Attached files
Exhibit 10.2
[SKY HARVEST WINDPOWER LOGO]
February 3, 2012
Bertan Atalay
Cornelis de Witlaan 89
den Haag, 2582 AD
The Netherlands
Dear Bertan:
Further to our recent discussions, I confirm our agreement with respect to your
consulting services to Sky Harvest Windpower Corp. (the "Company"), and the
incorporation of a company to develop natural gas storage assets in Turkey, as
follows:
CONSULTING SERVICES TO THE COMPANY IN RELATION TO RENEWABLE ASSET TRANSACTIONS
1. The Company hereby engages you as a consultant for a period of three years
commencing on the date of this agreement. Thereafter, this agreement shall
continue in full force and effect until such time as either you or the
Company provides the other party with notice of termination.
2. You have, and following the date of this agreement, you will continue to
use your reasonable efforts to introduce the Company to potential
acquisition and investment opportunities in the energy sector, and any
related sectors that you deem fit. The Company hereby authorizes you to act
on its behalf in initiating and entering into negotiations with third
parties for this purpose, provided that any agreement between the Company
and a third party is subject to the approval of the Company's Board of
Directors.
3. If the Company completes an acquisition of an interest in any deal or
assets, for example, including but not limited to, by way of direct
acquisition, merger, buy-out, equity investment of any kind and all types
or equity swap transactions with or without cash consideration, provision
of credit facilities or debt and/or debt-like instruments of any and all
types, or any and all types of other investment alternatives (each
individually referred to as a "Transaction"), as a result of you
introducing the Company to the investment opportunity resulting in a
Transaction, the Company shall pay you a success fee (the "Success Fee")
equal to 10% of the value of a Transaction, which the Company shall agree
as part of its consideration to enter into a Transaction.
4. If the consideration that the Company provides for a Transaction includes
shares of its common stock, for the purpose of calculating the Success Fee,
the Company's shares shall be valued as the lesser of (i) the deemed share
price agreed as part of the Transaction, or, (ii) the 90 trading day
trailing weighted average price of its shares quoted on the OTC Markets
calculated looking backwards from 30 trading days before the close of any
Transaction.
5. The Company agrees to pay the Success Fee in shares of the Company;
however, you agree to consider, acting reasonably, the payment of the
Success Fee in cash, or, a combination of cash and shares as valued in
paragraph 4.
6. If applicable, the Company agrees for you to provide an invoice for the
payment of the Success Fee and, if applicable, add any value added or
similar applicable taxes as surcharge to the payment of the Success Fee.
7. During the term of this agreement, you agree that you will not offer
acquisition opportunities that you have introduced to us to any third party
without our written consent, which will not be withheld unreasonably.
Likewise, the Company agrees not to circumvent you regarding any third
party introductions that you have made to the Company.
8. You agree to make all introductions of third parties to the Company in
writing, and the Company agrees to acknowledge your introductions in
writing.
9. The Company agrees to accept e-mails and facsimile machine transmissions as
a form of written communication.
10. During the term of this agreement, you and the Company undertake not to,
whether directly or indirectly, and whether alone or in conjunction with or
on behalf of any other person, whether as principal, shareholder, director,
employee, agent, consultant or in any capacity whatsoever:
10.1. induce or attempt to induce any person to cease to deal with, or to
restrict or vary the terms of how it deals with, the other party to
this agreement;
10.2. do or say anything which is harmful to the reputation of the other
party to this agreement; or
10.3. attempt or knowingly assist or procure any person to do any of the
foregoing things.
11. The non-circumvention restrictions contained in this agreement are
considered reasonable by you and the Company.
12. In the event that any restriction in this agreement shall be found to be
unenforceable, but would be enforceable if some part thereof were deleted
or the area of operation or the period of application reduced, such
restriction shall apply with such modification as may be necessary to make
it legally consistent and enforceable.
13. If the Company completes Transactions as a result of your introductions
with an aggregate value of at least USD$3,000,000, including any concurrent
financings, in your sole discretion, you shall have the option to cause the
Company enter into the Employment Agreement attached as the Schedule "A" of
this agreement (the "Employment Agreement"), join the Company's Board of
Directors, and be appointed as President and CEO of the Company.
14. At your sole discretion, instead of the Employment Agreement, the Company
agrees to enter into a consulting agreement, which will capture the
relevant terms of the Employment Agreement.
INCORPORATION OF A COMPANY TO DEVELOP NATURAL GAS STORAGE ASSETS IN TURKEY.
15. Concurrently with the execution of this agreement, the parties hereto agree
to incorporate a British Columbia corporation under the name Levant Energy
Inc. ("Levant") for the purpose of developing underground natural gas
storage plants in the Republic of Turkey (the "Business"), and,
furthermore:
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15.1. The Company shall have the right to purchase up to 5,000,000 common
shares in the capital stock of Levant at a price of CAD$0.10 per
share by no later than [February 29, 2012].
15.2. The initial managing directors of the board of Levant shall be
Bertan Atalay and William Iny. Bertan Atalay shall be the President
and CEO of Levant and William Iny shall act as corporate secretary.
15.3. The Company agrees that the resolutions of the board of managing
directors of Levant relating to the following matters shall not be
passed unless during a properly convened board meeting of Levant,
while all the members of the board are present or appropriately
represented, and the board shall have voted in favour of such
resolutions unanimously:
15.3.1. any change to Levant's Articles of Association;
15.3.2. any changes to Levant's Board of Directors composition;
15.3.3. any reduction of the share capital or variation of the rights
attaching to any class of shares of Levant or any of its
subsidiaries and affiliates or any redemption, purchase or other
acquisition by Levant, or by any of its subsidiaries, and by
affiliates of any shares or other securities of that company;
15.3.4. the presentation of any petition to sell Levant partly or entirely,
and/or any of its subsidiaries or affiliates party or entirely;.
