Unassociated Document


 

EXHIBIT
4.4 

 

Management
Agreement








Management
Agreement




Between




Poly-Pacific
International Inc.




And




Poly-Pacific
Inc.




And




Mr.
Thomas Lam



 

 























MANAGEMENT
AGREEMENT

 

 


 



	




 




 




















 

TABLE OF
CONTENTS

 




	
      THOMAS
      LAM, (hereinafter "Manager")
	
      1

	
      OF
      THE THIRD PART
	
      1

	
      SECTION
      1 - INTERPRETATION
	
      1

	
      1.1
      Definitions
	
      1

	
      1.2
      Headings
	
      3

	
      SECTION
      2 - APPOINTMENT OF MANAGER
	
      3

	
      2.1
      Appointment of the Manager
	
      3

	
      SECTION
      3 - MANAGEMENT SERVICES
	
      4

	
      3.1
      Management Services
	
      4

	
      3.2
      Restrictions on Duties of Manager
	
      4

	
      SECTION
      4 - MANAGER’S FEES AND EXPENSES
	
      5

	
      4.1
      Management Fee
	
      5

	
      4.2
      Reimbursement of Expenses
	
      5

	
      4.3
      Payment of GST
	
      5

	
      4.4
      Withholding Tax
	
      5

	
      SECTION
      5 - STANDARD OF CARE
	
      6

	
      5.1
      Standard of Care
	
      6

	
      SECTION
      6 - INDEMNIFICATION
	
      7

	
      6.1
      Indemnification of Manager
	
      7

	
      SECTION
      7 - TERM AND TERMINATION
	
      7

	
      7.1
      Initial Term and Renewal Term
	
      7

	
      7.2
      Termination by PPI
	
      7




 

 




















 


	
      7.3
      Termination by Poly-Pacific
	
      7

	
      7.4
      Termination of Manager for Cause
	
      7

	
      7.5
      For Disability or Death of Manager
	
      8

	
      SECTION
      8 - NON-COMPETE/NON-SOLICITATION
	
      9

	
      8.1
      Non-Competition
	
      9

	
      8.2
      Non-Solicitation
	
      9

	
      8.3
      Assignment of Confidential Information and Intellectual
      Property
	
      9

	
      SECTION
      9 - MISCELLANEOUS
	
      10

	
      9.1
      No Partnership, Joint Venture, Trust or Agency
	
      10

	
      9.2
      Amendments
	
      11

	
      9.3
      Assignment
	
      11

	
      9.4
      Severability
	
      11

	
      9.5
      Force Majeure
	
      11

	
      9.6
      Governing Law
	
      11

	
      9.7
      Further Assurances
	
      12

	
      9.8
      Time of the Essence
	
      12

	
      9.9
      Entire Agreement
	
      12

	
      9.10
      Enurement
	
      12

































AGREEMENT
made effective this 1st day of
January, 2002.

 




 

BETWEEN:

 

POLY-PACIFIC
INTERNATIONAL INC.,

(hereinafter
“Poly-Pacific”)

 

OF THE
FIRST PART

 

-and-

 

POLY-PACIFIC
INC.,

(hereinafter
“PPI”)

 

OF THE
SECOND PART

 

- and
-

 

THOMAS
LAM,

 

(hereinafter
"Manager")

 

OF THE
THIRD PART

 




 

WHEREAS
Poly-Pacific wishes to retain the Manager through PPI to provide management and
other services to Poly-Pacific;

 

AND
WHEREAS the Manager is willing to render such services on the terms and
conditions hereinafter set forth;

 

NOW
THEREFORE in consideration of the premises and the mutual covenants herein
contained, the sufficiency of which is hereby acknowledged by each of the
parties hereto, the parties hereto agree as follows:

 




 

SECTION
1 - 
INTERPRETATION

 

1.1  Definitions

 

As used
herein, the following terms shall have the meanings set forth
below:

 

 







1












 


	1.1.1  	
      “Agreement”
      means this management agreement, as amended from time to
    time;




 


	1.1.2  	
      “Business”
      means the business currently and heretofore carried on by Poly-Pacific
      consisting of plastic media blasting on a world-wide
  scale;




 


	1.1.3  	
      “Confidential
      Information” shall mean all information, whether or not reduced to writing
      and whether or not patentable or protected by copyright, which the Manager
      or PPI receives, received access to, conceived or developed, in whole or
      in part, directly or indirectly, in connection with and while PPI provides
      management services to Poly-Pacific and while the Manager remains employed
      by Poly-Pacific and includes, but is not limited
to:




 


	1.1.3.1  	
      information
      concerning devices, instruments, equipment, techniques and technology
      having to do with the plastics media blasting business, processing, sales
      and anything related to plastics media blasting and software, databases
      and services, including but not limited to, source codes, object codes,
      flowcharts and programs and other materials whatsoever (tangible or
      intangible and machine readable or human
readable);




