Attached files
Exhibit 10.21
LOOP CANADA INC.
EMPLOYMENT AGREEMENT
This Employment Agreement (the
“Agreement”) is dated as of February 23, 2021, by and between
Thomas Andrew
Hickey (the
“Executive”) and Loop Canada Inc. (the
“Company”).
1. Duties.
1.1 Position.
The Executive is employed as Chief Financial
Officer, reporting to the
Founder and Chief Executive Officer (the “CEO”)
of the Company. The duties and
responsibilities of the Executive shall be commensurate with the
position of an individual providing the same type of services in a
similar company. The Executive shall perform such duties as from
time to time may be prescribed for them by the
Company.
1.2 Obligations to the
Company. The Executive agrees
to the best of their ability and experience that they will at all
times loyally and conscientiously perform all of the duties and
obligations required of and from the Executive pursuant to the
express and implicit terms hereof, and to the reasonable
satisfaction of the Company. During the term of the
Executive’s employment relationship with the Company, the
Executive further agrees that they will devote all of their
business time and attention to the business of the Company, on a
full-time basis, and the Executive will not render commercial or
professional services of any nature to any person or organization,
whether or not for compensation, without the prior written consent
of the CEO1 which consent shall not be unreasonably withheld.
The Executive will comply with and be bound by the Company’s
operating policies, procedures and practices from time to time in
effect during the term of the Executive’s
employment.
2. Term
of Employment. The
Executive’s employment hereunder shall be for an
indeterminate term and shall commence on March 1, 2021 or such
later date as the parties may agree (“Commencement
Date”).
3. Compensation.
For the duties and services to be performed by the Executive
hereunder, the Company shall pay the Executive in Canadian
currency, and the Executive agrees to accept, the salary and other
benefits described below in this Section 3.
3.1 Salary.
The Executive shall receive a yearly base salary of CA$375,000. The
Executive’s salary will be payable pursuant to the
Company’s normal payroll practices for payment of salary to
executive employees. The Executive’s base salary will be
reviewed as part of the Company’s normal salary review
process.
3.2 Employee Benefit
Plans. Executive shall
participate in the employee benefit plans, programs and policies
maintained by or for the Company for similarly situated employees
in accordance with the terms and conditions to participate in such
plans, programs and policies as in effect from time to time. The
introduction and administration of benefit plans, programs and
policies are within the Company’s sole discretion and the
introduction, deletion or amendment of any benefit plan, program or
policy will not constitute a breach of this Employment
Agreement.
1
The Company
consents to and acknowledges that the Executive has been sitting on
the Board of Directors of Air Tindi and Top Aces Holding Inc. and
will continue to do so following the Commencement Date. In doing
so, the Executive shall at all times maintain the confidentiality
of the Company’s confidential and proprietary information
pursuant to the terms hereof.
3.3 Annual Cash Incentive
Award. The Executive shall be
eligible for an annual incentive award opportunity, which is the
short-term incentive for the Executive, which will be paid in cash
(the “Annual
Incentive”). Specific
goals will be defined by the CEO, as agreed upon by the Executive
as to individual Executive goals. Depending upon the level of
performance achieved relative to the specified goals (threshold,
target or maximum), the Executive can earn an Annual Incentive in
the amount of 30% of base salary for threshold performance, 50% of
base salary for target performance and a maximum of 100% of base
salary for achievement of maximum performance. If performance
relative to the specified goals is below threshold performance,
there would be no award. For scalable goals, interpolation can be
applied between award levels; otherwise, goals will be binary and
cumulative. The Annual Incentive will be paid within thirty (30)
days of determination of annual performance and approval by the
Board. The Executive will be eligible for the Annual Incentive
starting with the fiscal year ending February 28,
2022.
3.4 Up-Front Equity
Incentive Award. Effective on
or shortly after the date of hire and upon approval by the Board,
the Executive will receive a one-time grant of time vesting
restricted stock units (“the RSUs”) with a grant date
fair value of C$2,000,000 (the “Up-Front Award”). This
restricted stock unit award will vest on the anniversary of the
date of Board approval of the grant as follows:
●
Year
1: 0%;
●
Year
2: 0%;
●
Year
3: 20%;
●
Year
4: 20%;
and
●
Year
5: 60%.
RSUs
earned will be settled in shares of the Company’s common
stock within sixty (60) days following the vesting
date.
The
terms and conditions of the incentive awards shall at all times be
governed by the Loop Industries, Inc. 2017 Equity Incentive Plan
(or any successor plan or plans governing executive incentive
awards). The Compensation Committee may make changes to the form of
the equity incentive plan at any time if it is concluded that it is
in the best interest of the Company.
