Exhibit 10.4.1.2
Management Services Agreement
Agreement made effective as of May 15, 2003.
Between:
Inyx Canada Limited
a Canada corporation,
("Inyx Canada")
- and -
JK Services
a partnership carried on by Miza Corporation, an
Alberta corporation, and Janfour Holdings Ltd.,
an Alberta corporation
("JK")
- and -
Inyx, Inc. (f/k/a Doblique, Inc.),
a Nevada corporation
("Inyx")
- and -
Dr. Xxxx Xxxxxxx
("Kachkar")
Recitals:
(a) Inyx, Inc. (f/k/a Doblique Inc.) ("Inyx") entered into an Employment
Agreement ("Inyx Employment Agreement") dated as of April 1, 2003 with
Kachkar, providing for the employment of Kachkar as chairman and secretary
of Inyx, Inc.;
(b) Immediately thereafter, Inyx determined to incorporate its subsidiary Inyx
Canada for the purposes of providing management services (including the
services of Kachkar) to Inyx and its subsidiaries;
(c) Doblique changed its name to Inyx, Inc. on May 6, 2003; any reference in
this Agreement to Inyx shall include a reference to Doblique;
(d) The parties have agreed that JK shall provide Kachkar's services to Inyx
Canada effective as of May 15, 2003 to support of the management services
to be provided by Inyx Canada to Inyx;
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(e) Inyx and Kachkar have terminated the Inyx Employment Agreement effective as
of May 15, 2003;
(f) Inyx Canada and Inyx entered into a Management Services Agreement, ("Inyx
Management Agreement") dated as of May 15, 2003, pursuant to which Inyx
Canada has agreed to provide management services (including the services of
Kachkar) to Inyx and its subsidiaries.
(g) Kachkar and JK have entered into an Employment Agreement ("Inyx Canada
Employment Agreement"), effective as of May 15, 2003, providing for the
employment by JK of Kachkar in conjunction with the provision of management
services by Inyx Canada to Inyx, pursuant to the Inyx Management Agreement.
In consideration of the mutual covenants and agreements herein contained and
subject to the terms and conditions hereinafter set forth, the parties hereto
hereby agree as follows:
1. Representations And Warranties
JK and Kachkar represent and warrant to Inyx Canada that they are parties to the
Inyx Canada Employment Agreement, that such Agreement is a valid and existing
employment agreement, pursuant to which Kachkar has agreed to provide his
services on a full-time exclusive basis in conjunction with the management
services to be provided by Inyx Canada to Inyx pursuant to the Inyx Management
Agreement.
2. Engagement
Inyx Canada hereby engages JK to provide the personal services of Kachkar, in
conjunction with the services to be provided by Inyx Canada pursuant to the Inyx
Management Agreement and to provide additional services that Inyx Canada may
require in connection with its operations. JK hereby accepts such engagement on
the terms and conditions hereof and agrees to keep and perform all obligations
and agreements hereunder.
3. JK's Services
JK shall provide the services of Kachkar to:
(a) act as the Chairman and Secretary and a director of Inyx;
(b) manage and supervise the day to day operations and business of Inyx and its
subsidiaries and other reasonable duties and business assigned by Inyx
Canada from time to time. Provide business development and project
management services. Kachkar will continue as a member of Inyx's board of
directors, subject to continuing ratification by Inyx's shareholders.
Kachkar agrees to perform and discharge such duties well and faithfully.
Kachkar acknowledges that he will at all times be subject to the
supervision and direction of Inyx's and Inyx Canada's board of directors;
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(c) JK shall cause Kachkar and Kachkar agrees to devote substantially all of
his business time, attention and skills to the business and affairs of Inyx
Canada during the term of this Agreement;
(d) whenever Kachkar as an officer or director of Inyx is required by law, rule
or regulation or requested by any governmental authority or by Inyx or
Inyx's auditors to provide certifications with respect to financial
statements or filings with the Securities and Exchange Commission (USA) or
any other governmental authority, Kachkar shall sign such certifications as
may be reasonably requested, with such exceptions as Kachkar deems
necessary to make such certifications accurate and not misleading.
