As filed with the Securities and Exchange Commission on February _____, 2000
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.)
3828 RUE SAINT PATRICK
MONTREAL, QUEBEC H4E 1A4
(Address of Principal Executive Offices) (Zip Code)
STOCK UNDERLYING VARIOUS
EMPLOYMENT AND RETAINER AGREEMENTS
BETWEEN REGISTRANT AND:
CONSULTANTS, OFFICERS AND DIRECTORS
OF THE REGISTRANT
(Full title of the Plan)
FROHLING, HUDAK & PELLEGRINO, LLC
425 EAGLE ROCK AVENUE
ROSELAND, NEW JERSEY 07068
(Name and address, including zip code of agent for service)
(973) 226-4600
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION FEE
TO BE REGISTERED REGISTERED PER SHARE* PRICE*
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, Par 3,161,526 $0.18 $569,074.68 $158.20
Value $.001 Per Share
- -----------------------------------------------------------------------------------------------------
</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 low 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 January 19, 2000.
-1-
<PAGE>
PART I
DESCRIPTION OF CONSULTING, DIRECTORS AND EMPLOYMENT AGREEMENTS
The following table sets forth the number of shares of Common stock
issued or authorized to be issued pursuant to certain Consulting and Employment
Agreements attached hereto or incorporated herein by reference.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
Compensation Number of Shares
Agreement covered by this
Selling Shareholder (Name of Plan) Registration Statement
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C>
David Bothe Consulting Agreement dated October 10, 1998 420,000
- -----------------------------------------------------------------------------------------------------------
Terence Byrne Executive Agreement as amended May 1, 1997 391,588
- -----------------------------------------------------------------------------------------------------------
Michel Hebert Consulting Agreement dated February 15, 2000 154,716
- -----------------------------------------------------------------------------------------------------------
Doug Huegel Consulting Agreement between Registrant and Research 253,288(1)
Investment Planning, ENR dated May 7, 1997, as assigned
February15, 2000
- -----------------------------------------------------------------------------------------------------------
Peter Kustec Consulting Agreement dated May 9, 1997 2,000,000(2)
- -----------------------------------------------------------------------------------------------------------
Aaron Makovka Consulting Agreement dated February 15, 2000 50,000
- -----------------------------------------------------------------------------------------------------------
Louis Sanzaro Executive Agreement dated July 23, 1998, 1,063,634
- -----------------------------------------------------------------------------------------------------------
John L. Threshie, Jr. Employment Agreement dated February 20, 1997 as 211,588
extended by correspondence dated December 30, 1998
- -----------------------------------------------------------------------------------------------------------
Joe Richichi Confirming Memorandum of Consulting Agreement dated 50,000
February 14, 2000
- -----------------------------------------------------------------------------------------------------------
TOTAL 4,594,814
- -----------------------------------------------------------------------------------------------------------
</TABLE>
(1) Said shares were registered with the Securities and Exchange Commission
on January 21, 2000 on Form S-8, Registration No. 333-95153. The
benefit relating to these shares has been given to Mr. Huegel and the
shares therefore appear for information purposes only.
(2) 1,180,000 of said shares were registered under the name of RTC
Consulting with the Securities and Exchange Commission on January 21,
2000 on Form S-8, Registration No. 333-95153 and the shares therefore
appear for information purposes only.
-2-
<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, 1999, 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, December 31, 1998, March 31, 1999,
September 30, 1999 and December 31, 1999 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),
September 14, 1998 (filed with the Commission on September 18, 1998),
March 17, 1999 (filed with the Commission on March 23, 1999), May 4,
1999 (filed with the Commission on May 18, 1999), May 10, 1999 (filed
with the Commission on May 24, 1999), September 3, 1999 (filed with the
Commission on September 3, 1999) and February 9, 2000 (filed with the
Commission on February 9, 2000).
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
sixty five million shares (165,000,000), par value $.001 per share, all of which
are designated Common Stock par value $.001 per share. As of February 9, 1999
there were one hundred thirty nine million, eight one hundred fifty eight, eight
hundred forty two (139,158,842) shares of Common Stock issued and outstanding.
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 of the Registrant 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 preemptive, conversion or
-3-
<PAGE>
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.
None.
-4-
<PAGE>
Item 6. Indemnification of Directors and Officers.
The Registrant's certificate of incorporation provides for
indemnification to the fullest extent permitted by Section 145 of the Delaware
General Corporation Law ("Section 145"). 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 Registrant. 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 to 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 in the 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 Registrant's By-laws provide for indemnification of the
Registrant'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 Registrant, 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 Registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
-5-
<PAGE>
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
- ------- ----
4.1 Consulting Agreement between the Company and David Bothe dated October
10, 1998. (1)
4.2 Amendment No. 2 to Executive Agreement between the Registrant and
Terence Byrne dated May 1, 1997. (2)
4.3 Consulting Agreement between the Registrant and Michel Hebert dated
February 15, 2000
4.4 Consulting Agreement between the Registrant and RTC Consulting dated
May 9, 1997. (3)
4.5 Consulting Agreement between the Registrant and Aaron Makovka dated
February 15, 2000.
4.6 Executive Agreement between the Registrant and Louis Sanzaro dated July
23, 1998.
4.7 December 30, 1998 extension to the Employment Agreement between the
Registrant and John L. Threshie, Jr. Effective as of January 1, 1996.
(4)
4.8 Consulting Agreement between Registrant and Research Investment
Planning, ENR dated May 7, 1997. (5)
4.9 Confirming Memorandum of Consulting Agreement between the Registrant
and Joe Richichi dated February 14, 2000.
-6-
<PAGE>
5.1 Opinion of Frohling, Hudak & Pellegrino, LLC, regarding the legality of
the securities being registered under this Registration Statement.
24.1 Consent of Pinkham & Pinkham, P.C., Certified Public Accountants,
Independent Auditor for the Registrant.
24.2 Consent of Frohling, Hudak & Pellegrino, LLC, (set forth in the opinion
of counsel included as Exhibit 5.1).
(1) Filed with the Securities and Exchange Commission on January 21, 2000
as exhibit, number 4.3 to the registration statement of the Registrant
on Form S-8, Registration No. 333-95153, which exhibit is incorporated
herein by reference.
(2) Filed with the Securities and Exchange Commission, as Exhibit 10(iii)
to the Registrant's Annual Report or Form 10-KSB for the fiscal year
ended June 30, 1997, which exhibit is incorporated herein by reference.
(3) Filed with the Securities and Exchange Commission on January 21, 2000
as exhibit, number 4.11 to the registration statement of the Registrant
on Form S-8, Registration No. 333-95153, which exhibit is incorporated
herein by reference.
