EXHIBIT 4.4
EMPLOYMENT AGREEMENT
BETWEEN REGISTRANT AND
XXXX X. XXXXXXXX, XX.
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EXHIBIT 4.4
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TIREX AMERICA INC.
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EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, made this 20th day of February, 1997, by and
between
Tirex America Inc.
0000 Xxxxxxx
Xxxxx Xx. Xxxxxxx
Xxxxxx, Xxxxxx X0X 0X0
(the "Company")*
and
Xxxx X. Xxxxxxxx, Xx.
200 Lansdowne, Apt. 000
Xxxxxxxxx, Xxxxxx
Xxxxxx X0X 0X0
(the "Employee")
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* Unless context necessarily implies otherwise, all references here-
in to the "Company" shall be to Tirex America Inc. and Tirex Canada Inc.,
and all other corporations, partnerships, or other entities, now or in
the future controlled by, under common control with, or in control of,
Tirex America Inc., jointly and severally.
WHEREAS, On January 1, 1996 (the "Effective Date"), the Company
appointed Xxxx X. Xxxxxxxx as its Vice President of Operations on the
terms and subject to the conditions set forth in this Agreement and,
from the Effective Date through and until the date hereof, the Employee
has satisfactorily served in such capacity pursuant to such terms and
conditions.
WHEREAS, it has at all times since the Effective Date been the
intention of the parties to set forth the terms and conditions under
which the Employee has been providing services and receiving compen-
sation, but inadvertently such agreement was not put into writing prior
to the date hereof;
WHEREAS, the Company and the Employee desire that the term of this
Agreement begin as at the Effective Date and continue for the three-year
period ending on December 31, 1998;
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EXHIBIT 4.4
WHEREAS, The Company is a "start-up" company in its very early stage
of development, with negligible or no hard assets, no income, no opera-
tions, and only limited financial resources on hand to finance the deve-
lopment of its technology and the commencement of operations. Its future
financial prospects and position are therefore highly contingent and im-
possible to predict. Based upon the foregoing, unregistered shares of
Tirex America's common stock, which cannot be sold into the public market
for an extended period of time, have a value which reflects the Company's
poor financial position and uncertain future, and can be expected to be
saleable by the Company, in arm's length transactions, for not more than
fifty percent (50%) of the current market value of the publicly traded
stock of Tirex America, or for substantially less.
NOW THEREFORE, in consideration of the premises and of the mutual
promises and covenants hereinafter set forth, the parties agree as
follows:
1. EMPLOYMENT
The Company agrees to employ the Employee and the Employee agrees
to accept the employment described in this Agreement.
2. DUTIES
The Employee shall serve as Vice President of Operations of the
Company, his powers and duties in that capacity to be such as may be
determined by the President and the Board of Directors of the Company.
During the term of this agreement, the Employee shall serve also, with-
out additional compensation, in such other offices of the Company to
which he may be elected or appointed by the Board of Directors and the
Employee shall not be entitled to additional compensation by reason of
service as a director of the Company or as a fiduciary of an employee
benefit plan of the Company. With respect to all capacities in which
the Employee shall serve, he shall report solely to the President of
the Company.
3. EXTENT OF SERVICES
The Employee shall devote his entire working time, attention, and
energies to the performance of his duties and shall not be engaged in
any other business activity, whether or not pursued for gain without the
consent of the Company. The Employee may invest his personal assets in
such form or manner as will not require services on his part. The
Employee shall at all times faithfully and to the best of his ability
perform his duties under this Agreement. The duties shall be rendered
at the Company's office in Ville St.Laurent, Quebec, or at such other
place or places and at such times as the needs of the Company may
from time-to-time dictate.
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4. TERM
The term of this Agreement shall be deemed to have begun on the
Effective Date, and shall continue for the three year period which com-
menced on the Effective Date and shall end on December 31, 1998. The
parties presently anticipate that the employment relationship may
continue beyond this three-year term. This Agreement shall not give the
Employee any enforceable right to employment beyond this term.
5. COMPENSATION
As his entire compensation for the services to the Company, during
the term of this agreement, in whatever capacity rendered, the Company
shall pay to the Employee a salary of fifty thousand United States
dollars (US $50,000) per year, payable in accordance with the Company's
standard payroll procedures. The Employee is eligible for performance-
based raises and bonuses, but there is no assurance or expectation that
raises or bonuses will be granted or paid. Raises will be granted and
bonuses will be paid, if at all, in the sole discretion of the Board of
Directors.
6. ISSUANCE OF STOCK IN LIEU OF BASE SALARY
6.1 Compensation Shares. In the event that, from time to time,
the Board of Directors, in its sole discretion, determines that the
Company does not have adequate financial resources to fully compensate
the Employee in cash, then the Company's obligation to pay such compen-
sation will be satisfied by the issuance to the Employee of shares of
the common stock of Tirex America, Inc., $.001, par value, per share
("Compensation Shares"), which shares shall constitute compensation
pursuant to the terms of this Employee Agreement.
