EMPLOYMENT CONTRACT
AGREEMENT made the 17th day of June, 2006
BETWEEN:
▇▇▇▇▇▇ Reader, of the City of Oakville
in the Province of Ontario
(the "Employee")
- and -
NORTHERN ETHANOL, INC., a corporation
incorporated under the laws of
Delaware
("Northern" or the "Company")
RECITALS:
WHEREAS the Employee is an experienced senior executive in the
energy industry.;
AND WHEREAS Northern wishes to employ the Employee as its Vice
President Development and Chief Operating Officer;
AND WHEREAS the Employee is willing to be employed by Northern and
render such services on the terms and conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and
agreements herein contained and of other good and valuable consideration, the
parties agree with one another as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this agreement, unless there is something in the subject matter or
context inconsistent therewith,
"ACT" means the Employment Standards Act of Ontario as the same may be
amended or restated, or any comparable successor legislation;
"AFFILIATE" and "SUBSIDIARY" shall have the respective meanings
ascribed to such terms by the Business Corporations Act (Ontario) on
the date hereof;
"BUSINESS DAY" means any day of the week except Saturday, Sunday or any
statutory or civic holiday observed in Toronto, Ontario;
"CONFIDENTIAL INFORMATION" includes, but is not limited to: any
information, know-how, data, patent, copyright, Intangible Property,
trade secret, process, technique, program, design or formula; any
marketing, advertising, financial, commercial, sales or programming
matter; any customer or supplier lists or pricing information; any
confidential information of customers, suppliers or any other parties
to whom the Company has obligations of confidentiality; any budget,
plan, model or analysis; any written materials, compositions, drawings,
diagrams, computer programs, studies, work in progress, visual
demonstrations, ideas or concepts; any other data including the terms
and conditions of any completed or potential transaction; and any of
the forgoing derived in whole or in part from Confidential Information
whether in oral, written, graphic, electronic, or any other form or
medium whatsoever, of the or relating to the Company that may be
disclosed to, or in the possession of, the Employee in connection with
his employment hereunder. The term "Confidential Information" shall not
include the following:
(i) information which is now or which hereafter becomes publicly
known or available through no negligent act or failure on the
part of the Employee, whether through breach of this Agreement
or otherwise; or
(ii) information which the Employee is by law, order of a Court of
competent jurisdiction, or other legal compulsion required to
disclose (provided, that information shall continue to
constitute Confidential Information is subject to a protective
order or other action of the Court or the parties to the
proceeding in order to protect the confidentiality thereof);
"INCLUDING" means "including without limitation" and shall not be
construed to limit any general statement which it follows to the
specific or similar items or matters immediately following it;
"INTANGIBLE PROPERTY" means all discoveries, inventions, improvements,
techniques, concepts and ideas, whether patentable or not, know-how and
similar intangible property made, discovered, conceived, invented or
improved by the Employee during the term of his employment hereunder,
whether alone or with others and whether during regular working hours
and through the use of the facilities and property of the Company or
any affiliate or otherwise, in any way relating to the Company; and
"PERSON" includes an individual, corporation, partnership, joint
venture, trust, unincorporated organization, the Crown or any agency or
instrumentality thereof or any other entity recognized by law.
1.2 HEADINGS
The division of this agreement into paragraphs and subparagraphs and
the insertion of headings are for convenience of reference only and shall not
affect the construction or interpretation of this agreement. The headings in
this agreement are not intended to be full or precise descriptions of the text
to which they refer and shall not be considered part of this agreement.
References to a paragraph or a subparagraph are to the corresponding paragraph
or subparagraph of this agreement.
1.3 NUMBER AND GENDER
In this agreement, words in the singular include the plural and
vice-versa and words in one gender include all genders.
1.4 CURRENCY
In this agreement, all financial amounts are in Canadian Dollars.
2. EMPLOYMENT
The Company agrees to employ the Employee and the Employee accepts such
employment on and subject to the terms of this agreement. The Employee shall be
the Vice President Development and Chief Operating Officer and shall have the
duties and responsibilities set out in Section 4.
