EXHIBIT 10.1
__________
CEO EXECUTIVE SERVICES AGREEMENT
AMONG:
NATURALLY ADVANCED TECHNOLOGIES INC.
AND:
THE MERIWETHER GROUP, INC.
NATURALLY ADVANCED TECHNOLOGIES INC.
1307 Venables Street, Vancouver, British Columbia, Canada, V5L 2G1
__________
CEO EXECUTIVE SERVICES AGREEMENT
THIS CEO EXECUTIVE SERVICES AGREEMENT is made and dated for reference
effective as at August 15, 2006 (the "EFFECTIVE DATE") as fully executed on this
_____ day of __________, 2006.
BETWEEN:
NATURALLY ADVANCED TECHNOLOGIES INC., a company incorporated under the
laws of the Province of British Columbia, Canada, and having an
executive office and an address for notice and delivery located at 1307
Venables Street, Vancouver, British Columbia, Canada, V5L 2G1
(the "COMPANY");
OF THE FIRST PART
AND :
THE MERIWETHER GROUP, INC., a company incorporated under the laws of
the State of Oregon, U.S.A., and having an address for notice and
delivery located at Suite 435, 2701 NW Vaughn Street, Portland, Oregon,
U.S.A., 97210
(the "EXECUTIVE'S COMPANY");
OF THE SECOND PART
(the Executive's Company and the Company being hereinafter singularly
also referred to as a "PARTY" and collectively referred to as the
"PARTIES" as the context so requires).
WHEREAS:
A. The Company is a reporting company incorporated under the laws of the
Province of British Columbia, Canada, whose common shares are presently listed
for trading on the United States Over-the-counter Bulletin Board market;
B. Ken Barker, the present Chief Executive Officer and a Director of the
Company (the "Executive"), and the Executive's Company, which is owned and
controlled by the Executive (the Executive and the Executive's Company, being,
collectively, the "EXECUTIVE GROUP" herein), have experience in and specialize
in providing reporting and non-reporting companies with valuable corporate
management services;
C. The Company and its various subsidiaries are principally involved in
the product-focused business of specializing in the market and sale of a line of
hemp/cotton activewear, including T-shirts, sweatshirts, golf shirts,
button-down shirts and ball caps, to wholesalers for imprinting as well as
directly to consumers (collectively, the "BUSINESS"); and, as a consequence
thereof, the Company is hereby desirous of continuing to retain the Executive as
the Chief Executive Officer of the Company, together with the Executive's
Company as a consultant to the Company and to any or all of the Company's
subsidiaries, as the case may be, and the Executive Group is hereby desirous of
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accepting such positions in order to provide such corporate management related
services to the Company and its various subsidiaries as may be necessary for the
ongoing maintenance and development of the Company's and its various
subsidiaries' respective Business interests during the continuance of this
agreement (collectively, the "GENERAL SERVICES");
D. Since the introduction of the Parties hereto the Parties hereby
acknowledge and agree that there have been various discussions, negotiations,
understandings and agreements between them relating to the terms and conditions
of the General Services and, correspondingly, that it is their intention by the
terms and conditions of this agreement (the "AGREEMENT") to hereby replace, in
their entirety, all such prior discussions, negotiations, understandings and
agreements with respect to the General Services; and
E. The Parties hereto have agreed to enter into this Agreement which
replaces, in its entirety, all such prior discussions, negotiations,
understandings and agreements, and, furthermore, which necessarily clarifies
their respective duties and obligations with respect to the within General
Services to be provided hereunder, all in accordance with the terms and
conditions of this Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSETH that, in consideration of the
mutual covenants and provisos herein contained, THE PARTIES HERETO AGREE AS
FOLLOWS:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, the following words
and phrases shall have the following meanings:
(a) "AGREEMENT" means this CEO Executive Services Agreement as
from time to time supplemented or amended by one or more
agreements entered into pursuant to the applicable provisions
hereof, together with any Schedules attached hereto;
(b) "BOARD OF DIRECTORS" means the Board of Directors of the
Company as duly constituted from time to time;
(c) "BUSINESS" has the meaning ascribed to it in recital "C."
hereinabove.
(d) "BUSINESS DAY" means any day during which Canadian Chartered
Banks are open for business in the City of Vancouver, Province
of British Columbia, Canada;
(e) "COMPANIES" means the Company and each of its subsidiaries;
(f) "COMPANY" means Naturally Advanced Technologies Inc., a
company incorporated under the laws of the Province of British
Columbia, Canada, or any successor company, however formed,
whether as a result of merger, amalgamation or other action;
(g) "COMPANY'S NON-RENEWAL NOTICE" has the meaning ascribed to it
in section "3.2" hereinbelow;
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(h) "DATE OF GRANT" has the meaning ascribed to it in section
"4.3" hereinbelow;
(i) "DELIVERABLES" has the meaning ascribed to it in section "4.3"
hereinbelow;
(j) "EFFECTIVE DATE" has the meaning ascribed to on the face page
of this Agreement;
(k) "EFFECTIVE TERMINATION DATE" has the meaning ascribed to it in
each of sections "3.3", "3.4", "3.5", "3.6" and "5.6"
hereinbelow;
(l) "EXCHANGE ACT" has the meaning ascribed to it in section "4.3"
hereinbelow;
(m) "EXECUTIVE" means Ken Barker;
(n) "EXECUTIVE GROUP" means the Executive and the Executive's
Company;
(o) "EXECUTIVE GROUP MATERIALS" has the meaning ascribed to it in
section "5.7" hereinbelow;
(p) "EXECUTIVE'S COMPANY" means The Meriwether Group, Inc., a
company incorporated under the laws of the State of Oregon,
U.S.A.,, or any successor company, however formed, whether as
a result of merger, amalgamation or other action;
(q) "EXERCISE TERM" has the meaning ascribed to it in section
"4.3" hereinbelow;
(r) "EXPENSES" has the meaning ascribed to it in section "4.2"
hereinbelow;
(s) "FEE" has the meaning ascribed to it in section "4.1"
hereinbelow;
(t) "FORM S-8 REGISTRATION STATEMENT" has the meaning ascribed to
it in section "4.3" hereinbelow;
(u) "GENERAL SERVICES" has the meaning ascribed to it in section
"2.1" hereinbelow;
(v) "INDEMNIFIED PARTY" has the meaning ascribed to it in section
"6.1" hereinbelow;
(w) "INITIAL VESTING DATE" has the meaning ascribed to it in