(4) Filed with the Securities and Exchange Commission on January 21, 2000
as exhibit, number 4.17 to the registration statement of the Registrant
on Form S-8, Registration No. 333-95153, which exhibit is incorporated
herein by reference.
(5) Filed with the Securities and Exchange Commission on January 21, 2000
as exhibit, number 4.8 to the registration statement of the Registrant
on Form S-8, Registration No. 333-95153, which exhibit is incorporated
herein by reference.
- ---------------------------
-7-
<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 plans 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.
-8-
<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.
-9-
<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 18th day
of February, 2000.
THE TIREX CORPORATION
By /s/ JOHN L. THRESHIE
---------------------------------------
John L. Threshie Jr., President 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/ JOHN L. THRESHIE Chief Executive Officer February 18, 2000
- -------------------------
John L. Threshie, Jr.
/s/ MICHAEL ASH Treasurer and Chief February 18, 2000
- ------------------------- Financial and Accounting
Michael Ash Officer
Majority of the Board of Directors
/s/ LOUIS V. MURO Director February 18, 2000
- -------------------------
Louis V. Muro
/s/ LOUIS SANZARO Director February 18, 2000
- -------------------------
Louis Sanzaro
/s/ JOHN L. THRESHIE Director February 18, 2000
- -------------------------
John L. Threshie, Jr.
-10-
<PAGE>
INDEX TO EXHIBITS BEING FILED HEREWITH
Exhibit
No. Item
- ------- ----
4.3 Consulting Agreement between the Registrant and Michel Hebert dated
February 15, 2000
4.5 Consulting Agreement between the Registrant and Aaron Makovka dated
February 15, 2000
4.6 Executive Agreement between the Registrant and Louis Sanzaro dated July
23, 1998.
4.9 Confirming Memorandum of Consulting Agreement between the Registrant
and Joe Richichi dated February 14, 2000.
5.1 Opinion of Frohling, Hudak & Pellegrino, LLC regarding the legality of
the securities being registered under this Registration Statement
24.1 Consent of Pinkham & Pinkham, P.C., Certified Public Accountants
Independent Auditors for the Registrant
24.2 Consent of Frohling, Hudak & Pellegrino, LLC, the counsel for the
Registrant (set forth in the opinion of counsel included as Exhibit
5.1)
-11-
TIREX CANADA R & D INC.
------------
CONSULTING AGREEMENT
CONSULTING AGREEMENT, made this 15th day of February, 2000, to be
effective April 25, 1999 (the "Effective Date") between Tirex Canada R & D Inc.
(the "Corporation"), and Michel Hebert, 3399, rue Lareau, Carignan, Quebec H3L
3P9 (the "Consultant").
WHEREAS, since the Effective Date, the Consultant has been providing to
the Corporation, on the terms set forth herein, the consulting services
described in Section 2, of this Agreement;
WHEREAS, the Corporation wishes to assure itself of the continued
services of the Consultant for the period provided in this Agreement, and the
Consultant is willing to provide his services to the Corporation for the said
period under the terms and conditions hereinafter provided.
NOW, THEREFORE, WITNESSETH, that for and in consideration of the
premises and of the mutual promises and covenants herein contained, the parties
hereto agree as follows:
1. EMPLOYMENT
The Corporation agrees to and does hereby engage the Consultant, and
the Consultant agrees to and does hereby accept engagement by the Corporation as
a consultant in connection with the operation of certain aspects of the business
and affairs of the Corporation, for the one-year period which commenced as of
the Effective Date and will end on December 31, 1999. The period during which
Consultant has, and will continue to, serve in such capacity shall be deemed the
"Engagement Period" and shall hereinafter be referred to as such.
2. CONSULTING SERVICES
The services which the Consultant has rendered since the Effective Date
have included, and will, during the balance of the Engagement Period, include,
the rendering of advice, opinions, "hands-on" assistance, and, in some cases,
effectuation of, the following:
1
<PAGE>
(a) Supervision and optimization of the base mat production done at
Plateforme CPT in Quebec City;
(b) Design of a production process to meet the present and the future
needs of Tirex in regards of mat demand;
(c) Supervision of the installation of a small mat production capacity
to answer the backlog orders, and for demonstration purposes;
(d) Optimization of the already in-place flocking capacity installed in
the Tirex buildings;
(e) Research and meetings with numerous raw material potential
suppliers;
(f) Research and meetings with different equipment suppliers, equipment
designers and engineering firms;
(g) Internal meetings at Tirex for production co-ordination;
(h) Internal meetings at Tirex to elaborate different scenarios in
regard of the different designs and possibilities in the mat
production.
All such services are to be performed only upon the authorization from
President of the Corporation. The Consultant shall have the sole discretion as
to the form, manner and place in which the said consulting services shall be
rendered. The Consultant shall, by this agreement, be prevented and barred from
rendering services of the same or similar nature, as herein described, or
services of any nature whatsoever, for or in behalf of persons, in the same
business of the Corporation, firms or corporations other than the Corporation
which are in competition with the Corporation.
3. COMPENSATION
3.1 As compensation for all consulting services rendered by the
Consultant during the Engagement Period pursuant to this Agreement, the
Corporation shall pay the Consultant a sum of CDN $ 10,000.00 and will issue to
the Consultant:
(a) a total of one hundred and fifty four thousand, seven hundred
and sixteen shares (154,716) of the common stock, $.001 par
value, of the Corporation, for a per share purchase price of
$.001, payment of which, by valuable services rendered, is
hereby acknowledged.
4. SECRETS
Consultant agrees that any trade secrets or any other like information
of value relating to the business and/or field of interest of the Corporation or
any of its affiliates, or of any corporation or other legal entity in which the
Corporation or any of its affiliates has an ownership interest of more than
twenty-five per cent (25%), including but not limited to, information relating
to inventions, disclosures, processes, systems, methods, formulae, patents,
2
<PAGE>
patent applications, machinery, materials, research activities and plans, costs
of production, contract forms, prices, volume of sales, promotional methods,
list of names or classes of customers, which he has heretofore acquired during
his engagement by the Corporation or any of its affiliates or which he may
hereafter acquire during the Engagement Period and the three-year period
beginning after termination of the Engagement Period as the result of any
disclosures to him, or in any other way, shall be regarded as held by the
Consultant and his personnel, if any, in a fiduciary capacity solely for the
benefit of the Corporation, its successors or assigns, and shall not at any
time, either during the term of this Agreement or thereafter, be disclosed,
divulged, furnished, or made accessible by the Consultant and his personnel, if
any, to anyone, or be otherwise used by them, except in the regular course of
business of the Corporation or its affiliates. Information shall for the
purposes of this Agreement be considered to be secret if not known by the trade
generally, even though such information may have been disclosed to one or more
third parties pursuant to distribution agreements, joint venture agreements and
other agreements entered into by the Corporation or any of its affiliates.