3. TERM
The Employee's employment shall commence on July 15th, 2006 or as
mutually agreed and continue until July 14th, 2010 unless earlier terminated in
accordance with Section 11 (the "TERM").
4. DUTIES AND RESPONSIBILITIES
So long as this agreement continues in full force and effect, the
Employee shall
(a) devote his energies to the business and affairs of NORTHERN;
(b) well and faithfully serve NORTHERN; and
(c) use his best efforts, skills and abilities to promote the interests
of NORTHERN.
The Employee's duties and responsibilities shall also include:
(i) all technology, marketing and related commercial services
necessary or incidental to the sale of ethanol products in
North America and Europe;
(ii) business development services; and
(iii) generally providing such services as are required to carry out
the marketing , development and financial affairs of a company
with operations and assets similar to Northern.
The Employee shall also perform such other tasks and duties related to
the foregoing as may from time to time be determined by the Board of Directors
or such person as the Chief Executive Officer may designate. The Employee shall,
in carrying out the obligations under this agreement, report directly to the
Chief Executive Officer, or such person as the Board of Directors may designate.
The Employee shall work based out of the Company's offices in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
The Employee acknowledges that the hours of work involved will vary and
be irregular and are those hours required to meet the objectives of the Company.
The Employee acknowledges that this paragraph constitutes an agreement to work
such hours where such agreement is required by applicable legislation.
The Employee shall also submit to such medical and other examinations
and provide such samples as are reasonably necessary to obtain key man life
insurance on his life.
5. CONFIDENTIAL INFORMATION
The Employee acknowledges that during the course of his employment with
the Company, the Employee will acquire Confidential Information. Confidential
Information is the exclusive property of the Company. Further, the Employee
acknowledges that the Company's business and Northern depend significantly upon
maintaining the confidentiality of Confidential Information. In partial
consideration for the Employee's employment hereunder, the Employee covenants
and agrees that he shall not, at any time during the term of his employment by
the Company or thereafter, until such information becomes part of the public
domain, reveal, divulge or make known to any persons or entity (other than the
Company and its duly authorized Employees) or use for his own or any other's
benefit, or to the detriment of the Company, the Confidential Information or his
knowledge of any of the business or financial affairs of Northern, which during
or after his employment pursuant hereto is made known to the Employee.
6. INVENTIONS AND DISCOVERIES
The Employee agrees to fully and freely (and without expense to the
Company during the Term) communicate to the Company, and the Employee assigns to
the Company, all Intangible Property. All Intangible Property shall be the sole
and exclusive property of the Company and, upon its request at any time or from
time to time during the term or after the termination of the Employee's
employment, the Employee shall deliver to the Company all designs, drawings,
sketches, models, prototypes, notes and other data and records relating to the
Intangible Property, that may be in his possession or otherwise available to
him. The Employee agrees that he will at all times (both during the continuance
of his employment hereunder and at all times thereafter provided the Company
pays for all reasonable and approved expenses related thereto) take all action
and execute and file all such documents to assist the Company or its assignees
in every way to protect the rights of the Company or its assignees under this
paragraph and to vest in the Company or its assignees the entire right, title,
interest and benefits (including without limitation patent and copyright rights)
in and to any and all of the Intangible Property. The Employee shall not (either
during the continuance of his employment hereunder or at any time thereafter)
disclose any of the Intangible Property to any person, firm or company or use
any of the Intangible Property for his own purposes, to the detriment of the
Company or for any purpose other than those of the Company and its affiliates.
Without limiting the foregoing, Employee recognizes and understands that
Employee's duties at the Company may include the preparation of materials,
including without limitation written or graphic materials, and that any such
materials conceived or written by Employee shall be done as "work made for hire
as defined and used in the United States Copyright Act of 1976, 17 U.S.C. ss. et
seq.". In the event of publication of such materials, Employee understands that
since the work is a "work made for hire", the Company will solely retain and own
all rights in said materials, including right of copyright.