section "4.3" hereinbelow;
(x) "NOTICE OF TERMINATION" has the meaning ascribed to it in each
of sections "3.3", "3.4", "3.5" and "5.6" hereinbelow;
(y) "OPTION" has the meaning ascribed to it in section "4.3"
hereinbelow;
(z) "OPTION PLAN" has the meaning ascribed to it in section "4.3"
hereinbelow;
(aa) "OPTION SHARES" has the meaning ascribed to it in section
"4.3" hereinbelow;
(ab) "PARTIES" or "PARTY" means, individually and collectively, the
Company, and/or the Executive and the Executive's Company
hereto, as the context so requires, together with each of
their respective successors and permitted assigns as the
context so requires;
(ac) "PROPERTY" has the meaning ascribed to it in section "5.7"
hereinbelow;
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(ad) "REGISTRATION STATEMENT" has the meaning ascribed to it in
section "4.3" hereinbelow;
(ae) "REGULATORY APPROVAL" means the acceptance for filing, if
required, of the transactions contemplated by this Agreement
by the Regulatory Authorities;
(af) "REGULATORY AUTHORITIES" and "REGULATORY AUTHORITY" means,
either singularly or collectively as the context so requires,
such regulatory agencies who have jurisdiction over the
affairs of either of the Companies and/or the Executive Group
and including, without limitation, all regulatory authorities
from whom any such authorization, approval or other action is
required to be obtained or to be made in connection with the
transactions contemplated by this Agreement;
(ag) "SEC" has the meaning ascribed to it in section "4.3"
hereinbelow;
(ah) "SECURITIES ACT" has the meaning ascribed to it in section
"4.3" hereinbelow;
(ai) "SUBSIDIARY" means any company or companies of which more than
50% of the outstanding shares carrying votes at all times
(provided that the ownership of such shares confers the right
at all times to elect at least a majority of the directors of
such company or companies) are for the time being owned by or
held for that company and/or any other company in like
relation to that company and includes any company in like
relation to the subsidiary; and
(aj) "VESTED OPTION" has the meaning ascribed to it in section
"4.3" hereinbelow; and
(ak) "VESTING OPTION" has the meaning ascribed to it in section
"4.3" hereinbelow.
1.2 INTERPRETATION. For the purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the words "HEREIN", "HEREOF" and "HEREUNDER" and other words
of similar import refer to this Agreement as a whole and not
to any particular Article, section or other subdivision of
this Agreement;
(b) any reference to an entity shall include and shall be deemed
to be a reference to any entity that is a permitted successor
to such entity; and
(c) words in the singular include the plural and words in the
masculine gender include the feminine and neuter genders, and
VICE VERSA.
ARTICLE 2
GENERAL SERVICES AND DUTIES OF THE EXECUTIVE GROUP
2.1 GENERAL SERVICES. During the continuance of this Agreement the Company
hereby agrees to retain the Executive as the Chief Executive Officer of the
Company, together with the Executive's Company as a consultant to the Company
and to any or all of the Company's subsidiaries, as the case may be, and as may
be determined by the Board of Directors in its sole and absolute discretion from
time to time, and the Executive Group hereby agrees to be subject to the
direction and supervision of, and to have the authority as is delegated to the
Executive Group by, the Board of Directors consistent with such positions, and
the Executive Group also agrees to accept such positions in order to provide
such corporate management related services as the Board of Directors shall, from
time to time, reasonably assign to the Executive Group and as may be necessary
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for the ongoing maintenance and development of the Companies' various Business
interests during the continuance of this Agreement (collectively, the "GENERAL
SERVICES"); it being expressly acknowledged and agreed by the Parties hereto
that the Executive Group shall commit and provide to the Company the General
Services for which the Company, as more particularly set forth hereinbelow,
hereby agrees to pay and provide to the order and direction of the Executive
Group each of the proposed compensation amounts as set forth in Articles "4"
hereinbelow.
In this regard it is hereby acknowledged and agreed that the
Executive Group shall be entitled to communicate with and shall rely upon the
immediate advice, direction and instructions of the Board of Directors, or upon
the advice or instructions of such director or officer of the Company as the
Board of Directors shall, from time to time, in order to initiate, coordinate
and implement the General Services as contemplated herein subject, at all times,
to the final direction and supervision of the Board of Directors.
2.2 ADDITIONAL DUTIES RESPECTING THE GENERAL SERVICES. Without in any
manner limiting the generality of the General Services to be provided as set
forth in section "2.1" hereinabove, it is hereby also acknowledged and agreed
that Executive Group will, during the continuance of this Agreement, provide for
the performance of said General Services faithfully, diligently, to the best of
the Executive Group's abilities and in the best interests of the Companies and,
furthermore, that the Executive Group's time will be prioritized at all times
for the Companies in that regard.
2.3 ADHERENCE TO RULES AND POLICIES OF THE COMPANIES. The Executive Group
hereby acknowledges and agrees to abide by the reasonable rules, regulations,
instructions, personnel practices and policies of the Company and any changes
therein which may be adopted from time to time by the same as such rules,
regulations, instructions, personnel practices and policies may be reasonably
applied to the Executive as the Chief Executive Officer of the Company and to
the Executive's Company as a consultant to the Companies.
ARTICLE 3
EFFECTIVENESS, INITIAL TERM, RENEWAL AND TERMINATION
3.1 EFFECTIVENESS AND INITIAL TERM OF THE AGREEMENT. This Agreement becomes
effective on the Effective Date hereinabove, however, is subject, at all times,
to the Company's prior receipt, if required, of Regulatory Approval from each of
the Regulatory Authorities to the terms and conditions of and the transactions
contemplated by this Agreement. The initial term of this Agreement is for a
period commencing on the Effective Date hereof and ending at the close of
business (Vancouver, British Columbia, Canada, time) one year from the Effective
Date hereof (the "INITIAL TERM").