6. ASSIGNMENT
This Agreement may be assigned by the Corporation as part of the sale
of substantially all of its business; provided, however, that the purchaser
shall expressly assume all obligations of the Corporation under this Agreement.
Further, this Agreement may be assigned by the Corporation to an affiliate,
provided that any such affiliate shall expressly assume all obligations of the
Corporation under this Agreement, and provided further that the Corporation
shall then fully guarantee the performance of the Agreement by such affiliate.
Consultant agrees that if this Agreement is so assigned, all the terms and
conditions of this Agreement shall obtain between such assignee and himself with
the same force and effect as if said Agreement had been made with such assignee
in the first instance. This Agreement is personal to the Consultant and shall
not be assigned without written consent of the Corporation.
7. ENTIRE UNDERSTANDING
This Consulting Agreement contains the entire understanding between the
parties and supersedes all prior and collateral communications, reports,
agreements, and understandings between the parties. No change, modification,
alteration, or addition to any provision hereof shall be binding unless in
writing and signed by authorized representatives of both parties. This
Consulting Agreement shall apply in lieu of and notwithstanding any specific
statement associated with any particular information or data exchanged, and the
duties of the parties shall be determined exclusively by the aforementioned
terms and conditions.
3
<PAGE>
8. SURVIVAL OF CERTAIN AGREEMENTS
The covenants and agreements set forth in Articles 4 and 5, hereof and,
to the extent applicable, the covenants and agreements set forth in Article 3
hereof, shall survive the expiration of the Engagement Period and shall survive
termination of this Agreement and remain in full force and effect.
9. NOTICES
9.1 All notices required or permitted to be given hereunder shall be
delivered by hand, certified mail, or recognized overnight courier, in all cases
with written proof of receipt required, addressed to the parties as set forth
below and shall be deemed given upon receipt as evidenced by written and dated
receipt of the receiving party.
9.2 Any notice to the Corporation or to any assignee of the
Corporation shall be addressed as follows:
The Tirex Corporation
740 St. Maurice, Suite 201
Montreal, Quebec
Canada H3C 1L5
9.3 Any notice to Consultant shall be addressed as follows:
Michel Hebert
3399, rue Lareau
Carignan, Quebec
Canada J3L 3P9
9.4 Either party may change the address to which notice to it is to be
addressed, by notice as provided herein.
10. APPLICABLE LAW
This Agreement shall be interpreted and enforced in accordance with the
laws of Canada.
4
<PAGE>
11. INTERPRETATION
Whenever possible, each Article of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
Article is unenforceable or invalid under such law, such Article shall be
ineffective only to the extent of such unenforceability or invalidity, and the
remainder of such Article and the balance of this Agreement shall in such event
continue to be binding and in full force and effect.
11. PRIOR AGREEMENTS
This Agreement supersedes and cancels any and all prior agreements,
whether written or oral, between the parties.
IN WITNESS WHEREOF, the parties hereto have executed the above
Agreement as of the day and year first above written.
THE TIREX CORPORATION
By /s/ JOHN L. THRESHIE, JR.
----------------------------------------------
John L.Threshie Jr., President/CEO
By /s/ MICHEL HEBERT
----------------------------------------------
Michel Hebert, Eng., MBA, Consultant
5
THE TIREX CORPORATION
------------
CONSULTING AGREEMENT
CONSULTING AGREEMENT, made this 15th day of February, 2000, to be
effective June 1, 1998 (the "Effective Date") between The Tirex Corporation, a
Delaware corporation (the "Corporation"), and Aaron Makovka, 2165 Scott Street,
Montreal, Quebec H4M 1T1 (the "Consultant").
WHEREAS, since the Effective Date, the Consultant has been providing to
the Corporation, on the terms set forth herein, the consulting services
described in Section 2, of this Agreement;
WHEREAS, the Corporation wishes to assure itself of the continued
services of the Consultant for the period provided in this Agreement, and the
Consultant is willing to provide his services to the Corporation for the said
period under the terms and conditions hereinafter provided.
NOW, THEREFORE, WITNESSETH, that for and in consideration of the
premises and of the mutual promises and covenants herein contained, the parties
hereto agree as follows:
1. ENGAGEMENT
The Corporation agrees to and does hereby engage the Consultant, and
the Consultant agrees to and does hereby accept engagement by the Corporation as
a consultant in connection with the operation of certain aspects of the business
and affairs of the Corporation, for the one-year period which commenced as of
the Effective Date and will end on December 31, 2000. The period during which
Consultant has, and will continue to, serve in such capacity shall be deemed the
"Engagement Period" and shall hereinafter be referred to as such.
2. CONSULTING SERVICES
The services which the Consultant has rendered since the Effective Date
have included, and will, during the balance of the Engagement Period, include,
the rendering of advice, opinions, "hands-on" assistance, and, in some cases,
effectuation of, the following:
1
<PAGE>
(a) Advice as to marketing strategies, and strategic business
planning';
(b) Such other management advice as requested from time to time.
All such services are to be performed only upon the authorization from
the President of the Corporation. The Consultant shall have the sole discretion
as to the form, manner and place in which the said consulting services shall be
rendered. The Consultant shall, by this agreement, be prevented and barred from
rendering services of the same or similar nature, as herein described, or
services of any nature whatsoever, for or in behalf of persons, in the same
business of the Corporation, firms or corporations other than the Corporation,
which are in competition with the Corporation
3. COMPENSATION
3.1 As compensation for all consulting services rendered by the
Consultant during the Engagement Period pursuant to this Agreement, the
Corporation shall issue to the Consultant:
(a) a total of fifty thousand shares (50,000) of the common stock,
$.001 par value, of the Corporation, for a per share purchase
price of $.001, payment of which, by valuable services
rendered, is hereby acknowledged.
4. SECRETS
Consultant agrees that any trade secrets or any other like information
of value relating to the business and/or field of interest of the Corporation or
any of its affiliates, or of any corporation or other legal entity in which the
Corporation or any of its affiliates has an ownership interest of more than
twenty-five per cent (25%), including but not limited to, information relating
to inventions, disclosures, processes, systems, methods, formulae, patents,
patent applications, machinery, materials, research activities and plans, costs
of production, contract forms, prices, volume of sales, promotional methods,
list of names or classes of customers, which he has heretofore acquired during
his engagement by the Corporation or any of its affiliates or which he may
hereafter acquire during the Engagement Period and the three-year period
beginning after termination of the Engagement Period as the result of any
disclosures to him, or in any other way, shall be regarded as held by the
Consultant and his personnel, if any, in a fiduciary capacity solely for the
benefit of the Corporation, its successors or assigns, and shall not at any
time, either during the term of this Agreement or thereafter, be disclosed,
divulged, furnished, or made accessible by the Consultant and his personnel, if
any, to anyone, or be otherwise used by them, except in the regular course of
business of the Corporation or its affiliates. Information shall for the
purposes of this Agreement be considered to be secret if not known by the trade
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generally, even though such information may have been disclosed to one or more
third parties pursuant to distribution agreements, joint venture agreements and
other agreements entered into by the Corporation or any of its affiliates.
