As filed with the Securities and Exchange Commission on March 24, 1999
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
THE TIREX CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 3282985
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
740 St. Maurice, Suite 201
Montreal, Quebec H3C 1L5
(Address of Principal Executive Offices) (Zip Code)
EMPLOYMENT AGREEMENT
BETWEEN TIREX CANADA R&D INC.
JOHN CARR
(Full title of the Plan)
Scott Rapfogel
621 Clove Road
Staten Island, NY 10310
(Name and address, including zip code of agent for service)
(718) 981-8485
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered per Share* Price* Fee
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, Par Value,
$.001 Per Share, of The
Tirex Corporation Issued
Pursuant to Employment
Agreement with
John Carr 143,561 $.1525 $21,893 $6.63
- -----------------------------------------------------------------------------------------------
TOTAL 143,561 $.1525 $21,893 $100
===============================================================================================
</TABLE>
* Estimated solely for the purpose of calculating the amount of the registration
fee pursuant to Rule 457(c) on the basis of the average of the closing bid and
ask prices of the Common Stock of the Registrant as traded in the
over-the-counter market and reported in the Electronic Bulletin Board of the
National Association of Securities Dealers on March 19, 1999.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents are incorporated by reference in this registration
statement.
(a) Registrant's Annual Report on Form 10-KSB for the fiscal year ended June
30, 1998, filed pursuant to Section 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
(b) Registrant's quarterly reports on Forms 10-QSB for the fiscal quarters
ended September 30, 1998 and December 31, 1998, filed pursuant to Section
15(d) of the Exchange Act, and Registrant's Current Reports on Form 8-K,
dated May 27, 1998 (filed with the Commission on August 3, 1998) and
September 14, 1998 (filed with the Commission on September 18, 1998);
All documents filed by the Registrant pursuant to Section 13(a), 13(c),
14, and 15(d) of the Securities Act and Sections 13(a), 13(c), and 14 of the
Exchange Act after the date of this registration statement and prior to the
filing of a post-effective amendment to this registration statement which
indicates that all securities offered hereunder have been sold, or which
registers all securities then remaining unsold under this registration
statement, shall be deemed to be incorporated by reference in this registration
statement and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
The authorized capital stock of Registrant consists of one hundred twenty
million shares (120,000,000), par value $.001 per share, of which one hundred
fifteen million, (115,000,000) shares are designated Common Stock par value
$.001 per share, and five million (5,000,000) shares are designated Class A
Stock, par value $.001 per share. As at March 18, 1999 there were seventy eight
million, two hundred forty one thousand, four hundred thirty seven (78,241,437)
shares of Common Stock issued and outstanding. The Class A Stock may be issued
from time to time, in one or more classes, or one or more series within any
class thereof, in any manner permitted by law, as determined from time to time
by Registrant's board of directors, and stated in the resolution or resolutions
providing for the issuance of such shares adopted by Registrant's board of
directors pursuant to authority vested in it in Registrant's Certificate of
Incorporation, each class or series to be appropriately designated, prior to the
issuance of any shares thereof, by some distinguishing letter, number
designation or title. All shares of stock in such classes or series may be
issued for such consideration and have such voting powers, full or limited, or
no voting powers, and shall have such designations, preferences and relative,
participating, optional,
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<PAGE>
or other special rights, and qualifications, limitations or restrictions
thereof, permitted by law, as shall be stated and expressed in the resolution or
resolutions, providing for the issuance of such shares adopted by Registrant's
board of directors pursuant to authority vested in Registrant's Certificate of
Incorporation. The number of shares of stock of any class or series within any
class, so set forth in such resolution or resolutions may be increased (but not
above the total number of authorized shares) or decreased (but not below the
number of shares thereof then outstanding) by further resolution or resolutions
adopted by Registrant's board of directors pursuant to authority vested in it in
Registrant's Certificate of Incorporation.
Registrant's board of directors may determine the times when, the terms
under which and the consideration for which Registrant shall issue, dispose of
or receive subscriptions for its shares, including treasury shares, or acquire
its own shares. The consideration for the issuance of the shares shall be paid
in full before their issuance and shall not be less than the par value per
share. Upon payment of such consideration, such shares shall be deemed to be
fully paid and nonassessable by Registrant.
