EXHIBIT 3(XV)
EMPLOYMENT AND STOCK INCENTIVE AGREEMENT
THIS AGREEMENT made as of the 1st day of August, 1997
BETWEEN:
TURBODYNE SYSTEMS, INC.,
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxx X.X.X. 00000
("TSI") OF THE FIRST PART
AND:
TURBODYNE TECHNOLOGIES INC.,
Xxxxx 000, 0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx
("Turbodyne") OF THE SECOND PART
AND:
XXXX X. XXXXX,
00000 - 00X Xxxxxx
Xxxxx Xxxxxx, XX X0X 0X0
("Nowek") OF THE THIRD PART
WHEREAS:
A. Turbodyne and TSI wish to engage Nowek as the Chief Financial Officer
of each of Turbodyne and TSI.
X. Xxxxx has agreed to accept such engagement upon the terms and
conditions hereinafter set forth.
NOW THIS AGREEMENT WITNESSES that in consideration of the mutual promises,
covenants and agreements herein contained, the parties hereto agree as follows:
1. ENGAGEMENT OF EMPLOYEE
1.1 Turbodyne and TSI hereby employ Nowek in the positions of Chief
Financial Officer of each of Turbodyne and TSI for the term of this Agreement
and Nowek hereby accepts such retainer.
1.2 Subject to Section 1.3, during the term of this Agreement, Nowek shall
perform all such acts and do all such things as and when the same may be
necessary to properly and efficiently carry out the duties of Chief Financial
Officer of each of Turbodyne and TSI, and such duties shall include but shall
not be limited to:
(a) general responsibility for the supervision and management of the
financial affairs of each of Turbodyne and TSI, subject to the policy
decisions made by the board of directors of Turbodyne;
(b) coordinating all auditing functions with respect to Turbodyne and its
subsidiaries;
(c) performing such other duties and observing such instructions as may be
reasonably assigned to him from time to time in his capacity of Chief
Financial Officer by the Board of Directors; and
(d) generally at all times abiding by all lawful directions given to him
by the Board of Directors of the Company.
1.3 Nowek, Turbodyne and TSI agree that the title duties and
responsibilities of Nowek pursuant to the terms of this Agreement may change
during the term of this Agreement by agreement among Nowek, Turbodyne and TSI.
Any change to the duties and responsibilities of Nowek will not otherwise change
the terms and conditions of this Agreement and will not constitute termination
without cause, as contemplated in Section 7.3 of this Agreement.
1.4 Xx. Xxxxx agrees to devote his business time and efforts to carrying
out his duties under this Agreement up to approximately 40 business hours a
week. Turbodyne and TSI acknowledge and consent to Nowek devoting a portion of
his non-business time to Nowek's business interests which are not related to or
competitive with the business of Turbodyne or TSI, provided that such activities
are not in derogation to Nowek carrying out his duties under this Agreement.
1.5 With regard to the services to be performed by Nowek pursuant to
the terms of this Agreement, Nowek shall not be liable to TSI, Turbodyne, or
any subsidiary, or to any third party, for any acts or omissions in the
performance of the services on the part of Nowek, as long as said acts or
omissions of Nowek are provided or undertaken in good faith or do not
constitute willful misconduct. Nowek shall be entitled to rely on the items
set forth in Corporations Code Section 309(b). Turbodyne and TSI shall
defend, indemnify (to the maximum extent permitted by California law) and
hold Nowek and his agents and successors free and harmless from any and all
obligations, costs, claims, judgments, attorney's fees, attachments or any
other liability arising from or growing out of the services rendered to TSI,
Turbodyne, or any subsidiary, pursuant to the terms of this Agreement or in
any way connected with the rendering of the services specified in this such
services are provided or undertaken in good faith or do not constitute
willful misconduct. In addition, Nowek shall be entitled to the benefit of
the indemnity provisions of the By-laws of Turbodyne and TSI and where
applicable, the provisions of the CANADA BUSINESS CORPORATIONS ACT with
respect to Turbodyne and any provision of the Nevada General Corporation Law
with respect to TSI.