3.5 Executive Plans and
Policies. Executive will be
subject to and comply with any clawback (recoupment) policy, stock
ownership/retention guidelines and other plans or polices
applicable to other executive positions of a comparable level that
the Company may adopt or amend, from time to time in its own
discretion. For the purposes hereof, Company acknowledges that
there are no stock ownership/retention guidelines currently in
place.
3.6 Vacation.
The Executive shall be eligible for four (4) weeks of paid vacation
per calendar year, which vacation time shall be taken at such time
or times in each year so as not to materially and adversely
interfere with the business of the Company. The vacation
entitlement is acquired during the reference payment period, which
is from January 1 to December 31. Such entitlement will be prorated
for the calendar year in which the Executive commences employment
and for any other year of partial employment. Payment of all
vacation pay will be at base salary. Such vacation entitlement is
in addition to any Company closures for any holiday period. Unused
vacation may not be carried over from any one-year period to any
other period and will be forfeited.
3.7 Relocation
Allowance. The Executive shall
be entitled to a relocation allowance of C$25,000 payable in
monthly instalments over a maximum of a 12 months in order to cover
the rental costs of an apartment in the greater Montréal area.
In addition, the Executive shall also be entitled to the
reimbursement of up to C$25,000 in documented long-term
relocation/moving expenses.
4. Termination
of Employment. The Executive or
the Company may end the Executive’s employment as described
below. The Executive will always receive all accrued base salary,
any accrued and unused vacation pay, any unpaid expenses owing and
any other amounts required by the Québec Act Respecting Labour
Standards, as amended or replaced (all such legislation referred to
as the “ARLS”) up to their last day of employment,
payable in one lump sum within 30 days of termination
(collectively, the “Termination Date
Amount”).
4.1 Voluntary
Termination. The
Executive may terminate this Agreement
by voluntary resignation upon giving a minimum of 30 days’
advance written notice to the Company (the
“Resignation Notice
Period”). Upon any
termination under this Section 4.1, the Company shall pay the
Executive the Termination Date Amounts. The Company may, at any
time during the Resignation Notice Period, relieve the Executive
from all or any of their duties for all or part of the remainder of
the Resignation Notice Period. This may include a requirement that
the Executive stay away from all or any of the Company’s
premises, not be provided with any work, and/or have no business
contact with all or any of the Company’s agents, employees,
customers, clients, distributors and suppliers. Whether or not the
Executive is relieved of any duties during the Resignation Notice
Period, the Executive will be paid their base salary and any other
benefits in accordance with this Agreement, their employment will
not be terminated by any removal of duties, their employment will
continue during the Resignation Notice Period and they will
continue to be bound by their obligations under this Agreement.
Executive will not disclose their resignation without the prior
approval of the Company. The Company will comply with all
requirements of applicable employment standards legislation
including the ARLS in respect of the termination of the
Executive’s employment, and the Company shall not have any
further obligation to Executive.
4.2 Termination for
Serious Reason. This Agreement
may be terminated immediately by the Company at any time for
Serious Reason as defined in section 5.1 below. Upon any
termination under this Section 4.2, the Company shall pay the
Executive the Termination Date Amount. The Company will not be
required to provide any form of advance notice of termination, pay
in lieu of such notice, or any form of severance pay, except as
required by applicable employment standards legislation, including
the ARLS. Any unvested award (including any unvested Annual
Incentive or Up-Front Award) will immediately cease to vest and be
terminated.
4.3 Termination Without
Serious Reason by the Company
4.3.1
The Company may terminate this Agreement at any
time and without notice or Serious Reason by providing the
Executive with payment of the Termination Date Amount, and the
payment of severance benefits consisting of cash severance set
forth below (the “Separation
Package”). The Separation
Package shall be: (i) the Annual Incentive prorated to the date of
termination based on actual performance, payable in one lump-sum
within the later of thirty (30) days of termination for time based
awards or shortly after performance is determined at the end of the
next quarterly reporting period for performance awards, and (ii)
severance benefits (less applicable deductions and withholdings)
(the “Severance
Benefits”) as
follows:
a)
Eighteen
(18) months of the Executive’s then-current base
salary;
b)
Notwithstanding Section 3.4, the Up-Front Award
will be treated and paid out as if vested ratably over a period of
sixty (60) months from the date
of Board approval, with a minimum guaranteed vesting of 20% of the
Up-Front Award. Any RSUs vested under the Up-Front Award as of the
date of termination shall be payable in one lump sum within thirty
(30) days of termination. Any unvested RSUs on the date of
termination will be forfeited.