6.2 Valuation. All Compensation Shares will be issued to the
Employee at a value equal to fifty percent (50%) of the average of the
high and low bid prices of Tirex America's common stock as traded in the
over-the-counter market and quoted in the NASDAQ Electronic Bulletin Board
during the period when such Compensation Shares were earned, or such other
value which the Board of Directors, in its sole discretion, shall deter-
mine.
6.3 Registration Rights. From time to time, all or part of the
Compensation Shares may be registered by the Company under a Registration
Statement on Form S-8, including a Re-offer Prospectus, as and at such
time as the Board of Directors of the Company or the executive committee
thereof shall determine.
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7. BENEFITS
The Employee shall receive medical and dental insurance and other
fringe benefits to the extent that such benefits are provided to all
full-time, non-union employees of the Company.
8. EXPENSES
The Company shall reimburse the Employee for reasonable, documented,
out-of-pocket expenses incurred by the Employee in fulfilling his duties.
9. TERMINATION
9.1 For Cause. The Company may terminate the Employee's employment
at any time "for cause" with immediate effect upon delivering written
notice to the Employee. For purposes of this Agreement, "for cause" shall
include: (a) embezzlement, theft, larceny, material fraud, or other acts
of dishonesty; (b) material violation by employee of any of his obliga-
tions under this Agreement; (c) conviction of or entrance of a plea of
guilty or nolo contendere to a felony or other crime which has or may
have a material adverse effect on the Employee's ability to carry out
his duties under this Agreement or upon the reputation of the Company;
(d) conduct involving moral turpitude; (e) gross insubordination or
repeated insubordination after written warning by the President of the
Company; or (f) material and continuing failure by the Employee to per-
form the duties described in Section 2 above in a quality and professional
manner for at least thirty (30) days after written warning by the Board
of Directors or the President of the Company. Upon termination for cause,
the Company's sole and exclusive obligation will be to pay the Employee
his compensation earned through the date of termination, and the Employee
shall not be entitled to any compensation after the date of termination.
9.2 Upon Death. In the event of the Employee's death during the
term of the this Agreement, the Company's sole and exclusive obligation
will be to pay to the Employee's spouse, if living, or to his estate, if
his spouse is not then living, the Employee's compensation earned through
the date of death.
9.3 Upon Disability. The Company may terminate the Employee's
employment upon the Employee's total disability. The Employee shall be
deemed to be totally disabled if he is unable to perform his duties under
this Agreement by reason of mental or physical illness or accident for a
period of three consecutive months. Upon termination by reason of the
Employee's disability, the Company's sole and exclusive obligation will
be to pay the Employee his compensation earned through the date of ter-
mination.
9.4 Without Cause. The Company may terminate the Employee's employ-
ment without cause at any time after expiration of the three-year term of
this Agreement.
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EXHIBIT 4.4
10. COVENANT NOT TO COMPETE
10.1 Covenant. At all times during the terms of this Agreement,
during any period following the term of this Agreement when the Employee
shall continue to be employed by the Company in any capacity whatsoever,
and during the one year period after the Employee's employment with the
Company has been terminated by either party and for any reason, the Em-
ployee will not directly or indirectly:
(a) enter into or attempt to enter into the "Restricted Business"
(as defined below) in the continental United States or Canada;
(b) induce or attempt to persuade any former, current or future
employee, agent, manager, consultant, director, or other
participant in the Company's business to terminate such
employment or other relationship in order to enter into any
relationship with the Employee, any business organization in
which the Employee is a participant in any capacity whatsoever,
or any other business organization in competition with the Com-
pany's business; or
(c) use contracts, proprietary information, trade secrets, confiden-
tial information, customer lists, mailing lists, goodwill, or
other intangible property used or useful in connection with the
Company's business.
10.2 Indirect Activity. The term "indirectly," as used in Section
7.1 above, includes acting as a paid or unpaid director, officer, agent,
representative, employee of, or consultant to any enterprise, or acting
as a proprietor of an enterprise, or holding any direct or indirect
participation in any enterprise as an owner, partner, limited partner,
joint venturer, shareholder, or creditor.
10.3 Restricted Business. The term "Restricted Business" means any
business related to the disintegration of scrap tires, the manufacture of
equipment used for such purpose, or the sale or brokerage of the by-
products from the disintegration of scrap tires. Nevertheless, the
Employee may own not more than five percent of the outstanding equity
securities of a corporation that is engaged in the Restricted Business
if the equity securities are listed for trading on a national stock ex-
change or are registered under the Securities Exchange Act of 1934.