4. Term of Engagement
The term of the engagement of the Inyx Canada hereunder shall commence effective
as of May 15, 2003 and, except as otherwise provided in Section 7 hereof, shall
continue until the fifth (5th) anniversary of the date of this Agreement (the
"Initial Term"). Thereafter, this Agreement shall automatically be renewed for
successive one-year periods commencing on the fifth (5th) anniversary of the
date of this Agreement (with the Initial Term and any such subsequent period(s),
being referred to herein as the "Term"), unless JK or Inyx Canada shall have
provided a Notice of Termination (as defined in Section 7(c)(ii) hereof) in
respect of its or his election not to renew the Term to the other party at least
ninety (90) days prior to such termination. Upon non-renewal of the Term
pursuant to this Section 4 or termination pursuant to Sections 7(a)(i) through
7(a)(v) hereof, inclusive, JK and Kachkar shall be released from any duties
hereunder (except as set forth in Section 8 hereof) and the obligations of Inyx
Canada to JK and Kachkar shall be as set forth in Section 7(b) hereof only.
5. Fees, Other Compensation and Expenses
Inyx Canada agrees to pay to JK the following fees, expenses and other benefits
in conjunction with the provision of the services hereunder:
(a) Management Fee - a management fee in the amount of $245,000 USD per annum
or at such increased rate as JK and Inyx Canada may agree, subject to the
approval of the board of directors of Inyx, payable monthly, or as
otherwise agreed. On each anniversary of this agreement the management fee
for the ensuing year shall be increased a minimum of 5%;
(b) Performance Bonus - a bonus in an amount equal to any performance bonus
paid by Inyx to Inyx Canada, pursuant to the Inyx Management Agreement, to
be payable as and when received by Inyx Canada. Inyx Canada acknowledges
that pursuant to the Inyx Management Agreement such bonus is based on such
performance criteria as Inyx deems appropriate, including without
limitation, the performance of services by JK and Kachkar and Inyx's
earnings, financial condition, rate of return on equity and compliance with
regulatory requirements;
(c) Project Specific Bonuses - additional project specific bonuses based on
successfully completing business or commercial opportunities which are
accretive to the financial performance of Inyx Canada and its subsidiaries.
Such additional bonuses may be declared from time to time by effective
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resolution of the board of directors of Inyx Canada, subject to the
approval of the board of directors of Inyx. JK acknowledges and confirms
that there is no obligation on Inyx Canada or Inyx to declare any such
bonuses. Despite the foregoing, Inyx Canada shall pay a bonus to JK in an
amount equal to any project specific bonus paid by Inyx to Inyx Canada
pursuant to the Inyx Management Agreement.
(d) Stock Options - Inyx may arrange for JK or Kachkar to participate in stock
option and similar equity plans of Inyx. It is acknowledged that Inyx has
granted options to Kachkar to purchase 750,000 shares of common stock of
Inyx on terms and conditions set forth in the Stock Option Agreement dated
May 1, 2003 between Inyx and Kachkar. JK or Kachkar shall be entitled to
any additional annual stock option grants provided at the discretion of the
board of directors of Inyx.
(e) Expenses - Inyx Canada shall promptly reimburse JK for properly documented
expenses reasonably incurred by JK or Kachkar in connection with the
provision of services hereunder, including but not limited to, expenses for
such items as entertainment, business travel (all air travel shall be at
least Business Class), hotel, meals, dues, admission fees and initiation
fees for various clubs. Inyx Canada shall similarly reimburse JK for the
cost of Kachkar's spouse traveling with Kachkar, where appropriate. In the
case of dues initiation and other fees for private clubs, the amount of
reimbursement under this paragraph shall not exceed $25,000 USD for the
year. In addition to being reimbursed for properly documented expenses that
the Executive may incur on behalf of the Company, the executive shall be
reimbursed for any discretionary expenses which shall not exceed $100,000
USD in each year during the agreement term.
(f) Benefit Plans - Inyx Canada shall arrange for Kachkar to participate in
such employee benefit plans and programs as Inyx or its subsidiaries may
from time to time generally offer or provide to its officers, including,
but not limited to, participation in life insurance, health and accident,
medical and dental plans including any such benefit plans offered by its
subsidiaries where applicable.