15.3.5. any change in the share capital of Levant or the creation,
allotment or issue of any shares or of any other security in any
subsidiary, or affiliate, or the grant of any option or rights to
subscribe for or to convert any instrument into such shares or
securities;
15.3.6. the presentation of any petition for winding-up;
15.3.7. any consolidation or amalgamation with any other company;
15.3.8. the entry into of any joint venture, partnership, consortium or
other similar arrangement;
15.3.9. any material change to the nature or geographical area of the
Business or carrying on any business other than the Business;
15.3.10.the making of any investment by way of deposits, loans or
subscriptions for shares or debentures, other than normal treasury
banking transactions;
15.3.11.the acquisition of any assets or property or the making of any
investments;
15.3.12.the sale, disposition, transfer or lease of any assets or
property;
15.3.13.any transaction with a shareholder or any of its associated or
affiliated companies. For the purpose of clarity, this will not
include obligations of Levant under the Employment Contract.
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15.3.14. the appointment and removal of auditors;
15.3.15.any change to the financial year of Levant or any of its
subsidiaries or its affiliates;
15.3.16. the making of any loan or advance or the borrowing of amounts;
15.3.17.any variation of the rights attaching to any class of shares
and/or any change to distribution and/or dividend policy;
15.3.18.any decision to list Levant's or any of its subsidiaries or any of
its affiliates on a stock exchange;
15.3.19.the approval of the nature and terms of a fund raising (including,
without limitation, whether it shall take place by way of an
initial public offering or a private placement or otherwise), such
approval not to be unreasonably withheld;
15.3.20. the entry into any contract or commitment;
15.3.21.the commencement or settlement of any litigation, arbitration or
other legal proceedings;
15.3.22.the Company agrees to cause Levant shareholders to empower and
enable its board to manage the business of Levant on their behalf,
and, particularly in the case of the provisions of articles 15.3.1
to 15.3.21, where necessary, cause the shareholders to defer to the
decision of the board of Levant as final and binding decision of
the Levant
15.4. The provisions of paragraph 15.3 shall only remain in effect until
such time as the Company becomes a reporting issuer in any
jurisdiction and also has its shares commence trading on a
recognized stock exchange or quotation system.
15.5. Your compensation for acting as an officer and director of Levant
shall be governed by the Employment Agreement.
15.6. You and the Company agree to cause Levant to enter into the
Employment Agreement with you no later than earlier of (i) 12
months from the date of this letter agreement, or, (ii) concurrent
with Levant receiving funding of an aggregate no less than
CAD$3,000,000 by way of including, without limitation, whether it
shall take place by way of an initial public offering or a private
placement or otherwise.
15.7. In consideration for your entering into this agreement, but
especially the provision of article 10.5, the Company agrees for
you, or your nominee personal company solely owned and controlled
by you, to be issued a total of 2,664,000 common shares in the
capital of Levant at a deemed price of CAD$0.10 per share within
ten calendar days of signing of this agreement.
15.8. The Company is in the process of leading the establishment of
Levant, and, represents that Levant has not and Company has not
caused Levant to issue any shares to any person.
15.9. You and the Company agree not to sell or assign or transfer your
respective shares of Levant to any third party without the express
written consent of the other during the term of this agreement,
unless it is allowed by the terms of this agreement.
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15.10. If the Company initiates the proceedings for declaration of
insolvency and/or takes steps to declare bankruptcy in accordance
with the applicable statutes and laws, the Company agrees to grant
you a right, but not the obligation, to purchase the Company's
shares in Levant for a consideration of no more than CAD$0.10 per
share within three calendar months of receiving a written notice
from or on behalf of the Company of its notice of declaration of
insolvency or bankruptcy.
16. The parties hereto shall act in good faith to fulfil the intent of this
agreement.
17. Each undertaking contained in this agreement shall be construed as a
separate undertaking and if one or more of the undertakings are held to be
against the public interest or unlawful or in any way an unreasonable
restraint of trade, the remaining undertakings shall continue to be binding
on you and the Company.
18. This agreement may be executed in counterparts and executed electronically,
and such counterparts together shall constitute one and the same
instrument.
If the foregoing accurately sets out the terms of the agreement reached between
us, please indicate by signing below and returning a duly executed copy of this
letter to us.
Yours truly,
SKY HARVEST WINDPOWER CORP.
per: /s/ William Iny
------------------------------
WILLIAM INY
PRESIDENT
AGREED AND ACCEPTED this 3rd day
of February, 2012
per: /s/ Bertan Atalay
------------------------------
BERTAN ATALAY
EMPLOYMENT AGREEMENT
THIS AGREEMENT dated as of the ____________________.
BETWEEN:
SKY HARVEST WINDPOWER CORP., a company incorporated pursuant to the
laws of British Columbia with an office located at 890 West Pender
Street, Suite 710, Vancouver, British Columbia, Canada, V6C 1J9.
(the "Employer")
AND:
BERTAN ATALAY, having an address at Cornelis de Witlaan 89, den Haag,
2582 AD, the Netherlands
(the "Executive" and/or "Employee")
WHEREAS:
A. Employer is desirous of obtaining the services of the Executive as Employer's
Chief Executive Officer.
B. The Executive is qualified to undertake the duties of Chief Executive Officer
of Employer.