7. VACATION
The Employee shall be entitled to 4 weeks of paid vacation per year to
be taken at such times as agreed to by the parties. Any unused vacation shall
accrue to the following year up to a maximum of ten days. Any unused balance
beyond the maximum of ten days will be paid out by the Company. The Company also
agrees to pay the Employee car expenses in the amount of $1,000.00 per month.
8. EXPENSES
The Company shall pay to the Employee on a monthly basis upon receipt
of a true, complete and accurate monthly expense report with supporting invoices
and other documentation, the Company shall pay or reimburse the Employee for all
traveling and other direct out-of-pocket expenses actually and properly incurred
by him in connection with the performance of his duties hereunder. With the
exception of expenses related to business travel approved by the Company in
advance any single expense over $500.00 and any monthly expenses over $2,000.00
in the aggregate shall only be paid or reimbursed by the Company if they have
been approved by the Company in advance of their incurrence.
9. COMPENSATION
9.1 SALARY
The Employee shall receive a monthly salary of $22,000.00 payable on or
before the 30th day of each month, subject to applicable statutory deductions
(the "Base Salary"). The "Base Salary" will be adjusted to $25,000 monthly upon
confirmation of all financing required for construction of the first ethanol
plant. Additionally when the first ethanol plant commences construction the
employees "Base Salary" shall be increased to $27,000.00 monthly and when the
first plant commences production the base salary shall be increased to
$30,000.00 monthly. The Employee shall also be entitled to an annual bonus up to
fifty percent (50%) of his annual compensation. The amount of such bonus shall
be determined prior to February 15th in each year and paid by month end by the
Board of Directors having regard to its financial performance and the Employee's
individual performance. The Employee shall have vested, in equal quarterly
instalments over thirty-six [36] months, Three Hundred Thousand [300,000]
options for common shares at a strike price of $1.00 each. The common shares
issued on the exercise of these options shall be unrestricted as permitted by
law.
9.2 STOCK OPTION PLAN
The Company will implement an incentive stock option plan for its
officers, directors, employees and service providers. Upon implementation
(including receipt of all necessary regulatory approval) of the Company's stock
option plan, the Employee shall be entitled to participate as an executive in
such plan in accordance with the terms and conditions thereof and applicable
law.
10. BENEFITS
The Employee acknowledges and agrees that Company does not currently
maintain any benefit plans for its employees including group life, accident,
sickness, dental and medical insurance or pension plans. The Company intends to
adopt a benefit plan, in its discretion, commensurate with those generally
offered to employees in the ethanol or petrochemical industry. The Employee
shall be entitled to participate at no direct cost as an executive in any such
plan in accordance with the terms and conditions thereof.
11. TERMINATION
The Employee's employment hereunder may be terminated in each of the
circumstances in subparagraphs 11.1 to 11.4 inclusive:
11.1 DEATH
The Employee's employment hereunder shall automatically terminate upon
his death. For the purposes of Section 12, in the event that the Employee's
employment is terminated pursuant to this Section 11.1 or Section 11.2, all
references to Employee, shall be deemed to be references to the Employee's
heirs, executors, administrators or legal personal representatives, as
applicable in the circumstances.
11.2 DISABILITY
The Company may terminate the Employee's employment hereunder if the
Employee, by reason of physical or mental disability, is unable to fulfill his
obligations and duties hereunder on the basis agreed in this contract (other
than by reason of authorized vacation or leave) for a period in excess of three
consecutive months, subject to applicable law. It is acknowledged and agreed
that the salary contemplated by Section 9.1 is not payable during periods that
the Employee is unable to fulfill his obligations and duties hereunder on the
basis agreed in this contract after three months(other than by reason of
authorized vacation or leave).