The Executive acknowledges that the foregoing
arrangements fully satisfy the Company’s obligations in
respect of the termination of the Executive’s employment and
irrevocably agrees that the foregoing arrangements constitute an
appropriate indemnity in lieu of reasonable notice, in full
compliance with the Executive’s entitlements under the Civil
Code of Quebec (the “CCQ”) having explicit regard for the nature of
the employment, the specific circumstances in which it is carried
on and the duration of the period of work. The Executive further
acknowledges that entitlements herein have been specifically
negotiated by Executive prior to the Commencement
Date.
4.3.2
The
Company’s obligation to pay the Separation Package and other
amounts set forth in Section 4.3.1 above (other than the
Termination Date Amount) is conditional upon the Executive’s
ongoing compliance with the post-employment covenants contained in
Sections 6 and 8 of this Agreement. In the event that the Executive
breaches the post-employment covenants contained in Sections 6 or
8, the Executive will remain bound by all of the terms of this
Agreement, any payments made pursuant to the Separation Package
will automatically cease, and the Executive will be required to
return any payments already made pursuant to the Separation Package
(other than the Termination Date Amount). Notwithstanding the
cessation and/or return of payments, the Executive will at no point
receive payment pursuant to the Separation Package that is less
than the minimum amount of payment required to comply with
applicable legislation, including the ARLS.
4.3.3
The
Company’s obligation to pay the Separation Package and other
amounts set forth in Section 4.3.1 above (other than the
Termination Date Amount) is conditional upon the Executive signing,
in the presence of a witness, a full and final release in a form
satisfactory to the Company and delivering an original executed
copy of the full and final release to the Company within thirty
(30) days after the date of termination. If the Executive fails to
execute the full and final release, the Executive will not be
entitled to the Separation Package and will instead receive only
the Termination Date Amount and such other payments and benefit
continuation as are required by the ARLS, if any.
4.4 Change of
Control. In the event of a
Change of Control resulting in termination without Serious Reason
or resignation by the Executive for Good Reason within two years of
the Change of Control, the Executive’s entitlements and the
terms and conditions noted in section 4.3 with respect to the
Separation Package shall apply. Any unvested Up-Front Award will
become 100% vested. The Up-Front Award shall be payable in one lump
sum within 30 days of termination.
4.5 No Further
Rights. The Executive shall
have no further entitlements upon termination except, if necessary,
to comply with the minimum requirements of the ARLS. The Executive
acknowledges that the foregoing arrangements fully satisfy the
Company’s and all affiliates’ obligations to them in
respect of the termination of their employment and they agree that
the foregoing arrangements constitute reasonable notice in
accordance with the CCQ and that they will not be entitled to
further notice of termination, severance pay, incentive
compensation, damages or other compensatory payments under common
law, civil law or contract.
4.6 Return of Company
Property. All equipment,
documents or any other materials of any kind created or used by the
Executive in the course of employment, or otherwise furnished by
the Company or its customers, suppliers, distributors, employees or
consultants in the Executive’s possession or control, shall
be surrendered to the Company, in good condition, promptly upon the
Executive’s termination of employment, irrespective of the
time, manner or cause of termination.
5. Definitions.
For purposes of this Agreement, the following definitions shall
apply:
5.1 “Serious
Reason” means a serious
reason pursuant to Article 2094 of the CCQ and includes, without
limitation, (a) the Executive’s breach of a material term of
this Agreement; (b) the Executive’s conviction of a criminal
offence involving fraud or dishonesty, or which otherwise adversely
impacts the reputation of the Company; (c) the Executive directly
or indirectly making personal profit out of or in connection with a
transaction or business opportunity to which the Company is
involved or otherwise associated with, without making disclosure to
and seeking the prior written consent of the Company; (d) the
Executive’s failure to comply with any Company rules or
policies of a material nature; (e) the Executive’s continued
failure to substantially perform their job duties; (f) any actions
or omissions on the Executive’s part constituting gross
misconduct or negligence in connection with the business of the
Company.
5.2 “Change of
Control” means a sale of
all or substantially all of the shares or assets of the Company or
the Company’s parent, Loop Industries, Inc.