THEREFORE in consideration of the foregoing recitals and of the mutual
promises, covenants and agreements hereinafter set forth, the parties promise,
covenant and agree that:
1.0 Employment
1.1 Position
1.1.1 Employer hereby employs the Executive in the position of Chief Executive
Officer on a full time basis.
1.2 Term
1.2.1 The term of this Agreement shall commence on the date of this Agreement
first written above, unless the parties agree to an earlier date (the "Effective
Date"), and shall continue until it is terminated in accordance with this
Agreement.
1.3 Duties
1.3.1 The Executive shall perform such duties and render such services as and
when prescribed by the Board of Directors (the "Board") and in accordance with
such instructions and directions of the Board as are lawfully assigned or
communicated to him and as are consistent with the position of Chief Executive
Officer. The Executive shall perform such duties on behalf of Employer and, as
directed by the Board, on behalf of any subsidiaries or affiliates of Employer
which are designated by the Board as requiring the services of the Executive
(with Employer and any such subsidiaries and affiliates being referred to herein
collectively as "Employer").
1.3.2 The Executive understands that the Executive is employed on a full time
basis with Employer. Throughout the term of this Agreement, the Executive shall:
(a) diligently, honestly and faithfully serve Employer and shall use his
best efforts to promote and advance the interests and goodwill of
Employer;
(b) conduct himself at all times in a manner which is not prejudicial to
Employer interests;
(c) except as permitted in this Agreement or authorized by the Board in
writing, devote all of his business time to the business and affairs
of Employer, provided that Employer hereby agrees that Executive
shall, during the term of this Agreement, be permitted to sit on the
board of directors of companies unaffiliated with Employer;
(d) refrain from engaging in any activity which shall in any manner,
directly or indirectly, compete with the trade or business of
Employer; and
(e) without the consent in writing of the Board, not acquire, directly or
indirectly, any interest in a firm, partnership, association or
corporation, the business and operations of which in any manner,
directly or indirectly, compete with the trade or business of Employer
other than publicly traded stocks representing not more than 10% of
any such firm, partnership, association or corporation. The
Executive's existing interests of in businesses predating the signing
of this agreement are "grandfathered" and not subject to these
provisions.
Employer agrees that, provided the Executive is able to perform his duties under
this Agreement in a timely and professional manner, and that such activities do
not interfere with the Executive's duties hereunder, the Executive is permitted
to attend to customary personal financial affairs and engage in charitable and
civic activities or functions.
1.4 Place of Employment
1.4.1 The Executive's principal place of employment will be at Employer's
executive offices in the Vancouver, BC, Canada, area, but he shall be required
to travel as needed to perform his duties and obligations under this Agreement.
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2.0 Remuneration
2.1 Salary
2.1.1 During the currency of this Agreement, Employer shall pay to the Executive
an annual salary of CDN$222,000 ("Base Salary") for all hours worked. The Base
Salary shall be payable semi-monthly in equal instalments or on such other basis
as mutually agreed. During the first year of this Agreement, the parties hereto
agree that the Employer will issue 2,220,000 common shares in its capital stock
at a deemed price of $0.10 per share to the Executive in lieu of the salary
described in its subparagraph. Notwithstanding this share issuance to the
Executive, the Executive shall commence receiving Base Salary payments
immediately upon the Employer raising a minimum of $1,000,000 through the sale
of its equity, which amount shall not include the $500,000 that Sky Harvest
Windpower Corp. intends to invest into the Employer's common shares.
2.1.2 Employer shall have the right to deduct and withhold from the Executive's
compensation any amounts required to be deducted and remitted under any
applicable local, domestic or other laws of general application to the
employment relationship. The Executive shall have the right to charge the
company any applicable taxes, including Goods & Services Tax or Harmonized Sales
Tax.
2.2 Annual Salary Increase
2.2.1 The Executive's Base Salary will increase, effective on each anniversary
of the Effective Date of this Agreement, by at least 5% of the Base Salary in
effect at the time, which increase shall be determined by the Employer's
Compensation Committee, or its Board of Directors if no such committee exists.
2.3 Target Bonus
2.3.1 The Executive shall be eligible to receive an annual bonus of up to 500%
of the Base Salary (the "Target Bonus"), payable in accordance with procedures
that the Employer establishes for the payment of the Target Bonus to its
employees. However, under no circumstance during the Term of this agreement
shall the annual bonus be less than 20% of the Base Salary.
2.3.2 The percentage of the Target Bonus that the Executive will receive will be
determined based on measuring and weighing the following three components
(collectively, the "Target Bonus Components"):
(a) Financial results of Employer's business operations operated by
Employer's business executives, excluding, capital expenditures and
debt service, which component shall make up 40% of the Target Bonus;
(b) Financial results of the entire operations of Employer excluding
capital expenditures and debt service, which component will make up
25% of the Target Bonus; and
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(c) Non-financial, qualitative performance of the Executive's duties at
Employer, as evaluated in the sole discretion of the Employer's Board
of Directors, or committee thereof, taking into account particular
challenges and achievements during the year, which component will make
up 30% of the Target Bonus and the Executive can earn up to 500% of
this amount.
2.3.3 If the financial results under Target Bonus Components (a) or (b) above
are not met, then, as applicable, the amount of the Target Bonus payable under
such components shall be reduced by 2% for every 1% that the applicable
financial results are not met, provided, however, that no Target Bonus shall be
payable under those components unless at least 75% of the targeted financial
results are achieved.
