee;
WHEREAS the Employee and Xxxxxxx are desirous of entering into an agreement for
the Employee's employment, all subject to the terms and conditions set forth in
this Agreement;
NOW IT IS HEREBY AGREED:
1. INTERPRETATION
1.1 Definitions
In this Agreement, the following words and expressions have the respective
meanings ascribed to them below:
(a) "Affiliate" with respect to a Person means a Person that
controls, is controlled by or under common control with such
Person. For purposes of this definition, "control" when used
with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise, and the terms "controlling" and "controlled" have
meaning collative to the foregoing;
(b) "Agreement" means this employment agreement;
(c) "Board of Directors" means the board of directors of Xxxxxxx;
(d) "Business" means the fabrication, sale or lease of the Xxxxxxx
Wind Generator and related technology;
(e) "Cause" shall include, but not be limited to the following, as a
basis for termination of employment, (i) wilful misconduct
involving bad faith by the Employee in respect of his
obligations under this Agreement, which misconduct causes or is
intended by the Employee to cause significant injury to Xxxxxxx,
(ii) gross malfeasance, (iii) conduct by Employee which
constitutes a breach of the Employee's fiduciary duty or (iv)
repeated refusal by the Employee to perform reasonable and
lawful job assignments which are not materially inconsistent
with his duties and responsibilities under this Agreement and
such failure continues for a period of ten (10) days after
Xxxxxxx has given the Employee written notice of such failure
and requested the Employee to remedy such failure.
(f) "Commencement Date" means February12, 2002;
(g) "Disability" shall mean, with respect to the Employee, being
physically or mentally disabled, whether totally or partially,
so that he is substantially unable to perform his duties under
this Agreement for a longer period than twelve (12) consecutive
months, or if he shall be disabled at different times for more
than twelve (12) months (whether working days or not) in any one
period of eighteen (18) consecutive months;
(h) "Discoveries and Works" includes by way of example but without
limitation, intellectual property, trade secrets and other
confidential information, patents and patent applications,
trademarks and trademark registrations and applications, service
marks and service xxxx registrations and applications, trade
names, copyrights and copyright registrations and applications;
(i) "Employment Year" means the period beginning on February 12,
2002 and ending on February 11, 2003, and each consecutive
twelve- month period;
(j) "Parties" means Xxxxxxx and the Employee and "Party" means one
or the other as the case may be;
(k) "Person" means any individual, corporation, proprietorship,
firm, partnership, limited partnership, limited liability
company, trust, association or other entity;
(l) "Restriction Period" means the period of time covering the Term
plus a period equivalent to eighteen (18) months following
Employee's Termination Date;
(m) "Subsidiary" means a corporation controlled by Xxxxxxx, or by
another subsidiary of Xxxxxxx;
(n) "Term", "Initial Term", and "Additional Term" shall have the
meaning set forth in Section 4;
(o) "Termination Date" means the effective date of the Employee's
termination of employment with Xxxxxxx, regardless of the
reason;
(p) "Territory" means the world.
2. EMPLOYMENT
Xxxxxxx hereby employs the Employee as President of Xxxxxxx as well as to:
(a) provide technical expertise in furthering the development of the
Xxxxxxx Wind Generator;
(b) provide technical expertise in developing off-grid power system
technology; and
(c) provide technical expertise to potential and actual customers,
vendors and partners of Xxxxxxx and its Affiliates and
Subsidiaries, as well as other duties Xxxxxxx may from time to
time request, without additional compensation. The Employee
hereby accepts employment from Xxxxxxx to perform the duties
described above upon the terms and conditions set forth in this
Agreement.
3. DUTIES AND RESPONSIBILITIES
3.1 During the Term of this Agreement, the Employee shall devote his full
time and efforts to the performance of his duties and responsibilities
under this Agreement and to the business and affairs of Xxxxxxx, its
Subsidiaries and Affiliates, in general, and the Employee shall use his
best efforts to promote the interests thereof and shall faithfully and
to the best of his ability serve as the President of Xxxxxxx.
3.2 It is expressly understood and agreed that the Employee shall not engage
in any other business or business opportunity, whether or not such
business activity is pursued for gain, profit or other pecuniary
advantage, provided however that:
(a) the Employee may engage in personal, charitable, professional
and investment activities to the extent such activities do not
conflict or interfere with the Employee's duties and obligations
under this Agreement or Employee's ability to perform his duties
and responsibilities under this Agreement; and
(b) the Employee shall not be prevented from investing his assets in
such form or manner as will not require any substantial amount
of time or services on the part of the Employee in the operation
of the affairs of the enterprises in which such investments are
made.
3.3 The Employee shall be subject to the direction of, and report only to,
the Board of Directors.
3.4 The Employee shall also perform duties commensurate with his position
and such specific duties and services as the Board of Directors shall
reasonably request consistent with the Employee's position.
3.5 It is contemplated that the Employee will be obliged from time to time
and for reasonable period of time to travel in the performance of his
duties and obligations under this Agreement. However, the principal
place of employment of the Employee which the Employee shall report for
work will be at the Montreal,
QuEbec office of Dermond.
4. TERM
Unless sooner terminated as provided for in this Agreement, the terms of
the Employee's employment shall commence on February12, 2002 and shall
continue for five (5) year(s) (the "Initial Term"), provided, however,
that the Initial Term of the Employee's employment under this Agreement
shall automatically be extended for additional periods of twelve (12)
months each (an "Additional Term") unless and until either Xxxxxxx or
the Employee shall have given the other notice, not less than three (3)
months prior to the expiration of the Initial Term or any subsequent
Additional Term, of the termination by the notifying party of the
Employee's employment effective as of the next succeeding anniversary
date of the expiration of the Initial Term or Additional Term (the
Initial Term and any Additional Term(s) are collectively referred to as
the "Term" in this Agreement).
5. COMPENSATION
During the Term of this Agreement, Xxxxxxx shall pay to the Employee an
annual base salary of sixty-five thousand Canadian dollars ($65,000
CDN). Such salary shall be paid to the Employee in monthly instalments
of $5,416.67 CDN (less applicable taxes and other deductions at source),
on the first business day of each month. However, upon the completion of
the first sale of a Xxxxxxx Wind Generator by MKBY, Xxxxxxx or any of
its Subsidiaries, the Employee's salary will increase to eighty-five
thousand Canadian dollars ($85,000 CDN) per year, paid in monthly
instalments, less any applicable taxes or deductions at source. The
compensation committee of the Board of Directors shall review the annual
base salary of the Employee each year and as a result of such review
shall increase the annual base salary, effective as of the commencement
of each successive Employment Year, to such greater amount as the Board
of Directors may deem reasonable in the light of the then business and
financial affairs of Xxxxxxx and such other factors as in the then
circumstances of Xxxxxxx may be appropriate.
6. EXPENSES
Xxxxxxx shall reimburse the Employee for all necessary and reasonable
expenses incurred by him in the performance of his duties under this
Agreement. The Employee shall, on being so required, provide Xxxxxxx
with vouchers or other evidence of actual payment of the said expenses
in a form satisfactory to Xxxxxxx.
7. BENEFITS
7.1 Employee Plans
During the Term of this Agreement, the Employee shall participate in all
employee benefit and insurance plans or programs established by Xxxxxxx
in its full discretion and from which he is not excluded from
participating by reason of the terms and conditions in the respective
plans or programs.
7.2 Vacation
The Employee shall be entitled to four (4) weeks paid vacation in each
Employment Year to be taken at such times as may be appropriate having
regard to the requirements of Xxxxxxx'x business. The Employee shall not
be entitled to carry forward from one year to another untaken vacation
time unless expressly agreed between Xxxxxxx and the Employee.