(“Loop”), or any merger or consolidation of the Company
or Loop with or into another corporation other than a merger or
consolidation in which the holders of more than 50% of the total
voting power represented by the voting securities of the Company or
Loop outstanding immediately prior to such transaction continue to
hold (either by the voting securities remaining outstanding or by
their being converted into voting securities of the surviving
entity) more than 50% of the total voting power represented by the
voting securities of the Company or Loop, or such surviving entity,
outstanding immediately after such transaction.
6. Confidentiality
Agreement. The Executive has
signed a Proprietary Information and Inventions Agreement (the
“Proprietary
Agreement”) that is
incorporated by reference and made a part of this Agreement and the
form of which is attached hereto as Schedule “A”. The
Executive hereby represents and warrants to the Company that the
Executive has complied with all obligations under the Proprietary
Agreement and agrees to continue to abide by the terms of the
Proprietary Agreement and further agrees that the provisions of the
Proprietary Agreement shall survive any termination of this
Agreement or of the Executive’s employment relationship with
the Company in accordance with the terms of the Proprietary
Agreement.
7. Confidentiality
of Terms. The Executive agrees
to follow the Company’s strict policy that employees must not
disclose, either directly or indirectly, any information, including
any of the terms of this Agreement, regarding salary or stock
purchase allocations to any person, including other employees of
the Company (other than such employees who have a need to know such
information); provided, however, that the Executive may discuss
such terms with members of their immediate family and any legal,
tax or accounting specialists who provide the Executive with
individual legal, tax or accounting advice. Notwithstanding
anything to the contrary herein, disclosure of such information
shall not be precluded if such disclosure is in response to a valid
order of a court or governmental body or is otherwise required by
law.
8. Covenants.
This Agreement is conditional upon the Executive signing and
agreeing to be bound to the Non-Competition, Non-Solicitation and
Non-Disparagement Agreement attached as Schedule “B” to
this Agreement (the “Non-Competition,
Non-Solicitation and Non-Disparagement Agreement”), which the Executive agrees to execute
and deliver to the Company in connection with this Agreement and is
incorporated by reference.
9. Breach
of the Agreement. The Executive
acknowledges that upon their breach of this Agreement or the
Proprietary Agreement, the Company would sustain irreparable harm
from such breach, and, therefore, the Executive agrees that in
addition to any other remedies which the Company may have under
this Agreement or otherwise, the Company shall be entitled to
obtain equitable relief, including specific performance and
injunctions, restraining the Executive from committing or
continuing any such violation of this Agreement or the Proprietary
Agreement. The Executive acknowledges and agrees that upon the
Executive’s material or intentional breach of any of the
provisions of the Agreement (including Sections 6 and 8) or the
Proprietary Agreement, in addition to any other remedies the
Company may have under this Agreement or otherwise, the
Company’s obligations to provide benefits to the Executive as
described in this Agreement, including without limitation those
benefits provided in Section 4, shall immediately terminate, except
as required by applicable law.
10. Entire
Agreement. This Agreement,
together with its Exhibits and Schedules (including the Proprietary
Agreement and the Non-Competition, Non-Solicitation and
Non-Disparagement Agreement), sets forth the entire agreement and
understanding of the parties relating to the subject matter herein,
supersedes any prior agreement, and merges all prior discussions
between them.
11. Conflicts.
The Executive represents and warrants that their performance of all
the terms of this Agreement will not breach any other agreement or
understanding to which the Executive is a party. The Executive has
not, and will not during the term of this Agreement, enter into any
oral or written agreement in conflict with any of the provisions of
this Agreement.
12. Dispute
Resolution. Any dispute,
controversy or claim arising under or in connection with this
Agreement, or the breach hereof (including a dispute as to whether
Serious Reason or Resignation for Good Reason exists), shall be
settled by the competent courts of the Province of Québec,
district of Montreal. Each party shall pay their or its own costs
(including lawyers’ fees) in connection with such court
proceeding except that the Company shall pay the fees and expenses
of the Executive if the Executive is the ultimate successful party
in the dispute as determined in a final, non-appealable judgement.
Notwithstanding the foregoing, the Company shall be entitled to
seek equitable relief directly from a court of competent
jurisdiction with respect to any alleged breach of the Proprietary
Agreement or Sections 6 and 8, including specific performance and
injunctions, restraining the Executive from committing or
continuing to commit such alleged breach.
13. Successors.
Any successor to the Company (whether direct or indirect and
whether by purchase, lease, merger, consolidation, liquidation or
otherwise) to all or substantially all of the Company’s
business and/or assets shall assume the obligations under this
Agreement and agrees expressly to perform the obligations under
this Agreement in the same manner and to the same extent as the
Company would be required to perform such obligations in the
absence of a succession. The terms of this Agreement and all of the
Executive’s rights hereunder shall inure to the benefit of,
and be enforceable by, the Executive’s personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
14. Miscellaneous
Provisions.