2.3.4 The level of achievement required to achieve the Target Bonus Components
will be established at the outset of each fiscal year by the Employer's Board or
committee thereof, in its sole discretion, and the terms and conditions of the
Executive's Target Bonus are subject to modification from time to time by the
Board or committee thereof, in consultation with the Executive.
2.4 Stock Option Plan
2.4.1 The Executive shall be entitled to participate in Employer's incentive
stock option plan (the "Option Plan") when adopted and be entitled to be granted
20% of the total stock options available as part of the Stock Option Plan at any
given time.
2.5 Payment of Target Bonus
2.5.1 For the purposes of this Agreement, any entitlements to or under the
Target Bonus in any given fiscal year are not earned unless and until:
(a) the Executive is otherwise eligible or entitled to receive payment of
the Target Bonus in respect of such fiscal year pursuant to this
Agreement, as the case may be;
and
(b) the Executive's employment has not been terminated for cause prior to
the end of such fiscal year.
2.5.2 Notwithstanding Section 2.5.1, if the Executive's employment is terminated
without cause, for Good Reason (as defined herein), as a result of the
Executive's permanent incapacity or his death prior to the end of any given
fiscal year, the Executive shall be entitled to be paid pro-rated Target Bonus
compensation in respect of such fiscal year, such Target Bonus to be pro-rated
on the basis of the percentage of the fiscal year worked prior to the time a
notice of termination is given or received by the Executive or of his death. For
greater certainty, under no circumstances shall the Executive be entitled to
receive any pro-rated Target Bonus in respect of the fiscal year in which this
Agreement and the Executive's employment are terminated as a result of the
Executive giving a notice of termination pursuant to Section 3.1 or the Company
giving a notice of termination pursuant to Section 3.3 prior to the completion
of such fiscal year.
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2.5.3 To the extent any Target Bonus is earned in any given fiscal year as
described in Section 2.5.1 herein, the Executive shall be paid such earned
Target Bonus in accordance with the normal procedures established by Employer
for such payment within a reasonable time of the completion of the applicable
fiscal year. If the Executive is no longer employed by Employer at the usual
time of payment of the Target Bonus to Employer executives, then any such earned
Target Bonus or pro-rated Target Bonus to which the Executive is entitled
pursuant to Section 2.5.2 herein shall be paid by Employer at the same time any
bonus compensation would have been paid had the Executive still been employed
with Employer.
2.6 Reimbursement of Expenses
2.6.1 Employer shall reimburse the Executive for all reasonable travel,
promotional and other business expenses actually and properly incurred by the
Executive in the performance of his duties for Employer.
2.7 Vacation
2.7.1 The Executive shall be entitled to four weeks paid vacation per year of
employment under this Agreement, increasing in accordance with Employer's
Vacation Policy, as it exists from time to time and as it applies to the
Executive.
2.7.2 Vacation shall only be taken at such times and upon such conditions as the
Executive and the Board or CEO or their nominee shall mutually agree and the
terms and conditions of Employer's Vacation Policy, as it exists from time to
time and as it applies to the Executive.
2.8 Benefits
2.8.1 The Executive will be eligible to participate in the medical, dental,
health and short-term and long-term disability and other employee benefit plans
made available to employees of Employer having responsibilities similar in
nature or level to those of the Executive, provided that such participation will
be subject to all terms and conditions of such plans. Notwithstanding the
foregoing, to the extent permitted by law, (i) all waiting periods that may
otherwise apply with respect to such benefit plans shall be waived in the case
of Executive, and (ii) Executive shall be entitled to immediately participate at
the maximum contribution and matching levels with respect to any retirement
benefit plans of Employer.
2.8.2 Employer agrees to work in good faith with Executive to explore the
establishment and implementation of reasonable deferred compensations plans,
pension plans, savings plans, which Executive would be permitted to participate
in.
2.8.3 The introduction and administration of all employee benefit plans is
within Employer's sole discretion, and the Executive agrees that the
introduction, deletion or amendment of any of the benefits shall not constitute
a breach of this Agreement.
2.9 Executive Vehicle, and/or Travel Allowance
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2.9.1 The Executive shall be eligible to participate in Employer's Executive
Vehicle Policy, as it exists from time to time. The Executive Vehicle policy
shall be introduced no later than the anniversary of the singing of this
agreement and shall include supply of a leased vehicle for the exclusive use of
the Executive. The monthly lease payment of such vehicle shall not be more than
$1,000.
Alternatively, the Employer, at its option, may reimburse the Executive up
to a maximum $1,000 per month of his reasonably incurred travel expenses
("Travel Allowance"), which will include, but not be limited to, public
transport travel card fees, car lease or finance payments, and the like.
2.10 Indemnity
2.10.1 Employer shall indemnify the Executive in respect of acts or omissions
which occurred while the Executive was, in good faith, performing his duties
hereunder or was an officer of Employer's general partner or any affiliates or
subsidiaries of Employer to the same extent Employer indemnifies its other
executives and officers, as applicable.
2.10.2 Employer will provide to the Executive director's and officer's liability
insurance commensurate with the type of insurance provided to other executives
and officers of Employer, its affiliates and subsidiaries.
2.11 Other Perquisites
2.11.1 Employer will pay the Executive's reasonable initiation and annual
membership fees for professional associations and organizations as it relates to
the Executive's Duties.