(g) Transportation - Inyx Canada shall reimburse JK for the cost of providing
Kachkar with an automobile allowance commensurate with his services
together with all associated operating expenses and parking garage expense.
Inyx Canada shall arrange to provide to JK for use by Kachkar, in
accordance with the directives of the board of directors of Inyx with
reasonable transportation for business purposes while attending at each of
the offices or business locations of Inyx and its subsidiaries.
(h) Financial and Tax Advice - Inyx Canada shall reimburse JK for the expenses
JK incurs for its or Kachkar's financial and tax advice, provided that the
amount of such reimbursement for any year shall not exceed $20,000 USD.
(i) Legal Consulting - Upon presentation of an invoice, Inyx Canada shall
reimburse JK for any legal fees and expenses incurred by JK or Kachkar in
connection with the negotiation of this Agreement, provided that the amount
of such reimbursement shall not exceed $20,000 USD.
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(j) Life Insurance - Inyx Canada shall reimburse JK for the premium cost
incurred by JK (including expense incurred by Kachkar) with respect to a
term life insurance policy on Kachkar's life (provided, that Kachkar
qualifies on a non-rated basis), and the death benefits of which shall be
payable to Kachkar `s estate, or as otherwise directed by Kachkar, in the
amount equal to $1,000,000 USD.
(k) Applicable Taxes - Inyx Canada shall pay all applicable taxes, including
goods and services taxes in respect of the payments to JK provided for
herein.
6. Vacation
JK shall not be in breach of its obligations hereunder if it is not performing
its obligations hereunder because Kachkar is on vacation, provided that:
(a) the aggregate vacation time does not exceed four (4) weeks of paid vacation
per calendar year, prorated for any partial year.
(b) during the period while Kachkar is on such vacation, JK shall be entitled
to receive the full amount of the Management Fee and other benefits that it
would have received had Kachkar not been on vacation.
7. Termination of Engagement
(a) Events of Termination. The Term shall terminate upon the occurrence of any
one or more of the following events:
(i) Death. In the event of Kachkar's death, the Term shall terminate on
the date of his death.
(ii) Without Cause by JK. JK may terminate the Term at any time during such
Term for any reason whatsoever by giving a Notice of Termination to
Inyx Canada. The Date of Termination pursuant to this Section 7(a)(ii)
shall be thirty (30) days after the Notice of Termination is given.
(iii)Disability. In the event of Kachkar's Disability (as hereinafter
defined), Inyx Canada may, at its option, terminate the Term by giving
a Notice of Termination to JK. The Notice of Termination shall specify
the Date of Termination, which date shall not be earlier than thirty
(30) days after the Notice of Termination is given. For purposes of
this Agreement, "Disability" means the inability of Kachkar to
substantially perform services provided hereunder on behalf of Inyx
Canada for 180 days in any twelve (12) month period as a result of a
physical or mental illness, all as determined in good faith by the
board of directors of Inyx Canada.
(iv) Cause. Inyx Canada may, at its option, terminate the Term for "Cause"
based on objective factors determined in good faith by a majority of
the board of directors of Inyx Canada as set forth in a Notice of
Termination to JK specifying the reasons for termination and the
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failure of JK to cure the same within thirty (30) days after Inyx
Canada shall have given the Notice of Termination; PROVIDED, HOWEVER,
that in the event the board of directors of Inyx Canada in good faith
determines that the underlying reasons giving rise to such
determination cannot be cured, then the thirty (30) day period shall
not apply and the Term shall terminate on the date the Notice of
Termination is given. For purposes of this Agreement, "Cause" shall
mean (i) JK's or Kachkar's conviction of, guilty or no contest plea to
an indictable offence or felony (ii) an act or omission by JK or
Kachkar in connection with the provision of services hereunder that
constitutes fraud, criminal misconduct, breach of fiduciary duty,
dishonesty, gross negligence, malfeasance, willful misconduct or other
conduct that is materially harmful or detrimental to Inyx Canada or
Inyx; (iii) a material breach by JK or Kachkar of this Agreement and
the failure of JK or Kachkar to cure the same within thirty (30) days;
(iv) continuing failure of JK or Kachkar to perform proper duties as
are assigned in accordance with this Agreement and with law and good
business practice, other than a failure resulting from a Disability.