14.1 Amendments and
Waivers. Any term of this
Agreement may be amended or waived only with the written consent of
the parties. The failure by either party to enforce any rights
under this Agreement shall not be construed as a waiver of any
rights of such party.
14.2 Notices.
Any notice required or permitted by this Agreement shall be in
writing and shall be deemed sufficient upon receipt, when delivered
personally or by a nationally-recognized delivery service (such as
Federal Express or UPS), or forty-eight (48) hours after being
deposited in the mail as certified or registered mail with postage
prepaid, if such notice is addressed to the party to be notified at
such party’s address as set forth below or as subsequently
modified by written notice.
14.3 Choice of
Law. The validity,
interpretation, construction and performance of this Agreement
shall be governed by the laws of the Province of Québec, and
the federal laws of Canada applicable therein, without giving
effect to its or any other jurisdiction’s principles of
conflict of laws.
14.4 Severability.
If one or more provisions of this Agreement are held to be
unenforceable under applicable law then (i) such provision shall be
excluded from this Agreement, (ii) the balance of the Agreement
shall be interpreted as if such provision were so excluded and
(iii) the balance of the Agreement shall be enforceable in
accordance with its terms.
14.5 Counterparts.
This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which together will constitute
one and the same instrument.
14.6 Advice of
Counsel. Each party to this
agreement acknowledges that, in executing this Agreement, such
party has had the opportunity to seek the advice of independent
legal counsel and has read and understood all of the terms and
provisions of this Agreement. This Agreement shall not be construed
against any party by reason of the drafting of preparation
hereof.
14.7 Language.
The parties hereto have expressly
required that this agreement and documents ancillary thereto be
drafted in the English language. Les parties à la
présente ont expressément exigé que le présent
accord et les documents afférents soient rédigés en
langue anglaise.
(Signature
page follows)
The
parties have executed this Employment Agreement as of the date
first written above.
The Company:
LOOP CANADA INC.
By:
________________________________
Daniel Solomita
Founder and Chief Executive Officer
Executive:
_________________________________
Thomas Andrew Hickey
SCHEDULE A
PROPRIETARY INFORMATION AND
INVENTIONS AGREEMENT
LOOP CANADA INC.
In consideration of my employment or consultancy
(as the case may be) by LOOP Canada Inc. (the
“Company”, which term includes the Company’s
parent, LOOP Industries, Inc., and any of their respective
subsidiaries and affiliates), any opportunity for advancement or
reassignment that the Company may offer me, the compensation paid
to me in connection with such employment and any stock and/or stock
options which have been or may be granted to me by the Company,
I, Thomas
Andrew Hickey, hereby agree as
follows:
1.
Whenever used in this Agreement the following terms will have the
following meanings:
1.1 “Invention(s)”
means discoveries, developments, designs, improvements, inventions
and/or works of authorship, whether or not patentable,
copyrightable or otherwise legally protectable. This includes, but
is not limited to, any new machine, article of manufacture,
biological material, method, process, technique, use, equipment,
device, apparatus, system, compound, formulation, composition of
matter, design or configuration of any kind, or any improvement
thereon.
1.2 “Proprietary
Information” means
information or physical material not generally known or available
outside the Company or information or physical material entrusted
to the Company by third parties. This includes, but is not limited
to, Inventions, confidential knowledge, trade secrets, copyrights,
product ideas, techniques, processes, formulas, object codes,
biological materials such as nucleic acids, proteins, organisms,
strands, cell lines, antibodies or antigen source materials, or
fragments thereof, mask works and/or any other information of any
type relating to documentation, data, schematics, algorithms, flow
charts, mechanisms, research, manufacture, improvements, assembly,
installation, marketing, forecasts, pricing, customers, the
salaries, duties, qualifications, performance levels and terms of
compensation of other employees, and/or cost or other financial
data concerning any of the foregoing or the Company and its
operations. Proprietary Information may be contained in material
such as drawings, samples, procedures, specifications, reports,
studies, customer or supplier lists, budgets, cost or price lists,
compilations or computer programs, or may be in the nature of
unwritten knowledge or know-how.