3.0 Termination of Employment
3.1 Termination by Executive
3.1.1 The Executive may terminate his employment and this Agreement by giving 90
days written notice of resignation to Employer. At the time the Executive
provides Employer with notice of resignation, or at any time thereafter,
Employer shall have the right to elect to terminate the Executive's employment
and this Agreement at any time prior to the end of the effective date of the
Executive's resignation, and upon such election, shall provide to the Executive
a lump sum equal to 90 days of the Base Salary or to such proportion of the 90
days that remain outstanding at the time of the election and shall continue to
provide only those benefits that Employer is permitted or able to provide under
the applicable rules of the relevant plans for the lesser of 90 days or the
period of time that remains outstanding at the time of Employer's election.
3.2 Termination by Employer Without Cause
3.2.1 Employer may terminate the Executive's employment and this Agreement
without cause at any time by providing the Executive with a written notice of
termination together with a lump sum payment in lieu of notice of termination
(the "Severance Payment"), which shall consist of the amounts set out in Section
3.2.2 for the applicable "Notice Period". The "Notice Period" shall be equal to
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10 months plus 2 months for each completed year of service, pro-rated for any
partial year of service, up to a maximum of 12 months prior written notice of
termination (the "Notice Period").
3.2.2 Within 10 days of the date on which Employer provides notice of
termination to the Executive, Employer shall pay the Executive the Severance
Payment, calculated as follows:
(a) that part of the Base Salary that would have accrued during the Notice
Period; and
(b) an amount in lieu of any entitlement to the Bonus Compensation, such
amount to be calculated as follows:
(i) if the Executive has been employed by Employer for less than one
full fiscal year at the time that the Executive is given notice
of termination in accordance with Section 3.2.1, an amount equal
to 35% of the Executive's Base Salary at the time plus an amount
equal to the share earned by an executive of Employer under the
Profit Sharing Plan in the previous fiscal year;
(ii) if the Executive has been employed by Employer for longer than
one full fiscal year but less than 2 full fiscal years at the
time that the Executive is given notice of termination in
accordance with Section 3.2.1, an amount equal to the Bonus
Compensation earned by the Executive in respect of the full
fiscal year immediately prior to the fiscal year in which the
Executive is given notice of termination; or
(iii)if the Executive has been employed by Employer for longer than 2
full fiscal years at the time that the Executive is given notice
of termination in accordance with Section 3.2.1, an amount equal
to the average annual Bonus Compensation earned by the Executive
in respect of the 2 full fiscal years immediately prior to the
fiscal year in which the Executive is given notice of
termination.
3.2.3 In the event of a termination without cause as contemplated in Section
3.2.1 herein, Employer shall continue to provide benefits during the Notice
Period to the maximum extent that it is permitted or able to provide benefits
under the applicable rules of the relevant employee benefit plans.
3.2.4 In the event of a termination without cause as contemplated in Section
3.2.1 herein, in addition to the Severance Payment, the Executive shall be
entitled to receive, on the first regular payday following the termination date:
(i) any Base Salary due up to the date of termination; (ii) any accrued unused
vacation pay due up to the date of termination; and (iii) any unreimbursed
expenses due under this Agreement. In addition, the Executive shall be paid, as
applicable, any Bonus Compensation earned in the previous fiscal year that has
not been paid as at the date of termination or pro-rated Bonus Compensation in
accordance with Section 2.5.3 herein.
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3.2.5 The Executive agrees that the Executive shall not be entitled, by reason
of his employment with Employer or by reason of any termination of his
employment, howsoever arising, to any remuneration, compensation or other
benefits other than those expressly provided for in this Agreement.
3.3 Termination by Employer for Just Cause
3.3.1 Notwithstanding any other provision of this Agreement, Employer may on
written notice to the Executive immediately terminate this Agreement and the
Executive's employment with Employer at any time for "cause", without notice or
payment in lieu of notice or any other form of compensation, severance pay or
damages.
3.3.2 For the purposes of this Agreement, "cause" has the meaning commonly
ascribed to the phrase "cause" or "just cause for termination" in the courts of
the Province of British Columbia, and without limiting the foregoing, includes
any of the following acts or omissions:
(a) the wilful failure of the Executive to follow the instructions of
Employer;
(b) the wilful failure of the Executive to perform the reasonable
duties assigned to him by Employer;
(c) the Executive's misconduct, dishonesty, or any material violation
of Employer's policies and procedures in effect from time to
time;
(d) the material breach or non-observance of any of the provisions of
this Agreement by the Executive;
(e) any breach of Sections 4.0 and 5.0 of this Agreement; or
(f) any conduct of the Executive which tends to bring him or Employer
into disrepute and which is not corrected within a reasonable
time after Employer gives written notice to the Executive
specifying the conduct.
3.4 Termination by Executive for Good Reason
3.4.1 The Executive may terminate his employment and this Agreement for "Good
Reason" by providing Employer with a written notice of termination for Good
Reason. In that event, the Executive shall be entitled to an amount equal to the
Severance Payment calculated in accordance with Section 3.2.2 herein for the
applicable Notice Period as described in Section 3.2.1. In the event the
Executive terminates his employment for Good Reason, continuation of any
benefits will be in accordance with Section 3.2.3 of this Agreement, and he
shall be entitled to receive, in addition to the Severance Payment, such Base
Salary, vacation pay, Bonus Compensation or, as applicable, pro-rated Bonus
Compensation earned to the date of termination as described in Section 3.2.4
herein, together with any unreimbursed expenses due under this Agreement.