1.6 Turbodyne and TSI agree to indemnify and save harmless Nowek from any
liability incurred by Nowek as a result of a personal guarantee granted by Nowek
in favour of Turbodyne or TSI, provided that the granting of the guarantee by
Nowek has been approved by the board of directors of either Turbodyne or TSI.
Turbodyne and TSI agree that Nowek will be given consideration for the granting
of such personal guarantees in amounts not to exceed industry standard customary
fees for the granting of such guarantees. In determining the considers, the
parties will consider the magnitude of the guarantee and the risk associated
with the guarantee.
2. REMUNERATION
2.1 Turbodyne agrees to pay Nowek during the term of this Agreement the
following salary and bonus amounts:
(a) A base salary of $13,500 US per month, payable in accordance with the
normal payroll schedule of Turbodyne or TSI; and
(b) an annual cash bonus based on the consolidated net operating income
(before taxes) of Turbodyne, TSI or Pacific Baja Light Metals Corp.
("Pacific Baja"), whichever is greater. In determining the
consolidated net operating income of TSI or Pacific Baja, no expenses
shall be considered in the determination of net operating income that
are not direct expenses of Pacific Baja or TSI, and no non-arms length
charges will be applied against the net operating income. Any
contracts with Turbodyne or any Turbodyne affiliate will be at arm's
length rates for this calculation. Such consolidated net incomes
shall be calculated on a calendar year basis during the term of this
agreement based on the annual audited financial statements of
Turbodyne. The cash bonus shall be determined based on the
consolidated net operating income (before taxes) of Turbodyne, TSI or
Pacific Baja Light Metals Corp., whichever is greater, in accordance
with the following schedule:
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CONSOLIDATED PERCENTAGE
NET PROFIT BASE SALARY
------------ -----------
$0 or less 0%
$1 - $500,000 25%
$500,001 - $1,000,000 50%
$1,000,001 - $2,500,000 80%
$2,500,001 - $5,500,000 100%
$5,500,001 + 150%
The cash bonus shall be paid on a quarterly basis within 30 days of
the end of each quarter, based on management prepared financial
statements, provided that each payment of the quarterly cash bonus
will not exceed eighty percent of the estimated annual cash bonus,
pro-rated for the respective quarter. The cash bonus shall be
adjusted at the end of each year, within five (5) days following the
issue by Turbodyne of its annual audited financial statements. In the
event the cash bonus to be paid exceeds the amounts advanced to Nowek
on a quarterly basis, the excess cash bonus will be paid to Nowek in
full within ten (10) days following the date of such determination.
In the event the quarterly advances of the cash bonus paid during the
year exceeds the cash bonus to be paid based on annual audited
financial statements, Nowek will pay the excess within ten (10) days
following such determination.
The Compensation payable pursuant to this Section 2.1 shall be retroactive to
January 1, 1997, notwithstanding the date of execution of this Agreement, in
view of the performance by Nowek of the duties described in this Agreement since
January 1, 1997.
3. STOCK OPTIONS
3.1 In addition to the compensation payable pursuant to Section 2.1,
Turbodyne shall grant to Nowek options to acquire 200,000 shares of stock in
Turbodyne in each year of the term of this agreement. The option price and the
terms and conditions of the options shall be determined in accordance with the
Turbodyne stock option plan in effect at the time of granting of the options.
The options shall be in effect for a five year term following the granting of
the options. It is understood that these stock options are intended to give Xx.
Xxxxx in incentive to manage Turbodyne and its subsidiary to the benefit of
Turbodyne. To the extent Turbodyne registers any stock in the United States or
Canada under any registration statement during the term of this agreement,
Turbodyne agrees to register sufficient shares to cover the options herein
described. The options are granted in consideration of the execution of this
contract and will survive Xx. Xxxxx'x termination. Turbodyne represents that
any shares referred to above will be issued to Xx. Xxxxx free and clear of any
liens and encumbrances.