The holders of shares of Common Stock are entitled to dividends when and
as declared by the Board of Directors from funds legally available therefore
and, upon liquidation, are entitled to share pro rata in any distribution to
shareholders. Holders of the Common Stock have one non-cumulative vote for each
share hold. There are no pre-emptive, conversion or redemption privileges, nor
sinking fund provisions, with respect to the Common Stock.
Stockholders are entitled to one vote of each share of Common Stock held
of record on matters submitted to a vote of stockholders. The Common Stock does
not have cumulative voting rights. As a result, the holders of more than 50% of
the shares of Common Stock voting for the election of directors can elect all of
the directors if they choose to do so, and, in such event, the holders of the
remaining shares of Common Stock will not be able to elect any person or persons
to the board of directors of Registrant.
Item 5. Interest of Named Experts and Counsel.
Frances Katz Levine, counsel to the Registrant, is employed by Registrant
as its corporate and securities counsel. As at March 18, 1999 Ms. Levine and her
husband, Robert Levine, were the record and beneficial owners of approximately
6.37% of the Registrant's issued and outstanding common stock. Scott Rapfogel,
counsel to the Registrant, is employed by Registrant as its assistant corporate
and securities counsel. Mr. Rapfogel is the record and beneficial owner of less
than 1% of the Registrant's issued and outstanding common stock.
Item 6. Indemnification of Directors and Officers.
The Company's certificate of incorporation provides for indemnification to
the fullest extent permitted by Section 145 of the Delaware General Corporation
Law ("Section 145").
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<PAGE>
Pursuant thereto, the Company indemnifies its officers, directors, employees and
agents to the fullest extent permitted for losses and expenses incurred by them
in connection with actions in which they are involved by reason of their having
been directors, officers, employees, or agents of the Company. Section 145
permits a corporation to indemnify any person who is or has been a director,
officer, employee, or agent of the corporation or who is or has been serving as
a director, officer, employee or agent of another corporation, organization, or
enterprise at the request of the corporation, against all liability and expenses
(including but not limited to attorneys' fees and disbursements and amounts paid
in settlement or in satisfaction of judgments or as fines or penalties) incurred
or paid in connection with any action, suit or proceeding, whether civil,
criminal, administrative, investigative, or otherwise, in which he or she may be
involved by reason of the fact that he or she served or is serving in these
capacities, if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no cause
o believe his or her conduct was unlawful. In the case of a claim, action, suit
or proceeding made or brought by or in the right of the corporation to procure a
recovery or judgment in its favor, the corporation shall not indemnify such
person in respect of any claim issue or matter as to which such person has been
adjudged to be liable to the corporation for negligence or misconduct int he
performance of his or her duty to the corporation, except for such expenses as
the Court may allow. Any such person who has been wholly successful on the
merits or otherwise with respect to any such claim, action, suit or proceeding
or with respect to any claim, issue or matter therein, shall be indemnified as
of right against all expenses in connection therewith or resulting therefrom.
The effect of this provision in the certificate of incorporation is to eliminate
the rights of the Registrant and its stockholders (through stockholders'
derivative suits on behalf of the Registrant) to recover monetary damages
against a director for breach of fiduciary duty as a director (including
breaches resulting from negligent or grossly negligent behavior) except in the
situations described above.
The Company's By-laws provide for indemnification of the Company's
officers and directors against all liabilities (including reasonable costs,
expenses, attorney's fees, obligations for payment in settlement and final
judgment) incurred by or imposed upon them in the preparation, conduct or
compromise of any actual or threatened action, suit, or proceeding, whether
civil, criminal, or administrative, including any appeals therefrom and any
collateral proceedings in which they shall be involved by reason of any action
or omission by them in their capacity as a director or officer of the Company,
or of any other corporation which they serve as a director or officer at the
request of the Company, whether or not such person is a director or officer at
the time such liabilities are incurred or any such action, suit, or proceeding
is commenced against them. The indemnification provided by the By-laws does not
extend, however, to certain situations involving misconduct, willful
misfeasance, bad faith, or gross negligence.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the Company pursuant to the foregoing provisions, the Company has been informed
that in the opinion of the Securities and Exchange
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<PAGE>
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by registrant of expenses
incurred in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
Except to the extent hereinabove set forth, there is no charter provision,
by-law, contract, arrangement or statute pursuant to which any director or
officer of registrant is indemnified in any manner against any liability which
he may incur in his capacity as such.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The exhibits filed as a part of this Report or incorporated herein by
reference are as follows:
Exhibit No. Item
- ----------- ----
5.1 Opinion of Scott Rapfogel, Esq., regarding the legality
of the securities being registered under this
Registration Statement.