For the purposes of this Agreement, "Good Reason" means one or more of the
following events, occurring without the Executive's written consent:
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(a) a material diminution or material adverse change to the Executive's
position, the nature and responsibilities or authority within Employer
that is not contemplated by this Agreement;
(b) a material reduction in the Executive's total annual compensation as
provided in this Agreement (or as such amounts may be increased from
time to time) excluding any amounts accrued by or paid to the
Executive relating to incentive compensation amounts as described in
Section 2.4 herein and any increase that may occur in the value of the
Executive's benefits under the Employer benefit plans resulting from a
restructuring of any and all benefit plans at the discretion of
Employer in accordance with Section 2.8.3;
(c) any other failure by Employer to perform any material obligation
under, or breach by Employer of any material provision of, this
Agreement; and
(d) a relocation of the Executive's principal work location to a place
outside of Vancouver, British Columbia.
3.5 Termination by Death
3.5.1 This Agreement will automatically terminate upon the Executive's death.
3.5.2 In the event that the Executive's employment is terminated by his death,
the Executive's estate shall be entitled to receive, on the first regular pay
date following the Executive's death: (i) any Base Salary due up to the date of
the death; (ii) any accrued unused vacation pay due as of the Executive's death;
and (iii) any unreimbursed expenses due under this Agreement. In addition, the
Executive shall be paid, as applicable, any Bonus Compensation earned in the
previous fiscal year which has not been paid as at the Executive's death or
pro-rated Bonus Compensation in accordance with Section 2.5.3 herein. Any
insurance payments to the Executive's estate or other beneficiary will be
governed by the applicable plan.
3.6 Permanent Incapacity
3.6.1 Subject to Section 3.6.3 herein, Employer's obligations to the Executive
and the Executive's obligation to Employer to perform work pursuant to this
Agreement shall terminate upon the Executive's permanent incapacity, and
Employer may also terminate the Executive's employment hereunder by written
notice. For the purposes of this Section 3.6.1, the Executive shall be deemed to
have suffered permanent incapacity when the Executive suffers from any illness
or injury that prevents him from performing his usual employment duties for a
period of 4 consecutive months or for 6 months within any 12-month period or
when two physicians (one designated by the Executive and one by Employer)
certify him as being permanently incapacitated.
3.6.2 The Executive acknowledges and agrees that given the nature of Employer's
business and the critical importance of his position to the operations of
Employer, it would constitute an unreasonable accommodation on the part of
Employer to operate without the services of the Executive for a period in excess
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of 4 consecutive months or 6 months within any 12-month period. Furthermore, the
Executive acknowledges that it will be impractical for Employer to hire a
replacement for the Executive, unless the replacement is hired on a permanent
basis.
3.6.3 Notwithstanding the termination of certain of their respective obligations
under this Agreement pursuant to Section 3.6.1, Employer will continue to make
available to the Executive its group insurance benefits and Employer will
refrain from terminating the Executive's employment due to permanent incapacity
if to do so would disentitle the Executive from any short or long term
disability benefits under Employer's benefit plans.
3.6.4 In the event the Executive's employment is terminated as a result of the
Executive's permanent incapacity, the Executive shall be entitled to receive, on
the first regular payday following the termination date: (i) any Base Salary due
up to the date of permanent incapacity; (ii) any accrued unused vacation due up
to the date of permanent incapacity; and (iii) any unreimbursed expenses due
under this Agreement. In addition, the Executive shall be paid, as applicable,
any Bonus Compensation earned in the previous fiscal year that has not been paid
as at the date of permanent incapacity or pro-rated Bonus Compensation in
accordance with Section 2.5.3 herein. Any entitlement to insurance benefits by
the Executive will be governed by Employer's applicable benefits plans.
4.0 Confidentiality and Ownership of Employer Property
4.1 Confidential and Proprietary Information
4.1.1 The Executive acknowledges that, by reason of the Executive's employment
with Employer, the Executive will have access to Confidential and Proprietary
Information, as hereinafter defined, of Employer, that Employer has spent time,
effort and money to develop and acquire.
4.1.2 The term "Confidential and Proprietary Information" as used in this
Agreement means all trade secrets, proprietary information and other data or
information (and any tangible evidence, record or representation thereof)
whether prepared, conceived or developed by an employee or agent of Employer
(including the Executive) or received by Employer from an outside source which
is maintained in confidence by Employer or any of its customers. Without
limiting the generality of the foregoing, Confidential and Proprietary
Information includes information of Employer pertaining to:
(a) business improvements and processes; marketing and selling plans;
business opportunities, plans (whether pursued or not) and budgets;
unpublished financial statements; licenses; pricing, pricing strategy
and cost data; information regarding the skills and compensation of
employees; the identities of clients and potential clients, customers
and potential customers (collectively, "Customers"); the identities of
contact persons at Customers; the preferences and needs of Customers;
information regarding sales calls, timing, sales terms, service plans,
methods, practices, strategies, forecasts, know-how, and other
marketing techniques; the identities of key accounts, potential key
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accounts; the identities of suppliers and employees, and all
information about those supplier and employee relationships; research
and development plans or projects, data and reports; computer
materials such as programs, instructions, source and object code, and
printouts; formulas, inventions, developments and discoveries; and
product information, including testing information;
(b) any information relating to the relationship of Employer with any
personnel, suppliers, principals, investors, contacts or prospects of
Employer and any information relating to the requirements,
specifications, proposals, orders, contracts or transactions of or
with any such persons; and
(c) financial information, including Employer's costs, financing or debt
arrangements, income, profits, salaries or wages.
4.1.3 The Executive acknowledges that the Confidential and Proprietary
Information is a valuable and unique asset of Employer and that the Confidential
and Proprietary Information is and will remain the exclusive property of
Employer.