1.3 “Company
Documents” means
documents or other media that contain Proprietary Information or
any other information concerning the business, operations or plans
of the Company, whether such documents have been prepared by me or
by others. “Company Documents” include, but are not
limited to, blueprints, drawings, photographs, charts, graphs,
notebooks, customer lists, computer disks, tapes or printouts,
sound recordings and other printed, typewritten or handwritten
documents.
2.
I understand that the Company is engaged in a continuous program of
research, development and production. I also recognize that the
Company possesses or has rights to Proprietary Information
(including certain information developed by me during my employment
or consultancy (as the case may be) by the Company that has
commercial value in the Company’s business.
3.
I understand that the Company possesses Company Documents that are
important to its business.
4.
I understand and agree that my employment or consultancy (as the
case may be) creates a relationship of confidence and trust between
me and the Company with respect to (i) all Proprietary Information
and (ii) the confidential information of another person or entity
with which the Company has a business relationship and is required
by terms of an agreement with such entity or person to hold such
information as confidential. At all times, both during my
employment or consultancy (as the case may be) by the Company and
after its termination, I will keep in confidence and trust all such
information, and I will not use or disclose any such information
without the written consent of the Company, except as may be
necessary in the ordinary course of performing my duties to the
Company.
5.
In addition, I hereby agree as follows:
5.1
All Proprietary Information will be the sole property of the
Company and its assigns, and the Company and its assigns will be
the sole owner of all trade secrets, patents, copyrights and other
rights in connection therewith. I hereby assign to the Company any
rights I may presently have, or I may acquire in such Proprietary
Information.
5.2
All Company Documents, apparatus, equipment and other physical
property, whether or not pertaining to Proprietary Information,
furnished to me by the Company or produced by me or others in
connection with my employment or consultancy (as the case may be)
will be and remain the sole property of the Company. I will return
to the Company all such Company Documents, materials and property
as and when requested by the Company, excepting only (i) my
personal copies of records relating to my compensation; (ii) my
personal copies of any materials previously distributed generally
to stockholders of the Company; and (iii) my copy of this Agreement
(my “Personal Documents”). Even if the Company does not
so request, I will return all such Company Documents, materials and
property upon termination of my employment or consultancy (as the
case may be) by me or by the Company for any reason, and, except
for my Personal Documents, I will not take with me any such Company
Documents, material or property or any reproduction thereof upon
such termination.
5.3
I will promptly disclose to the Company, or any persons designated
by it, all Inventions relating to the Field, as defined below, made
or conceived, reduced to practice or created by me, either alone or
jointly with others, prior to the term of my employment or
consultancy (as the case may be) and for one (1) year thereafter.
For purposes of this Agreement, “Field” means research,
development, marketing or manufacturing of any products also
researched, developed, marketed or manufactured by the
Company.
5.4
All Inventions that I conceive, reduce to practice, develop or have
developed (in whole or in part, either alone or jointly with
others) during the term of my employment or consultancy (as the
case may be) in connection with the business of the Company will be
the sole property of the Company and its assigns to the maximum
extent permitted by law (and to the fullest extent permitted by law
will be deemed “works made for hire”), and the Company
and its assigns will be the sole owner of all patents, copyrights
and other rights in connection therewith. I hereby assign to the
Company my entire right, title and interest, whether possessed now
or later acquired, in such Inventions. I agree that any Invention
required to be disclosed under paragraph 5.3 above within one (1)
year after the term of my employment or consultancy (as the case
may be) will be presumed to have been conceived during my
employment or consultancy (as the case may be). I understand that I
may overcome the presumption by showing that such Invention was
conceived after the termination of my employment or consultancy (as
the case may be).
5.5
During or after my employment, upon the Company’s request and
at the Company’s expense, I will execute all papers in a
timely manner and do all acts necessary to apply for, secure,
maintain or enforce patents, copyrights and any other legal rights
in Inventions assigned to the Company under this Agreement, and I
will execute all papers and do any and all acts necessary to assign
and transfer to the Company or any person or party to whom the
Company is obligated to assign its rights, my entire right, title
and interest in and to such Inventions. This obligation will
survive the termination of my employment or consultancy (as the
case may be), but the Company will compensate me at a reasonable
rate after such termination for time actually spent by me at the
Company’s request on such assistance. In the event that the
Company is unable for any reason whatsoever to secure my signature
to any document reasonably necessary or appropriate for any of the
foregoing purposes, (including renewals, extensions, continuations,
divisions or continuations in part), I hereby irrevocably designate
and appoint the Company and its duly authorized officers and agents
as my agents and attorneys-in-fact to act for and in my behalf and
instead of me, but only for the purpose of executing and filing any
such document and doing all other lawfully permitted acts to
accomplish the foregoing purposes with the same legal force and
effect as if executed by me.