 


	1.1.3.2  	
      information
      concerning products and services in any of the fields and applications
      mentioned above in subparagraph 1.1.3.1;




 


	1.1.3.3  	
      information
      concerning research, development and commercialization of devices,
      equipment, instruments and other inventions having to do with the field
      and applications described in subparagraph 1.1.3.1;




 


	1.1.3.4  	
      products
      and devices developed, patents, discoveries, concepts, compilations and
      ideas of any nature whatsoever including, without limitation, the nature
      and results of research and development activities, the software,
      analytical tools to facilitate research in the field of plastics media
      blasting and its processing, sales and any technology related thereto,
      techniques, computer programs and models, designs, drawings, and
      specifications;




 


	1.1.3.5  	
      production
      processes, marketing techniques and arrangements, marketing materials,
      promotions, demos and publications, mailing lists, purchasing information,
      pricing policies, quoting procedures, financial information, customer and
      prospect names and requirements, employee, customer, supplier and
      distributor data and other materials or information relating to
      Poly-Pacific and Business and activities and the manner in which they do
      business, including but not limited to the names of plastics companies and
      firms; and




 

 







2












 


	1.1.3.6  	
      any
      other materials or information related to, or that is or may be used in
      the Business or activities of Poly-Pacific
which:




 


	1.1.3.6.1  	
      are
      not generally known to others engaged in similar business or
      activities;




 


	1.1.3.6.2  	
      has
      an economic value from not being generally known;
and




 


	1.1.3.6.3  	
      is
      the subject of efforts that are reasonable in the circumstances to
      maintain its secrecy.




 


	1.1.4  	
      "Intellectual
      Property" shall have the meaning prescribed to it at subsection
      9.3
      herein;




 


	1.1.5  	
      “Manager”
      means Thomas Lam, an individual currently residing in the City of
      Edmonton, in the Province of Alberta, or such other location as a result
      of business reasons, the party of the third
part;




 


	1.1.6  	
      “Poly-Pacific”
      means Poly Pacific International Inc., the party of the first
      part;




 


	1.1.7  	
      "PPI"
      means Poly-Pacific Inc., a corporation incorporated under the laws of the
      Province of Alberta, the party of the second
part;




 


	1.1.8  	
      “Services”
      shall have the meaning set forth in subsection 3.1
      hereof.




 

1.2  Headings

 

The
section headings in this Agreement have been inserted for convenience of
reference only and shall not be construed to affect the meaning, construction or
effect of this Agreement.

 










3












 

SECTION
2 -
APPOINTMENT OF MANAGER

 

2.1  Appointment
of the Manager

 

Poly-Pacific
hereby appoints PPI to provide the Services to Poly-Pacific through the Manager
subject to the terms and conditions of this Agreement and PPI and the Manager
accept such appointment.

 




 

SECTION
3 -
MANAGEMENT SERVICES

 

3.1  Management
Services

 

PPI shall
provide and perform for Poly-Pacific the following services (the “Services”)
through the Manager:

 


	3.1.1  	
      advice
      and consultation concerning the affairs of Poly-Pacific, its business
      planning, support, guidance and policy making;





 


	3.1.2  	
      provide
      the services of a senior officer of PPI to act as Manager of Poly-Pacific,
      who shall, unless the parties otherwise agree, be Thomas
    Lam;




 


	3.1.3  	
      advising
      on cash management and investment services including arranging, assisting
      and negotiating banking and financing arrangements for Poly-Pacific;
      




 


	3.1.4  	
      reports
      to Poly-Pacific directors with respect to the business and affairs of
      Poly-Pacific as may be requested by Poly-Pacific directors;
    




 


	3.1.5  	
      generally
      provide such other services as may be required by Poly-Pacific in the
      conduct of its business and affairs. 




 

3.2  Restrictions
on Duties of Manager

 

During
the term of this Agreement, PPI shall:

 


	3.2.1  	
      not
      seek, charge or receive fees, commissions or other compensation in
      connection with the Services, other than the fees and reimbursement
      amounts specifically provided for herein;
and




 


	3.2.2  	
      maintain
      separate bank accounts for its own funds and shall not commingle its own
      funds with any funds of Poly-Pacific. 




 










4












 

SECTION
4 -
MANAGER’S FEES AND EXPENSES

 

4.1  Management
Fee

 


	4.1.1  	
      Poly-Pacific
      shall pay to PPI, in connection with the Services provided for by the
      Manager, for as long as the Manager is located in and is a resident of
      Canada, an annual management fee of eighty thousand Canadian dollars
      (CAN$80,000.00) which shall be paid in monthly installments on the last
      day of each month with a mid-month advance, or on such intervals as may be
      agreed upon between the parties, less all deductions or withholdings
      required by law.