8. RETURN OF DOCUMENTS AND PROPERTY
Upon the termination of Employee's employment with Xxxxxxx, or at
anytime upon the request of Xxxxxxx, Employee (or his heirs or personal
representatives) shall deliver to Xxxxxxx (a) all documents and
materials (including without limitation, computer files) containing
trade secrets or other confidential information relating to the business
and affairs of Xxxxxxx, and (b) all documents, materials and other
property (including, without limitation, computer files) belonging to
Xxxxxxx, which in either case are in the possession or under the control
of Employee (or his heirs or personal representatives).
9. DISCOVERIES AND WORKS
All Discoveries and Works made or conceived by Employee during his
employment by Xxxxxxx, jointly or with others, that relate to the
present or anticipated activities of Xxxxxxx, or are used or usable by
Xxxxxxx shall be owned by Xxxxxxx. Employee shall (a) promptly notify,
make full disclosure to, and execute and deliver any documents requested
by Xxxxxxx to evidence or better assure title to Discoveries and Works
in Xxxxxxx, as so requested, (b) renounce any and all claims, including
but not limited to claims of ownership and royalty, with respect to all
Discoveries and Works and all other property owned or licensed by
Xxxxxxx, (c) assist Xxxxxxx in obtaining or maintaining for itself at
its own expense Canadian and foreign patents, copyrights, trade secret
protection or other protection of any and all Discoveries and Works, and
(d) promptly execute, whether during his employment with Xxxxxxx or
thereafter, all applications or other endorsements necessary or
appropriate to maintain patents and other rights for Xxxxxxx and to
protect the title of Xxxxxxx thereto, including but not limited to
assignments of such patents and other rights. Any Discoveries and Works
which, within six (6) months after the Termination Date, are made,
disclosed, reduced to a tangible or written form or description, or are
reduced to practice by Employee and which pertain to the business
carried on or products or services being sold or developed by Xxxxxxx at
the time of such termination shall, as between Employee and Xxxxxxx be
presumed to have been made during Employee's employment by Xxxxxxx.
10. DEATH
The Employee's employment under this Agreement shall terminate upon his
death. In the event of the termination of the Employee's employment as a
result of his death, Xxxxxxx shall promptly pay to any one or more
beneficiaries designated by the Employee pursuant to a notice to Xxxxxxx
or, failing such designation, to the Employee's estate, the annual base
salary provided for in this Agreement through the conclusion of the
month in which such termination occurs.
11. DISABILITY
The Employee's employment under this Agreement may be terminated as a
result of Disability at the option of Xxxxxxx by notice to the Employee,
such termination to be effective upon the receipt by the Employee of
such notice. In the event of the termination of the Employee's
employment as a result of Disability, Xxxxxxx shall pay the Employee two
(2) times his full annual base salary less any credit for sick pay or
other benefits received by the Employee deriving from any private
medical insurance or other similar arrangements entered into by Xxxxxxx.
12. TERMINATION FOR CAUSE BY XXXXXXX
The Employee's employment under this Agreement may be terminated by
Xxxxxxx for Cause. In the event that the Employee's employment under
this Agreement shall validly be terminated by Xxxxxxx for Cause pursuant
to this Section 12, Xxxxxxx shall promptly pay accrued but unpaid salary
and reimburse or pay any other accrued but unpaid amounts due under this
Agreement as of the date of termination, and thereafter Xxxxxxx shall
have no further obligations under this Agreement.
13. TERMINATION WITHOUT CAUSE
Xxxxxxx may terminate the Employee's employment at any time or any
reason other than those specified in Sections 10, 11 and 12 hereof or
for no reason whatsoever, by paying the Employee, in lieu of applicable
notice, the amount equivalent to his salary for the remaining months of
the Term, on a prorated basis, which is to be no less than a minimum of
three (3) months of salary and no more than a maximum of twenty-four
(24) months salary, in effect at the time of Employee's termination, to
be paid within forty-five (45) days after the Termination Date.
14. CONFLICT OF INTEREST
During the Term of this Agreement, the Employee shall not, either
directly or in conjunction with any person, firm, association,
syndicate, company or corporation as principal, agent, shareholder, or
in any other manner whatsoever, carry on or be engaged in, or advise,
lend money to, guarantee the debts or obligations of, or permit his name
or any part of it to be used or employed by any person, firm,
association, syndicate, company or corporation engaged in any business
in competition with the business then carried on by Xxxxxxx or a
Subsidiary, provided that the holding of not more than two per cent (2%)
of the issued shares of a public company listed on any recognized stock
exchange in Canada or traded in the Canadian over-the-counter market,
shall not be deemed a breach of this covenant.
15. CONFIDENTIALITY
During the Term of this Agreement and for a period of two (2) years
thereafter, the Employee shall keep secret and retain in strictest
confidence, and shall not use for his benefit or for the benefit or
others, directly or indirectly, any and all confidential information
relating to Xxxxxxx and its Subsidiaries of which the Employee shall
obtain knowledge by reason of his employment under this Agreement,
including, without limitation, trade and business secrets or any other
non-public or proprietary information concerning the business, customer
lists, financial plans or projections, pricing policies, marketing plans
or strategies, business acquisition or divestiture plans, new personnel
acquisition plans, technical processes, inventions and other research
projects, and except in connection with the performance of his duties
under this Agreement, he shall not disclose any such information to
anyone outside Xxxxxxx and any of its Subsidiaries, except as required
by law (provided prior written notice is given by the Employee to
Xxxxxxx) or except with the prior written consent of Xxxxxxx, unless
such information is known generally to the public or the trade through
sources other than the unauthorized disclosure by the Employee.
16. NON-COMPETITION AND NON-SOLICITATION
16.1 The Employee acknowledges and understands that (i) he is entering into
this Agreement and specifically agreeing to the provisions of this
Section16 contemporaneously with a transaction in which the Employee's
shares in Xxxxxxx, and one of the material assets represented in the
value of said share purchase, was the goodwill of Xxxxxxx, (ii) he has
access to Xxxxxxx'x clients, channels for developing clients and
recruiting executives for employment, and other confidential information
of Xxxxxxx, (iii) he has direct substantial responsibility to maintain
Xxxxxxx'x business relationship with clients of Xxxxxxx whose affairs he
handles, (iv) the non-competition and non-solicitation provisions set
forth in this Section16 constitute a material part of the consideration
received by Xxxxxxx under this Agreement, (v) due to the specific nature
and limited market for Xxxxxxx'x activities, the definition of Territory
as set forth in subsection 1.1p) hereof is reasonable and justified,
(vi) it would be unfair to Xxxxxxx if the Employee were to appropriate
for himself or for others the benefits of Xxxxxxx'x many years of
developing such business relationships, especially when the Employee
enjoys a relationship with clients of Xxxxxxx as a result of his being
introduced to the client's personnel as the representative of Xxxxxxx,
(vii) it would be unfair to Xxxxxxx if the Employee were to appropriate
for himself or for others the benefits of the business, personnel and
other confidential information which Xxxxxxx has developed in the
conduct of its business, and (viii) it is therefore fair that reasonable
restrictions as set forth below should be placed on certain activities
of the Employee after his employment with Xxxxxxx terminates.
16.2 The Employee shall not, without the prior written consent of Xxxxxxx, at
any time during the Restriction Period, either individually or in
partnership or jointly or in connection with each other or any Person,
as principal, agent, consultant, lender, contractor, employer, employee,
investor or shareholder, or in any other manner, directly or indirectly,
anywhere within the Territory:
(a) advise, manage, carry on, establish, acquire control of, work
for, perform, render, or engage in, any business or service or
activity that is similar to or competitive with the Business or
any portion of the Business; or
(b) invest in or lend money to, or guarantee the debts or
obligations of, any business or service or activity, or any
Person engaged in any business or service or activity, that is
similar to or competitive with the Business or any portion of
the Business; or
(c) permit the Employee's name or any part thereof to be used or
employed by any Person that operates, is engaged in or has an
interest in any business or service or activity that is similar
to or competitive with the Business or any portion of the
Business. Without limiting the effect of the foregoing,
competing with or competitive with the Business, includes
without limitation, directly or indirectly, engaging in or
permitting the solicitation or sale of any products or services
of the type included within the meaning of term Business as of
the termination of the Employee's employment with Xxxxxxx.