3.2 RENEWAL BY THE COMPANY AFTER THE INITIAL TERM. Subject at all times
to sections "3.3", "3.4", "3.5" and "5.6" hereinbelow, this Agreement shall
renew automatically if not specifically terminated in accordance with the
following provisions. The Company agrees to notify the Executive's Company in
writing at least 30 calendar days prior to the end of the Initial Term of its
intent not to renew this Agreement (the "COMPANY'S NON-RENEWAL NOTICE"). Should
the Company fail to provide a Company's Non-Renewal Notice this Agreement shall
automatically renew on a month-to-month term renewal basis after the Initial
Term until otherwise specifically renewed in writing by each of the Parties
hereto for the next one-month term of renewal or, otherwise, terminated upon
delivery by the Company of a corresponding and follow-up 30 calendar day
Company's Non-Renewal Notice in connection with and within 30 calendar days
prior to the end of any such one-month term renewal period. Any such renewal on
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a one-month basis shall be on the same terms and conditions contained herein
unless modified and agreed to in writing by the Parties in advance.
3.3 TERMINATION WITHOUT CAUSE BY THE EXECUTIVE'S COMPANY. Notwithstanding
any other provision of this Agreement, this Agreement may be terminated by the
Executive's Company at any time after the Effective Date and during the Initial
Term and during the continuance of this Agreement upon the Executive' Company's
to the Company of prior written notice of its intention to do so (the "NOTICE OF
TERMINATION" herein) at least 30 calendar days prior to the effective date of
any such termination (the end of such 30-day period from such Notice of
Termination being the "EFFECTIVE TERMINATION DATE" herein). In any such event
the Executive Group's ongoing obligation to provide the General Services will
continue only until the Effective Termination Date and, subject to the
following, the Company's ongoing obligation to provide and to pay to the
Executive Group all of the amounts otherwise payable to the Executive Group
under Article "4" hereinbelow will continue only until the Effective Termination
Date.
3.4 TERMINATION WITHOUT CAUSE BY THE COMPANY. Notwithstanding any other
provision of this Agreement, this Agreement may be terminated by the Company at
any time after the Effective Date and during the Initial Term and during the
continuance of this Agreement upon the Company's delivery to the Executive's
Company of prior written notice of its intention to do so (the "NOTICE OF
TERMINATION" herein) at least 30 calendar days prior to the effective date of
any such termination (the end of such 30-day period from such Notice of
Termination being the "EFFECTIVE TERMINATION DATE" herein). In any such event
the Executive Group's ongoing obligation to provide the General Services will
immediately cease upon the date of the Notice of Termination, however, the
Company shall continue to be obligated to provide and to pay to the Executive
Group all of the amounts otherwise payable to the Executive Group under Article
"4" hereinbelow until the Effective Termination Date and including, without
limitation, the Executive Group's then right to exercise any vested portion of
the Option (as hereinafter determined) outstanding until the end of the exercise
term of the Option as set forth under Article "4" hereinbelow.
3.5 TERMINATION FOR CAUSE BY ANY PARTY. Notwithstanding any other provision of
this Agreement, this Agreement may be terminated by any of the Parties hereto at
any time upon written notice to the other Party of such Party's intention to do
so (the "NOTICE OF TERMINATION" herein) at least 10 calendar days prior to the
effective date of any such termination (the end of such ten-day period from such
Notice of Termination being the "EFFECTIVE TERMINATION DATE" herein), and
damages sought, if:
(a) the other Party fails to cure a material breach of any
provision of this Agreement within 10 calendar days from its
receipt of written notice from said Party (unless such
material breach cannot be reasonably cured within said 10
calendar days and the other Party is actively pursuing to cure
said material breach);
(b) the other Party is willfully non-compliant in the performance
of its respective duties under this Agreement within ten
calendar days from its receipt of written notice from said
Party (unless such willful non-compliance cannot be reasonably
corrected within said 10 calendar days and the other Party is
actively pursuing to cure said willful non-compliance);
(c) the other Party commits fraud or serious neglect or misconduct
in the discharge of its respective duties hereunder or under
the law; or
(d) the other Party becomes adjudged bankrupt or a petition for
reorganization or arrangement under any law relating to
bankruptcy, and where any such involuntary petition is not
dismissed within 10 calendar days.
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In any such event the Executive Group's ongoing obligation to provide
the General Services will continue only until the Effective Termination Date
and, subject to the following, the Company's ongoing obligation to provide and
to pay to the Executive Group all of the amounts otherwise payable to the
Executive under Article "4" hereinbelow will continue only until the Effective
Termination Date.
3.6 DISABILITY OR DEATH. Notwithstanding any other provision of this
Agreement, this Agreement may be terminated at any time by any Party within 10
calendar days after the death or disability of the Executive, as a without fault
termination (the resulting effective date of any such termination being herein
also the "EFFECTIVE TERMINATION DATE"). For the purposes of this Agreement the
term "DISABILITY" shall mean the Executive shall have been unable to provide the
General Services contemplated under this Agreement for a period of 30 calendar
days, whether or not consecutive, during any 360 calendar day period, due to a
physical or mental disability. A determination of disability shall be made by a
physician satisfactory to both the Executive and the Company; provided that if
the Executive and the Company do not agree on a physician, the Executive and the
Company shall each select a physician and these two together shall select a
third physician whose determination as to disability shall be binding on all
Parties. In the event that the Executive's position is terminated by death or
because of disability pursuant to this Agreement, the Company shall pay to the
estate of the Executive or to the Executive Group, as the case may be, all
amounts to which the Executive Group would otherwise be entitled under Article
"4" hereinbelow until the Effective Termination Date.
3.7 EFFECT OF TERMINATION. Terms of this Agreement relating to accounting,
payments, confidentiality, accountability for damages or claims and all other
matters reasonably extending beyond the terms of this Agreement and to the
benefit of the Parties hereto or for the protection of the various Business
interests of the Companies shall survive the termination of this Agreement, and
any matter of interpretation thereto shall be given a wide latitude in this
regard. In addition, and without limiting the foregoing, each of sections "3.2",
"3.3", "3.4", "3.5", "3.6" hereinabove and section "5.6" hereinbelow shall
survive the termination of this Agreement.