5.6
So that the Company may be aware of the extent of any other demands
upon my time and attention, I will disclose to the Company (such
disclosure to be held in confidence by the Company) the nature and
scope of any other business activity in which I am or become
engaged during the term of my employment or consultancy (as the
case may be). During the term of my employment or consultancy (as
the case may be), I will not engage in any other business activity
that is related to the Company’s business or its actual or
demonstrably anticipated research and development.
6. As a matter of record I attach hereto as
Exhibit
A a complete list of all
Inventions (including patent applications and patents) relevant to
the Field that have been made, conceived, developed or first
reduced to practice by me, alone or jointly with others, prior to
my employment or consultancy (as the case may be) with the Company
that I desire to remove from the operation of this Agreement, and I
covenant that such list is complete. If no such list is attached to
this Agreement, I represent that I have no such Inventions at the
time of signing this Agreement. If in the course of my employment
or consultancy with the Company, I use or incorporate into a
product or process an Invention not covered by Paragraph 5.4 of
this Agreement in which I have an interest, the Company is hereby
granted a nonexclusive, fully paid-up, royalty-free, perpetual,
worldwide license of my interest to use and sublicense such
Invention without restriction of any kind.
7.
I represent that my execution of this Agreement, my employment or
consultancy (as the case may be) with the Company and my
performance of my proposed duties to the Company in the development
of its business will not violate any obligations I may have to any
former employer, or other person or entity, including any
obligations to keep confidential any proprietary or confidential
information of any such employer. I have not entered into, and I
will not enter into, any agreement that conflicts with or would, if
performed by me, cause me to breach this Agreement.
8.
In the course of performing my duties to the Company, I will not
utilize any proprietary or confidential information of any former
employer.
9.
This Agreement will be effective as of the first day of my
employment or consultancy (as the case may be) by the Company and
the obligations hereunder will continue beyond the termination of
my employment and will be binding on my heirs, assigns and legal
representatives. This Agreement is for the benefit of the Company,
its successors and assigns (including all subsidiaries, affiliates,
joint ventures and associated companies) and is not conditioned on
my employment for any period of time or compensation therefor. I
agree that the Company is entitled to communicate any obligations
under this Agreement to any future employer or potential employer
of mine.
10.
I agree that any dispute in the meaning, effect or validity of this
Agreement will be resolved in accordance with the laws of the
Province of Quebec without regard to its or any other
jurisdiction’s conflict of law’s provisions. I further
agree that if one or more provisions of this Agreement are held to
be unenforceable under applicable laws of the Province of Quebec,
such provision(s) will be excluded from this Agreement and the
balance of the Agreement will be interpreted as if such provision
were so excluded and will be enforceable in accordance with its
terms.
11.
I HAVE READ AND UNDERSTOOD THE AGREEMENT. THE AGREEMENT MAY ONLY BE
MODIFIED BY A SUBSEQUENT WRITTEN AGREEMENT EXECUTED BY THE
PRESIDENT OR CHIEF OPERATING OFFICER OF THE COMPANY AND
MYSELF.
Dated: February 23, 2021.
____________________________
Thomas Andrew Hickey
Accepted and Agreed to:
LOOP CANADA INC.
By:
____________________________
Daniel Solomita
Founder and Chief Executive Officer
EXHIBIT A
TO
PROPRIETARY INFORMATION AND
INVENTIONS AGREEMENT
LOOP Canada Inc.
Ladies and Gentlemen:
1. The following is a complete list of all inventions or
improvements relevant to the subject matter of my employment or
consultancy (as the case may be) by LOOP Canada Inc. (the
“Company”) that have been made or conceived or first
reduced to practice by me, alone or jointly with others, prior to
my employment or consultancy (as the case may be) by the Company
that I desire to remove from the operation of the Proprietary
Information and Inventions Agreement entered into between the
Company and me.
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________ No
inventions or improvements.
________ Any
and all inventions regarding:
________ Additional
sheets attached.
2. I propose to bring to my employment or consultancy (as the case
may be) the following materials and documents of a former
employer:
_______ No
materials or documents.
________ See
below:
_______________________
Thomas Andrew Hickey
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SCHEDULE B
NON-COMPETITION, NON-SOLICITATION AND
NON-DISPARAGEMENT
1.