16.3 The Employee shall not during the Restriction Period, without the
written consent of Xxxxxxx, directly or indirectly (as owner, principal,
agent, partner, officer, employee, independent contractor, consultant,
stockholder, or otherwise), (i) solicit any Client (as this term is
defined below) for a purpose or objective of providing to such Client,
or obtaining an engagement from such Client to provide, any services,
businesses or activities included within the term or (ii) solicit for
employment or otherwise induce any employee employed by Xxxxxxx or any
of its Affiliates at the date of termination of the Employee's
employment with Xxxxxxx to leave such employ or offer to employ or
employ such employee. The term "Client" shall mean one or more of the
following:
(a) any current or former client or customer of Xxxxxxx or its
Affiliates;
(b) any current client or current customer of Xxxxxxx or its
Affiliates if at any time since the Commencement Date the
Employee had contact with such client or customer, or personally
solicited such client or customer, or rendered services to such
client or customer, or otherwise developed any relationship with
such client or customer, or
(c) any former client or former customer of Xxxxxxx or its
Affiliates who was, during the thirty-six (36) months preceding
the Termination Date, a client or customer of Xxxxxxx or its
Affiliates, if at any time since the Commencement Date the
Employee had contact with such client or customer, or solicited
such client or customer, or rendered services to such client or
customer, or otherwise developed any relationship with such
client or customer.
16.4 Upon the termination of the Employee's employment for whatever reason,
the Employee shall deliver to Xxxxxxx all documents, papers, records,
accounts of all and any description relating to the affairs of Xxxxxxx
within his possession or under his control, it being the intention of
the Employee and Xxxxxxx that all such notes or memoranda made by the
Employee during the course of his employment under this Agreement shall
be the property of Xxxxxxx and shall be left at its registered office or
principal place of business upon the termination of the Employee's
employment.
17. WITHHOLDING
Xxxxxxx shall be entitled to withhold from any and all amounts payable
to the Employee under this Agreement such amounts as from time to time
be required to be withheld pursuant to applicable tax laws and
regulations.
18. GENERAL PROVISIONS
18.1 Further Assurances
Each of the parties upon the request of any other party, whether before
or after the date hereof, shall do, execute, acknowledge and deliver or
cause to be done, executed, acknowledged or delivered all such further
acts, deeds, documents, assignments, transfers, conveyances, powers of
attorney and assurances as may be reasonably necessary or desirable to
effect complete consummation of the transactions contemplated by this
Agreement.
18.2 Successors in Interest
This Agreement and the provisions hereof shall enure to the benefit of
and be binding upon the Parties and their respective successors and
assigns.
18.3 Notices
Any notice, direction or other instrument required or permitted to be
given hereunder shall be in writing and given by delivery or sent by (i)
registered or certified mail, (ii) reputable overnight courier, (iii)
personal delivery, (iv) telecopier or similar telecommunication device
and addressed:
(a) in the case of Xxxxxxx at:
Experts Conseils Xxxxxxx Inc.
c/x XxXxxxxx Bay International, Ltd.
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx
X.X.X. 00000
Attention: Xx. Xxxx X. Xxxxxxxxxx
Telecopier: (000) 000-0000
(b) in the case of the Employee at:
Xxxxxxxxx Xxxx
000 XxXxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxx
X0X 0X0
Telecopier: (000) 000-0000
Any notice, direction or other instrument given as aforesaid
shall be deemed to have been effectively given and received, if
sent by mail on the fourth (4th) business day following such
mailing, if sent by telecopier or similar telecommunications
device on the next business day following such transmission or,
if delivered, to have been given and received on the date of
such delivery. Any party may change its address for service by
written notice given as aforesaid.
18.4 Amendments
This agreement may not be amended except by written instrument duly
executed by or on behalf of all parties hereto.
18.5 Language
The Parties hereby acknowledge that they have requested that this
Agreement and all related documents be drawn up in the English language.
Les parties aux presentes reconnaissent qu'elles ont exige que la
presente convention et tous les documents qui s'y rattachent soient
rediges en anglais.
18.6 Governing Laws
This Agreement shall be governed by and construed in accordance with the
Laws of the Province of
Quebec and the Laws of Canada applicable
therein. The Parties agree to submit to the jurisdiction of the Courts
of
Quebec, District of Montreal.
18.7 Gender
Any reference in this Agreement to any gender shall include all genders
and words used herein importing the singular number only shall include
the plural and vice versa.
18.8 Headings
The division of this Agreement into articles, sections, subsections and
other subdivisions and the insertion of headings are for convenience of
reference only and shall not affect or be utilized in the construction
or interpretation hereof.
18.9 Severability
Any article, section, subsection or other subdivision of this Agreement
or any other provision of this Agreement which is, or becomes, illegal,
invalid or unenforceable shall be severed herefrom and shall be
ineffective to the extent of such illegality, invalidity or
unenforceability and shall not affect or impair the remaining provisions
hereof, which provisions shall be severed from any illegal, invalid or
unenforceable article, section, subsection or other subdivision of this
Agreement or any other provision of this Agreement.
18.10 Waiver
No waiver of any of the provisions of this Agreement shall be deemed to
constitute a waiver of any other provision (whether or not similar) nor
shall such waiver constitute a continuing waiver unless otherwise
expressly provided in a written document duly executed by the party to
be bound thereby.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and year
first above written.
EXPERTS CONSEILS XXXXXXX INC.
per: /s/ Xxxx X. Xxxxxxxxxx
Director
Witness: /s/ Xxxxxxxxx Xxxx
================================================================================
EXHIBIT B
EMPLYOMENT AGREEMENT - MONDOU
EMPLOYMENT AGREEMENT entered into on February 12, 2002, in the City of Montreal,
Province of
Quebec
BETWEEN: XXXXXXX XXXXXX, domiciled and residing at 000, Xx Xxxxx Xxxxxx, Xx.
Xxxxxxx, Xxxxxx, X0X 0X0;
(hereinafter referred to as the "Employee")
AND: EXPERTS CONSEILS XXXXXXX INC., a corporation duly incorporated under the
Canada Business Corporations Act, having its registered office at 000 XxXxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxx, X0X 0X0, represented herein by Xxxx X. Xxxxxxxxxx,
Director, duly authorized as he so declares;
(hereinafter referred to as "Dermond")
WHEREAS as of the date hereof, the Employee sold all of his shares in the share
capital of Xxxxxxx to XxXxxxxx Bay International Ltd. ("MKBY");
WHEREAS Xxxxxxx wishes to retain the Employee;
WHEREAS the Employee and Xxxxxxx are desirous of entering into an agreement for
the Employee's employment, all subject to the terms and conditions set forth in
this Agreement;
NOW IT IS HEREBY AGREED:
INTERPRETATION
Definitions
In this Agreement, the following words and expressions have the respective
meanings ascribed to them below:
"Affiliate" with respect to a Person means a Person that controls, is controlled
by or under common control with such Person. For purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise, and the terms
"controlling" and "controlled" have meaning collative to the foregoing;
"Agreement" means this employment agreement;
"Board of Directors" means the board of directors of Xxxxxxx;
"Business" means the fabrication, sale or lease of the Xxxxxxx Wind Generator
and related technology;
"Cause" shall include, but not be limited to the following, as a basis for
termination of employment, (i) wilful misconduct involving bad faith by the
Employee in respect of his obligations under this Agreement, which misconduct
causes or is intended by the Employee to cause significant injury to Xxxxxxx,
(ii) gross malfeasance, (iii) conduct by Employee which constitutes a breach of
the Employee's fiduciary duty or (iv) repeated refusal by the Employee to
perform reasonable and lawful job assignments which are not materially
inconsistent with his duties and responsibilities under this Agreement and such
failure continues for a period of ten (10) days after Xxxxxxx has given the
Employee written notice of such failure and requested the Employee to remedy
such failure.
