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THE TIREX CORPORATION
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CONSULTING AGREEMENT
CONSULTING AGREEMENT, made this 10th day of August, 2000, to be
effective August 1, 2000 (the "Effective Date") between The Tirex Corporation, a
corporation incorporated under the laws of Delaware (the "Corporation"), and
Phillip Romanoff, an individual residing at 9 Marine Place, Highlands, New
Jersey, USA 07732 (the "Consultant").
WHEREAS, since the Effective Date, the Consultant will provide 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 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. DEFINITIONS
For the purposes of this Agreement, the following terms shall have the
following meanings:
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 2.3, 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 Consultant's contract by reason of material
breach of this Agreement by the Corporation, such
"Constructive Termination" to be effective upon thirty (30)
days written notice thereof from the Consultant to the
Corporation.
1.3. CONTINUING DIRECTORS shall mean, as of any date of
determination, any member of the Board of Directors of the
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Corporation who (I) was a member of that Board of Directors on
January 1st, 2000, (II) has been a member of that Board of
Directors for the two (2) 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 August 1, 2000.
1.5. TERMINATION FOR CAUSE shall mean termination by the
Corporation of the Consultant's contract by the Corporation by
reason of the Consultant's wilful dishonesty towards, fraud
upon, or deliberate injury or attempted injury to, the
Corporation or by reason of the Consultant's wilful 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 Consultant's part shall be considered
"wilful" 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 Consultant
shall not be deemed to have been terminated for Cause without
written notice to the Consultant setting forth the reasons for
the Corporation's intention to terminate for Cause, (II) an
opportunity on not less than twenty (20) days written notice
from the Corporation to the Consultant for the Consultant,
together with his counsel, to be heard before the President
and the Chief Financial Officer of the Corporation, and (III)
delivery to the Consultant of a Notice of Termination from the
President and the Chief Financial Officer finding that,
following such hearing, in the good faith opinion of the
President and the Chief Financial Officer, the Consultant 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
Consultant of the Consultant's contract by the Corporation
because of: (I) a "Change in Control", as defined in Paragraph
2.1 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 non-compliance
has been given by the Consultant to the Company, or (III) the
determination by the Consultant 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 Consultant can no longer properly and
effectively discharge his responsibilities to the Corporation,
after giving the Corporation not less than thirty (30) days
prior written notice of the effective date of such
termination.
1.7. TERMINATION OTHER THAN FOR CAUSE shall mean termination by the
Corporation of the Consultant's contract by the Corporation
(other than in a Termination for Cause) and shall include
"Constructive Termination", as that term is defined in
Paragraph 2.1.
1.8. TERMINATION UPON A CHANGE IN CONTROL shall mean a termination
by the Corporation of the Consultant's contract with the
Corporation within 120 days following a Change in Control, as
that term is defined in Paragraph 1.2.
1.9. VOLUNTARY TERMINATION shall mean termination by the Consultant
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of the Consultant's contract with the Corporation other than
(i) Constructive Termination, (ii) Termination upon a Change
in Control, and (iii) Termination for Good Reason.
2. Employment Under the Consulting Agreement
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 July 31, 2001. The period during which Consultant will serve in such
capacity shall be deemed the "Engagement Period" and shall hereinafter
be referred to as such.
3. Consulting Services
The services which the Consultant will render from the Effective Date
will include the rendering of advice, opinions, "hands-on" assistance,
and, subject to direction from the Board of Directors, will include,
without limitation, the following:
i) Function for the Corporation as Director of Operations;
ii) Prepare complete operations and maintenance manuals for the
entire TCS-2 system;
iii) Oversee the design, construction, testing and installation of
the TCS-2 system.
All such services are to be performed only upon the authorization of
the Board of Directors, such authorization to be transmitted by a duly
authorized representative of the Board of Directors, which
representative shall be deemed to be either the President of the
Corporation or the Vice-President of Engineering of the Corporation or
such other person that the Board of Directors shall designate in
writing. The Consultant shall propose the form, manner and place in
which the said consulting services shall be rendered to the Vice
President of Engineering who will be empowered by the Board of
Directors, subject to ratification by the Board of Directors, to accept
the Consultant's proposal or a modified version thereof. 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 on behalf of other persons
firms or corporations, other than the Corporation, which are in
competition with the Corporation.
4. Compensation
4.1 As compensation for all consulting services rendered by the
Consultant during the Engagement Period pursuant to this
Agreement, the Corporation shall pay the Consultant 500,000
registered shares of common stock, $.001 par value per share,
of the Corporation. Said shares to be issued quarterly, in
four equal amounts of 125,000 shares, with the first
installment due on the signing of this Agreement.