ARTICLE 4
COMPENSATION OF THE EXECUTIVE GROUP
4.1 FEE. It is hereby acknowledged and agreed that the Executive Group
shall render the General Services as defined hereinabove during the Initial Term
and during the continuance of this Agreement and shall thus be compensated
during the continuance of this Agreement to the termination of the same by way
of the payment by the Company to the Executive Group, or to the further order or
direction of the Executive Group as the Executive Group may determine, in the
Executive Group's sole and absolute discretion, and advise the Company of prior
to such payment, of the gross monthly fee of U.S. $12,500.00 (the "FEE"); (with
the acknowledgement that an additional fee of U.S. $2,500.00 per month has been
paid, and continues to be payable, by the Company to the Executive Group, or its
affiliate or associate, under a pre-existing services arrangement with the
same); with all such Fees being be due and payable by the Company to the
Executive's Company, or to the further order or direction of the Executive Group
as the Executive Group may determine, in the Executive Group's sole and absolute
discretion, and advise the Company of prior to any such Fee payment, bi-monthly
and on or about the fifteenth and thirtieth day of each month of the then
monthly period of General Services during the continuance of this Agreement.
4.2 REIMBURSEMENT OF EXPENSES. It is hereby acknowledged and agreed that
the Executive Group shall also be reimbursed for all direct, reasonable expenses
actually and properly incurred by the Executive Group for the benefit of the
Company (collectively, the "EXPENSES"); and which Expenses, it is hereby
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acknowledged and agreed, shall be payable by the Company to the order, direction
and account of the Executive Group as the Executive Group may designate in
writing, from time to time, in the Executive Group's sole and absolute
discretion, as soon as conveniently possible after the prior delivery by the
Executive Group to the Company of written substantiation on account of each such
reimbursable Expense.
4.3 OPTIONS. Subject to the following, and as soon as reasonably
practicable after the Effective Date hereof (in each case herein being a "DATE
OF GRANT"), it is hereby acknowledged and agreed that the Executive Group will
be granted, subject to the rules and policies of the Regulatory Authorities and
applicable securities legislation, the terms and conditions of the Company's
existing stock option plan (the "OPTION PLAN") and the final determination of
the Board of Directors, acting reasonably, the following incentive stock options
(each being an "OPTION") within the Company:
(a) VESTED OPTION: the Executive Group shall have the initial and
fully vested right and Option to purchase an aggregate of up
to 200,000 Option Shares immediately upon its Date of Grant at
an exercise price of U.S. $0.50 per Option Share for a period
of three years from the Date of Grant (the "EXERCISE TERM"
and, collectively, the "VESTED OPTION" herein); and
(b) VESTING OPTION: subject to the prior and ongoing attainment
by the Company, with the direct assistance of the Executive
Group, of certain pre-determined corporate development
milestones by the Company (collectively, the "DELIVERABLES");
a complete listing of such Deliverables having been agreed
upon by the Parties hereto in advance of the execution of this
Agreement; and subject to the following vesting provisions
unless otherwise accelerated as set forth hereinbelow, the
Executive Group shall have the right and Option to purchase an
aggregate of up to a further 500,000 Option Shares immediately
upon its Date of Grant; which is to occur immediately upon the
attainment by the Company of certain initial Deliverables
which have been agreed upon in advance (herein the "INITIAL
VESTING DATE"), at an exercise price of U.S. $0.31 per Option
Share during the same Exercise Term from its Date of Grant on
the following terms and conditions (collectively, the "VESTING
OPTION" herein):
(i) the Executive Group shall have the initial and fully
vested right to purchase an aggregate of up to 41,663
Option Shares under the Vesting Option immediately on
the Initial Vesting Date; and
(ii) subject to the following provisions for the potential
and ongoing acceleration of the Vesting Option, the
Executive Group's remaining right to purchase an
aggregate of up to the remaining 458,337 Option
Shares under the Vesting Option shall ordinarily vest
in equal monthly proportions over a period of 11
months from the Initial Vesting Date (this portion of
the Initial Vesting Option being herein the "VESTING
OPTION"); with the first such proportion (that being
1/11th or for 41,667 Option Shares) of the Vesting
Option vesting on the day which is one month from the
Initial Vesting Date and with the remaining monthly
proportions of the Vesting Option vesting on the same
day of the month for each of the ensuing 10 months
therefrom. In this regard the Parties hereto hereby
acknowledge and agree that the Board of Directors
may, from time to time, and in its sole and absolute
discretion, acting reasonably, determine to
accelerate the Executive Group's right and
entitlement to exercise all or any portion of the
remaining Vesting Option at any time should the
Company, with the direct assistance of the Executive
Group, successfully achieve, in any manner, any or
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all of the Deliverables prior to the existing vesting
schedule, or otherwise, as delineated herein.