"Commencement Date" means February 12, 2002;
"Disability" shall mean, with respect to the Employee, being physically or
mentally disabled, whether totally or partially, so that he is substantially
unable to perform his duties under this Agreement for a longer period than
twelve (12) consecutive months, or if he shall be disabled at different times
for more than twelve (12) months (whether working days or not) in any one period
of eighteen (18) consecutive months;
"Discoveries and Works" includes by way of example but without limitation,
intellectual property, trade secrets and other confidential information, patents
and patent applications, trademarks and trademark registrations and
applications, service marks and service xxxx registrations and applications,
trade names, copyrights and copyright registrations and applications;
"Employment Year" means the period beginning on February 12, 2002 and ending on
February 11, 2003, and each consecutive twelve-month period;
"Parties" means Xxxxxxx and the Employee and "Party" means one or the other as
the case may be;
"Person" means any individual, corporation, proprietorship, firm, partnership,
limited partnership, limited liability company, trust, association or other
entity;
"Restriction Period" means the period of time covering the Term plus a period
equivalent to eighteen (18) months following Employee's Termination Date;
"Subsidiary" means a corporation controlled by Xxxxxxx, or by another subsidiary
of Xxxxxxx;
"Term", "Initial Term", and "Additional Term" shall have the meaning set forth
in Section - RENV -Ref4972923
"Termination Date" means the effective date of the Employee's termination of
employment with Xxxxxxx, regardless of the reason;
"Territory" means the world.
EMPLOYMENT
Xxxxxxx hereby employs the Employee as Vice-president of Xxxxxxx as well as to:
provide technical expertise in furthering the development of the Xxxxxxx Wind
Generator;
provide technical expertise in developing off-grid power system technology; and
provide technical expertise to potential and actual customers, vendors and
partners of Xxxxxxx and its Affiliates and Subsidiaries,
as well as other duties Xxxxxxx may from time to time request, without
additional compensation. The Employee hereby accepts employment from Xxxxxxx to
perform the duties described above upon the terms and conditions set forth in
this Agreement.
DUTIES AND RESPONSIBILITIES
During the Term of this Agreement, the Employee shall devote his full time and
efforts to the performance of his duties and responsibilities under this
Agreement and to the business and affairs of Xxxxxxx, its Subsidiaries and
Affiliates, in general, and the Employee shall use his best efforts to promote
the interests thereof and shall faithfully and to the best of his ability serve
as the Vice-president of Xxxxxxx.
It is expressly understood and agreed that the Employee shall not engage in any
other business or business opportunity, whether or not such business activity is
pursued for gain, profit or other pecuniary advantage, provided however that:
the Employee may engage in personal, charitable, professional and investment
activities to the extent such activities do not conflict or interfere with the
Employee's duties and obligations under this Agreement or Employee's ability to
perform his duties and responsibilities under this Agreement; and
the Employee shall not be prevented from investing his assets in such form or
manner as will not require any substantial amount of time or services on the
part of the Employee in the operation of the affairs of the enterprises in which
such investments are made.
The Employee shall be subject to the direction of, and report only to, the Board
of Directors.
The Employee shall also perform duties commensurate with his position and such
specific duties and services as the Board of Directors shall reasonably request
consistent with the Employee's position.
It is contemplated that the Employee will be obliged from time to time and for
reasonable period of time to travel in the performance of his duties and
obligations under this Agreement. However, the principal place of employment of
the Employee which the Employee shall report for work will be at the Montreal,
Quebec office of Dermond.
TERM
Unless sooner terminated as provided for in this Agreement, the terms of the
Employee's employment shall commence on February 12, 2002 and shall continue for
five (5) year(s) (the "Initial Term"), provided, however, that the Initial Term
of the Employee's employment under this Agreement shall automatically be
extended for additional periods of twelve (12) months each (an "Additional
Term") unless and until either Xxxxxxx or the Employee shall have given the
other notice, not less than three (3) months prior to the expiration of the
Initial Term or any subsequent Additional Term, of the termination by the
notifying party of the Employee's employment effective as of the next succeeding
anniversary date of the expiration of the Initial Term or Additional Term (the
Initial Term and any Additional Term(s) are collectively referred to as the
"Term" in this Agreement).
COMPENSATION
During the Term of this Agreement, Xxxxxxx shall pay to the Employee an annual
base salary of sixty-five thousand Canadian dollars ($65,000 CDN). Such salary
shall be paid to the Employee in monthly instalments of $5,416.67 CDN (less
applicable taxes and other deductions at source), on the first business day of
each month. However, upon the completion of the first sale of a Xxxxxxx Wind
Generator by MKBY, Xxxxxxx or any of its Subsidiaries, the Employee's salary
will increase to eighty-five thousand Canadian dollars ($85,000 CDN) per year,
paid in monthly instalments, less any applicable taxes or deductions at source.
The compensation committee of the Board of Directors shall review the annual
base salary of the Employee each year and as a result of such review shall
increase the annual base salary, effective as of the commencement of each
successive Employment Year, to such greater amount as the Board of Directors may
deem reasonable in the light of the then business and financial affairs of
Xxxxxxx and such other factors as in the then circumstances of Xxxxxxx may be
appropriate.
EXPENSES
Xxxxxxx shall reimburse the Employee for all necessary and reasonable expenses
incurred by him in the performance of his duties under this Agreement. The
Employee shall, on being so required, provide Xxxxxxx with vouchers or other
evidence of actual payment of the said expenses in a form satisfactory to
Xxxxxxx.
BENEFITS
Employee Plans
During the Term of this Agreement, the Employee shall participate in all
employee benefit and insurance plans or programs established by Xxxxxxx in its
full discretion and from which he is not excluded from participating by reason
of the terms and conditions in the respective plans or programs.
Vacation
The Employee shall be entitled to four (4) weeks paid vacation in each
Employment Year to be taken at such times as may be appropriate having regard to
the requirements of Xxxxxxx'x business. The Employee shall not be entitled to
carry forward from one year to another untaken vacation time unless expressly
agreed between Xxxxxxx and the Employee.
RETURN OF DOCUMENTS AND PROPERTY
Upon the termination of Employee's employment with Xxxxxxx, or at anytime upon
the request of Xxxxxxx, Employee (or his heirs or personal representatives)
shall deliver to Xxxxxxx (a) all documents and materials (including without
limitation, computer files) containing trade secrets or other confidential
information relating to the business and affairs of Xxxxxxx, and (b) all
documents, materials and other property (including, without limitation, computer
files) belonging to Xxxxxxx, which in either case are in the possession or under
the control of Employee (or his heirs or personal representatives).
DISCOVERIES AND WORKS
All Discoveries and Works made or conceived by Employee during his employment by
Xxxxxxx, jointly or with others, that relate to the present or anticipated
activities of Xxxxxxx, or are used or usable by Xxxxxxx shall be owned by
Xxxxxxx. Employee shall (a) promptly notify, make full disclosure to, and
execute and deliver any documents requested by Xxxxxxx to evidence or better
assure title to Discoverie s and Works in Xxxxxxx, as so requested, (b) renounce
any and all claims, including but not limited to claims of ownership and
royalty, with respect to all Discoveries and Works and all other property owned
or licensed by Xxxxxxx, (c) assist Xxxxxxx in obtaining or maintaining for
itself at its own expense Canadian and foreign patents, copyrights, trade secret
protection or other protection of any and all Discoveries and Works, and (d)
promptly execute, whether during his employment with Xxxxxxx or thereafter, all
applications or other endorsements necessary or appropriate to maintain patents
and other rights for Xxxxxxx and to protect the title of Xxxxxxx thereto,
including but not limited to assignments of such patents and other rights. Any
Discoveries and Works which, within six (6) months after the Termination Date,
are made, disclosed, reduced to a tangible or written form or description, or
are reduced to practice by Employee and which pertain to the business carried on
or products or services being sold or developed by Xxxxxxx at the time of such
termination shall, as between Employee and Xxxxxxx be presumed to have been made
during Employee's employment by Xxxxxxx.