6. ASSIGNMENT
This Agreement may be assigned by the Corporation as part of the sale
of substantially all of its business; provided, however, that the purchaser
shall expressly assume all obligations of the Corporation under this Agreement.
Further, this Agreement may be assigned by the Corporation to an affiliate,
provided that any such affiliate shall expressly assume all obligations of the
Corporation under this Agreement, and provided further that the Corporation
shall then fully guarantee the performance of the Agreement by such affiliate.
Consultant agrees that if this Agreement is so assigned, all the terms and
conditions of this Agreement shall obtain between such assignee and himself with
the same force and effect as if said Agreement had been made with such assignee
in the first instance. This Agreement is personal to the Consultant and shall
not be assigned without written consent of the Corporation.
7. ENTIRE UNDERSTANDING
This Consulting Agreement contains the entire understanding between the
parties and supersedes all prior and collateral communications, reports,
agreements, and understandings between the parties. No change, modification,
alteration, or addition to any provision hereof shall be binding unless in
writing and signed by authorized representatives of both parties. This
Consulting Agreement shall apply in lieu of and notwithstanding any specific
statement associated with any particular information or data exchanged, and the
duties of the parties shall be determined exclusively by the aforementioned
terms and conditions.
8. SURVIVAL OF CERTAIN AGREEMENTS
The covenants and agreements set forth in Articles 4 and 5, hereof and,
to the extent applicable, the covenants and agreements set forth in Article 3
hereof, shall survive the expiration of the Engagement Period and shall survive
termination of this Agreement and remain in full force and effect.
9. NOTICES
9.1 All notices required or permitted to be given hereunder shall be
delivered by hand, certified mail, or recognized overnight courier, in all cases
with written proof of receipt required, addressed to the parties as set forth
below and shall be deemed given upon receipt as evidenced by written and dated
receipt of the receiving party.
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9.2 Any notice to the Corporation or to any assignee of the Corporation
shall be addressed as follows:
The Tirex Corporation
740 St. Maurice, Suite 201
Montreal, Quebec
Canada H3C 1L5
9.3 Any notice to Consultant shall be addressed as follows:
Aaron Makovka
2165 Scott Street
Montreal, Quebec
H4M 1T1
9.4 Either party may change the address to which notice to it is to be
addressed, by notice as provided herein.
10. APPLICABLE LAW
This Agreement shall be interpreted and enforced in accordance with the
laws of the State of Delaware.
11. INTERPRETATION
Whenever possible, each Article of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
Article is unenforceable or invalid under such law, such Article shall be
ineffective only to the extent of such unenforceability or invalidity, and the
remainder of such Article and the balance of this Agreement shall in such event
continue to be binding and in full force and effect.
11. PRIOR AGREEMENTS
This Agreement supersedes and cancels any and all prior agreements,
whether written or oral, between the parties.
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IN WITNESS WHEREOF, the parties hereto have executed the above
Agreement as of the day and year first above written.
THE TIREX CORPORATION
By /s/ JOHN L. THRESHIE
--------------------------------------
John L. Threshie Jr., President
By /s/ AARON MAKOVKA
--------------------------------------
Aaron Makovka, Consultant
5
THE TIREX CORPORATION
------------
EXECUTIVE AGREEMENT
------------
THIS EXECUTIVE AGREEMENT (the "Agreement") is made and entered into as
of this 23rd day of July, 1998 by and between The Tirex Corporation, a Delaware
corporation (the "Corporation"), and Louis Sanzaro ("the Executive").
WHEREAS, the Corporation desires to employ the Executive as its Vice
President-in-charge of Operations, to serve in such position as its Chief
Operations Officer and the Executive is willing to accept such employment by the
Corporation, on the terms and subject to the conditions set forth in this
Agreement.
WHEREAS, since October 1995, the Corporation and the Executive have had
an acknowledged understanding and agreement that the Executive would hold the
position sole and exclusive distributor of the Corporation's cryogenic scrap
tire disintegration system (the "TCS-1") in North America and that pursuant to
his serving in such capacity, the Executive would be entitled to receive a
commission of 10% of the total lease/purchase price on all sales by the
Corporation of TCS-1's in North America.
WHEREAS, in connection with its retention of the Executive pursuant to
this Agreement, the Corporation has required and the executive has agreed to
give up all rights to any commissions on sales of TCS-1's made heretofore in
North America and to forego all future rights which he may have had to serve as
sole and exclusive distributor of TCS-1's in North America or to receive any
commissions on any sales of TCS-1's made by the Corporation in North America
heretofore or hereafter.
WHEREAS, the Corporation is in its very early stage of development,
with very limited assets, income, operations, and financial resources on hand to
finance the development of its technology and the commencement of operations.
Its future financial prospects and position are therefore highly contingent and,
as at the date hereof, impossible to predict. Based upon the foregoing, the
Corporation's Board of Directors believe that unregistered shares of the
Corporation's common stock, which cannot be sold into the public market for an
extended period of time, may reasonably be deemed to have a value which reflects
the Corporation's poor financial position and uncertain future, and can
reasonably be expected to be saleable by the Corporation, in arm's length
transactions, for approximately fifty percent (50%) of the current market value
of the publicly traded stock of the Corporation, or for substantially less.
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NOW THEREFORE, IT IS AGREED AS FOLLOWS:
1. DEFINITIONS
For the purposes of this Agreement the following terms shall have the
following meanings:
1.0 The "CORPORATION" shall mean The Tirex Corporation and Tirex
Canada Inc., and all other corporations, partnerships, or other entities, now or
in the future controlled by, under common control with, or in control of, The
Tirex Corporation, jointly and severally.
1.1 "CHANGE IN CONTROL" shall mean (i) the time that the
Corporation first determines that any person and all other persons who
constitute a group (within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934 ("Exchange Act") have acquired direct or indirect
beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act)
of twenty percent (20%) or more of the Corporation's outstanding securities,
unless a majority of the "Continuing Directors", as that term is defined in
Paragraph 1.3, approves the acquisition not later than ten (10) business days
after the Corporation makes that determination, or (ii) the first day on which a
majority of the members of the Corporation's Board of Directors are not
"Continuing Directors."