(v) Inyx Canada's Material Breach. JK may, at its option, terminate the
Term upon Inyx Canada's material breach of this Agreement and the
continuation of such breach for more than ten (10) days after written
demand for cure of such breach is given to Inyx Canada by JK (which
demand shall identify the manner in which Inyx Canada has materially
breached this Agreement). Inyx Canada's material breach of this
Agreement shall mean (i) the failure of Inyx Canada to make any
payment that it is required to make hereunder to JK when such payment
is due or within two (2) business days thereafter; (ii) the assignment
to JK or Kachkar, without its or his respective express written
consent, of duties inconsistent with its or his respective positions,
responsibilities and status with Inyx Canada or Inyx, or a change in
JK's or Kachkar's reporting responsibilities, titles or offices or any
plan, act, scheme or design to constructively terminate JK or Kachkar,
or any removal of Kachkar from his position with Inyx Canada or Inyx,
except in connection with the termination of the Term by Inyx Canada
for Cause, without Cause, or Disability or as a result of Kachkar's
death or voluntary resignation or by JK other than pursuant to this
Section 7(a)(v); (iii) a reduction by Inyx Canada in JK's Management
Fee.
(b) Certain Obligations of Inyx Canada Following Termination of the Term.
Following termination of the Term under the circumstances described below,
Inyx Canada shall pay to JK the following compensation and provide the
following benefits in full satisfaction and final settlement of any and all
claims and demands that JK or Kachkar now has or hereafter may have against
Inyx Canada:
(i) For Cause. In the event that the Term is terminated by Inyx Canada for
Cause, Inyx Canada shall pay to Kachkar, in a single lump-sum, an
amount equal to any unpaid but earned Management Fee through the Date
of Termination.
(ii) Without Cause By Inyx Canada; Material Breach By Inyx Canada; Election
Not To Renew By Inyx Canada. In the event that the Term is terminated
by JK or Kachkar pursuant to Section 7(a)(v) hereof or if such
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termination is effective at any time after a Change of Control (as
defined in Section 7(c)(i) hereof) of Inyx Canada, it shall pay to JK,
subject to JK and Kachkar's continued compliance with the terms of
Section 8 hereof, any unpaid but earned Management Fee through the
Date of Termination PLUS an amount equal to two (2) times annualized
Management Fees in effect at such applicable time (the "Termination
Amount"). Additionally, any bonuses that are due to the JK shall be
paid by Inyx Canada to JK. Any payments made in accordance with this
Section 7(b)(ii) shall be made in a lump sum payment at a convenient
date no later than fourteen (14) days after the date of termination.
(iii)Without Cause By JK; Election Not To Renew By JK. In the event that
the Term is terminated by JK pursuant to Section 7(a)(ii), Inyx Canada
shall pay to JK, in a single lump-sum, an amount equal to any unpaid
but earned bonuses and Management Fee through the Date of Termination.
(iv) Disability. In the event that the Term is terminated by reason of
Kachkar's Disability pursuant to Section 7(a)(iii) hereof, Inyx Canada
shall pay to JK, subject to, in the case of Disability, Kachkar's
continued compliance with the terms of Section 8 hereof, the
Termination Amount, payable in accordance with Section 7(b)(ii)
hereof.
(v) Post-Engagement Term Benefits. In the event that JK is terminated
pursuant to Sections 7(a)(i) through (7)(a)(v) hereof, inclusive, Inyx
Canada shall reimburse JK for any unpaid expenses pursuant to Section
5(e) hereof and if Kachkar is terminated pursuant to Sections
7(a)(iii) or 7(a)(v) hereof or Inyx Canada elects not to renew this
Agreement pursuant to Section 4 hereof, Inyx Canada shall pay, on
behalf of JK, for a period equal to six (6) months from the Date of
Termination (the "Benefits Period"), subject to JK and Kachkar's
respective continued compliance with the terms of Section 8 hereof,
all life insurance, medical, dental, health and accident, and
disability plans and programs in which Kachkar was entitled to
participate immediately prior to the Date of Termination; PROVIDED,
that Kachkar's continued participation is legally possible under the
general terms and provisions of such plans and programs. In the event
that Kachkar's participation in any such plan or program is barred,
Inyx Canada, at its sole cost and expense shall use its commercially
reasonable efforts to provide Kachkar with benefits substantially
similar to those that Kachkar was entitled to receive under such plans
and programs for the remainder of the Benefits Period.