DEATH
The Employee's employment under this Agreement shall terminate upon his death.
In the event of the termination of the Employee's employment as a result of his
death, Xxxxxxx shall promptly pay to any one or more beneficiaries designated by
the Employee pursuant to a notice to Xxxxxxx or, failing such designation, to
the Employee's estate, the annual base salary provided for in this Agreement
through the conclusion of the month in which such termination occurs.
DISABILITY
The Employee's employment under this Agreement may be terminated as a result of
Disability at the option of Xxxxxxx by notice to the Employee, such termination
to be effective upon the receipt by the Employee of such notice. In the event of
the termination of the Employee's employment as a result of Disability, Xxxxxxx
shall pay the Employee two (2) times his full annual base salary less any credit
for sick pay or other benefits received by the Employee deriving from any
private medical insurance or other similar arrangements entered into by Xxxxxxx.
TERMINATION FOR CAUSE BY XXXXXXX
The Employee's employment under this Agreement may be terminated by Xxxxxxx for
Cause. In the event that the Employee's employment under this Agreement shall
validly be terminated by Xxxxxxx for Cause pursuant to this Section - RENV-
Ref497222905-12, Xxxxxxx shall promptly pay accrued but unpaid salary and
reimburse or pay any other accrued but unpaid amounts due under this Agreemen t
as of the date of termination, and thereafter Xxxxxxx shall have no further
obligations under this Agreement.
TERMINATION WITHOUT CAUSE
Xxxxxxx may terminate the Employee's employment at any time or any reason other
than those specified in Sections RENV -Ref756526-10, RENV-Ref756527-11 and RENV-
Ref497222905-12 hereof or for no reason whatsoever, by paying the Employee, in
lieu of applicable notice, the amount equivalent to his salary for the remaining
of the Term, on a prorated basis, which is to be no less than a minimum of three
(3) months of salary and no more than a maximum of twenty-four (24) months
salary, in effect at the time of Employee's termination, to be paid within
forty-five (45) days after the Termination Date.
CONFLICT OF INTEREST
During the Term of this Agreement, the Employee shall not, either directly or in
conjunction with any person, firm, association, syndicate, company or
corporation as principal, agent, shareholder, or in any other manner whatsoever,
carry on or be engaged in, or advise, lend money to, guarantee the debts or
obligations of, or permit his name or any part of it to be used or employed by
any person, firm, association, syndicate, company or corporation engaged in any
business in competition with the business then carried on by Xxxxxxx or a
Subsidiary, provided that the holding of not more than two per cent (2%) of the
issued shares of a public company listed on any recognized stock exchange in
Canada or traded in the Canadian over-the-counter market, shall not be deemed a
breach of this covenant.
CONFIDENTIALITY
During the Term of this Agreement and for a period of two (2) years thereafter,
the Employee shall keep secret and retain in strictest confidence, and shall not
use for his benefit or for the benefit or others, directly or indirectly, any
and all confidential information relating to Xxxxxxx and its Subsidiaries of
which the Employee shall obtain knowledge by reason of his employment under this
Agreement, including, without limitation, trade and business secrets or any
other non-public or proprietary information concerning the business, customer
lists, financial plans or projections, pricing policies, marketing plans or
strategies, business acquisition or divestiture plans, new personnel acquisition
plans, technical processes, inventions and other research projects, and except
in connection with the performance of his duties under this Agreement, he shall
not disclose any such information to anyone outside Xxxxxxx and any of its
Subsidiaries, except as required by law (provided prior written notice is given
by the Employee to Xxxxxxx) or except with the prior written consent of Xxxxxxx,
unless such information is known generally to the public or the trade through
sources other than the unauthorized disclosure by the Employee.
NON-COMPETITION AND NON-SOLICITATION
The Employee acknowledges and understands that (i) he is entering into this
Agreement and specifically agreeing to the provisions of this Section RENV-
Ref531161599 - 16 contemporaneously with a transaction in which the Employee's
shares in Xxxxxxx, and one of the material assets represented in the value of
said share purchase, was the goodwill of Xxxxxxx, (ii) he has access to
Xxxxxxx'x clients, channels for developing clients and recruiting executives for
employment, and other confidential information of Xxxxxxx, (iii) he has direct
substantial responsibility to maintain Xxxxxxx'x business relationship with
clients of Xxxxxxx whose affairs he handles, (iv) the non-competition and non-
solicitation provisions set forth in this Section RENV - Ref531161599-16
constitute a material part of the consideration received by Xxxxxxx under this
Agreement, (v) due to the specific nature and limited market for Xxxxxxx'x
activities, the definition of Territory as set forth in subsection RENV-
Ref1209391-1., RENV-Ref1209397-p hereof is reasonable and justified, (vi) it
would be unfair to Xxxxxxx if the Employee were to appropriate for himself or
for others the benefits of Xxxxxxx'x many years of developing such business
relationships, especially when the Employee enjoys a relationship with clients
of Xxxxxxx as a result of his being introduced to the client's personnel as the
representative of Xxxxxxx, (vii) it would be unfair to Xxxxxxx if the Employee
were to appropriate for himself or for others the benefits of the business,
personnel and other confidential information which Xxxxxxx has developed in the
conduct of its business, and (viii) it is therefore fair that reasonable
restrictions as set forth below should be placed on certain activities of the
Employee after his employment with Xxxxxxx terminates.
The Employee shall not, without the prior written consent of Xxxxxxx, at any
time during the Restriction Period, either individually or in partnership or
jointly or in connection with each other or any Person, as principal, agent,
consultant, lender, contractor, employer, employee, investor or shareholder, or
in any other manner, directly or indirectly, anywhere within the Territory:
advise, manage, carry on, establish, acquire control of, work for, perform,
render, or engage in, any business or service or activity that is similar to or
competitive with the Business or any portion of the Business; or
invest in or lend money to, or guarantee the debts or obligations of, any
business or service or activity, or any Person engaged in any business or
service or activity, that is similar to or competitive with the Business or any
portion of the Business; or
permit the Employee's name or any part thereof to be used or employed by any
Person that operates, is engaged in or has an interest in any business or
service or activity that is similar to or competitive with the Business or any
portion of the Business. Without limiting the effect of the foregoing, competing
with or competitive with the Business, includes without limitation, directly or
indirectly, engaging in or permitting the solicitation or sale of any products
or services of the type included within the meaning of term Business as of the
termination of the Employee's employment with Xxxxxxx.
The Employee shall not during the Restriction Period, without the written
consent of Xxxxxxx, directly or indirectly (as owner, principal, agent, partner,
officer, employee, independent contractor, consultant, stockholder, or
otherwise), (i) solicit any Client (as this term is defined below) for a purpose
or objective of providing to such Client, or obtaining an engagement from such
Client to provide, any services, businesses or activities included within the
term or (ii) solicit for employment or otherwise induce any employee employed by
Xxxxxxx or any of its Affiliates at the date of termination of the Employee's
employment with Xxxxxxx to leave such employ or offer to employ or employ such
employee. The term "Client" shall mean one or more of the following:
any current or former client or customer of Xxxxxxx or its Affiliates;
any current client or current customer of Xxxxxxx or its Affiliates if at any
time since the Commencement Date the Employee had contact with such client or
customer, or personally solicited such client or customer, or rendered services
to such client or customer, or otherwise developed any relationship with such
client or customer, or
any former client or former customer of Xxxxxxx or its Affiliates who was,
during the thirty-six (36) months preceding the Termination Date, a client or
customer of Xxxxxxx or its Affiliates, if at any time since the Commencement
Date the Employee had contact with such client or customer, or solicited such
client or customer, or rendered services to such client or customer, or
otherwise developed any relationship with such client or customer.