11.3 CAUSE
The Company may terminate the Employee's employment hereunder for
cause. The term "cause" shall include:
(a) any material failure by the Employee to observe and perform
any of his covenants and obligations hereunder, where such
failure has not been cured within two (2) weeks of written
notice thereof by the Company to the Employee.
(b) fraud and dishonesty, gross negligence, unethical or immoral
conduct or willful malfeasance by the Employee in connection
with the performance of his duties hereunder; or
11.4 WITHOUT CAUSE
During the nine (9) month period immediately after the commencement of the Term
(the "Earn Out Period"), the Company may only terminate the Employee's
employment for cause pursuant to Section 11.3 hereof, and shall therefore not be
entitled to terminate the Employee during the Earn Out Period by providing
notice or payment in lieu of notice. The Company may terminate Employee's
employment hereunder at any time without cause on six (6) months notice (or pay
in lieu of notice). Except as otherwise outlined in this section, after the
effective date of such termination, the Employee shall be entitled to no further
rights or benefits hereunder or in connection with his employment by the Company
whether pursuant to this Agreement, the Act, applicable law or otherwise. After
the termination of the employment of the Employee hereunder for any reason the
Employee shall not, directly or indirectly, take any action to damage the
goodwill, the business or the relationships of Northern. The Employee expressly
agrees that the foregoing represents the Company's maximum termination
obligations.
12. COMPETITION AND NON-SOLICITATION
The Employee shall not during the two (2) years following the date of
the Agreement:
(a) work for, or be interested in, any business which provides
services or products which are directly competitive with
services or products offered by the Company or a subsidiary or
affiliate of Company. For the purpose of this Agreement, the
term "work for or be interested in any business" means that
the Employee is a stockholder, director, officer, employee,
partner, individual proprietor, lender or consultant with that
business, but not if (i) his interest is limited solely to the
passive ownership of five percent (5%) or less of any class of
the equity or debt securities of a corporation whose shares
are listed for trading on a national securities exchange or
traded in the over-the-counter market. In the event that any
part of this Section 12 is adjudged invalid or unenforceable
by any court of record, board of arbitration or judicial or
quasi judicial entity having jurisdiction thereof by reason of
length of time, geographical coverage, activities covered, or
for any other reason, then the invalid or unenforceable
provisions of this covenant shall be deemed reformed and
amended to the maximum extent permissible under applicable law
and shall be enforced and enforceable as so amended in
accordance with the intention of the parties as expressed
herein.
(b) directly or indirectly: (i) solicit the trade of, or trade
with, any present or prospective customer of the Company for
any business purpose that directly or indirectly competes with
the business of Company or a subsidiary or affiliate of
Company; or (ii) solicit or induce, or attempt to solicit or
induce, any employee of Company to leave Company for any
reason whatsoever, or assist or participate in the hiring of
any employee of Company to work for another entity.
13. GENERAL
13.1 INJUNCTIVE RELIEF
The Employee acknowledges that the injury that would be suffered by the
Company as a result of a breach of the provisions of any provision of Sections 5
and 12 of this Agreement would be irreparable and that an award of monetary
damages to the Company for such a breach would be an inadequate remedy.
Consequently Company will have the right, in addition to any other rights it may
have, to obtain injunctive relief to restrain any breach or threatened breach or
otherwise to specifically enforce any provisions of Sections 5 and 12 of this
Agreement, subject to applicable law, and the Company will not be obligated to
post bond or other security in seeking such relief.
13.2 TOLLING PERIOD
The non-competition, non-disclosure and non-solicitation obligations
contained in Sections 5 and 12 of this Agreement shall be extended by the length
of time during which Employee shall have been in breach of any of the provisions
of such Sections 5 and 12.
13.3 ENTIRE AGREEMENT
This agreement constitutes the entire agreement between the parties
pertaining to the employment of the Employee by the Company and supersedes all
prior agreements, negotiations, discussions and understandings, written or oral,
between the parties. There are no representations, warranties, conditions, other
agreements or acknowledgements, whether direct or collateral, express or
implied, that form part of or affect this agreement, or which induced any party
to enter into this agreement or on which reliance is placed by any party, except
as specifically set forth in this agreement.