(vi) Stock Options.
(A) If, within twelve (12) months following a Change of Control (as
defined in Section 7(c)(i) hereof) of Inyx, the Term is
terminated other than for Cause, then JK or Kachkar (or his
estate) shall have six (6) months from the date of such event to
exercise such stock options; PROVIDED, that such stock options
shall not have otherwise expired in accordance with the terms
thereof. In connection there with, Inyx Canada agrees to use
commercially reasonable efforts to amend JK's or Kachkar's Stock
Option Agreements if necessary to effectuate the provisions of
this Section 7(b)(vi)(A).
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(B) In the event the Term is terminated (i) by Inyx Canada pursuant
to Section 7(b)(ii) hereof and the reason for such termination is
not related to the performance of JK or Kachkar in its or his
duties with respect to Inyx Canada, or (ii) by JK pursuant to
Section 7(a)(v) hereof, then all stock options theretofore
granted to JK or Kachkar shall thereupon vest and JK and Kachkar,
respectively, shall have twelve (12) months from such date to
exercise such options; PROVIDED, that the relevant stock option
plan remains in effect and such stock options shall not have
otherwise expired in accordance with the terms thereof. In
connection therewith, Inyx Canada agrees to use commercially
reasonable efforts to amend JK's and Kachkar's Stock Option
Agreements if necessary to effectuate the provisions of this
Section 7(b)(vi).
(c) Definitions
(i) "Change of Control" Defined. A "Change of Control" of Inyx means (i)
the approval by the stockholders of the Inyx of the sale, lease,
exchange or other transfer (other than pursuant to internal
reorganization) by Inyx of all or substantially all of its respective
assets to a single purchaser or to a group of associated purchasers;
(ii) the first purchase of shares of equity securities of Inyx
pursuant to a tender offer or exchange offer (other than an offer by
Inyx) for at least fifty (50%) percent of the equity securities of
Inyx; (iii) the approval by the stockholders of Inyx of an agreement
for a merger or consolidation in which the Inyx shall not survive as
an independent, publicly-owned corporation; (iv) the acquisition
(including by means of a merger) by a single purchaser or a group of
associated purchasers of securities of Inyx from Inyx or any third
party representing fifty (50%) percent or more of the combined voting
power of Inyx's then outstanding equity securities in one or a related
series of transactions (other than pursuant to an internal
reorganization or transfers of the JK's or Kachkar's interests).
(ii) "Notice of Termination" Defined. "Notice of Termination" means a
written notice that indicates the specific termination provision
relied upon by Inyx Canada or JK and, except in the case of
termination pursuant to Sections 7(a)(i) or 7(a)(iii) hereof, that
sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Term under the termination
provision so indicated.
(iii)"Date of Termination" Defined. "Date of Termination" means such date
as the Term terminated in accordance with Sections 4 or 7(a) hereof.
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8. Confidentiality and Non-solicitation; Property Rights
(a) "Confidential Information" Defined. "Confidential Information" means any
and all information (oral or written) relating to Inyx Canada or Inyx or
Inyx's existing subsidiaries, entities and organizations hereafter formed,
organized or acquired by Inyx, directly or indirectly (each, a "Subsidiary"
and collectively, the "Subsidiaries" or any entity controlling, controlled
by, or under common control with Inyx Canada, Inyx or any subsidiary or any
of their respective activities, including, information not previously
disclosed to the public or to the trade by Inyx's management, or otherwise
in the public domain, with respect to Inyx Canada's or Inyx's products,
facilities, applications and methods, trade secrets and other intellectual
property, systems, procedures, manuals, confidential reports, product price
lists, customer lists, technical information, financial information,
business plans, prospects or opportunities, but shall exclude any
information which (i) is or becomes available to the public or is generally
known in the industry or industries in which Inyx operates other than as a
result of disclosure by the JK or Kachkar in violation of this agreements
under this Section or (ii) the JK or Kachkar is required to disclose under
any applicable laws, regulations or directives of any government agency,
tribunal or authority having jurisdiction in the matter or under subpoena
or other process of law. JK and Kachkar each confirms that all restrictions
in this Section are reasonable and valid and each waives all defenses to
the strict enforcement thereof.