Upon the termination of the Employee's employment for whatever reason, the
Employee shall deliver to Xxxxxxx all documents, papers, records, accounts of
all and any description relating to the affairs of Xxxxxxx within his possession
or under his control, it being the intention of the Employee and Xxxxxxx that
all such notes or memoranda made by the Employee during the course of his
employment under this Agreement shall be the property of Xxxxxxx and shall be
left at its registered office or principal place of business upon the
termination of the Employee's employment.
WITHHOLDING
Xxxxxxx shall be entitled to withhold from any and all amounts payable to the
Employee under this Agreement such amounts as from time to time be required to
be withheld pursuant to applicable tax laws and regulations.
GENERAL PROVISIONS
Further Assurances
Each of the parties upon the request of any other party, whether before or after
the date hereof, shall do, execute, acknowledge and deliver or cause to be done,
executed, acknowledged or delivered all such further acts, deeds, documents,
assignments, transfers, conveyances, powers of attorney and assurances as may be
reasonably necessary or desirable to effect complete consummation of the
transactions contemplated by this Agreement.
Successors in Interest
This Agreement and the provisions hereof shall enure to the benefit of and be
binding upon the Parties and their respective successors and assigns.
Notices
Any notice, direction or other instrument required or permitted to be given
hereunder shall be in writing and given by delivery or sent by (i) registered or
certified mail, (ii) reputable overnight courier, (iii) personal delivery, (iv)
telecopier or similar telecommunication device and addressed:
in the case of Xxxxxxx at:
Experts Conseils Xxxxxxx Inc.
c/x XxXxxxxx Bay International, Ltd.
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx
X.X.X. 00000
Attention: Xx. Xxxx X. Xxxxxxxxxx
Telecopier: (000) 000-0000
in the case of the Employee at:
Xxxxxxx Xxxxxx
000 Xx Xxxxx Xxxxxx
Xx. Xxxxxxx, Xxxxxx
X0X 0X0
Telecopier: (000) 000-0000
Any notice, direction or other instrument given as aforesaid shall be deemed to
have been effectively given and received, if sent by mail on the fourth (4th)
business day following such mailing, if sent by telecopier or similar
telecommunications device on the next business day following such transmission
or, if delivered, to have been given and received on the date of such delivery.
Any party may change its address for service by written notice given as
aforesaid.
Amendments
This agreement may not be amended except by written instrument duly executed by
or on behalf of all parties hereto.
Language
The Parties hereby acknowledge that they have requested that this Agreement and
all related documents be drawn up in the English language. Les parties aux
presentes reconnaissent qu'elles ont exige que la presente convention et tous
les documents qui s'y rattachent soient rediges en anglais.
Governing Laws
This Agreement shall be governed by and construed in accordance with the Laws of
the Province of Quebec and the Laws of Canada applicable therein. The Parties
agree to submit to the jurisdiction of the Courts of Quebec, District of
Montreal.
Gender
Any reference in this Agreement to any gender shall include all genders and
words used herein importing the singular number only shall include the plural
and vice versa.
Headings
The division of this Agreement into articles, sections, subsections and other
subdivisions and the insertion of headings are for convenience of reference only
and shall not affect or be utilized in the construction or interpretation
hereof.
Severability
Any article, section, subsection or other subdivision of this Agreement or any
other provision of this Agreement which is, or becomes, illegal, invalid or
unenforceable shall be severed herefrom and shall be ineffective to the extent
of such illegality, invalidity or unenforceability and shall not affect or
impair the remaining provisions hereof, which provisions shall be severed from
any illegal, invalid or unenforceable article, section, subsection or other
subdivision of this Agreement or any other provision of this Agreement.
Waiver
No waiver of any of the provisions of this Agreement shall be deemed to
constitute a waiver of any other provision (whether or not similar) nor shall
such waiver constitute a continuing waiver unless otherwise expressly provided
in a written document duly executed by the party to be bound thereby.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and year
first above written.
EXPERTS CONSEILS XXXXXXX INC.
per: /s/ Xxxx X. Xxxxxxxxxx
Director
Witness: /s/ Xxxxxxx Xxxxxx
================================================================================
EXHIBIT C
ROYALTY AGREEMENT WITH XXXX
This Agreement made as of the 12th day of February, 2002 between
XxXXXXXX BAY INTERNATIONAL, LTD., a Delaware corporation, with administrative
offices at 0000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx XXX 00000 (hereafter "MKBY"),
and XXXXXXXXX XXXX, whose address is 000 XxXxxxxxx Xxx., Xxxxxxxxx, Xxxxxx X0X
0X0 XXXXXX (hereinafter "Xxxx").
W I T N E S S E T H :
WHEREAS, Xxxx is an employee of Experts Conseils Xxxxxxx Inc.
("Dermond") and as such employee has contributed substantially to the technology
which has developed the Xxxxxxx Wind Generator System, and
WHEREAS, Xxxxxxx has now become a wholly-owned subsidiary of MKBY, and
WHEREAS, the parties have agreed that Xxxx will receive a royalty upon
the sale or lease of a Xxxxxxx Wind Generator System,
NOW, THEREFORE, it is agreed by and between the parties as follows:
1. MKBY shall pay to Xxxx a royalty of 1.25% of all net receipts received
by MKBY or any wholly-owned subsidiary of MKBY from all sales of the
Xxxxxxx Wind Generator utilizing the technology developed by Xxxxxxx.
"Net receipts" as used in this agreement means the gross receipts less
any discounts and allowances to customers, excise and sales taxes and
the cost of transportation.
2. In the event that the Xxxxxxx Wind Generator is leased to the ultimate
customer rather than sold, then and in that event, Xxxx shall receive a
royalty equal to 1.25% of the net lease payment received by MKBY or a
subsidiary of MKBY, as the case may be. "Net lease payment" for the
purpose of this agreement shall mean the gross lease payment less any
sales or excise tax. In the event of the resale or re-lease of the same
wind generator, Xxxx shall receive the royalty outlined in paragraph 1
above upon such resale or the commission outlined in this paragraph upon
the re-lease of said unit.
3. In the event a Xxxxxxx Wind Generator System is leased to an ultimate
customer rather than sold through an outright sale, Xxxx may elect to
receive the royalty in a lump sum upon execution of the lease agreement
and payment of the first lease payment rather than receiving the royalty
over the life of the lease agreement. Such election may be made by Xxxx
by written notification to MKBY or the subsidiary which has made the
sale of the Xxxxxxx Wind Generator. Such election must be made by Xxxx
within 30 days of the execution of the lease agreement. Said lump sum
royalty shall be an amount equal to 1.25% of the present value of the
lease agreement computed using the prime rate reported by the Wall
Street Journal as of the date of execution of the lease agreement. The
lump sum royalty payment shall not be payable in the event of the resale
or re-lease of the same wind generator after repossession by MKBY upon
default of the ultimate customer.
4. All payments to Xxxx shall be in Canadian dollars converted if
applicable as of the date payment is received by MKBY or its subsidiary.