1.2 "CONSTRUCTIVE TERMINATION" shall mean termination by the
Corporation of the Executive's employment by reason of material breach of this
Agreement by the Corporation, such "Constructive Termination" to be effective
upon 30 days written notice thereof from the Executive to the Corporation.
1.3 "CONTINUING DIRECTORS" shall mean, as of any date of
determination, any member of the Board of Directors of the Corporation who (i)
was a member of that Board of Directors on January 19, 1995, (ii) has been a
member of that Board of Directors for the two years immediately preceding such
date of determination, or (iii) was nominated for election or elected to the
Board of Directors with the affirmative vote of the greater of (x) a majority of
the Continuing Directors who were members of the Board at the time of such
nomination or election or (y) at least four Continuing Directors.
1.4 "EFFECTIVE DATE" shall mean June 15, 1998.
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1.5 TERMINATION FOR CAUSE" shall mean termination by the
Corporation of the Executive's employment by the Corporation by reason of the
Executive's willful dishonesty towards, fraud upon, or deliberate injury or
attempted injury to, the Corporation or by reason of the Executive's willful
material breach of this Agreement which has resulted in material injury to the
Corporation. For purposes of this paragraph, no act, or failure to act, on the
Executive's part shall be considered "willful" or "deliberate" unless done, or
omitted to be done, by him not in good faith and without reasonable belief that
his action or omission was in the best interest of the Corporation.
Notwithstanding the foregoing, the Executive shall not be deemed to have been
terminated for Cause without (i) Written notice to the Executive setting forth
the reasons for the Corporation's intention to terminate for Cause, (ii) an
opportunity on not less than 20 days written notice from the Corporation to the
Executive for the Executive, together with his counsel, to be heard before the
full Board of Directors of the Corporation, and (iii) delivery to the Executive
of a Notice of Termination as defined in Paragraph 6.9 hereof from the Board of
Directors finding that, following such hearing before the Board, in the good
faith opinion of such Board, the Executive was guilty of conduct set forth above
and specifying the particulars thereof in detail.
1.6 "TERMINATION FOR 'GOOD REASON'" shall mean termination by the
Executive of the Executive's employment by the Corporation because of: (i) a
"Change in Control", as defined in Paragraph 1.1, above, (ii) a failure by the
Corporation to comply with any material provision of this Agreement which has
not been cured within ten (10) days after notice of such noncompliance has been
given by the Executive to the Company, (iii) the determination by the Executive
that because of changes in the composition or policies of the Board of Directors
of the Corporation, or of other events or occurrences of material effect, that
the Executive can no longer properly and effectively discharge his
responsibilities as Chief Executive Officer of the Corporation after giving the
Corporation not less than thirty (30) days prior written notice of the effective
date of such termination, or (iv) any purported termination of the Executive's
employment which is not effected pursuant to a Notice of Termination satisfying
the requirements of Paragraph 6.9 hereof (and for purposes of this agreement no
such purported termination shall be effective).
1.7 "TERMINATION OTHER THAN FOR CAUSE" shall mean termination by
the Corporation of the Executive's employment by the Corporation (other than in
a Termination for Cause) and shall include "Constructive Termination", as that
term is defined in Paragraph 1.2.
1.8 "TERMINATION UPON A CHANGE IN CONTROL" shall mean a
termination by the Corporation of the Executive's employment with the
Corporation within 120 days following a "Change in Control", as that term is
defined in Paragraph 1.1.
1.9 "VOLUNTARY TERMINATION" shall mean termination by the
Executive of the Executive's employment by the Corporation other than (i)
Constructive Termination, (ii) Termination Upon a Change in Control, (iii)
Termination for Good Reason, and (iv) termination by reason of the Executive's
death or disability as described in Paragraphs 7.4 and 7.5.
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2. EMPLOYMENT
During the term of this Agreement, the Executive agrees to be employed
by the Corporation and to serve as its Vice President in Charge of Operations,
serving in such positions as the Corporation's Chief Operations Officer or in
such other positions as the Corporation shall require, and the Corporation
agrees to employ and retain the Executive in such capacities.
3. DUTIES AND RESPONSIBILITIES
The Executive shall devote his full business time, energy, and skills
to the affairs of the Corporation, reporting solely and exclusively to its
President, and at all times during the term of this Agreement the Executive
shall have powers and duties at least commensurate with his position as Chief
Operations Officer.
The Executive hereby acknowledges that the Corporation reserves the
right to review with the Executive, his present directorships and any other
positions held by him in business organizations, and the Executive agrees to
terminate his participation in such position if the Corporation shall determine,
in a particular case, that there is a potential material conflict with the
Corporation's best interests. Any future proposed directorships and positions
shall be subject to review by the Corporation's Board of Directors, providing
however, that such Board shall not prohibit any such activities unless such
potential material conflict shall exist.
4. TERM OF EMPLOYMENT
The term of employment of the Executive by the Corporation shall be for
a period of four (4) years beginning with the Effective Date (the "Initial
Term"), unless terminated earlier pursuant to Section 6. At any time prior to
the expiration of the Initial Term, the Corporation and the Executive may by
mutual written agreement extend the Executive's employment under the terms of
this Agreement for such additional periods as they shall mutually agree.
5. RELEASE OF RIGHTS
In consideration for the Corporation's entering into this Agreement on
the terms set forth herein, the Executive, intending to be legally bound hereby,
does hereby remise, release, discharge, indemnify and hold harmless the
Corporation, and each shareholder, officer, director and employee of the
Corporation, of and from all manner of actions and causes of action, suits,
debts, dues, accounts, bonds, wages, benefits, covenants, contracts, agreements,
judgments, claims and demands whatsoever in law or in equity, and including
without limitation all such actions, claims and demands, etc. arising out of,
being based upon, or being in any way connected with or related to any
arrangements, agreements, promises, understandings or discussions between the
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Corporation and the Executive with respect to or in any way connected with the
Executive's past, present, or future rights to serve as a distributor of TCS-1
Systems in North America or to receive commissions of any kind in connection
with sales of TCS-1 Systems heretofore or hereafter made by the Company in North
America.
6. SALARY, BENEFITS AND BONUS COMPENSATION
6.1 SIGNING BONUS. In consideration of the Executive's agreeing to
discontinue his other business activities in order to enter into this agreement,
the Corporation will issue to the Executive, upon execution of this Agreement,
500,000 shares of the common stock of The Tirex Corporation.