4.2 During the term of this Agreement, the Corporation shall
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reimburse the Consultant for reasonable and properly
documented out-of-pocket business and/or entertainment
expenses incurred by the Consultant in connection with his
duties under this Agreement.
5. TERMINATION
5.1 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 Consultant in
accordance with Paragraph 4.8 below. Upon the effectiveness of
a Termination For Cause, the Consultant shall promptly be paid
all appropriate business expenses incurred by the Consultant
in connection with his duties hereunder, all to the date of
termination, but the Consultant shall not be paid any other
compensation or reimbursement of any kind.
5.2 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 Consultant of such
termination. Upon the effectiveness of any Termination Other
Than For Cause, the Consultant shall promptly be paid any
unissued shares under this Agreement and any appropriate
business expenses incurred by the Consultant in connection
with his duties hereunder, all to the date of termination.
5.3 TERMINATION FOR GOOD REASON
Notwithstanding anything else in this Agreement, the
Consultant 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 4.8
hereof. Upon the effectiveness of any Termination for Good
Reason, the Consultant shall promptly be paid all appropriate
business expenses incurred by the Consultant in connection
with his duties hereunder, all to the date of termination.
5.4 DEATH
In the event of the Consultant's death during the term of this
Agreement, the Consultant's contract 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 Consultant may from time
to time designate, all appropriate business expenses incurred
by the Consultant in connection with his duties hereunder, all
to the date of termination, but the Consultant's estate shall
not be paid any other compensation or reimbursement of any
kind.
5.5 VOLUNTARY TERMINATION
In the event of a Voluntary Termination, the Corporation shall
promptly pay all appropriate business expenses incurred by the
Consultant in connection with his duties hereunder, all to the
date of termination, but no other compensation or
reimbursement of any kind.
5.6 TERMINATION UPON A CHANGE IN CONTROL
In the event of a Termination Upon the effectiveness of a
Change in Control, the Consultant shall immediately be paid
all appropriate business expenses incurred by the Consultant
in connection with his duties hereunder, all to the date of
termination.
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5.7 CONSTRUCTIVE TERMINATION
The Consultant may give notice to the Corporation that the
Corporation has effected a Constructive Termination of the
Consultant's employment by reason of the Corporation's
material breach of this Agreement, by written notification to
the Corporation in accordance with Paragraph 4.8 below. Upon
the effectiveness of any Constructive Termination, the
Consultant shall immediately be paid any appropriate business
expenses incurred by the Consultant in connection with his
duties hereunder, all to the date of termination, and all
unissued shares under this Agreement.
5.8 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 Consultant of such
termination. The Consultant 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.
5.9 REDEMPTION OF SHARES
In all cases of Termination other than For Cause (section
4.1), the Corporation shall, as additional termination
indemnity, proceed to the redemption of all the shares held by
the Consultant in the Corporation, if the Consultant so
wishes. The amount to be paid for such shares shall be the
higher of:
5.9.1 The then market value of the shares thus redeemed; or
5.9.2 The consideration given by the Consultant for the
issuance or acquisition of the said shares of the
Corporation.
6. 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 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.
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7. 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.
8. 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.
9. Survival of Certain Agreements
The covenants and agreements set forth in Articles 6 and 7, hereof and,
to the extent applicable, the covenants and agreements set forth in
Article 4 hereof, shall survive the expiration of the Engagement Period
and shall survive termination of this Agreement and remain in full
force and effect.
10. Notices
10.1 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.
10.2 Any notice to the Corporation or to any assignee of the
Corporation shall be addressed as follows:
The Tirex Corporation
3828 St. Patrick Street
Montreal, Quebec
Canada H4E 1A4
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10.3 Any notice to Consultant shall be addressed as follows:
Phillip Romanoff
9 Marine Place
Highlands, New Jersey
USA 07732
10.4 Either party may change the address to which notice to it is
to be addressed, by notice as provided herein.
11. Applicable Law
This Agreement shall be interpreted and enforced in accordance with the
laws of Quebec.
12. 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.
13. Prior Agreements
This Agreement supersedes and cancels any and all prior agreements,
whether written or oral, between the parties.
SIGNATURES ON NEXT PAGE
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Tirex Corporation / Phillip Romanoff Consulting Contract
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IN WITNESS WHEREOF, the parties hereto have executed the above
Agreement this ____ Day of __________, 2000.
FOR THE TIREX CORPORATION FOR PHILLIP ROMANOFF, CONSULTANT
/s/ JOHN L. THRESHIE JR., PRESIDENT / CEO PHILLIP ROMANOFF
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John L. Threshie Jr., President / CEO Phillip Romanoff
/s/ LOUIS V. MURO, VICE PRESIDENT & Director
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Louis V. Muro, Vice President & Director
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