4.1.4 The Executive agrees to maintain securely and hold in strict confidence
all Confidential and Proprietary Information received, acquired or developed by
the Executive or disclosed to the Executive as a result of or in connection with
the Executive's employment with Employer. The Executive agrees that, both during
his employment with Employer and after the termination of his employment with
Employer, the Executive will not, directly or indirectly, divulge, communicate,
use, copy or disclose or permit others to use, copy or disclose, any
Confidential and Proprietary Information to any person, except as such
disclosure or use is required to perform his duties hereunder or as may be
consented to by prior written authorization of the Board.
4.1.5 The obligation of confidentiality imposed by this Agreement shall not
apply to information that appears in issued patents or printed publications,
that otherwise becomes generally known in the industry through no act of the
Executive in breach of this Agreement, or that is required to be disclosed by
court order or applicable law.
4.1.6 The Executive understands that Employer has from time to time in its
possession information belonging to third parties or which is claimed by third
parties to be confidential or proprietary and which Employer has agreed to keep
confidential. The Executive agrees that all such information shall be
Confidential and Proprietary Information for the purposes of this Agreement.
4.1.7 For purposes of the copyright laws of the United States of America, to the
extent, if any, that such laws are applicable to any Confidential and
Proprietary Information, it shall be considered a work made for hire and
Employer shall be considered the author thereof.
4.1.8 The Executive represents and warrants that the Executive has not brought
and will not bring with the Executive to Employer, and that the Executive has
not used and will not use, while performing the Executive's duties for Employer,
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any materials or documents of a former company which the Executive is under a
duty not to disclose. The Executive understands that, while employed by
Employer, the Executive shall not breach any obligation or confidence or duty
the Executive may have to a former employer and the Executive agrees that the
Executive will fulfil all such obligations during the Executive's employment
with Employer.
4.1.9 The Executive represents and warrants that the Executive will not, to the
best of the Executive's knowledge and belief, use or cause to be incorporated in
any of the Executive's work product any data software, information, designs,
techniques or know-how which the Executive or Employer does not have the right
to use.
4.2 Ownership and Disclosure of Discoveries, Ideas and Inventions
4.2.1 Any new technology, knowledge or information developed by the Executive
related to the business of Employer during the term of this Agreement shall be
the exclusive property of Employer to the extent that such technology, knowledge
or information is owned by the Executive.
4.2.2 The Executive acknowledges that all Confidential and Proprietary
Information and all other discoveries, know-how, inventions, ideas, concepts,
processes, products, protocols, treatments, methods, tests and improvements,
computer programs, or parts thereof, conceived, developed, reduced to practice
or otherwise made by the Executive either alone or with others, during the
course of the Executive's employment with Employer pursuant to this Agreement or
any previous agreements or arrangements between the Executive and Employer,
whether or not conceived, developed, reduced to practice or made during the
Executive's regular working hours or on the premises of Employer (collectively
"Inventions"), and any and all services and products which embody, emulate or
employ any such Inventions will be the sole property of Employer and all
copyrights, patents, patent rights, trademarks, service marks and reproduction
rights to, and other proprietary rights in, each such Invention, whether or not
patentable or copyrightable, will belong exclusively to Employer.
4.2.3 For purposes of the copyright laws of the United States of America, to the
extent, if any, that such laws are applicable to any such Invention or any such
service or product, it will be considered a work made for hire and Employer will
be considered the author thereof.
4.2.4 The Executive represents and warrants that the Executive does not claim
rights in, or otherwise exclude from this Agreement, any Inventions.
4.2.5 The Executive shall disclose promptly to Employer, its successors or
assigns, any Inventions.
4.2.6 The Executive hereby assigns and agrees to assign all his rights, title
and interest in the Inventions, to Employer or its nominee.
4.2.7 Whenever requested to do so by Employer, the Executive shall execute any
and all applications, assignments or other instruments which Employer shall deem
necessary to apply for and obtain patents or copyrights of Canada, the United
States or any foreign country or to otherwise protect Employer's interest in the
Inventions and shall assist Employer in every proper way (entirely at Employer's
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expense, including reimbursement to the Executive for all expense and loss of
income) to obtain such patents and copyrights and to enforce them.
4.2.8 The Executive hereby waives for the benefit of Employer and its successors
and assigns any and all moral rights in respect of any Inventions.
4.3 Delivery of Records
4.3.1 The Executive agrees that documents, copies, records and other property or
materials made or received by the Executive that pertain to the business and
affairs of Employer, including all Confidential and Proprietary Information and
Inventions which is in the Executive's possession or under the Executive's
control are the property of Employer and that the Executive will return same and
any copies of same to Employer immediately upon termination of the Executive's
employment or at any time upon the request of Employer.
5.0 Non-Solicitation
5.1 During the term of this Agreement and for a period of 12 months following
the termination of the Executive's employment or this Agreement, howsoever
arising, the Executive shall not (unless acting as an employee under this
Agreement or with the prior written consent of the Board or its nominee):
(a) call on, solicit, or endeavour to entice away, either directly or
indirectly, any person or entity who is, or was a client, customer or
potential customer of Employer who the Executive or his subordinates
solicited or serviced on behalf of Employer during the twelve (12)
month period immediately preceding the termination of the Executive's
employment with Employer; and
(b) call on, solicit, or endeavour to entice away, either directly or
indirectly, any person or entity who is, or was an employee,
independent contractor or consultant of Employer during the twelve
(12) month period immediately preceding the termination of the
Executive's employment with Employer to terminate his or her
relationship with Employer in order to become an employee, consultant
or independent contractor for any person or entity other than
Employer.