(b) Non-Disclosure of Confidential Information. Each of JK and Kachkar shall
not at any time (other than as may be required or appropriate in connection
with the performance by each of its or his duties hereunder), directly or
indirectly, use, communicate, disclose or disseminate any Confidential
Information in any manner whatsoever (except as may be required under legal
process by subpoena or other court order).
(c) Certain Activities. Each of JK and Kachkar shall not, during the Term and
for a period of two (2) years following the Date of Termination, directly
or indirectly, hire, offer to hire, entice away or in any other manner
persuade or attempt to persuade any officer, employee, agent, lessor,
lessee, licensor, licensee or supplier of Inyx Canada, Inyx or any of their
respective subsidiaries to discontinue or alter his or its relationship
with any of them.
(d) Non-Competition. Each of JK and Kachkar shall not, while providing services
hereunder and for a period of three (3) years following the Date of
Termination, engage or participate, directly or indirectly (whether as a
provider of management services, an officer, director, employee, partner,
consultant, shareholder, lender or otherwise), in any business that
manufactures, markets or sells products that directly competes with any
product of Inyx Canada or Inyx or their respective subsidiaries that is
significant to their respective business based on sales and/or
profitability of any such product as of the Date of Termination, unless the
Term is terminated by Inyx Canada pursuant to Section 7(a)(ii) or by JK or
Kachkar pursuant to Section 7(a)(v) hereof. Nothing herein shall prohibit
JK or Kachkar from being a passive owner of any publicly-traded class of
capital stock of any entity directly engaged in a competing business.
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(e) Property Rights; Assignment Of Inventions. With respect to information,
inventions and discoveries or any interest in any copyright and/or other
property right developed, made or conceived of by JK or Kachkar, either
alone or with others, at any time while providing services hereunder and
whether or not within working hours, arising out of such employment or
pertinent to any field of business or research in which, during such
employment, Inyx Canada is engaged or (if such is known to or ascertainable
by JK or Kachkar) is considering engaging, JK and Kachkar hereby agree:
(i) that all such information, inventions and discoveries or any interest
in any copyright and/or other property right, whether or not patented
or patentable, shall be and remain the exclusive property of Inyx
Canada or Inyx, as applicable;
(ii) to disclose promptly to an authorized representative of Inyx Canada or
Inyx all such information, inventions and discoveries or any copyright
and/or other property right and all information in Inyx Canada or
Inyx's possession as to possible applications and uses thereof;
(iii)not to file any patent application relating to any such invention or
discovery except with the prior written consent of an authorized
officer of Inyx Canada (other than Kachkar);
(iv) that each of JK or Kachkar hereby waives and releases any and all
rights it or he may have in and to such information, inventions and
discoveries, and hereby assigns to Inyx Canada or Inyx as applicable
and/or their respective its nominees all of JK's or Kachkar's
respective rights, titles and interests in them, and all of their
respective rights, titles and interests in any patent, patent
application, copyright or other property right based thereon. Each of
JK and Kachkar hereby irrevocably designates and appoints Inyx Canada
or Inyx, as applicable, and each of its duly authorized officers and
agents as his agent and attorney-in-fact to act for him and on his
behalf and in his stead to execute and file any document and to do all
other lawfully permitted acts to further the prosecution, issuance and
enforcement of any such patent, patent application, copyright or other
property right with the same force and effect as if executed and
delivered by JK or Kachkar, respectively; and
(v) at the request of Inyx Canada or Inyx, and without expense to JK or
Kachkar, to execute such documents and perform such other acts as Inyx
Canada or Inyx deems necessary or appropriate, for Inyx Canada or Inyx
to obtain patents on such inventions in a jurisdiction or
jurisdictions designated by Inyx Canada or Inyx, and to assign to Inyx
Canada or Inyx respectively or their respective designee such
inventions and any and all patent applications and patents relating
thereto.