In this regard, and subject also to the following, it is hereby
acknowledged and agreed that the exercise of any of the Options shall be
subject, at all times, to such resale provisions as may then be contained in the
Company's Option Plan and as may be finally determined by the Board of
Directors, acting reasonably. Notwithstanding the foregoing, however, it is
hereby also acknowledged and agreed that, in the event that this Agreement is
terminated in accordance with either of sections "3.2", "3.3", "3.4" or "5.6"
herein, such portion of the within and remaining Options which shall have then
not been exercised on the determined Effective Termination Date shall,
notwithstanding the remaining exercise period of any such Option, then be
exercisable by the Executive for the balance of the Exercise Term of each
particular then Option which has vested on the Effective Termination Date. In
this regard, and in accordance with the terms and conditions of each final form
of Option agreements, the Parties hereby also acknowledge and agree that:
(A) REGISTRATION OF OPTION SHARES UNDER THE OPTIONS: the Company
expects to file with the United States Securities and Exchange
Commission (the "SEC") a registration statement on Form S-8
(the "FORM S-8 REGISTRATION STATEMENT") within 120 calendar
days of initial Date of Grant and covering the issuance of all
Option Shares of the Company underlying the then issued
Options, and such Form S-8 Registration Statement shall comply
with all requirements of the United States SECURITIES ACT OF
1933, as amended (the "SECURITIES ACT"). In this regard the
Company shall use its best efforts to ensure that the Form S-8
Registration Statement remains effective as long as such
Options are outstanding, and the Executive Group fully
understands and acknowledges that these Option Shares will be
issued in reliance upon the exemption afforded under the Form
S-8 Registration Statement which is available only if the
Executive Group acquires such Option Shares for investment and
not with a view to distribution. The Executive Group familiar
with the phrase "acquired for investment and not with a view
to distribution" as it relates to the Securities Act and the
special meaning given to such term in various releases of the
SEC;
(B) SECTION 16 COMPLIANCE: only if applicable, the Company shall
ensure that all grants of the Options are made to ensure
compliance with all applicable provisions of the exemption
afforded under Rule 16b-3 promulgated under the United States
SECURITIES AND EXCHANGE ACT OF 1934, as amended (the "EXCHANGE
ACT"). Without limiting the foregoing, the Company shall have
an independent committee of the Board of Directors approve
each grant of the Options to the Executive Group and, if
required, by the applicable Regulatory Authorities and the
shareholders of the Company. The Company shall file, on behalf
of the Executive Group, all reports required to filed with the
SEC pursuant to the requirements of Section 16(a) under the
Exchange Act and applicable rules and regulations;
(C) DISPOSITION OF ANY OPTION SHARES: the Executive Group further
acknowledges and understands that, without in anyway limiting
the acknowledgements and understandings as set forth
hereinabove, the Executive Group agrees that the Executive
Group shall in no event make any disposition of all or any
portion of the Option Shares which the Executive Group may
acquire hereunder unless and until:
(i) there is then in effect a "REGISTRATION STATEMENT"
under the Securities Act covering such proposed
disposition and such disposition is made in
accordance with said Registration Statement; or
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(ii) (a) the Executive Group shall have notified the
Company of the proposed disposition and shall have
furnished the Company with a detailed statement of
the circumstances surrounding the proposed
disposition, (B) the Executive Group shall have
furnished the Company with an opinion of the
Executive Group's own counsel to the effect that such
disposition will not require registration of any such
Option Shares under the Securities Act and (C) such
opinion of the Executive Group's counsel shall have
been concurred in by counsel for the Company and the
Company shall have advised the Executive Group of
such concurrence; and
(D) PAYMENT FOR ANY OPTION SHARES: it is hereby further
acknowledged and agreed that, during the continuance of this
Agreement, the Executive Group shall be entitled to exercise
any portion of the vested Options granted hereunder and pay
for the same by way of the prior agreement of the Executive
Group, in the Executive Group's sole and absolute discretion,
and with the prior knowledge of the Company, to settle any
indebtedness which may be due and owing by the Company under
this Agreement in payment for the exercise price of any Option
Shares acquired thereunder. In this regard, and subject to
further discussion as between the Company and the Executive
Group, together with the prior approval of the Board of
Directors and the establishment by the Company of an Option
Plan predicated upon the same, it is envisioned that, when the
Company is in a position to afford the same, the Company may
adopt certain additional "cashless exercise" provisions
respecting the granting and exercise of incentive stock
options during the continuance of this Agreement.
4.4 PAYMENT OF COMPENSATION AS A NON-TAXABLE CONSULTANT. It is hereby
acknowledged and agreed that the Executive Group will be classified as a
non-taxable consultant of the Company for all purposes. In this regard, and for
all matters relating to this Agreement therefore, the Executive Group will be a
consultant of the Company under the meaning or application of any and all
applicable federal and state unemployment, insurance and workers' compensation
laws, and otherwise.
ARTICLE 5
ADDITIONAL OBLIGATIONS OF THE EXECUTIVE GROUP
5.1 REPORTING. At such time or times as may be required by the Board
of Directors, acting reasonably, the Executive Group will provide the Board of
Directors with such information concerning the results of the Executive Group's
General Services and activities hereunder for the previous month as the Board of
Directors reasonably require.
5.2 NON-COMPETITION. During the continuance of this Agreement, and for a
period of twelve months following the termination of this Agreement in
accordance with either of sections "3.2", "3.3", "3.4", "3.5", "3.6" or "5.6"
hereunder, the Executive Group shall not enter into any agreement with any third
party whose primary business is the manufacture and distribution of natural or
organic fibers to provide services similar to those provided by the Executive
Group to the Company under this Agreement.
5.3 CONFIDENTIALITY. The Executive Group will not, except as authorized or
required by the Executive Group's duties hereunder, reveal or divulge to any
person or entity any information concerning the organization, business,
finances, transactions or other affairs of the Companies which may come to the
Executive Group's knowledge during the continuance of this Agreement, and the
Executive Group will keep in complete secrecy all confidential information
entrusted to the Executive Group and will not use or attempt to use any such
information in any manner which may injure or cause loss either directly or
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indirectly to the Business interests. This restriction will continue to apply
after the termination of this Agreement without limit in point of time but will
cease to apply to information or knowledge which may come into the public
domain.
5.4 COMPLIANCE WITH APPLICABLE LAWS. The Executive Group will comply with
all Canadian, U.S. and foreign laws, whether federal, provincial or state,
applicable to the Executive Group's duties hereunder and, in addition, hereby
represents and warrants that any information which the Executive Group may
provide to any person or company hereunder will, to the best of the Executive
Group's knowledge, information and belief, be accurate and complete in all
material respects and not misleading, and will not omit to state any fact or
information which would be material to such person or company.
5.5 OPINIONS, REPORTS AND ADVICE OF THE EXECUTIVE GROUP. The Executive
Group acknowledges and agrees that all written and oral opinions, reports,
advice and materials provided by the Executive Group to the Companies in
connection with the Executive Group's engagement hereunder are intended solely
for the Company's benefit and for the Company's uses only, and that any such
written and oral opinions, reports, advice and information are, except as
specifically provided in section "5.7" hereinbelow, the exclusive property of
the Company. In this regard the Executive Group covenants and agrees that the
Company may utilize any such opinion, report, advice and materials for any other
purpose whatsoever and, furthermore, may reproduce, disseminate, quote from and
refer to, in whole or in part, at any time and in any manner, any such opinion,
report, advice and materials in the Company's sole and absolute discretion. The
Executive Group further covenants and agrees that no public references to the
Executive Group or disclosure of the Executive Group's role in respect of the
Companies may be made by the Executive Group without the prior written consent
of the Board of Directors in each specific instance and, furthermore, that any
such written opinions, reports, advice or materials shall, unless otherwise
required by the Board of Directors, be provided by the Executive Group to the
Companies in a form and with such substance as would be acceptable for filing
with and approval by any Regulatory Authority having jurisdiction over the
affairs of the Companies from time to time.