6.2 BASE SALARY. As payment for the services to be rendered by the
Executive as provided in Section 3, the Corporation agrees to pay to the
Executive a "Base Salary" for the twelve (12) calendar months beginning the
Effective Date at the rate of one hundred seventy-five thousand dollars
($175,000) per annum payable in 52 equal weekly installments subject to annual
review and increase, as the board of directors shall determine.
6.3 COMPENSATION SHARES IN LIEU OF CASH PAYMENTS. Notwithstanding
the requirements of Paragraph 6.2, above, the Executive and the Corporation
agree and acknowledge that:
6.3.1 As at the date hereof and for the foreseeable future, the
Corporation does not and will not have the financial resources to pay more than
one thousand United States dollars (US $1,000) per week of the Base Salary and
that, therefore, the Corporation's obligation to pay the balance of the Base
Salary will be satisfied by the issuance to the Executive of shares of the
common stock of The Tirex Corporation ("Compensation Shares"), which
compensation shares shall constitute compensation pursuant to the terms of this
Executive Agreement.
6.3.2 All Compensation Shares will be issued to and held by the
Executive pursuant to the terms of a stock restriction agreement, on terms
mutually agreeable to the parties.
6.3.3 All Compensation Shares will be issued to the Executive at a
value equal to fifty percent (50%) of the average of the high and low bid prices
of The Tirex Corporation's common stock, during the period when such
Compensation Shares were earned, as traded in the over-the-counter market and
quoted in the Electronic Bulletin Board of the NASD or such other public market
in the United States in which the common stock of the Tirex Corporation shall
then be traded.
6.3.4 From time to time, all or part of the Compensation Shares may be
registered by the Corporation under a Registration Statement on Form S-8,
including a Re-offer Prospectus, as and at such time as the board of directors
of the Corporation or the executive committee thereof shall determine.
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6.4 BONUSES. the Executive shall be eligible to receive a discretionary
bonus for each year (or portion thereof) during the term of this Agreement and
any extensions thereof, with the actual amount of any such bonus to be
determined in the sole discretion of the Board of Directors based upon its
evaluation of the Executive's performance during such year. All such bonuses
shall be reviewed annually by the Compensation Committee, if any shall be in
existence.
6.5 ADDITIONAL BENEFITS. During the term of this Agreement, the
Executive shall be entitled to the following fringe benefits:
(a) EXECUTIVE BENEFITS. The Executive shall be eligible
to participate in such of the Corporation's benefits
and deferred compensation plans as are now generally
available or later made generally available to
executive officers of, including, without
limitation, the Corporation's Stock Option Plan,
profit sharing plans, annual physical examinations,
dental and medical plans, personal catastrophe and
disability insurance, financial planning, retirement
plans and supplementary executive retirement plans,
if any. For purposes of establishing the length of
service under any benefit plans or programs of the
Corporation, the Executive's employment with will be
deemed to have commenced on the Effective Date.
(b) VACATION. The Executive shall be entitled to
reasonable vacation time during each year during the
term of this Agreement and any extensions thereof, in
an amount to be determined by the Executive in his
sole discretion.
6.6 COMPENSATION FOR RELEASE OF RIGHTS. In consideration for the
release of rights hereinabove given by the Executive, as set forth in Section 5
of this Agreement, the Corporation shall issue to the Executive, upon execution
of this Agreement, two million, five hundred thousand (2,500,000) shares of its
common stock, $.001 par value.
6.7 REIMBURSEMENT FOR EXPENSES. During the term of this Agreement, the
Corporation shall reimburse the Executive for reasonable and properly documented
out-of-pocket business and/or entertainment expenses incurred by the Executive
in connection with his duties under this Agreement.
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7. TERMINATION
7.1 TERMINATION FOR CAUSE. Termination For Cause may be effected by the
Corporation in accordance with the procedures set forth in Paragraph 1.5 at any
time during the term of this Agreement and shall be effected by written
notification to the Executive in accordance with Paragraph 6.9, below. Upon the
effectiveness of a Termination For Cause, the Executive shall promptly be paid
all accrued salary, bonus compensation to the extent earned, vested deferred
compensation (other than pension play or profit sharing plan benefits which will
be paid in accordance with the applicable plan), any benefits under any plans of
in which the Executive is a participant to the full extent of the Executive's
rights under such plans, accrued vacation pay and any appropriate business
expenses incurred by the Executive in connection with his duties hereunder, all
to the date of termination, but the Executive shall not be paid any other
compensation or reimbursement of any kind.
7.2 TERMINATION OTHER THAN FOR CAUSE. Notwithstanding anything else in
this Agreement, the Corporation may effect a Termination Other Than For Cause at
any time upon giving written notice to the Executive of such termination. Upon
the effectiveness of any Termination Other Than For Cause, the Executive shall
promptly be paid all accrued salary, bonus compensation to the extent earned,
vested deferred compensation (other than pension plan or profit sharing plan
benefits which will be paid in accordance with the applicable plan), any
benefits under any plans of in which the Executive is a participant to the full
extent of the Executive's rights under such plans (including accelerated
vesting, if any, of awards granted to the Executive under the Corporation's
stock option plan), accrued vacation pay and any appropriate business expenses
incurred by the Executive in connection with his duties hereunder, all to the
date of termination, and all severance compensation as provided in Paragraph
7.1.
7.3 TERMINATION FOR GOOD REASON. Notwithstanding anything else in this
Agreement, the Executive may effect a Termination for Good Reason at any time
upon giving written notice to the Corporation of such termination in accordance
with the provisions of Paragraph 6.9 hereof. Upon the effectiveness of any
Termination for Good Reason the Executive shall promptly be paid all accrued
salary, bonus compensation to the extent earned, vested deferred compensation
(other than pension plan or profit sharing plan benefits which will be paid in
accordance with the applicable plan), any benefits under any plans of in which
the Executive is a participant to the full extent of the Executive's rights
under such plans (including accelerated vesting, if any, of awards granted to
the Executive under's stock option plan), accrued vacation pay and any
appropriate business expenses incurred by the Executive in connection with his
duties hereunder, all to the date of termination, and all severance compensation
as provided in Paragraph 7.1.
7.4 TERMINATION BY REASON OF DISABILITY. If, during the term of this
Agreement, the Executive fails to perform his duties under this Agreement on
account of illness or physical or mental incapacity, and such illness or
incapacity continues for a period of more than twelve (12) consecutive months,
the Corporation shall have the right to terminate the Executive's employment
hereunder by written notification to the Executive and payment to the Executive
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of all accrued salary, bonus compensation to the extent earned, vested deferred
compensation (other than pension plan or profit sharing plan benefits which will
be paid in accordance with the applicable plan), any benefits under any plans of
in which the Executive is a participant to the full extent of the Executive's
rights under such plans, accrued vacation pay and any appropriate business
expenses incurred by the Executive in connection with his duties hereunder, all
to the date of termination, with the exception of medical and dental benefits
which shall continue through the expiration of this Agreement, but the Executive
shall not be paid any other compensation or reimbursement of any kind.