10.1 Employment Agreement effective as of August 1, 1997
between Tirex Canada R&D Inc. and John Carr
24.1 Consent of Pinkham & Pinkham, P.C., Certified Public
Accountants Independent Auditors for the Registrant.
24.2 Consent of Scott Rapfogel, Esq., counsel for the
Registrant (set forth in the opinion of counsel included
as Exhibit 5.1).
- -----------------------------
5
<PAGE>
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities /Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities
Exchange Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
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<PAGE>
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the act and will be governed by the final adjudication of
such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Montreal, Province of Quebec, Canada, on the 22nd day
of March, 1999.
THE TIREX CORPORATION
By /s/ Terence C. Byrne
--------------------------------
Terence C. Byrne,
Chairman of the Board of Directors
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Terence C. Byrne Chairman of the Board March 22, 1999
- ------------------------------ of Directors and Chief
Terence C. Byrne Executive Officer
/s/ Michael D.A. Ash Secretary, Treasurer March 22, 1999
- ------------------------------ and Chief Financial and
Michael D.A. Ash Accounting Officer
Majority of the Board of Directors
/s/ Terence C. Byrne Director March 22, 1999
- ------------------------------
Terence C. Byrne
/s/ Louis Sanzaro Director March 22, 1999
- ------------------------------
Louis Sanzaro
/s/ Louis V. Muro Director March 22, 1999
- ------------------------------
Louis V. Muro
/s/ Henry Meier Director March 22, 1999
- ------------------------------
Henry Meier
8
<PAGE>
EXHIBIT INDEX
Exhibit No. Item Page
- ----------- ---- ----
5.1 Opinion of Scott Rapfogel, Esq. regarding
the legality of the securities being
registered under this Registration
Statement
10.1 Employment Agreement effective as of
August 1, 1997 between Tirex Canada R&D
Inc. and John Carr
24.1 Consent of Pinkham & Pinkham, P.C.,
Certified Public Accountants Independent
Auditors for the Registrant
24.2 Consent of Scott Rapfogel, Esq., the
counsel for the Registrant (set forth in
the opinion of counsel included as Exhibit
5.1)
9
EXHIBIT 5.1
OPINION OF
SCOTT RAPFOGEL, ESQ.
The Tirex Corporation
Office of Corporate Counsel
- --------------------------------------------------------------------------------
Frances Katz Levine, Esq.* 621 Clove Road
Scott Rapfogel, Esq.* Staten Island, NY 10310
*Member, New York and Telephone (718) 981-8485
New Jersey Bars Telefax (718) 447-1153
March 22, 1999
The Tirex Corporation
740 St. Maurice
Montreal, Quebec
Canada H3C 1L5
Ladies and Gentlemen:
You have requested my opinion as counsel for The Tirex Corporation Inc., a
Delaware corporation (the "Company"), in connection with the registration under
the Securities Act of 1933, as amended, and the Rules and Regulations
promulgated thereunder, and the public offering by the Company of up to one
hundred forty three thousand, five hundred sixty one (143,561) shares of Common
Stock of the Company (the "Shares"), $.001 par value, per share, issuable under
the Employment Agreement effective as of August 1, 1997 between John Carr and
Tirex Canada R&D Inc., a subsidiary of the Company (the "Employment Agreement").
I have examined the Company's Registration Statement on Form S-8 in the
form to be filed with the Securities and Exchange Commission on or about March
24, 1999 (the "Registration Statement"), the Employment Agreement the
Certificate of Incorporation of the Company as certified by the Secretary of
State of the State of Delaware, the Bylaws and the minute books of the Company
as a basis for the opinion hereafter expressed.
Based on the foregoing examination, it is my opinion, and I so advise,
that issuance upon and sale in the manner described in the Registrant Statement
and the exhibits thereto, the Shares will be legally issued, fully paid and
nonassessable.
I consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Scott Rapfogel
-------------------------
Scott Rapfogel
EXHIBIT 10.1
EMPLOYMENT AGREEMENT
BETWEEN TIREX CANADA R&D INC.
AND JOHN CARR
EMPLOYMENT AGREEMENT
AND
SUPPLEMENT
[hereinafter the "Agreement"]
John Carr
4164 Dorchester
Westmount, PQ H3Z
[hereinafter the "Employee"]
This Agreement will confirm the terms and conditions of your full-time
employment with the corporation, Tirex Canada R&D Inc., located at 740,
St-Maurice, suite 201, Montreal, Quebec, H3C 1L5, hereby represented by Mr.
Terence C. Byrne, the president, effective as of August 1, 1997.
[hereinafter the "Employer"]
1. EMPLOYMENT
1.1 POSITION AND DUTIES. You are employed by the Employer in the position of
Program Director. You agree to be bound by the terms and conditions of this
Agreement during your employment with the Employer. In carrying out your duties,
you will respect all reasonable instructions as may be given by members of
management of the Employer. In your position, you will report to your immediate
supervisor, Louis Sanzaro, and are responsible for the following duties :
SEE SUPPLEMENT
[description of duties]
The duties enumerated above are not limited. During your employment, you may
execute all duties relating to your position or in accordance with your
capacities. The Employer, for its proper operating order, may modify your
duties. As such, the Employer hereby binds itself to inform you of any and all
such modifications. You understand and agree that the Employer may change your
position if it is confident and deems that your qualifications and capacities
are sufficient for such a change.
1.2 GOOD FAITH, RESPECT AND LOYALTY. You understand and agree that you have the
obligation to act in good faith, with respect and loyalty towards the Employer.
<PAGE>
1.3 THE EMPLOYER'S POLICIES. You acknowledge and agree that the employment
relationship will be governed by the standards and terms established by the
Employer's policies as they are established from time to time and agree to
respect the terms of such policies so long as they are not inconsistent with any
provisions of the Agreement. You undertake to inform yourself of the details of
such policies and amendments thereto established from time to time.
1.4 PROBATIONARY PERIOD. You understand and agree that the first six (6) months
of your employment shall constitute a probationary period, during which time you
or the Employer may terminate your employment as set out in paragraph 4.1 of the
Agreement.
1.5 HOURS OF WORK. As you will be employed on a full-time basis for the
Employer, your hours of work will vary and may be irregular and will be those
hours required to meet the objectives of your employment. Accordingly, this
Agreement constitutes your consent to working greater hours than those provided
for in any applicable employment or labor standards legislation. In addition, it
is expected that you will devote yourself exclusively to the Employer's business
and will not be employed or engaged in any capacity in any other business during
normal business hours.
2. REMUNERATION AND BENEFITS
2.1 SALARY AND BENEFITS. In consideration of your performance of the obligations
and duties contained in this Agreement, the Employer will pay you a starting
salary of $ 85,000 Cdn per annum payable in [bi-weekly] installments, in
arrears, subject to the normal statutory deductions. You agree and authorize the
Employer to debit any amount given to you in excess directly from your salary or
from any payment you have received. The Employer will revise your salary in
accordance with its general policy standards and in accordance with your
performance in relation to the objectives of your employment.
2.2 VACATION TIME (hereinafter " Vacation "). Vacation must be taken immediately
following the year in which it has been acquired (hereinafter the "reference
year") and cannot be deferred from year to year. Furthermore, Vacation cannot be
exchanged for money. Vacation is taken in turn while taking into consideration
your preference of dates, the number of persons concerned, as well as the needs
of operation of the Employer. The "reference year" consists of a period of
twelve (12) consecutive months during which the employee progressively acquires
the right to Vacation.
The number of weeks of vacation to which you are entitled is determined from the
table attached herewith as Annex A.
You must remit your choice of vacation to your immediate superior for approval
at the latest 30/8 [day and month] for the summer and autumn vacation and the
29/2 [day and month] for the winter and spring vacation.
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2.3 NOTICE FOR CHANGES IN THE COMPENSATION ARRANGEMENTS. You understand and
agree that, on providing thirty days advance written notice, the Employer has
the right to unilaterally introduce changes to your compensation arrangements
and that such changes in your compensation arrangements will not affect the
application of this Agreement.