11. SEVERABILITY
The covenants set forth in Section 7 above shall be construed as a
series of separate covenants, one for each county in each of the states
of the United States and one for each of the analogous jurisdictions in
Canada to which such restriction applies. If, in any judicial proceeding,
a court of competent jurisdiction shall refuse to enforce any of the
separate covenants deemed included in this Agreement, or shall find that
the term or geographic scope of one or more of the
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separate covenants is unreasonably broad, the parties shall use their
best good faith efforts to attempt to agree on a valid provision which
shall be a reasonable substitute for the invalid provision. The reason-
ableness of the substitute provision shall be considered in light of the
purpose of the covenants and the reasonable protectable interests of the
Company and the Employee. The substitute provision shall be incorporated
into this Agreement. If the parties are unable to agree on a substitute
provision, then the invalid or unreasonably broad provision shall be
deemed deleted or modified to the minimum extent necessary to permit
enforcement.
12. CONFIDENTIALITY
The Employee acknowledges that he will develop and be exposed to
information that is or will be confidential and proprietary to the Com-
pany. The information includes customer lists, technology designs, plans
and information, marketing plans, pricing data, product plans, software,
and other intangible information. Such information shall be deemed con-
fidential to the extent not generally known within the trade. The Em-
ployee agrees to make use of such information only in the performance
of his duties under this Agreement, to maintain such information in con-
fidence and to disclose the information only to persons with a need
to know.
13. REMEDIES
The Employee acknowledges that monetary damages would be inadequate
to compensate the Company for any breach by the Employee of the covenants
set forth in Sections 10 and 12 above. The Employee agrees that, in add-
ition to other remedies which may be available, the Company shall be en-
titled to obtain injunctive relief against the threatened breach of this
Agreement or the continuation of any breach, or both, without the neces-
sity of proving actual damages.
14. Waiver
The waiver by the Company of the breach of any provision of this
Agreement by the Employee shall not operate or be construed as a waiver
of any subsequent breach by the Employee.
15. ASSIGNMENT
This Agreement may be assigned by the Company as part of the sale of
substantially all of its business; provided, however, that the purchaser
shall expressly assume all obligations of the Company under this Agree-
ment. Further, this Agreement may be assigned by the Company to an
affiliate, provided that any such affiliate shall expressly assume all
obligations of the Company under this Agreement, and provided further
that the Company shall then fully guarantee
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EXHIBIT 4.4
the performance of the Agreement by such affiliate. Employee agrees that
if this Agreement is so assigned, all the terms and conditions of this
Agreement shall obtain between such assignee and himself with the same
force and effect as if said Agreement had been made with such assignee in
the first instance. This Agreement is personal to the Employee and shall
not be assigned without written consent of the Company.
16. NOTICES
All notices required or permitted to be given hereunder shall be
mailed by certified mail, or delivered by hand or by recognized over-
night courier to the party to whom such notice is required or permitted
to be given hereunder, in all cases with written proof of receipt re-
quired. Any such notice shall be deemed to have been given when received
by the party to whom notice is given, as evidenced by written and dated
receipt of the receiving party.
Any notice to the Company or to any assignee of the Company shall
be addressed as follows:
Tirex America Inc.
3767 Thimens, Suite 000
Xxxxx Xx. Xxxxxxx
Xxxxxx, Xxxxxx X0X 0X0
Any notice to Employee shall be addressed as follows:
Xxxx X. Xxxxxxxx, Xx.
200 Lansdowne, Apt. 000
Xxxxxxxxx, Xxxxxx
Xxxxxx X0X 0X0
17. General
17.1 Law Governing. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
17.2 Titles and Captions. All section titles or captions contained
in this Agreement are for convenience only and shall not be deemed part
of the context nor effect the interpretation of this Agreement.
17.3 Entire Agreement. This Agreement contains the entire under-
standing between and among the parties and supersedes any prior under-
standings and agreements among them respecting the subject matter of
this Agreement.
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EXHIBIT 4.4
17.4 Agreement Binding. This Agreement shall be binding upon the
heirs, executors, administrators, successors and assigns of the parties
hereto.
17.5 Further Action. The parties hereto shall execute and deliver
all documents, provide all information and take or forbear from all such
action as may be necessary or appropriate to achieve the purposes of the
Agreement.
17.6 Savings Clause. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such
provision to persons or circumstances other than those as to which it is
held invalid, shall not be affected thereby.
17.7 Survival of Certain Agreements. The covenants and agree-
ments set forth in Articles 10, 12, and 13 shall all survive the expir-
ation of the term of this Agreement and shall all survive termination of
this Agreement and remain in full force and effect regardless of the
cause of such termination.
17.8 Separate Counsel. The parties acknowledge that the Company
has been represented in this transaction by Xxxxxxx Xxxx Xxxxxx, Esq.,
that the Employee has NOT been represented in this transaction by the
Company's attorney, and the Employee has been advised that it is impor-
important for the Employee to seek separate legal advise and repre-
sentation in this matter.
18. PRIOR AGREEMENTS
This Agreement supersedes and cancels any and all prior agreements,
whether written or oral, between the parties.
IN WITNESS WHEREOF, the parties hereto have executed the above
Agreement as of the day and year first above written.
TIREX AMERICA INC.
By /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, President
/s/ Xxxx X. Xxxxxxxx, Xx.
Xxxx X. Xxxxxxxx, Xx., Individually
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