5.6 EXECUTIVE GROUP'S BUSINESS CONDUCT. The Executive Group warrants that
the Executive Group shall conduct the business and other activities in a manner
which is lawful and reputable and which brings good repute to the Companies, the
Business interests and the Executive Group. In particular, and in this regard,
the Executive Group specifically warrants to provide the General Services in a
sound and professional manner such that the same meets superior standards of
performance quality within the standards of the industry or as set by the
specifications of the Company. In the event that the Company has a reasonable
concern that the business as conducted by the Executive Group is being conducted
in a way contrary to law or is reasonably likely to bring disrepute to the
Business interests or to the Companies' or the Executive Group's reputation, the
Company may require that the Executive Group make such alterations in the
Executive Group's business conduct or structure, whether of management or Board
representation or employee or sub-licensee representation, as the Board of
Directors may reasonably require, in its sole and absolute discretion, failing
which the Company, in its sole and absolute discretion, may terminate this
Agreement upon prior written notice to the Executive Group to do so (the "NOTICE
OF TERMINATION" herein) at least 10 calendar days prior to the effective date of
any such termination (the end of such 10-day period from such Notice of
Termination being the "EFFECTIVE TERMINATION DATE" herein). In any such event
the Executive Group's ongoing obligation to provide the General Services will
continue only until the Effective Termination Date and, subject to the
following, the Company's ongoing obligation to provide and to pay to the
Executive Group all of the amounts otherwise payable to the Executive under
Article "4" hereinabove will continue until the Effective Termination Date. In
the event of any debate or dispute as to the reasonableness of the Board of
Directors' request or requirements, the judgment of the Board of Directors shall
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be deemed correct until such time as the matter has been determined by
arbitration in accordance with Article "8" hereinbelow.
5.7 RIGHT OF OWNERSHIP TO THE BUSINESS AND RELATED PROPERTY. The Executive
Group hereby acknowledges and agrees that any and all Business interests,
together with any products or improvements derived therefrom and any trade marks
or trade names used in connection with the same (collectively, the "PROPERTY"),
are wholly owned and controlled by the Company. Correspondingly, neither this
Agreement, nor the General Services or the operation of the Business
contemplated by this Agreement, confers or shall be deemed to confer upon the
Executive Group any interest whatsoever in and to any of the Property. In this
regard the Executive Group hereby further covenants and agrees not to, during or
after the Initial Term and the continuance of this Agreement, contest the title
to any of the Property interests, in any way dispute or impugn the validity of
the Property interests or take any action to the detriment of the Company's
interests therein. The Executive Group acknowledges that, by reason of the
unique nature of the Property interests, and by reason of the Executive Group's
knowledge of and association with the Property interests during the Initial Term
and during the continuance of this Agreement, the aforesaid covenant, both
during the Initial Term of this Agreement and thereafter, is reasonable and
commensurate for the protection of the legitimate Business interests of the
Companies. As a final note, the Executive Group hereby further covenants and
agrees to immediately notify the Company of any infringement of or challenge to
the any of the Property interests as soon as the Executive Group becomes aware
of the infringement or challenge. Notwithstanding the Company's ownership of the
Property, the Parties acknowledge and agree that the Property may contain
certain proprietary Executive Group materials or elements which shall remain the
property of the Executive Group (collectively, the "EXECUTIVE GROUP MATERIALS").
Executive Group Materials are generally used or provided to the clients of the
Executive Group in the normal course of delivering its consulting services and
include, but are not limited to, processes, techniques and know how, and all
intellectual property rights contained herein. The Executive Group grants to the
Company a non-exclusive, non-transferable license to use the Executive Group
Materials embodied within the Property.
The Executive Group hereby assigns to the Company, exclusive of the
Executive Group Materials, its right, title and interest throughout the world in
and to all work performed, writings, formulas, designs, models, drawings,
photographs, design inventions, and other inventions, made, conceived, or
reduced to practice or authored by the Executive Group or by the Executive
Group's employees, either solely or jointly with others, during the performance
of this Agreement, or which are made, conceived, or reduced to practice, or
authored with the use of information or materials of the Companies either
received or used by the Executive Group during the performance of this Agreement
or any extension or renewal thereof. The Executive Group shall promptly disclose
to the Company all works, writings, formulas, designs, models, photographs,
drawings, design inventions and other inventions made, conceived or reduced to
practice, or authored by the Executive Group or the Executive Group's employees
as set forth above. The Executive Group shall sign, execute and acknowledge, or
cause to be signed, executed and acknowledged, at the Company's cost and
expense, applicable patent, trademark or copyright protection throughout the
world upon all such works, writings, formulas, designs, models, drawings,
photographs, design inventions and other inventions; title to which the Company
acquires in accordance with the provisions of this section, subject to the
Executive Group's sole and exclusive rights in the Executive Group Materials.
The Executive Group has acquired or shall acquire from each of the Executive
Group's employees, if any, the necessary rights to all such works, writings,
formulas, designs, models, drawings, photographs, design inventions and other
inventions made by such employees within the scope of their employment by the
Executive Group in performing the General Services under this Agreement. The
Executive Group shall seek to obtain the reasonable cooperation of each such
employee to secure to the Company's or its nominee's the rights to such works,
writings, formulas, designs, models, drawings, photographs, design inventions
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and other inventions as the Company may acquire in accordance with the
provisions of this section.
ARTICLE 6
INDEMNIFICATION AND LEGAL PROCEEDINGS
6.1 INDEMNIFICATION. The Parties hereto hereby each agree to indemnify and
save harmless the other Party hereto and including, where applicable, their
respective subsidiaries and affiliates and each of their respective directors,
officers, employees, consultants, associates, counsel and agents (each such
party being an "INDEMNIFIED PARTY") harmless from and against any and all
losses, claims, actions, suits, proceedings, damages, liabilities or expenses of
whatever nature or kind and including, without limitation, any investigation
expenses incurred by any Indemnified Party, to which an Indemnified Party may
become subject by reason of the terms and conditions of this Agreement.
6.2 NO INDEMNIFICATION. This indemnity will not apply in respect of an
Indemnified Party in the event and to the extent that a Court of competent
jurisdiction in a final judgment shall determine that the Indemnified Party was
grossly negligent or guilty of willful misconduct.