3. DURATION OF CONTRACT
The Employer retains the services of the employee for an indeterminate period as
of the signing of the present and terminating in accordance with the following.
4. TERMINATION AND NOTICE OF TERMINATION
4.1 TERMINATION DURING THE PROBATIONARY PERIOD. The Employer may terminate your
employment at its sole discretion for any purpose that it may deem reasonable,
without notice or pay "in lieu of notice" and without cause, during the six (6)
month probationary period referred to in paragraph 1.4 of this Agreement. You
have the possibility to resign without notice during this probationary period.
4.2 WRITTEN NOTICE BY THE EMPLOYEE. You may terminate your employment pursuant
to this Agreement by giving at least thirty (30) days advance notice in writing
to the Employer. The Employer may waive such notice, in whole or in part and if
it does so, your entitlement to remuneration and benefits pursuant to this
Agreement will cease on the date it waives such notice.
4.3 TERMINATION FOR CAUSE. The Employer may unilaterally terminate your
employment pursuant to this Agreement without notice or payment "in lieu"
thereof, for cause. For the purposes of this Agreement, "cause">> shall include:
a) any breach of the provisions of this Agreement by you;
b) consistent poor performance on your part, after being advised as to the
standard required by the Employer;
c) any intentional or grossly negligent disclosure of any Information by you,
as determined in the sole discretion of the Employer;
d) your violation of any local, provincial or federal statute, including,
without limitation, an act of dishonesty such as embezzlement or theft;
e) conduct on your part that is materially detrimental to the business or the
financial position of the Employer, as determined in the sole discretion
of the Employer;
f) personal conduct on your part which is of such a serious and substantial
nature that, as determined in the sole discretion of the Employer, it
would injure the reputation of the Employer if you are retained as an
employee;
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g) your bankruptcy or insolvency has been declared;
h) any and all omissions, commissions or other conduct which would constitute
cause at law, in addition to the specified causes.
4.4 NOTICE BY THE EMPLOYER. After the probationary period, the Employer may
terminate your employment pursuant to this Agreement at its sole discretion for
any reason, without cause, upon providing to you a number of weeks of notice, as
determined in respect with the law in force in the Province of Quebec.
4.5 PAY "IN LIEU OF NOTICE". Pay in "lieu of notice" will be calculated on the
basis of your annual base salary as of the date you receive notice of
termination. Bonuses and other forms of additional compensation will not be
considered part of your annual base salary. Your rights and entitlements under
any performance bonus shall terminate effective as of the date of your
termination of employment, or as at the date you receive notice of termination,
if pay "in lieu of notice" is provided.
The Employer's notice or pay "in lieu of notice" is equivalent to a vacation
period which you are entitled pursuant to the law in force in Quebec.
Consequently, you understand and may agree to acquit the Employer of any claim
from your employment termination and may abandon any complaint against him.
Pay "in lieu of notice" will be provided to you at the Employer's discretion
within six (6) days of the date of your termination of employment.
Should you work during the delay of the notice and resign during the said delay,
you are entitled to half of the remainder of the sums which are due in respect
of the notice as of the date of the said resignation.
4.6 FULL AND FINAL RELEASE. Furthermore, you agree and understand that amount of
money as notice or pay "in lieu of notice" constitutes a full and final release
with regard to any claim resulting from the termination of your employment.
5. CONFIDENTIAL INFORMATION
5.1 ACQUISITION OF INFORMATION. You acknowledge that as a Program Director and
in such other position as you may hold with the Employer, you will acquire
information (the "Information") about certain matters which are confidential to
the Employer, which Information is the exclusive property of the Employer,
including but not limited to, the following:
(a) discoveries, inventions, research and development, formulas and
technology, improvement, written works, computer programs, any item
developed in which copyright, patent or any Intellectual Property
right subsists in relation to the current business of the Employer
(hereinafter the "Works").
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<PAGE>
(b) trade secrets;
(c) lists of present and prospective customers and buying habits;
(d) purchase requirements;
(e) pricing and sales policies and concepts;
(f) financial information, and
(g) business plans, forecasts and market strategies.
You acknowledge that the Information could be used to the detriment of the
Employer and that the disclosure could cause irreparable harm to the Employer.