(f) Injunctive Relief. The parties hereby acknowledge and agree that (i) Inyx
Canada or Inyx will be irreparably injured in the event of a breach by JK
or Kachkar of any of their obligations under this Section 8; (ii) monetary
damages will not be an adequate remedy for any such breach; (iii) Inyx
Canada and Inyx will each be entitled to injunctive relief, in addition to
any other remedy which each may have, in the event of any such breach; and
(iv) the existence of any claims that JK or Kachkar may have against Inyx
Canada or Inyx, whether under this Agreement or otherwise, will not be a
defense to the enforcement by Inyx Canada or Inyx, respectively, of any of
their respective rights under this Section 8.
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(g) Non-Exclusivity and Survival. The covenants of JK or Kachkar contained in
this Section 8 are in addition to, and not in lieu of, any obligations that
JK or Kachkar may have with respect to the subject matter hereof, whether
by contract, as a matter of law or otherwise, and such covenants and their
enforceability shall survive any termination of the Term by either party
and any investigation made with respect to the breach thereof by Inyx
Canada or Inyx at any time.
9. Miscellaneous Provisions
(a) Severability. If, in any jurisdiction, any term or provision hereof is
determined to be invalid or unenforceable, (a) the remaining terms and
provisions hereof shall be unimpaired; (b) any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction; and (c) the invalid
or unenforceable term or provision shall, for purposes of such
jurisdiction, be deemed replaced by a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision.
(b) Execution in Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement (and all signatures
need not appear on any one counterpart), and this Agreement shall become
effective when one or more counterparts has been signed by each of the
parties hereto and delivered to each of the other parties hereto.
(c) Notices. All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed duly given upon receipt when
delivered by hand, overnight delivery or telecopy (with confirmed
delivery), or three (3) business days after posting, when delivered by
registered or certified mail or private courier service, postage prepaid,
return receipt requested, as follows:
(i) If to Inyx Canada, to:
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx,
X0X 0X0
Attention: Vice President - Finance
Fax No.: (000) 000-0000
(ii) If to Inyx Inc., to:
000 Xxxxxxxx, 0xx Xxxxx
Xxxxx, XX 00000
Attention: Vice-President - Finance and Treasurer
Fax No.: (000) 000-0000
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(iii) If to JK or Kachkar, to:
0000 Xxxxx Xxxxxx
Xxxxxxxxx 00
Xxxxxxxxx, XX X0X 0X0
(iv) with a copy to:
Xxxxx X. Xxxxxx
2000- 0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Fax No.: (000) 000-0000
or to such other address(es) as a party hereto shall have designated by notice
in writing to the other parties hereto.
(d) Amendment. No provision of this Agreement may be modified, amended, waived,
or discharged in any manner except by a written instrument executed by all
of the parties.
(e) Entire Agreement. This Agreement and, with respect to Section 7(b)(vi)
hereof, any applicable stock option agreements and the governing stock
option plans, constitute the entire agreement of the parties hereto with
respect to the subject matter hereof, and supersede all prior agreements
and understandings of the parties hereto, oral or written. In the event of
any conflict between Section 7(b)(vi) hereof and any applicable stock
option agreements and the governing stock option plans and the governing
stock option plans, Section 7(b)(vi) shall govern.
(f) Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the Province of
Ontario..
(g) Headings. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the
meaning or interpretation of any of the terms or provisions of this
Agreement.
(h) Binding Effect; Successors and Assigns. JK and Kachkar may not delegate any
of its or his duties or assign his rights hereunder. This Agreement shall
inure to the benefit of, and be binding upon, the parties hereto and their
respective heirs, legal representatives, successors and permitted assigns.
Inyx Canada and Inyx shall require any successor (whether direct or
indirect and whether by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of Inyx Canada or
Inyx, respectively, by an agreement in form and substance reasonably
satisfactory to JK, to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that Inyx Canada or Inyx,
respectively, would be required to perform if no such succession had taken
place.
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(i) Waiver, Etc. The failure of either of the parties hereto to, at any time,
enforce any of the provisions of this Agreement shall not be deemed or
construed to be a waiver of any such provision, nor to in any way affect
the validity of this Agreement or any provision hereof or the right of
either of the parties hereto thereafter to enforce each and every provision
of this Agreement. No waiver of any breach of any of the provisions of this
Agreement shall be effective unless set forth in a written instrument
executed by the party against whom or which enforcement of such waiver is
sought, and no waiver of any such breach shall be construed or deemed to be
a waiver of any other or subsequent breach.
