EXHIBIT 10.5
CONFIDENTIALITY, NON-COMPETITION AND INTELLECTUAL PROPERTY AGREEMENT
THIS AGREEMENT made as of the 15th day of May, 2000.
BETWEEN:
RTICA Inc., a corporation incorporated under the laws of the
Province of Ontario and having its head office at 999 Barton
Street, Stoney Creek, L8E 5H4
(hereinafter referred to as the "Corporation")
OF THE FIRST PART,
-- And B
Warren Arseneau, 639 Montego Cr., Burlington, ON L7N 2Y9, in
the town of Burlington, in the Province of Ontario,
(hereinafter referred to as the "Consultant")
OF THE SECOND PART.
WHEREAS the Corporation carries on a business consisting principally
of the development, marketing, and promotion of high performance insulation
made from recycled plastics (the "Business");
AND WHEREAS the Corporation is desirous of retaining the Consultant to
provide labour or other services in connection with the Business of the
Corporation;
AND WHEREAS the Consultant is desirous of providing such services to
the Corporation, on the terms and subject to the conditions of a consulting
agreement with Flat Rock Management dated May 15, 2000 (the "Consulting
Agreement");
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of good
and valuable consideration (the receipt and sufficiency of which is hereby
acknowledged by each of the parties hereto) it is agreed as follows:
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ARTICLE ONE -- CONFIDENTIALITY AND NON-COMPETITION
1.1 CONFIDENTIAL INFORMATION. The Consultant covenants and agrees that he
shall not disclose to anyone any confidential information with respect to the
business or affairs of the Corporation except as may be necessary or desirable
to further the business interests of the Corporation. This obligation shall
survive the expiry or termination of both this Agreement and the Consulting
Agreement.
1.2 RETURN OF PROPERTY. Upon expiry or termination of the Consulting
Agreement the Consultant shall return to the Corporation any property,
documentation, or confidential information which is the property of the
Corporation.
1.3 PROMOTION OF CORPORATION'S INTERESTS. The Consultant shall and will
faithfully serve and use his best efforts to promote the interests of the
Corporation, shall not use any information he may acquire with respect to the
business and affairs of the Corporation or its affiliates for his own purposes
or for any purposes other than those of the Corporation or its affiliates.
1.4 NON-COMPETITION. The Consultant acknowledges to the Corporation that
he may well be able to utilize knowledge and expertise gained during his
consulting service with the Corporation after termination of the Consulting
Agreement to the serious detriment of the Corporation in the event that the
Consultant should elect to solicit business on his own behalf or on behalf of a
competitor of the Corporation from the Corporation's customers, or interfere
with suppliers to the Corporation. Accordingly, for a period of 36 months after
the termination of his or her consulting services with the Corporation,
however, and for whatever reason the termination occurs, the Consultant agrees
that he will not within Canada and the United States of America engage in the
manufacture, supply or distribution of goods or materials in Business similar
to the Corporation, or provide assistance by way of labour or advice in such
Business to any party.
1.5 CORPORATION ENTITLED TO INJUNCTIVE RELIEF. The Consultant agrees that
in the event of a breach or threatened breach by the Consultant of any of the
provisions of this Agreememt or the Consulting Agreement, the Corporation, in
addition to and not in limitation of any other rights, remedies or damages
available to the Corporation at law or in equity, shall be entitled to an
injunction in order to prevent or to restrain any breach by the Consultant, or
by any or all of the Consultant's partners, co-venturers, employers,
consultants, servants, agents, representatives and any and all persons directly
or indirectly acting for, on behalf of, or with the Consultant.
ARTICLE TWO -- DISCOVERIES, INVENTIONS AND IMPROVEMENTS
2. RIGHTS TO ACCRUE TO CORPORATION. In view of the fact that the
Consultant may acquire knowledge of apparatus or of process used by the
Corporation or affiliated companies, and that the Consultant may devote time
and services to invention and discovery or improvement of products, apparatus
or processes the Consultant agrees and contracts with the Corporation as
follows:
2.1 The Consultant will advise the Corporation of any inventions,
discoveries and improvements made by him or while working with others, at any
time, during the term of this Agreement, and any discoveries and improvements
shall be held by the Consultant for the benefit of the Corporation and shall be
the exclusive property of the Corporation.
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2.2 The Consultant will execute, at the Corporation's request, any
instruments the Corporation considers necessary to assign to its Consultant's
entire right and title to any inventions, processes, discoveries or
improvements, and the Consultant agrees that this obligation will continue
after the termination of this Agreement. All notes and records kept by the
Consultant in connection with his services under this Agreement shall be the
exclusive property of the Corporation. The Consultant, on leaving the service
of the Corporation shall deliver all such notes and records to the Corporation.
The Consultant agrees that he will not disclose or use, during or after his
employment, any confidential information obtained by the Consultant in the
course of his employment by the Corporation, without permission of the
Corporation.
2.3 The Consultant agrees that the renumeration received from the
Corporation pursuant to the Consulting Agreement shall be full consideration
and compensation for services performed by him for all inventions, discoveries
and improvements and for assignments of the same to the Corporation. The
Consultant's renumeration may be changed without affecting any provision of
this agreement. On termination of the Consulting Agreement the obligation of
the Corporation to pay the Consultant any further renumeration shall terminate.