Accordingly, you undertake to treat confidentially all Information and not to
disclose it to any third party or to use it for any purpose either during your
employment, except as may be necessary in the proper discharge of your duties,
or after termination of your employment for any reason, except with the written
permission of the Employer.
You hereby understand and agree that you will inform your immediate superior or,
if the case may be, an officer of the Employer, of any work of your own creation
that is subject to copyright or a patent as described in paragraph 5.1 (a) and
agree not to disclose any information concerning the said creation to any person
whatsoever except with the written permission of the Employer.
Furthermore, you understand and agree to aid and cooperate during your
employment and following its termination in any legal suit whatsoever concerning
the Works which you contributed to and which damages the rights of the Employer.
5.2 EMPLOYER'S OWNERSHIP OF WORKS. You acknowledge that the Employer owns all
Works that may be developed by you during the course of your employment with the
Employer and you agree to waive, by the present, all rights to any such Works.
5.3 THE EMPLOYER'S RIGHTS ON INFORMATION. All notes, data, tapes, reference
items, sketches, drawings, memoranda, records, diskettes and other materials in
any way relating to any of the Information or to the Employer's business,
produced by you or coming into your possession by or through your employment,
shall belong exclusively to the Employer and you agree to turn over to the
Employer all copies of any such materials in your possession or under your
control, forthwith, at the request of the Employer or, in the absence of a
request, on the termination of your employment with the Employer.
6. NON-COMPETITION
6.1 ACQUISITION OF KNOWLEDGE. You acknowledge and agree that as a Program
Director for the Employer you will gain a knowledge of and a close working
relationship with the Employer's customers, which would injure the Employer if
made available to a competitor or used for competitive purposes.
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<PAGE>
6.2 NON-COMPETITION. You agree with and for the benefit of the Employer that for
a period of two (2) years from the date of termination of your employment,
whether such termination is occasioned by you, by the Employer with or without
cause, or by mutual agreement, you will not, within the geographical area of
Montreal, Quebec, directly or indirectly, either as an individual or as a
partner or joint-venturer or as an employee, principal, consultant, agent,
shareholder, officer, director, or as a salesman for any reason, firm,
association, organization, syndicate, company or corporation, or in any manner
whatsoever, carry on, be engaged in, advise, guarantee the debts or obligations
of, or permit your name or any part thereof to be used or employed in a business
which is the same as, or competitive with, the business of the Employer,
including, but without limiting, any business relating to recycling and/or
remanufacturing, and/or molding products generated from tire recycling and which
is in a directly competitive field.
7. NON-SOLICITATION
7.1 EMPLOYER'S CLIENTS. You agree with and for the benefit of the Employer that
for a period of twenty-four (24) months from the date of termination of your
employment, whether such termination is occasioned by you, by the Employer with
or without cause, or by mutual agreement, you will not, for any reason
whatsoever, directly or indirectly, solicit or accept business with respect to
products in which you traded on behalf of the Employer from any of the
Employer's clients or customers, wherever situated.
7.2. EMPLOYEES. You further agree that during employment pursuant to this
Agreement and for a period of twenty-four (24) months following termination of
employment, whether such termination is occasioned by you, by the Employer with
or without cause, or by mutual agreement, you will not hire or take away or
cause to be hired or taken away any employee of the Employer for the purposes of
employment in any business related to or competitive with the current business
of the Employer.
8. INJUNCTIVE RELIEF
8.1 PRESERVATION OF THE RELATIONSHIPS BETWEEN THE EMPLOYER AND HIS CLIENTS. You
understand and agree that the Employer has a material interest in preserving the
relationships it has developed with its customers against impairment by
competitive activities of a former employee. Accordingly, you agree that the
restrictions and covenants contained in paragraph 5 (Confidential Information),
paragraph 6 (Non-competition) and paragraph 7 (Non-solicitation), are reasonably
required for the protection of the Employer and its goodwill and that your
agreement to same by your execution of this Agreement, are of the essence to
this Agreement and constitute a material inducement to the Employer to enter
into this Agreement and to employ you, and that the Employer would not enter
into this Agreement absent such an inducement.