6.3 CLAIM OF INDEMNIFICATION. The Parties hereto agree to waive any right
they might have of first requiring the Indemnified Party to proceed against or
enforce any other right, power, remedy, security or claim payment from any other
person before claiming this indemnity.
6.4 NOTICE OF CLAIM. In case any action is brought against an Indemnified
Party in respect of which indemnity may be sought against either of the Parties
hereto, the Indemnified Party will give both Parties hereto prompt written
notice of any such action of which the Indemnified Party has knowledge and the
relevant Party will undertake the investigation and defense thereof on behalf of
the Indemnified Party, including the prompt employment of counsel acceptable to
the Indemnified Party affected and the relevant Party and the payment of all
expenses. Failure by the Indemnified Party to so notify shall not relieve the
relevant Party of such relevant Party's obligation of indemnification hereunder
unless (and only to the extent that) such failure results in a forfeiture by the
relevant Party of substantive rights or defenses.
6.5 SETTLEMENT. No admission of liability and no settlement of any action
shall be made without the consent of each of the Parties hereto and the consent
of the Indemnified Party affected, such consent not to be unreasonable withheld.
6.6 LEGAL PROCEEDINGS. Notwithstanding that the relevant Party will
undertake the investigation and defense of any action, an Indemnified Party will
have the right to employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of such counsel will be at the
expense of the Indemnified Party unless:
(a) such counsel has been authorized by the relevant Party;
(b) the relevant Party has not assumed the defense of the action
within a reasonable period of time after receiving notice of
the action;
(c) the named parties to any such action include that any Party
hereto and the Indemnified Party shall have been advised by
counsel that there may be a conflict of interest between any
Party hereto and the Indemnified Party; or
(d) there are one or more legal defenses available to the
Indemnified Party which are different from or in addition to
those available to any Party hereto.
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6.7 CONTRIBUTION. If for any reason other than the gross negligence or bad
faith of the Indemnified Party being the primary cause of the loss claim,
damage, liability, cost or expense, the foregoing indemnification is unavailable
to the Indemnified Party or insufficient to hold them harmless, the relevant
Party shall contribute to the amount paid or payable by the Indemnified Party as
a result of any and all such losses, claim, damages or liabilities in such
proportion as is appropriate to reflect not only the relative benefits received
by the relevant Party on the one hand and the Indemnified Party on the other,
but also the relative fault of relevant Party and the Indemnified Party and
other equitable considerations which may be relevant. Notwithstanding the
foregoing, the relevant Party shall in any event contribute to the amount paid
or payable by the Indemnified Party, as a result of the loss, claim, damage,
liability, cost or expense (other than a loss, claim, damage, liability, cost or
expenses, the primary cause of which is the gross negligence or bad faith of the
Indemnified Party), any excess of such amount over the amount of the fees
actually received by the Indemnified Party hereunder.
ARTICLE 7
FORCE MAJEURE
7.1 EVENTS. If either Party hereto is at any time either during this
Agreement or thereafter prevented or delayed in complying with any provisions of
this Agreement by reason of strikes, walk-outs, labour shortages, power
shortages, fires, wars, acts of God, earthquakes, storms, floods, explosions,
accidents, protests or demonstrations by environmental lobbyists or native
rights groups, delays in transportation, breakdown of machinery, inability to
obtain necessary materials in the open market, unavailability of equipment,
governmental regulations restricting normal operations, shipping delays or any
other reason or reasons beyond the control of that Party, then the time limited
for the performance by that Party of its respective obligations hereunder shall
be extended by a period of time equal in length to the period of each such
prevention or delay.
7.2 NOTICE. A Party shall within three calendar days give notice to the
other Parties of each event of FORCE MAJEURE under section "7.1" hereinabove,
and upon cessation of such event shall furnish the other Parties with notice of
that event together with particulars of the number of days by which the
obligations of that Party hereunder have been extended by virtue of such event
of FORCE MAJEURE and all preceding events of FORCE MAJEURE.
ARTICLE 8
ARBITRATION
8.1 MATTERS FOR ARBITRATION. Except for matters of indemnity or in the case
of urgency to prevent material harm to a substantive right or asset, the Parties
agree that all questions or matters in dispute with respect to this Agreement
shall be submitted to arbitration pursuant to the terms hereof. This provision
shall not prejudice a Party from seeking a Court order or assistance to garnish
or secure sums or to seek summary remedy for such matters as counsel may
consider amenable to summary proceedings.
8.2 NOTICE. It shall be a condition precedent to the right of any Party to
submit any matter to arbitration pursuant to the provisions hereof that any
Party intending to refer any matter to arbitration shall have given not less
than five business days' prior written notice of its intention to do so to the
other Parties together with particulars of the matter in dispute. On the
expiration of such five business days the Party who gave such notice may proceed
to refer the dispute to arbitration as provided for in section "8.3"
hereinbelow.
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8.3 APPOINTMENTS. The Party desiring arbitration shall appoint one
arbitrator, and shall notify the other Parties of such appointment, and the
other Parties shall, within five business days after receiving such notice,
appoint an arbitrator, and the two arbitrators so named, before proceeding to
act, shall, within five business days of the appointment of the last appointed
arbitrator, unanimously agree on the appointment of a third arbitrator, to act
with them and be chairperson of the arbitration herein provided for. If the
other Parties shall fail to appoint an arbitrator within five business days
after receiving notice of the appointment of the first arbitrator, and if the
two arbitrators appointed by the Parties shall be unable to agree on the
appointment of the chairperson, the chairperson shall be appointed in accordance
with the scope of the rules of the Arbitration Service of Portland; whose rules
and regulations shall govern the applicable arbitration. The chairperson, or in
the case where only one arbitrator is appointed, the single arbitrator, shall
fix a time and place in Portland, Oregon. U.S.A., for the purpose of hearing the
evidence and representations of the Parties, and the chairperson shall preside
over the arbitration and determine all questions of procedure not provided for
by the Arbitration Act or this section. After hearing any evidence and
representations that the Parties may submit, the single arbitrator, or the
arbitrators, as the case may be, shall make an award and reduce the same to
writing, and deliver one copy thereof to each of the Parties. The expense of the
arbitration shall be paid as specified in the award.
8.4 AWARD. The Parties agree that the award of a majority of the
arbitrators, or in the case of a single arbitrator, of such arbitrator, shall be
final and binding upon each of them.