ARTICLE THREE --- GENERAL CONTRACT PROVISIONS
3.1 NOTICES. All notices, requests, demands or other communications
(collectively, "Notices") by the terms hereof required or permitted to be given
by one party to any other party, or to any other person shall be given in
writing by personal delivery or by registered mail, postage prepaid, or by
facsimile transmission to such other party as follows:
(a) To the Corporation at: 999 Barton Street, Stoney Creek,
Ontario L8E2D 5H4
Fax (905) 643-1442
(b) To the Consultant at: 639 Montego Cr., Burlington ON,
L7N 2Y9
Fax (905) 333-0560
or at such other address as may be given by such person to the other parties
hereto in writing from time to time.
All such Notices shall be deemed to have been received when delivered
or transmitted, or, if mailed, 48 hours after 12:01 a.m. on the day following
the day of the mailing thereof. If any Notice shall have been mailed and if
regular mail service shall be interrupted by strikes or other irregularities,
such Notice shall be deemed to have been received 48 hours after 12:01 a.m. on
the day following the resumption of normal mail service, provided that during
the period that regular mail service shall be interrupted all Notices shall be
given by personal delivery or by facsimile transmission.
3.2 ADDITIONAL CONDITIONS. The parties shall sign such further and other
documents, cause such meetings to be held, resolutions passed and by-laws
enacted, exercise their vote and influence, do and perform and cause to be done
and performed such further and other acts and things as may be necessary or
desirable in order to give full effect to this Agreement and every part thereof.
3.3 COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which so executed shall be deemed to be an original and such
counterparts together shall be but one and the same instrument.
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3.4 TIME OF THE ESSENCE. Time shall be of the essence of this Agreement
and of every part hereof and no extension or variation of this Agreement shall
operate as a waiver of this provision.
3.5 AGREEMENT IN CONJUNCTION WITH THE CONSULTING AGREEMENT. This Agreement
is necessary and conditional to a valid Consulting Agreement between the
parties, and supercedes any provisions in the Consulting Agreement with respect
to all of the matters herein and its execution has not been induced by, nor do
any of the parties rely upon or regard as material, any representations or
writings whatever not incorporated herein and made a part hereof and may not be
amended or modified in any respect except by written instrument signed by the
parties hereto. Any schedules referred to herein are incorporated herein by
reference and form part of the Agreement.
3.6 ENUREMENT. This Agreement shall enure to the benefit of and be binding
upon the parties and their respective legal personal representatives, heirs,
executors, administrators or successors.
3.7 ASSIGNMENT. This Agreement is personal to the Consultant and may not
be assigned by the Consultant without the consent of the Corporation.
3.8 CURRENCY. Unless otherwise provided for herein, all monetary amounts
referred to herein shall refer to the lawful money of Canada.
3.9 HEADINGS FOR CONVENIENCE ONLY. The division of this Agreement into
articles and sections is for convenience of reference only and shall not affect
the interpretation or construction of this Agreement.
3.10 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein and each of the parties hereto agrees irrevocably to
conform to the non-exclusive jurisdiction of the Courts of such Province.
3.11 GENDER. In this Agreement, words importing the singular number shall
include the plural and vice versa, and words importing the use of any gender
shall include the masculine, feminine and neuter genders and the word "person"
shall include an individual, a trust, a partnership, a body corporate, an
association or other incorporated or unincorporated organization or entity.
3.12 CALCULATION OF TIME. When calculating the period of time within which
or following which any act is to be done or step taken pursuant to this
Agreement, the date which is the reference date in calculating such period
shall be excluded. If the last day of such period is not a Business Day, then
the time period in question shall end on the first business day following such
non-business day.
3.13 LEGISLATION REFERENCES. Any references in this Agreement to any law,
by-law, rule, regulation, order or act of any government, governmental body or
other regulatory body shall be construed as a reference thereto as amended or
re-enacted from time to time or as a reference to any successor thereto.
3.14 SEVERABILITY. If any Article, Section or any portion of any Section of
this Agreement is determined to be unenforceable or invalid for any reason
whatsoever that unenforceability or invalidity shall not affect the
enforceability or validity of the remaining portions of this Agreement and such
unenforceable or invalid Article, Section or portion thereof shall be severed
from the remainder of this Agreement.
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3.15 TRANSMISSION BY FACSIMILE. The parties hereto agree that this
Agreement may be transmitted by facsimile or such similar device and that the
reproduction of signatures by facsimile or such similar device will be treated
as binding as if originals and each party hereto undertakes to provide each and
every other party hereto with a copy of the Agreement bearing original
signatures forthwith upon demand.
IN WITNESS WHEREOF the parties have duly executed this Consulting
Agreement as of the 15th day of May 2000.
SIGNED, SEALED AND DELIVERED
in the presence of
/s/ Warren Arseneau
---------------------------------
Warren Arseneau
President, Flat Rock Management
/s/ Robert Stikeman
---------------------------------
Robert Stikeman, Secretary
RTICA Inc.
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