4. OTHER BENEFITS
4.1 Nowek, and Nowek's spouse and children, shall be entitled to
participate in any life and disability insurance, pension, dental, medical,
pharmaceutical, hospitalization, health insurance and such other employee
benefit programs as may be provided from time to time by Turbodyne and TSI.
Nowek will be entitled to participate in any pension plan approved by the board
of directors of Turbodyne or TSI from time to time and available to the officers
and directors of Turbodyne and TSI.
4.2 Turbodyne and TSI shall promptly reimburse Nowek for all reasonable
travelling, promotional and other expenses actually and properly incurred in
connection with Nowek's duties hereunder, provided that Nowek
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furnishes receipts to Turbodyne and TSI in respect of such expenses and
Turbodyne and TSI may review such expenses on a monthly basis.
4.3 Nowek shall be entitled to a reasonable period of paid annual
vacation, but such periods shall not be less than four (4) weeks per year
provided that all such vacations shall be taken at such times as Turbodyne and
TSI and Nowek may mutually agree upon.
4.4 TSI will provide Xx. Xxxxx with the use of a new automobile and
reimburse him for any reasonable related automobile expenses incurred on behalf
of the business of Turbodyne and TSI.
4.5 Turbodyne and TSI will reimburse Nowek for all reasonable relocation
expenses actually and properly incurred as a result of Nowek being required by
Turbodyne or TSI to relocate from Vancouver region in order to continue to
perform his duties hereunder.
4.6 Nowek will be entitled to receive an employee housing loan in an
amount equal to 25 percent of the purchase price of a principal residence
selected by Nowek, provided that the purchase price of the principal residence
will not exceed $1,000,000. The employee housing loan will be repayable on the
earlier of the sale of the principal residence or the termination of this
Agreement, provided that if Nowek sells his principal residence, he will be
entitled to a similar employee housing loan on a replacement principal
residence. Interest will be calculated and paid annually by Nowek at interest
rates prevailing in the housing mortgage market for secured housing loans. In
the event of termination of this Agreement, Nowek may elect to set off any
amount of the employee loan due against any amounts owing by Turbodyne or TSI
pursuant to the terms and conditions of this Agreement.
4.7 Turbodyne and TSI will obtain and maintain appropriate directors' and
officers' insurance at amounts appropriate for the risk involved in acting as a
director and officer of Turbodyne and TSI, provided that the coverage will be in
amounts and on terms no less favourable than currently in place as of the date
of this Agreement.
5. CONFIDENTIALITY AND NON-COMPETITION
5.1 Nowek shall not, either during the course of his employment hereunder
or at any time there-after, disclose to any person, any confidential information
concerning the business or affairs of Turbodyne and TSI which Nowek may have
acquired in the course of or incidental to his employment hereunder or
otherwise, and Nowek shall not directly or indirectly use (whether for his own
benefit or the detriment or intended detriment of Turbodyne and TSI) any
confidential information he may acquire with respect to the business and affairs
of Turbodyne and TSI.
5.2 Nowek agrees with Turbodyne and TSI that he will not, either alone or
in conjunction with any individual, firm, corporation, association or other
entity, whether as principal, agent, director, officer, employee, shareholder or
in any other capacity whatsoever:
(a) during the term of this Agreement and for a one year period from the
termination of this Agreement, carry on, or be engaged in, concerned
with or interested in, directly or indirectly, any business which is
in whole or in part competitive with the business of Turbodyne and
TSI;
(b) during the term of this Agreement and for a two year period from the
termination of this Agreement, attempt to solicit any suppliers,
customers or employees of the business of Turbodyne and TSI away from
Turbodyne and TSI;
(c) during the term of this Agreement and for a two year period from the
termination of this Agreement, knowingly take any act as a result of
which the relations between Turbodyne and TSI
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and the suppliers or customers of the business of Turbodyne and TSI
may be impaired or which may otherwise be detrimental to the business
of Turbodyne and TSI.