ARTICLE 9
GENERAL PROVISIONS
9.1 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement to
date between the Parties hereto and supersedes every previous agreement,
expectation, negotiation, representation or understanding, whether oral or
written, express or implied, statutory or otherwise, between the Parties with
respect to the subject matter of this Agreement.
9.2 NO ASSIGNMENT. This Agreement may not be assigned by any Party hereto
except with the prior written consent of the other Parties.
9.3 NOTICE. Each notice, demand or other communication required or
permitted to be given under this Agreement shall be in writing and shall be sent
by prepaid registered mail deposited in a recognized post office and addressed
to the Party entitled to receive the same, or delivered to such Party, at the
address for such Party specified on the front page of this Agreement. The date
of receipt of such notice, demand or other communication shall be the date of
delivery thereof if delivered, or, if given by registered mail as aforesaid,
shall be deemed conclusively to be the third business day after the same shall
have been so mailed, except in the case of interruption of postal services for
any reason whatsoever, in which case the date of receipt shall be the date on
which the notice, demand or other communication is actually received by the
addressee. Any Party may at any time and from time to time notify the other
Parties in writing of a change of address and the new address to which notice
shall be given to it thereafter until further change.
9.4 TIME OF THE ESSENCE. Time will be of the essence of this Agreement.
9.5 ENUREMENT. This Agreement will enure to the benefit of and will be
binding upon the Parties hereto and their respective heirs, executors,
administrators and assigns.
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9.6 CURRENCY. Unless otherwise stipulated, all payments required to be
made pursuant to the provisions of this Agreement and all money amount
references contained herein are in lawful currency of the United States of
America.
9.7 FURTHER ASSURANCES. The Parties will from time to time after the
execution of this Agreement make, do, execute or cause or permit to be made,
done or executed, all such further and other acts, deeds, things, devices and
assurances in law whatsoever as may be required to carry out the true intention
and to give full force and effect to this Agreement.
9.8 REPRESENTATION AND COSTS. It is hereby acknowledged by each of the
Parties hereto that Lang Michener LLP, Lawyers - Patent & Trade Mark Agents,
acts solely for the Company, and, correspondingly, that the Executive Group has
been required by each of Lang Michener LLP and the Company to obtain independent
legal advice with respect to its review and execution of this Agreement. In
addition, it is hereby further acknowledged and agreed by the Parties hereto
that Lang Michener LLP, and certain or all of its principal owners or
associates, from time to time, may have both an economic or shareholding
interest in and to Company and/or a fiduciary duty to the same arising from
either a directorship, officership or similar relationship arising out of the
request of the Company for certain of such persons to act in a similar capacity
while acting for the Company as counsel. Correspondingly, and even where, as a
result of this Agreement, the consent of each Party hereto to the role and
capacity of Lang Michener LLP, and its principal owners and associates, as the
case may be, is deemed to have been received, where any conflict or perceived
conflict may arise, or be seen to arise, as a result of any such capacity or
representation, each Party hereto acknowledges and agrees to, once more, obtain
independent legal advice in respect of any such conflict or perceived conflict
and, consequent thereon, Lang Michener LLP, together with any such principal
owners or associates, as the case may be, shall be at liberty at any time to
resign any such position if it or any Party hereto is in any way affected or
uncomfortable with any such capacity or representation. Each Party to this
Agreement will also bear and pay its own costs, legal and otherwise, in
connection with its respective preparation, review and execution of this
Agreement and, in particular, that the costs involved in the preparation of this
Agreement, and all documentation necessarily incidental thereto, by Lang
Michener LLP, shall be at the cost of the Company.
9.9 APPLICABLE LAW. This Agreement shall be governed by the laws of the
State of Oregon, U.S.A., and applicable United States federal law.
9.10 SEVERABILITY AND CONSTRUCTION. Each Article, section, paragraph, term
and provision of this Agreement, and any portion thereof, shall be considered
severable, and if, for any reason, any portion of this Agreement is determined
to be invalid, contrary to or in conflict with any applicable present or future
law, rule or regulation in a final unappealable ruling issued by any court,
agency or tribunal with valid jurisdiction in a proceeding to which any Party
hereto is a party, that ruling shall not impair the operation of, or have any
other effect upon, such other portions of this Agreement as may remain otherwise
intelligible (all of which shall remain binding on the Parties and continue to
be given full force and effect as of the date upon which the ruling becomes
final).
9.11 CAPTIONS. The captions, section numbers and Article numbers appearing
in this Agreement are inserted for convenience of reference only and shall in no
way define, limit, construe or describe the scope or intent of this Agreement
nor in any way affect this Agreement.
9.12 COUNTERPARTS. This Agreement may be signed by the Parties hereto in as many
counterparts as may be necessary, and via facsimile if necessary, each of which
so signed being deemed to be an original and such counterparts together
constituting one and the same instrument and, notwithstanding the date of
execution, being deemed to bear the Effective Date as set forth on the front
page of this Agreement.
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9.13 NO PARTNERSHIP OR AGENCY. The Parties have not created a partnership
and nothing contained in this Agreement shall in any manner whatsoever
constitute any Party the partner, agent or legal representative of the other
Parties, nor create any fiduciary relationship between them for any purpose
whatsoever.
9.14 CONSENTS AND WAIVERS. No consent or waiver expressed or implied by
either Party in respect of any breach or default by the other in the performance
by such other of its obligations hereunder shall:
(a) be valid unless it is in writing and stated to be a consent or
waiver pursuant to this section;
(b) be relied upon as a consent to or waiver of any other breach
or default of the same or any other obligation;
(c) constitute a general waiver under this Agreement; or
(d) eliminate or modify the need for a specific consent or waiver
pursuant to this section in any other or subsequent instance.
IN WITNESS WHEREOF each of the Company and the Executive's Company has
duly executed this Agreement as of the Effective Date first provided
hereinabove.
The COMMON SEAL of )
NATURALLY ADVANCED )
TECHNOLOGIES INC., )
the Company herein, )
was hereunto affixed in the presence of: ) (C/S)
)
)
___________________________________________ )
Authorized Signatory )
The COMMON SEAL of )
THE MERIWETHER GROUP, INC., )
the Executive's Company herein, )
was hereunto affixed in the presence of: ) (C/S)
)
)
__________________________________________ )
Authorized Signatory )