7.5 DEATH. In the event of the Executive's death during the term of
this Agreement, the Executive's employment shall be deemed to have terminated as
of the last day of the month during which his death occurs and the Corporation
shall promptly pay to his estate or such beneficiaries as the Executive may from
time to time designate all accrued salary, bonus compensation to the extent
earned, vested deferred compensation (other than pension plan or profit sharing
plan benefits which will be paid in accordance with the applicable plan), any
benefits under any plans of in which the Executive is a participant to the full
extent of the Executive's rights under such plans, accrued vacation pay and any
appropriate business expenses incurred by the Executive in connection with his
duties hereunder, all to the date of termination, but the Executive's estate
shall not be paid any other compensation or reimbursement of any kind.
7.6 VOLUNTARY TERMINATION. In the event of a Voluntary Termination, the
Corporation shall promptly pay all accrued salary, bonus compensation to the
extent earned, vested deferred compensation (other than pension plan or profit
sharing plan benefits which will be paid in accordance with the applicable
plan), any benefits under any plans of in which the Executive is a participant
to the full extent of the Executive's rights under such plans, accrued vacation
pay and any appropriate business expenses incurred by the Executive in
connection with his duties hereunder, all to the date of termination, but no
other compensation or reimbursement of any kind.
7.7 TERMINATION UPON A CHANGE IN CONTROL. In the event of a Termination
Upon the effectiveness of a Change in Control, the Executive shall immediately
be paid all accrued salary, bonus compensation to the extent earned, vested
deferred compensation (other than pension plan or profit sharing plan benefits
which will be paid in accordance with the applicable plan), any benefits under
any plans of in which the Executive is a participant to the full extent of the
Executive's rights under such plans (including accelerated vesting, if any, of
any awards granted to the Executive under the Corporation's Stock Option Plan),
accrued vacation pay and any appropriate business expenses incurred by the
Executive in connection with his duties hereunder, all to the date of
termination, and all severance compensation as provided in Paragraph 7.1.
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7.8 CONSTRUCTIVE TERMINATION. The Executive may give notice to the
Corporation that the Corporation has effected a Constructive Termination of the
Executive's employment by reason of the Corporation's material breach of this
Agreement, by written notification to the Corporation in accordance with
Paragraph 6.9, below. Upon the effectiveness of any Constructive Termination the
Executive shall immediately be paid all accrued salary, bonus compensation to
the extent earned, vested deferred compensation (other than pension plan or
profit sharing plan benefits which will be paid in accordance with the
applicable plan), any benefits under any plans of in which the Executive is a
participant to the full extent of the Executive's rights under such plans
(including accelerated vesting, if any, of any awards granted to the Executive
under the Corporation's Stock Option Plan), accrued vacation pay and any
appropriate business expenses incurred by the Executive in connection with her
duties hereunder, all to the date of termination, and all severance compensation
provided in Paragraph 7.1.
7.9 NOTICE OF TERMINATION. The Corporation may effect a termination of
this Agreement pursuant to the provisions of this Section upon giving thirty
(30) days' written notice to the Executive of such termination. The Executive
may effect a termination of this Agreement pursuant to the provisions of this
Section upon giving thirty (30) days' written notice to the Corporation of such
termination.
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8. SEVERANCE COMPENSATION
8.1 SEVERANCE COMPENSATION IN THE EVENT OF: TERMINATION OTHER THAN FOR
CAUSE PURSUANT TO PARAGRAPH 7.2; TERMINATION FOR GOOD REASON PURSUANT TO
PARAGRAPH 7.3; TERMINATION UPON A CHANGE IN CONTROL PURSUANT TO PARAGRAPH 7.7;
OR A CONSTRUCTIVE TERMINATION PURSUANT TO PARAGRAPH 7.8. In the event the
Executive's employment is terminated in a termination: Other Than for Cause
pursuant to Paragraph 7.2; for Good Reason pursuant to Paragraph 7.3; a Change
in Control pursuant to Paragraph 7.7; or a Constructive Termination pursuant to
Paragraph 7.8, the Executive shall be paid as severance compensation twice the
amount of his Base Salary (at the rate payable at the time of such termination),
for a period of twelve (12) months from the date of such termination.
Notwithstanding anything in this Paragraph to the contrary, the Executive may in
the Executive's sole discretion, by delivery of a notice to the Corporation
within thirty (30) days following a Termination Upon a Change in Control, elect
to receive from Compensation a lump sum severance payment by bank cashier's
check equal to the present value of the flow of cash payments that would
otherwise be paid to the Executive pursuant to this Paragraph. The Executive
shall also be entitled to an accelerated vesting of any awards granted to the
Executive under the Corporation's Stock Option Plan or any other employee or to
the extent provided in the stock executive compensation plans then in effect,
stock option or other affiliated agreement, if any, entered into at the time of
grant or award. The Executive shall continue to accrue retirement benefits and
shall continue to enjoy any benefits under any plans of in which the Executive
is a participant to the full extent of the Executive's rights under such plans,
including any perquisites provided under this Agreement, though the remaining
term of this Agreement; provided, however, that the benefits under any such
plans of in which the Executive is a participant, including any such
perquisites, shall cease upon re-employment by a new employer. By way of
additional severance compensation, the Corporation shall issue to the Executive
within five (5) business days of the date of termination, a number of shares of
the common stock of the Corporation equal to the number of shares of such common
stock, if any, which the Executive shall have forfeited under the terms of the
Stock Restriction Agreement, attached as Exhibit "A" hereto, which stock shall
be fully registered under a Form S-8 registration statement, if available to the
Corporation, or if such Form shall not be available to the Corporation, the
Corporation shall immediately take steps to register such shares with the
Securities and Exchange Commission on such Form of registration statement as
shall then be available to the Corporation, including without limitation Form
S-1.
8.2 NO SEVERANCE COMPENSATION UPON OTHER TERMINATION. In the event of
Termination For Cause pursuant to Paragraph 6.1, or termination by reason of the
Executive's Disability or Death pursuant to Paragraphs 6.4 or 6.5, or Voluntary
Termination pursuant to Paragraph 6.6 hereof, neither the Executive nor his
estate shall not be paid any severance compensation.