5.3 Subject to Section 5.5, any and all inventions and improvements on
which Nowek may conceive or make, during the period of his employment, relating,
or in any way, pertaining to or connected with any of the matters which have
been, are or may become the subject of Turbodyne and TSI's investigations, or in
which Turbodyne and TSI has been, is, or may become interested, shall be the
sole and exclusive property of Turbodyne and TSI, and Nowek will, whenever
requested by Turbodyne and TSI, execute any and all applications, assignments
and other instruments which Turbodyne and TSI shall deem necessary in order to
apply for and obtain letters of patent for U.S. or foreign countries for the
inventions or improvements and in order to assign and convey to Turbodyne and
TSI the sole and exclusive right, title and interest in and to the inventions or
improvements, all expenses in connection with them to be borne by Turbodyne and
TSI. Nowek's obligations to execute the papers referred to in this paragraph
shall continue beyond the termination of the period of his employment with
respect to any and all inventions or improvements conceived or made by him
during the period of the employment, and the obligations shall be binding on the
assigns, executors, administrators or other legal representatives of Nowek.
5.4 Subject to section 5.5, all inventions and discoveries relating to the
business of Turbodyne and TSI and all knowledge and information which Nowek may
acquire during his employment, shall be held by Nowek in trust for the benefit
of Turbodyne and TSI, and Nowek agrees that he will not divulge, or authorize
anyone else to divulge, either during the times he is so employed or afterwards,
knowledge of the inventions or discoveries, or any information acquired in the
course of his employment under this agreement, or any confidential information
concerning Turbodyne and TSI's business that he may acquire otherwise.
5.5 Nowek will be entitled to receive royalties in accordance with the
Company's policy of granting royalties for inventions in the event of any
invention made or conceived by Nowek which becomes property of the Company
pursuant to the times and conditions of this Agreement.
6. TERM
6.1 This Agreement shall be in effect for a period of five (5) years from
the effective date of this Agreement, as first above written, unless sooner
terminated by the parties pursuant to the terms herein contained. The term of
this Agreement shall be automatically extended by successive one year terms upon
the expiry of each one year anniversary of this Agreement, commencing with the
initial year of the term of this Agreement, without any action of the parties,
unless notice is given in writing by either party to this Agreement prior to 30
days prior to the expiry of each one year anniversary of the party's election
not to extend the term of the Agreement.
7. TERMINATION
7.1 Turbodyne and TSI may terminate this Agreement:
(a) at any time in the event of any fraudulent activity or conduct, or in
the event of any intentional misconduct adversely and materially
affecting the business of Turbodyne and TSI;
(b) upon the death of Nowek;
(c) if Nowek shall suffer any permanent disability. For purposes of this
agreement "permanent disability" shall be defined as Nowek's
inability, by reason of physical or mental illness or other cause, to
perform the majority of this usual duties for a period of greater than
six months.
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Turbodyne and TSI's option shall be exercised in writing
and delivered to Xx. Xxxxx and shall be effective upon delivery;
(d) in the event of any assignment or attempted assignment of this
Agreement by Nowek, except as expressly permitted by this Agreement;
provided that those obligations of Nowek in this Agreement expressly stated to
continue on termination shall continue upon termination and shall not terminate
upon termination of this Agreement. Upon any such termination, Nowek shall be
entitled to receive the compensation accrued by unpaid as of the date of his
termination including a pro rata cash bonus, and shall not be entitled to any
additional compensation, except as expressly provided in this Agreement.
7.2 Nowek may terminate this Agreement at any time upon 3 months written
notice to Turbodyne and TSI, provided that those obligations of Nowek in this
Agreement expressly stated to continue on termination shall continue upon
termination and shall not terminate upon termination of this Agreement.