5. Said royalties shall be paid to Xxxx on all Xxxxxxx Wind Generators sold
or leased during the 10-year period commencing with the first sales or
lease transaction of a Xxxxxxx Wind Generator. MKBY or its subsidiary,
as the case may be, shall give notice to Xxxx within 10 days of the
completion of any sale or execution of a lease agreement for any system
which includes a Xxxxxxx Wind Generator. In addition, MKBY shall keep
and shall cause its subsidiaries to keep full and correct records in
respect of all Xxxxxxx Wind Generators which it shall sell or lease and
shall prepare quarterly statements from these records and shall provide
the same to Xxxx reporting how many complete Xxxxxxx Wind Generators
were sold or put into use as a part of a lease arrangement during the
preceding calendar quarter and setting forth the calculation of the
royalty payments payable to Xxxx. These reports shall be submitted to
Xxxx along with a check in payment of all royalty payments shown as
being payable to Xxxx in said report within 30 days of the termination
of each calendar quarter.
6. In order to provide an economical and speedy resolution to any possible
dispute between the parties, the parties agree to submit any such
dispute to binding arbitration by the American Arbitration Association
of Southeast Michigan, United States of America, pursuant to the
Commercial Arbitration Rules of the American Arbitration Association
modified as follows:
A. There shall be one arbitrator selected in accordance with the
AAA rules.
B. All costs and expenses of arbitration shall be borne by the
losing party.
C. The arbitrator shall permit discovery in the form of written
interrogatories and depositions which discovery shall be
completed within 60 days from submission of the answer to the
arbitration claim.
D. The decision of the arbitrator shall be in writing and set forth
written findings of fact and conclusions of law upon which the
decision is based.
E. The decision of the arbitrator shall be final and binding with
respect to matters of fact and shall be appealable only with
respect to conclusions of law.
F. Judgment on the arbitration award may be entered in any court of
competent jurisdiction as provided by law.
7. This agreement shall be construed in accordance with and governed by the
laws of the State of Michigan USA.
8. The parties hereby acknowledge that they have requested that this
agreement and all related documents be drawn up in the English language.
Les parties aux presentes reconnaissent qu'elles ont exige que la
presente convention et tous les documents qui s'y rattachent soient
rediges en anglais.
XxXXXXXX BAY INTERNATIONAL, LTD.
per:/s/ Xxxx X. Xxxxxxxxxx,
President
/s/XXXXXXXXX XXXX
================================================================================
EXHIBIT D
ROYALTY AGREEMENT WITH MONDOU
This Agreement made as of the 12th day of February, 2002 between
XxXXXXXX BAY INTERNATIONAL, LTD., a Delaware corporation, with administrative
offices at 0000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx XXX 00000 (hereafter "MKBY"),
and XXXXXXX XXXXXX, whose address is 000 Xx Xxxxx Xxxxxx, Xx. Xxxxxxx, Xxxxxx,
X0X 0X0 XXXXXX J4R 1M7 (hereinafter "Mondou").
W I T N E S S E T H :
WHEREAS, Mondou is an employee of Experts Conseils Xxxxxxx Inc.
("Xxxxxxx") and as such employee has contributed substantially to the technology
which has developed the Xxxxxxx Wind Generator System, and
WHEREAS, Xxxxxxx has now become a wholly-owned subsidiary of MKBY, and
WHEREAS, the parties have agreed that Mondou will receive a royalty upon
the sale or lease of a Xxxxxxx Wind Generator System,
NOW, THEREFORE, it is agreed by and between the parties as follows:
1. MKBY shall pay to Mondou a royalty of 1.25% of all net receipts received
by MKBY or any wholly-owned subsidiary of MKBY from all sales of the
Xxxxxxx Wind Generator utilizing the technology developed by Xxxxxxx.
"Net receipts" as used in this agreement means the gross receipts less
any discounts and allowances to customers, excise and sales taxes and
the cost of transportation.
2. In the event that the Xxxxxxx Wind Generator is leased to the ultimate
customer rather than sold, then and in that event, Mondou shall receive
a royalty equal to 1.25% of the net lease payment received by MKBY or a
subsidiary of MKBY, as the case may be. "Net lease payment" for the
purpose of this agreement shall mean the gross lease payment less any
sales or excise tax. In the event of the resale or re-lease of the same
wind generator, Mondou shall receive the royalty outlined in paragraph 1
above upon such resale or the commission outlined in this paragraph upon
the re-lease of said unit.
3. In the event a Xxxxxxx Wind Generator System is leased to an ultimate
customer rather than sold through an outright sale, Mondou may elect to
receive the royalty in a lump sum upon execution of the lease agreement
and payment of the first lease payment rather than receiving the royalty
over the life of the lease agreement. Such election may be made by
Mondou by written notification to MKBY or the subsidiary which has made
the sale of the Xxxxxxx Wind Generator. Such election must be made by
Mondou within 30 days of the execution of the lease agreement. Said lump
sum royalty shall be an amount equal to 1.25% of the present value of
the lease agreement computed using the prime rate reported by the Wall
Street Journal as of the date of execution of the lease agreement. The
lump sum royalty payment shall not be payable in the event of the resale
or re-lease of the same wind generator after repossession by MKBY upon
default of the ultimate customer.
4. All payments to Mondou shall be in Canadian dollars converted if
applicable as of the date payment is received by MKBY or its subsidiary.
5. Said royalties shall be paid to Mondou on all Xxxxxxx Wind Generators
sold or leased during the 10-year period commencing with the first sales
or lease transaction of a Xxxxxxx Wind Generator. MKBY or its
subsidiary, as the case may be, shall give notice to Mondou within 10
days of the completion of any sale or execution of a lease agreement for
any system which includes a Xxxxxxx Wind Generator. In addition, MKBY
shall keep and shall cause its subsidiaries to keep full and correct
records in respect of all Xxxxxxx Wind Generators which it shall sell or
lease and shall prepare quarterly statements from these records and
shall provide the same to Mondou reporting how many complete Xxxxxxx
Wind Generators were sold or put into use as a part of a lease
arrangement during the preceding calendar quarter and setting forth the
calculation of the royalty payments payable to Mondou. These reports
shall be submitted to Mondou along with a check in payment of all
royalty payments shown as being payable to Mondou in said report within
30 days of the termination of each calendar quarter.
6. In order to provide an economical and speedy resolution to any possible
dispute between the parties, the parties agree to submit any such
dispute to binding arbitration by the American Arbitration Association
of Southeast Michigan, United States of America, pursuant to the
Commercial Arbitration Rules of the American Arbitration Association
modified as follows:
A. There shall be one arbitrator selected in accordance with the
AAA rules.
B. All costs and expenses of arbitration shall be borne by the
losing party.
C. The arbitrator shall permit discovery in the form of written
interrogatories and depositions which discovery shall be
completed within 60 days from submission of the answer to the
arbitration claim.
D. The decision of the arbitrator shall be in writing and set forth
written findings of fact and conclusions of law upon which the
decision is based.
E. The decision of the arbitrator shall be final and binding with
respect to matters of fact and shall be appealable only with
respect to conclusions of law.
F. Judgment on the arbitration award may be entered in any court of
competent jurisdiction as provided by law.
7. This agreement shall be construed in accordance with and governed by the
laws of the State of Michigan USA.
8. The parties hereby acknowledge that they have requested that this
agreement and all related documents be drawn up in the English language.
Les parties aux presentes reconnaissent qu'elles ont exige que la
presente convention et tous les documents qui s'y rattachent soient
rediges en anglais.
XxXXXXXX BAY INTERNATIONAL, LTD.
per: /s/ Xxxx X. Xxxxxxxxxx
President
per: /s/ Xxxxxxx Xxxxxx
================================================================================
EXHIBIT E
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
This Non-Competition and Confidentiality Agreement (this "Agreement")
made and entered into as of February 12, 2002 is made and entered into
by and among XXXXXXXXX XXXX and XXXXXXX XXXXXX (collectively the
"Stockholders"), EXPERTS CONSEILS XXXXXXX INC. ("Xxxxxxx") and XxXXXXXX
BAY INTERNATIONAL, LTD., a Delaware corporation ("MKBY") on behalf of
itself and its Affiliated and subsidiary companies.