8.2 REMEDIES FOR THE EMPLOYER. You understand and agree, without prejudice to
any and all other rights of the Employer, that in the event of your violation or
attempted violation of any
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of the covenants contained in paragraphs 5, 6 and 7 of this Agreement, an
injunction or other like remedy shall be the only effective method to protect
the Employer's rights and property as set out, and that an interim injunction
may be granted immediately on the commencement of any suit.
9. NOTICES
Any notice required or permitted to be given to either party must be delivered
by hand or personally to the party's address last known to the other party and
will be deemed to be received on the date of hand delivery or personal delivery
to such address. Personal delivery shall include delivery by a commercial
courier.
10. SEVERABILITY
In the event that any provision of this Agreement is found to be void, invalid,
illegal or unenforceable by a court of competent jurisdiction, such finding will
not affect any other provision of this Agreement which will continue to be in
full force and effect.
11. WAIVER
The waiver by either party of any breach or violation of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
or violation.
12. ENTIRE AGREEMENT
This Agreement contains the final and entire understanding and agreement between
you and the Employer with respect to the terms and conditions of your employment
addressed herein.
13. MODIFICATION OF AGREEMENT
Any modification of this Agreement must be in writing and signed by both you and
the Employer or it shall have no effect and shall be void.
14. TITLES
The titles of all the provisions contained herein have been inserted for ease of
reference and do not affect the construction and interpretation of the
provisions of the Agreement in any way.
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15. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
the Province of Quebec.
16. INDEPENDENT LEGAL ADVICE
You acknowledge that you have read and understand this Agreement, and
acknowledge that you have had the opportunity to obtain legal advice about it.
The parties have expressly requested that the Agreement be drawn by and executed
in English only; les parties ont expressement exige que la Convention soit
redigee uniquement en langue anglaise.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the below
effective date.
Montreal, 17th day of June 1998.
/s/ Terence C. Byrne /s/ John Carr
- -------------------------------- --------------------------------
Tirex Canada R&D Inc. [name of the Employee]
by Terence C. Byrne, President
/s/ Terence C. Byrne
- --------------------------------
The Tirex Corporation
by Terence C. Byrne, President
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ANNEX A
(as proposed)
NUMBER OF CONTINUED YEARS NUMBER OF WEEKS OF
OF SERVICE VACATION
1 working day for every month of
Less than 1 year continued service, without the total of
the vacation exceeding 10 days
1 to 3 years 2 weeks
3 to 5 years 3 weeks
More than 5 years 4 weeks
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Supplement
1. Job Description
a) Coordinate with subcontractors and design engineers and assist in
the design and redesign of equipment and facilities;
b) Supervise ISO 9000 procedures and practices;
c) Supervise the writing of all technical manuals;
d) Oversee the assembly and testing of equipment for sale by inside and
outside contractors.
2. Additional Compensation
a) Employee will receive 100,000 shares of The Tirex Corporation stock
as a bonus with the date of compensation shall be the date this
Agreement is executed;
b) Employee shall receive the difference between his gross pay at
Bentley Environmental and his gross pay at Tirex for a period of one
year beginning at the present date. The value is determined to be
set at $1,500 cd per month and shall be compensated in the form of
The Tirex Corporation stock at market value;
c) Employee's name shall be placed on any new patents that he has had
direct involvement in developing;
d) While employed under this contract all designs and patents related
to the current business of Employer created by the Employee shall be
the sole property of the Employer.
e) This agreement shall be signed by an officer of The Tirex
Corporation who has the authority to issue stock on behalf of The
Tirex Corporation. Furthermore, The Tirex Corporation acknowledges
this Agreement and agrees to be bound by the obligations therein.
All stock received as compensation shall be issued within 30 days of
agreed compensation date and shall be free trading upon issuance of
said stock.
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EXHIBIT 24.1
CONSENT OF PINKHAM & PINKHAM, P.C.
Certified Public Accountants
Pinkham & Pinkham, P.C.
CERTIFIED PUBLIC ACCOUNTANTS
Report of Independent Auditors
We consent to the incorporation by reference in this Registration Statement of
The Tirex Corporation on Form S-8 of our report dated February 9, 1999,
appearing in the incorporated by reference Annual Report on Form 10-KSB of The
Tirex Corporation for the year ended June 30, 1998.
Pinkham & Pinkham, P.C.
Certified Public Accountants
March 22, 1999
Cranford, New Jersey