7.3 Turbodyne and TSI agree that the following circumstances will be
deemed to be termination of Nowek without cause:
(a) the assignment to Nowek of any duties materially and substantially
inconsistent with Nowek's present position, duties, responsibility or
status with Turbodyne or TSI as of the date of this Agreement;
(b) the removal of Nowek from or any failure to appoint Nowek to any such
position;
(c) the termination or material reduction in Nowek's facilities, or staff
reporting and available to Nowek;
(d) a change in Nowek's site of employment for a total period of more than
two (2) months during any period of twelve (12) months, provided that
the relocation of Nowek to Los Angeles, California (or adjacent
areas), will not be considered to be a breach of this Agreement.
In the event of termination of this Agreement without cause, Nowek will be
entitled to receive the compensation to be paid to Nowek from the date of
termination to the date of expiry of the then current term of this Agreement,
provided that those obligations of Nowek in this Agreement expressly stated to
continue on termination shall continue upon termination and shall not terminate
upon termination of this Agreement.
8. ARBITRATION
8.1 The parties shall use all reasonable efforts to resolve amicably any
controversy or claim arising out of, relating to this Agreement, or the breach
thereof. However, in the event such controversy or claim cannot be resolved by
agreement of the parties, it shall be settled by arbitration in Los Angeles
County, California, in accordance with the then existing rules of the American
Arbitration Association, except that the parties shall be entitled to all
discovery to which they would normally be entitled in civil litigation in the
California Superior Court. California law shall govern. Any judgment upon the
award of the arbitrator may be rendered and enforced in any court having
jurisdiction thereof.
9. NOTICES
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9.1 Any notice required or permitted to be given under this Agreement
shall be in writing and may be delivered personally or by telecopier, or by
pre-paid registered post addressed to the parties at the above-mentioned
addresses or at such address of which notice may be given by either of such
parties. Any notice shall be deemed to have been received if personally
delivered or by telex or telecopier, on the date of delivery and, if mailed
as aforesaid, then on the fourth business day after and excluding the day of
mailing.
10. ASSIGNMENT
10.1 This Agreement is a personal service contract and may not be assigned
in whole or in part by Nowek, provided that Nowek may assign the benefit of this
Agreement to a company, all of the voting shares are owned by Nowek. In the
event of such an assignment, Nowek will continue to be bound by the terms and
conditions of this Agreement and will agree not to dispose of any interest or
shares of the Company to which the benefit of this agreement has been assigned.
Any sale of any interest or shares in such a company will be deemed to be an
assignment of this Agreement.
11. INTERPRETATION
11.1 This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
11.2 All headings used in this Agreement are for convenience of reference
only and are not to be used as an aid in the interpretation of this Agreement.
11.3 This Agreement replaces and supercedes all other consulting agreements
and employment agreements, between Nowek and TSI and between Nowek and Turbodyne
Technologies Inc.
11.4 If there is a dispute a to the terms and conditions of this Agreement,
the prevailing party shall be entitled to reasonable attorney's fees and costs
incurred in connection with such breach.
11.5 No amendment of this agreement shall be valid unless made in writing
and signed by all parties hereto.
IN WITNESS WHEREOF the parties have executed this Agreement as of the day and
year first above written.
TURBODYNE SYSTEMS, INC.
by its authorized signatory:
/S/ XXXXXX XXXXXX
-----------------------------
Authorized Signatory
The common seal of
TURBODYNE TECHNOLOGIES INC.
is hereby affixed in the presence of
its authorized signatory: c/s
/S/ XXXXXX XXXXXX
-----------------------------
Authorized Signatory
SIGNED, SEALED AND DELIVERED )
BY XXXX X. XXXXX in )
the presence of: )
)
)
)
/S/ XXXXX XXXXXXXXX ) /S/ XXXX X. XXXXX
Signature ) XXXX X. XXXXX
)
Xxxxx Xxxxxxxxx )
Name )
)
0000 Xxxxxx Xxxxxx )
Xxxxxxxx Xxxxx, XX 00000 )
Address )