W I T N E S S E T H :
WHEREAS, MKBY, has acquired from the Stockholders all of
the issued and outstanding stock of Xxxxxxx, and
WHEREAS, after the completion of the closing regarding the purchase of
said stock and other transactions contemplated between the parties (the
"Closing"), one of the primary business activities of MKBY and its
Affiliated and subsidiary companies will include the business previously
conducted by Xxxxxxx, and
WHEREAS, it is a condition to the obligation of MKBY to complete the
acquisition of said shares pursuant to a share purchase agreement
executed on the date hereof among the Stockholders, Xxxxxxx and MKBY
(the "Share Purchase Agreement"),
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Definitions. The following terms shall have
the meanings set forth below:
A. "Affiliate" with respect to a Person means a Person that
controls, is controlled by or under common control with such
Person. For purposes of this definition, "control" when used
with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise, and the terms "controlling" and "controlled" have
meaning collative to the foregoing.
B. "Business" shall mean the fabrication, sale or lease of the
Xxxxxxx Wind Generator and related technology or any related
business.
C. "Competitive Business" shall mean any business or activity which
is competitive with the Business including without limitation,
any business or activity which provides products or services
similar to the Business or which provides products or services
as a replacement for or in lieu or as an alternative to products
or services provided by the Business.
D. "Person" means any individual, corporation, proprietorship,
firm, partnership, limited partnership, limited liability
company, trust, association or other entity.
E. "Territory" means the world.
2. Restrictive Covenant. For a period of three years after the date of this
Agreement, neither of the Stockholders shall directly or indirectly
except on behalf of either Xxxxxxx or MKBY and its Affiliates or
subsidiaries, without the prior written consent of MKBY, within the
Territory (a) accept employment with or render services to any Person
engaged in the Business or a Competitive Business; (b) own, manage,
operate, finance, control or participate in any capacity in the
ownership, management, operation , financing or control of or be
connected as a principal, agent, representative, consultant, advisor,
investor, owner, partner, financier, manager or joint venture with or
permit his or its name to be used by or in connection with any Person
engaged in the Business or any Competitive Business; (c) contact, deal
with or in any way solicit any Person that at any time during the
previous five years was a customer of either Xxxxxxx or MKBY or its
subsidiaries in an effort to cause or induce such Person to purchase or
otherwise obtain the benefit or use of any products or services provided
by any Person engaged in the Business or any Competitive Business; or
(d) solicit for employment or interfere with the relationship of either
Xxxxxxx or MKBY or any of its Affiliates or subsidiaries with any of
their current or future employees, agents or representatives or any
Person formerly employed or engaged by either Xxxxxxx or MKBY or any of
its Affiliates or subsidiaries at any time during the previous 18
months. Notwithstanding the foregoing, nothing contained in this section
shall prevent either Stockholder from owning shares of capital stock of
MKBY or any of its subsidiaries or investing as an investor in the
voting securities of any Person which is a Reporting Person under the
Securities Exchange Act of 1934 as amended as well as any Person which
is a reporting issuer under the Securities Acts of any of the
jurisdictions of Canada so long as the aggregate amount of such
securities that such Stockholder owns directly or indirectly is less
than 2% of the total outstanding voting securities of such Person, and
such Stockholder has no other affiliation with such Person.
3. Confidentiality. Each Stockholder acknowledges that he had in the past,
or currently has and in the future will have access to certain
Confidential Information (as defined below). Neither of the Stockholders
shall at any time or in any manner, without the prior written consent of
MKBY and/or its Affiliates, as applicable, use or disclose to any Person
other than Xxxxxxx or MKBY and its Affiliates any Confidential
Information. The term "Confidential Information" means any secret,
confidential or proprietary information of Xxxxxxx or MKBY or any
information relating to the Business or any Competitive Business
obtained by either of the Stockholders as a consequence of their
affiliation, agreements or position with MKBY or any of its Affiliates,
including without limitation any trade secrets, technology, business
strategies or plans, details of contracts, pricing, customer lists and
marketing methods, plans or strategies. The restrictions in this section
shall not apply to any information that is or becomes generally
available and known by the public other than as a result of an
unpermitted disclosure directly or indirectly by either of the
Stockholders.
4. Nature of Restrictions. Each of the parties hereto acknowledges that the
restrictions and other provisions contained in this Agreement are
reasonable, fair and equitable in scope, terms and duration. If at any
time a court or other governmental body having jurisdiction shall refuse
to enforce the restrictions contained in sections 2 and 3 above by
reason of being vague or unreasonable or for any other reason, the
parties hereto intend that such covenant shall be deemed to be amended
without any further action of the parties and be limited to only such
geographic area, time period, line of business, scope or other
restrictions as shall be permitted by law.
5. Consideration. The agreements contained herein are a necessary
inducement to MKBY to complete the Closing and the other transactions
contemplated by the Share Purchase Agreement, transactions from which
the Stockholders will directly and indirectly receive substantial
financial benefit.
6. Injunction. Each Stockholder acknowledges and agrees that irreparable
injury will result to Xxxxxxx or MKBY and its Affiliates and their
respective businesses in the event of any breach by either Stockholder
of any of the provisions of this Agreement. In recognition thereof in
the event of any breach of any agreement of either Stockholder in this
Agreement, Xxxxxxx and MKBY and/or its Affiliates, as applicable, shall
be entitled, in addition to any other remedies available, to injunctive
relief, specific performance and any other appropriate equitable remedy
(without any bond or security being required) to restrain any violation
of this Agreement.
7. Miscellaneous.
A. No modification, amendment, addition or alteration of this
Agreement shall be effective unless made in writing and duly
executed by the parties hereto. No delay or failure of Xxxxxxx
and MKBY, or any of its Affiliates, to exercise any right, power
or privilege in this Agreement conferred hereunder shall operate
as a waiver thereof, nor shall any waiver of any right, power or
privilege operate as a waiver of any other right, power or
privilege hereunder or any further exercise thereof. No waiver
or consent on the part of either Xxxxxxx or MKBY shall be valid
unless set forth in a written instrument signed by an authorized
officer.
B. If any provision of this Agreement is finally determined to be
invalid or unenforceable in any respect, such invalidity or
unenforceability shall not affect the validity or enforceability
of any other provision or part hereof or the application thereof
to other persons or circumstances.
C. MKBY shall be entitled to recover from each Stockholder all
costs and expenses incurred by either Xxxxxxx or MKBY and/or its
Affiliates in connectio n with the enforcement of this Agreement
against such Stockholder, including without limitation
reasonable attorney's fees.
D. This Agreement may be executed in counterparts each of which
shall be deemed an original but all of which together shall
constitute one and the same agreement.
E. This Agreement shall inure to the benefit of Xxxxxxx and MKBY
and its Affiliates and their successors and assigns and shall be
binding upon each Stockholder and his successors, assigns,
heirs, executors and legal representatives.
F. This Agreement shall be governed by and construed and
interpreted pursuant to the internal laws (as opposed to the
conflict of laws principles) of the province of Quebec and the
laws of Canada applicable therein.
G. The parties hereby acknowledge that they have requested that
this Agreement and all related documents be drawn up in the
English language. Les parties aux presentes reconnaissent
qu'elles ont exige que la presente convention et tous les
documents qui s'y rattachent soient rediges en anglais.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the day and year first above written.
XxXXXXXX BAY INTERNATIONAL, LTD.
per: /s/ Xxxx X. Xxxxxxxxxx
President
EXPERTS CONSEILS XXXXXXX INC.
XXXXXXXXX XXXX
per: /s/ Xxxxxxxxx Xxxx
President