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9. PAYMENT OBLIGATIONS
The Corporation's obligation to pay the Executive the compensation and
to make the arrangements provided herein shall be unconditional, and the
Executive shall have no obligation whatsoever to mitigate damages hereunder. If
litigation after a Change in Control shall be brought to enforce or interpret
any provision contained herein, the Corporation, to the extent permitted by
applicable law and the Corporation's Articles of Incorporation and Bylaws,
hereby indemnifies the Executive for the Executive's reasonable attorneys' fees
and disbursements incurred in such litigation.
10. CONFIDENTIALITY
The Executive agrees that all confidential and proprietary information
relating to the business of the Corporation shall be kept and treated as
confidential both during and after the term of this Agreement, except as may be
permitted in writing by the Corporation's Board of Directors or as such
information is within the public domain or comes within the public domain
without any breach of this Agreement.
11. WITHHOLDINGS
All compensation and benefits to the Executive hereunder shall be
reduced by all federal, state, local and other withholdings and similar taxes
and payments required by applicable law.
12. INDEMNIFICATION
In addition to any rights to indemnification to which the Executive is
entitled to under the Corporation's Articles of Incorporation and Bylaws, the
Corporation shall indemnify the Executive at all times during and after the term
of this Agreement to the maximum extent permitted under Delaware Business
Corporation Law or any successor provision thereof and any other applicable
state law, and shall pay the Executive's expenses in defending any civil or
criminal action, suit, or proceeding in advance of the final disposition of such
action, suit or proceeding, to the maximum extent permitted under such
applicable state laws.
13. NOTICES
Any notices permitted or required under this Agreement shall be
delivered by hand, certified mail, or recognized overnight courier, in all cases
with written proof of receipt required, addressed to the parties as set forth
below and shall be deemed given upon receipt to the Corporation at:
11
<PAGE>
The Tirex Corporation
740 St. Maurice Suite, 201
Montreal, Quebec H3C 1L5
addressed to the Executive at:
Louis V. Sanzaro
1497 Lakewood Road
Toms River, NJ 08755
or at any other address as any party may, from time to time, designate by notice
given in compliance with this Paragraph.
14. LAW GOVERNING
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware.
15. GENERAL
15.1 TITLES AND CAPTIONS. All section titles or captions contained in
this Agreement are for convenience only and shall not be deemed part of the
context nor effect the interpretation of this Agreement.
15.2 ENTIRE AGREEMENT. This Agreement contains the entire understanding
between and among the parties and supersedes any prior understandings and
agreements among them respecting the subject matter of this Agreement.
15.3 AGREEMENT BINDING. This Agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of the parties hereto.
15.4 ATTORNEY FEES. In the event an arbitration, suit or action is
brought by any party under this Agreement to enforce any of its terms, or in any
appeal therefrom, it is agreed that the prevailing party shall be entitled to
reasonable attorneys fees to be fixed by the arbitrator, trial court, and/or
appellate court.
15.5 COMPUTATION OF TIME. In computing any period of time pursuant to
this Agreement, the day of the act, event or default from which the designated
period of time begins to run shall be included, unless it is a Saturday, Sunday,
or a legal holiday, in which event the period shall begin to run on the next day
which is not a Saturday, Sunday, or legal holiday, in which event the period
shall run until the end of the next day thereafter which is not a Saturday,
Sunday, or legal holiday.
12
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15.6 PRONOUNS AND PLURALS. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine, neuter, singular, or plural
as the identity of the person or persons may require.
15.7 PRESUMPTION. This Agreement or any section thereof shall not be
construed against any party due to the fact that said Agreement or any section
thereof was drafted by said party.
15.8 FURTHER ACTION. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purposes of the Agreement.
15.9 PARTIES IN INTEREST. Nothing herein shall be construed to be to
the benefit of any third party, nor is it intended that any provision shall be
for the benefit of any third party.
15.10 SAVINGS CLAUSE. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby.
THE TIREX CORPORATION
By /s/ TERENCE C. BYRNE
---------------------------------
Terence C. Byrne, President
/s/ LOUIS V. SANZARO
---------------------------------
Louis V. Sanzaro
13
JOE RICHICHI
8411 HARDY
LASALLE, QUEBEC
H8N 2P3
February 14, 2000
Tirex Canada R & D Inc.
3828 St. Patrick Street
Montreal, Quebec
H4E 1A4
Attn: John L. Threshie Jr.
President/CEO
Further to our discussion, please accept this as my consultation agreement with
Tirex over the past year of 1999. Moreover, I would like to receive stock for
services rendered. As discussed, the stock I will receive will be unrestricted
stock than can be sold at any time. The average price of the stock over my
service period was averaging $ 0.10 per share.
Services rendered:
Consultation on your communication equipment (modems / FL lines) Consultation on
financing Set-up of equipment Service calls for training Follow-ups and
adjustments
Amount due for services provided in the year 1999 is CDN $ 7,500.00
Sincerely yours,
/s/ JOE RICHICHI /s/ JOHN L. THRESHIE JR.
- ---------------- ------------------------
Joe Richichi John L. Threshie, Jr.
President/CEO
Exhibit-5.1
FROHLING, HUDAK & PELLEGRINO, LLC
COUNSELLORS AT LAW
425 EAGLE ROCK AVENUE P.O. BOX 926
SUITE 200 NEWARK, NJ 07101
ROSELAND, NJ 07068 (973) 622-2800
(973) 226-4600
FAX (973) 226-0969
Please Reply to:
[X] Roseland
[ ] Newark
February 16, 2000
The Tirex Corporation
3828 St. Patrick
Montreal, PQ
Canada H4E 1A4
Ladies and Gentlemen:
You have requested our opinion as U.S. Securities 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 registration of an aggregate of
three million, one hundred sixty one thousand, five hundred twenty six
(3,161,526) shares of Common Stock of the Company (the "Shares"), $.001 par
value, per share, issued pursuant to various Employment and Consulting
Agreements (the "Agreements") between the Company and the Employees and
Consultants.
We 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
February 18, 2000 (the "Registration Statement"), the Agreements, 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 our opinion, and we so
advise, that upon issuance and sale in the manner described in the Registration
Statement and the exhibits thereto, the Shares will be legally issued, fully
paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ FROHLING, HUDAK & PELLEGRINO, LLC
-------------------------------------------------
Frohling, Hudak & Pellegrino, LLC
Exhibit-24.1
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 September 28, 1999
appearing in the incorporated by reference Annual Report on Form 10-KSB of The
Tirex Corporation for the year ended June 30, 1999.
/s/ PINKHAM & PINKHAM, P.C.
--------------------------------
Pinkham & Pinkham, P.C.
Certified Public Accountants
February 18, 2000
Cranford, New Jersey
514 Centennial Avenue, Cranford, N.J. 07016 Tel.: 908-653-1710 Fax: 908-653-1713