6.0 Equitable Relief
6.1 The Executive acknowledges that the restrictions contained in Sections 4.0
and 5.0 are, in view of the nature of the business of Employer, reasonable and
necessary to protect the legitimate interests of Employer, that Employer would
not have entered into this Agreement in the absence of such restrictions and
that any violation of any provision of those Sections could result in
irreparable injury to Employer.
6.2 The Executive agrees that, in the event he violates any of the restrictions
referred to in Sections 4.0 and 5.0, Employer shall be entitled to such
injunctive relief or other remedies at law or in equity which the Court deems
fit.
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7.0 Right to Use the Executive's Name and Likeness
7.1 The Executive hereby grants to Employer, during the term of the Executive's
employment with Employer, the right to use the Executive's name, likeness and
biography in connection with the Executive's services under this Agreement and
in connection with the advertising or exploitation of any project with respect
to which the Executive performs his services for Employer.
8.0 General
8.1 No Derogation of Obligations at Law
8.1.1 Nothing in this Agreement is intended to limit or otherwise affect the
duties and obligations of the Executive to Employer existing at common law or in
equity whether during, or after the termination of, the Executive's employment
by Employer.
8.2 Waiver
8.2.1 No consent or waiver, express or implied, by any party to this Agreement
or any breach or default by any other party in the performance of its
obligations under this Agreement or of any of the terms, covenants or conditions
of this Agreement shall be deemed or construed to be a consent or waiver of any
subsequent or continuing breach or default in such party's performance or in the
terms, covenants or conditions of this Agreement. The failure of any party to
this Agreement to assert any claim in a timely fashion for any of its rights or
remedies under this Agreement shall not be construed as a waiver of any such
claim and shall not serve to modify, alter or restrict any such party's right to
assert such claim at any time thereafter.
8.3 Survival of Provisions
8.3.1 Employer and the Executive expressly acknowledge and agree that the
provisions of this Agreement, which by their express or implied terms extend
beyond the termination of the Executive's employment hereunder, or beyond the
termination of this Agreement, shall continue in full force and effect
notwithstanding the termination of the Executive's employment or the termination
of this Agreement for any reason.
8.4 Notices
8.4.1 Any notice relating to this Agreement or required or permitted to be given
in accordance with this Agreement shall be in writing and shall, if to Employer,
be personally delivered, telefaxed or mailed by registered mail, postage
prepaid, to its address set out on the first page of this Agreement and, if to
the Executive, to the home address of the Executive on Employer's records. Any
notice shall be deemed to have been received if delivered or telefaxed, when
delivered or telefaxed, and if mailed, on the third day (excluding Saturdays,
Sundays and holidays) after the mailing thereof. If normal mail service is
interrupted the sender shall deliver such notice in order to ensure prompt
receipt thereof.
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8.4.2 Each party to this Agreement may change its address for the purpose of
Section 8.4.1 by giving written notice of such change in the manner provided for
in Section 8.4.1.
8.5 Applicable Law
8.5.1 This Agreement shall be governed by and construed in accordance with the
laws of British Columbia including the laws of Canada applicable therein, which
shall be deemed to be the proper law hereof. The parties hereto hereby attorn
and agree to submit to the jurisdiction of the courts of British Columbia,
Canada.
8.6 Severability
8.6.1 If any provision of this Agreement for any reason is declared invalid,
such declaration shall not affect the validity of any remaining portion of the
Agreement, which remaining portion shall remain in full force and effect as if
this Agreement had been executed with the invalid portion thereof eliminated and
it is hereby declared the intention of the parties that they would have executed
the remaining portions of this Agreement without including therein any such
part, parts or portion which may, for any reason, be hereafter declared invalid.
8.7 Entire Agreement
8.7.1 This Agreement constitutes the entire Agreement between the parties hereto
in relation to the subject matter hereof and there are no representations or
warranties, express or implied, statutory or otherwise other than those set
forth in this Agreement. This Agreement supersedes any prior agreements, written
or oral in respect of the Executive's employment with Employer, and any such
prior agreements are hereby terminated and cancelled.
8.8 Amendment
8.8.1 This Agreement cannot be amended or supplemented except by a written
Agreement executed by all parties hereto.
8.9 Counterpart
8.9.1 This Agreement may be executed in counterpart and such counterparts
together shall constitute one and the same instrument and notwithstanding the
date of execution shall be deemed to bear the date as set out on the first page
of this Agreement.
8.10 Assignment of Benefits and Burdens
8.10.1 The obligations and covenants of Executive under this Agreement may not
be assigned by the Executive. However, Executive shall have the right to assign
the financial benefits under this Agreement to a non-arms'-length person or
entity, such as a personal holding company or similar vehicle, in Executive's
unfettered discretion. Employer shall have the right to assign this Agreement in
connection with the sale, transfer or other disposition of the business to any
other entity which may succeed to the ownership of and/or operating management
rights over the Employer's business operations, provided such assignee agrees in
writing to assume all of Employer's obligations under this Agreement.
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8.11 Enurement
8.11.1 This Agreement shall enure to the benefit of and be binding upon the
parties and their respective heirs, executors, administrators, successors,
personal representatives and permitted assigns.
IN WITNESS WHEREOF the parties have duly executed this Agreement as of the date
set out on the first page of this Agreement
SKY HARVEST WINDPOWER CORP.
By:
--------------------------------
Authorized Signatory
SIGNED, SEALED AND DELIVERED in )
the presence of: )
)
----------------------------------- )
Witness )
) -----------------------------
----------------------------------- ) BERTAN ATALAY
Name )
)
)
)
----------------------------------- )
Address )
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