Non-Competition. Except as with
the express written permission of Loop Canada Inc. (the
“Company”), Thomas
Andrew Hickey (“the Executive”) shall not at any
time during employment or during the eighteen (18) month period
following the Termination Date (the “Restricted
Period”), on the Executive’s own behalf or on behalf of
any Person, whether directly or indirectly, in a Same or Similar
Capacity, carry on, be involved or engaged in, provide any services
in relation to or have any interest in any activity in all or part
of the Territory which is in competition with the Business. The
Executive shall not be in default under this provision solely by
virtue of holding, strictly for portfolio purposes and as a passive
investor, not more than five percent (5%) of the issued and
outstanding shares of a corporation in competition with the
Business, the shares of which are listed on a recognized stock
exchange.
2.
Non-Solicitation of Employees.
The Executive shall not, during the Restricted Period on the
Executive’s own behalf or on behalf of any person, whether
directly or indirectly, in all or part of the territory, offer
employment to or solicit the employment or services of or otherwise
entice away from the employment or service of the Company or its
Affiliates, any Person or Persons who are, or within the 12 months
preceding the Termination Date, were (i) employed by the Company or
its Affiliates or (ii) providing consulting or other services to
the Company or its Affiliates, whether as an independent contractor
or otherwise; whether or not such Person or Persons would commit
any breach of their contract of employment or services by reason of
leaving the service of the Company or its Affiliates.
3.
Non-Solicitation of Customers and
Suppliers. The Executive shall not, during the Restricted
Period, on the Executive’s own behalf or on behalf of any
Person, whether directly or indirectly, for any purpose which is in
competition, in whole or in part, with the Business:
(a)
solicit any
Customer or Supplier or procure or assist in the solicitation of
any Customer or Supplier, in all or part of the Territory;
or
(b)
accept business
with or enter into a commercial arrangement with any Customer or
Supplier, in all or part of the Territory.
4.
Non-Disparagement. The
Executive shall not, during employment with the Company or its
Affiliates or following the termination of the Executive’s
employment for any reason, on the Executive’s own behalf or
on behalf of any person, whether directly or
indirectly:
(a)
take any action
that might impair the reputation of the Company or its Affiliates,
or which might otherwise be detrimental to the business or
operational interests of the Company or its Affiliates;
or
(b)
criticize,
disparage, defame or make any negative comments, statements or
images about the Company or its Affiliates, Including their current
or former operations, projects, initiatives, employees,
consultants, independent contractors, officers, directors,
customers, suppliers, distributors, shareholders, agents,
representatives, goods, products and/or services, whether oral or
written, Including statements and images made or posted via social
media or on the internet.
5.
Definitions. The following
capitalized terms, when used herein, have the respective meanings
set forth below. Capitalized terms used but not otherwise defined
herein shall have the respective meanings ascribed thereto in the
Employment Agreement.
“Affiliates”
means all of the Company’s direct and indirect predecessor,
subsidiary, parent, related, affiliated and successor
companies.
“Business”
means at the Termination Date, or in the two (2) years preceding
the Termination Date, any business or industry in which the Company
and its Affiliates operate, or sell, provide or distribute goods,
products or services.
“Customer”
means any Person, to the Executive’s knowledge:
(a)
that has purchased
or distributed the Company’s or any of its Affiliates’
goods, products or services in connection with the Business at any
time during the 12 months preceding the Termination Date;
or
(b)
whom the Company
has solicited, called upon or negotiated with at any time during
the 12 months preceding the Termination Date with a view to selling
or providing goods, products or services to such Person or
distributing goods, products or services through such
Person.
“Including”
means “including, without limitation”.
“Person”
means any individual, corporation, firm partnership, governmental
organization or other entity.
“Same or
Similar Capacity” means:
(a)
the same or similar
capacity or function in which the Executive worked for the Company
and/or any of its Affiliates at any time during the 12 months
preceding the Termination Date; and/or
(b)
any other capacity,
where the Executive’s knowledge of Confidential Information
could provide a competitive advantage to any Person engaged in or
associated with a Person in competition with the
Business.
“Supplier”
means any Person, to the Executive’s knowledge:
(a)
having provided
goods, products or services to the Company or any of its Affiliates
in connection with the Business at any time during the 12 months
preceding the Termination Date; or
(b)
whom the Company is
in negotiation with as at the Termination Date with a view to
having such Person provide goods, products or services to the
Company [or any of its Affiliates].
“Termination
Date” means the date on which employment will end as
specified in the written notice of termination of employment
provided by the Executive or the Company, as the case may
be.
“Territory”
means Canada or the United States of America.
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Date
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Thomas Andrew Hickey
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