(j) Capacity, Etc. JK or Kachkar and Inyx Canada hereby represent and warrant
to the other that, as the case may be: (a) he or it has full power,
authority and capacity to execute and deliver this Agreement, and to
perform his or its obligations hereunder; (b) such execution, delivery and
performance shall not (and with the giving of notice or lapse of time or
both would not) result in the breach of any agreements or other obligations
to which he or it is a party or he or it is otherwise bound; and (c) this
Agreement is his or its valid and binding obligation in accordance with its
terms.
(k) Arbitration: Any dispute arising pursuant to or in connection with this
Agreement which cannot be resolved by agreement within thirty (30) days of
the occurrence of such dispute, shall be resolved by arbitration pursuant
to the Arbitrations Act (Ontario), as amended, ("Arbitrations Act"), and as
provided in this Agreement and the decision shall be final and binding upon
all of the parties hereto and shall not be subject to appeal.
(l) Arbitration Process: Any arbitration to be carried out under section 9(k)
shall be subject to the following provisions:
(i) For purposes of any arbitration hereunder, JK and Kachkar, and Inyx
Canada and Inyx, shall act together as a single party. The party
desiring arbitration shall nominate an arbitrator and shall notify the
other parties of such nomination. The notice shall set forth a brief
description of the matter submitted for arbitration and, if
appropriate, the Section or paragraph hereof pursuant to which such
matter is so submitted. The other parties shall, together, within
thirty (30) days after receiving such notice, nominate an arbitrator,
and the two arbitrators shall select a Chairman of the Arbitration
Tribunal to act jointly with them. If said arbitrators shall be unable
to agree on the selection of such Chairman, the Chairman shall be
designated by a Judge of the Ontario Court (General Division) upon an
application by either Shareholder. The arbitration shall take place in
the City of Toronto and the Chairman shall fix the time and place
within the City of Toronto for the purpose of hearing such evidence
and representations as the parties hereto may present and, subject to
the provisions hereof, the decision of the arbitrators and the
Chairman or of any two of them in writing shall be binding upon all of
the parties hereto both in respect of procedure and the conduct of the
parties during the procedure and the final determination of the issues
therein. The arbitrators and Chairman shall, after hearing any
evidence and representations that the parties may submit, make the
decision and reduce the same to writing and deliver one copy thereof
to each of the parties. The majority of the Chairman and the
arbitrators may determine any matters of procedure for the arbitration
not specified herein. It shall be a condition of the nomination of the
members of the Arbitration Tribunal that they render their written
decision within ninety (90) days of the conclusion of all verbal and
written submissions.
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(ii) If the parties receiving notice of the nomination of an arbitrator by
the party desiring arbitration fail within the said thirty (30) days
to nominate an arbitrator, the arbitrator nominated by the Shareholder
desiring arbitration may proceed alone to determine the dispute in
such manner and at such time as he shall think fit and his decision
shall, subject to the provisions hereof, be binding upon the parties.
(iii)Notwithstanding the foregoing, any arbitration may be carried out by
a single arbitrator if the parties so agree.
(iv) The cost of the arbitration shall be borne by the parties to such
arbitration in the proportions determined by the arbitrator.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
parties hereto as of the date first above written.
Inyx Canada Limited Inyx Inc.
Per: /S/ Xxxx Xxxxxxxxxx Per: /S/ Xxxx Xxxxxxxxxx
------------------------ ------------------------
Name: Xxxx Xxxxxxxxxx Name: Xxxx Xxxxxxxxxx
Title: VP-Finance Title: VP-Finance
JK Services, by its partners:
Miza Corporation Janfour Holdings Ltd.
Per: /S/ Xxxx Xxxxxxx Per: /S/ Xxxx Xxxxxxx
------------------------ ------------------------
Name: Xxxx Xxxxxxx Name: Xxxx Kackhar
Title: President Title: President
/S/ illegible /S/ Xxxx Xxxxxxx
------------------------ ------------------------
Witness to Xxxx Xxxxxxx Xxxx Xxxxxxx
Name: Illegible
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