13.4. AMENDMENT
This agreement may be amended or supplemented only by a written
agreement signed by each party.
13.5. WAIVER OF RIGHTS
Any waiver of, or consent to depart from, the requirements of any
provision of this agreement shall be effective only if it is in writing and
signed by the party giving it, and only in the specific instance and for the
specific purpose for which it has been given. The rights and remedies of the
parties to this Agreement are cumulative and not alternative. Neither the
failure nor any delay by either party in exercising any right, power, or
privilege under this Agreement will operate as a waiver of such right, power, or
privilege, and no single or partial exercise of any such right, power, or
privilege will preclude any other or further exercise of such right, power, or
privilege or the exercise of any other right, power, or privilege.
13.6. APPLICABLE LAW
This agreement shall be governed by and construed in accordance with
the laws in force in the Province of Ontario. Each party irrevocably submits to
the non-exclusive jurisdiction of the courts of Ontario with respect to any
matter arising hereunder or related hereto.
13.7. TIME
Time is and shall remain of the essence of this agreement and all of
its provisions.
13.8. NOTICES
Any notice, demand or other communication (in this Section, a "notice")
required or permitted to be given or made hereunder shall be in writing and
shall be sufficiently given or made if:
(a) delivered in person during normal business hours on a Business
Day and left with a receptionist or other responsible Employee
of the relevant party at the applicable address set forth
below;
(b) sent by prepaid first class mail; or
(c) sent by any electronic means of sending messages, including
telex or facsimile transmission, which produces a paper record
("Electronic Transmission") during normal business hours on a
Business Day charges prepaid and confirmed by prepaid first
class mail;
in the case of a notice to the Employee, addressed to him at:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
and in the case of a notice to the Company, addressed to it
at:
Northern Ethanol Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attention: CEO
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Each notice sent in accordance with this Section shall be deemed to
have been received:
(a) on the day it was delivered;
(b) on the third Business Day after it was mailed (excluding each
Business Day during which there existed any general
interruption of postal services due to strike, lockout or
other cause); or
(c) on the same day that it was sent by Electronic Transmission,
or on the first Business Day thereafter if it was sent by
Electronic Transmission after 5:00 p.m. local time or the day
on which it was sent by Electronic Transmission was not a
Business Day.
The Employee or the Company may change the address for notice by giving
notice to each other as provided in this Section.
13.9. NO THIRD PARTY BENEFITS
The terms and provisions of this Agreement are intended solely for the
benefit of the Employee and Northern and their respective affiliates, successors
or permitted assigns, and it is not the intention of the parties to confer third
party beneficiary rights upon any other person.
13.10. ASSIGNMENT
Neither this agreement nor any rights or obligations hereunder shall be
assignable by the Employee without the prior written consent of the Company.
Subject thereto, this agreement shall enure to the benefit of and be binding
upon the parties and their respective heirs, executors, administrators, legal
personal representatives, successors (including any successor by reason of
amalgamation or statutory arrangement of any party) and permitted assigns.
13.11 NO PARTNERSHIP OR JOINT VENTURE OF AGENCY
None of the parties to this Agreement are nor shall any of them be
deemed to be partners or joint venturers with one another and nothing herein
shall be construed so as to impose any liability as such on any of them.
13.12. FURTHER ASSURANCES
Each party shall do such acts and shall execute such further documents,
conveyances, deeds, assignments, transfers and the like, and will cause the
doing of such acts and will cause the execution of such further documents as are
within its power as any other party may in writing at any time and from time to
time reasonably request be done and or executed, in order to give full effect to
the provisions of this agreement.
IN WITNESS WHEREOF the parties have duly executed this agreement this
17th day of June, 2006.
/s/▇▇▇▇▇▇ Reader
--------------------
▇▇▇▇▇▇ Reader
NORTHERN ETHANOL, INC.
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
Chief Executive Officer