 


	4.1.2  	
      Poly-Pacific
      shall pay PPI, in connection with the Services provided for by the
      Manager, for as long as he is located in and is a resident of the United
      States of America, an annual management fee of eighty thousand US dollars
      (US$80,000.00) which shall be paid in monthly installments on the last day
      of each month with a mid-month advance, or on such intervals as may be
      agreed upon between the parties, less all deductions or withholdings
      required by law.




 


	4.1.3  	
      Paragraphs
      4.1.1
      and 4.1.2
      are mutually exclusive.




 

4.2  Reimbursement
of Expenses

 

Poly-Pacific
shall be solely responsible for all out-of-pocket costs and expenses incurred by
PPI in carrying on its obligations or duties under this Agreement.

 

4.3  Payment
of GST

 

All
amounts payable to PPI pursuant to this Agreement shall be exclusive of any
goods and services tax or similar tax required to be paid thereon pursuant to
the Excise
Tax Act (Canada)
or otherwise (collectively, “GST”) and PPI shall be paid, in addition to such
amounts, all GST imposed on PPI with respect to such amounts.

 

4.4  Withholding
Tax

 

Poly-Pacific
shall withhold from amounts payable to PPI or the Manager pursuant to this
Agreement all amounts required to be so withheld pursuant to the Income
Tax Act
(Canada).

 

 







5












 

SECTION
5 -
BENEFITS

 

5.1  Poly-Pacific
shall provide PPI in connection with the Manager's services, a car allowance in
the amount of eight hundred dollars ($800.00) per month, in the currency of the
country in which the Manager is resident, which PPI shall apply to insurance,
repairs, maintenance, registration and operating costs.

 

5.2  Subject
only to such limitation or restriction as may relate to the Manager personally,
Poly-Pacific shall include the Manager in all of its employee benefit plans,
including, without limiting the generality of the foregoing, its medical,
health, dental and insurance plans and shall pay all costs and expenses of same
on behalf of the Manager.

 

5.3  The board
of directors of Poly-Pacific or any duly authorized committee of same may, in
their sole discretion, award a bonus to PPI in connection with the services of
the Manager at any time throughout the Term, if it is deemed
appropriate.

 

5.4  The board
of directors of Poly-Pacific or any duly authorized committee of same may, in
their sole discretion, grant to the Manager stock options pursuant to
Poly-Pacific's stock option plan at any time throughout the Term on the terms
and conditions the board of directors deem appropriate, all of which is subject
to the rules and procedures of the Canadian Venture Exchange.

 

5.5  The
Manager shall be entitled to six (6) weeks paid vacation by PPI during the
course of each fiscal year of PPI. PPI shall take into account the staffing
requirements of Poly-Pacific and the need for the timely performances of the
Services.

 

SECTION
6 -
STANDARD OF CARE

 

6.1  Standard
of Care

 

In the
provision of the Services to Poly-Pacific by PPI and the Manager hereunder, both
PPI and the Manager shall exercise the degree of care, diligence and skill that
a reasonably prudent advisor or manager having responsibility for the manager of
a similar business would exercise in comparable circumstances.

 










6












 

SECTION
7 -
INDEMNIFICATION

 

7.1  Indemnification
of Manager

 

The
Manager and any person who, at the request of the Manager, is serving or shall
have served as a director, officer or employee of the Manager shall be and is
hereby indemnified and saved harmless by Poly-Pacific against all losses,
claims, damages, liabilities, obligations, costs and expenses (including
judgments, fines, penalties, amounts paid in settlement and counsel and
accountant’s fees) of whatsoever kind or nature incurred by or asserted against
any of such indemnified parties in any way arising from and related in any
manner to this Agreement or the provision of Services hereunder, unless such
indemnified party is found liable for or guilty of fraud, willful default or
gross negligence. The foregoing right of indemnification shall not be exclusive
of any other rights to which the Manager or any person referred to in this
Section may be entitled as a matter of law or equity or which may be lawfully
granted to such person. The Manager declares that it holds the rights and
benefits provided to its directors, officers or employees in trust for and on
behalf of such persons.

 




 

SECTION
8 -
TERM AND TERMINATION

 

8.1  Initial
Term and Renewal Term

 

This
Agreement shall be in effect for a term of two (2) years unless and until it is
terminated as herein provided and shall automatically be renewable for one
additional year on the same terms and conditions.

 

8.2  Termination
by PPI

 

PPI shall
be entitled to terminate this Agreement and the Manager’s appointment, and all
authority hereunder shall be terminable at any time on 180 days’ prior written
notice to Poly-Pacific.

 

8.3  Termination
by Poly-Pacific

 

This
Agreement and the Manager’s appointment and all authority hereunder shall be
terminable at any time on 180 day’s prior written notice from
Poly-Pacific.

 

 







7












 

8.4  Termination
of Manager for Cause

 

Poly-Pacific
may terminate the services of the Manager without notice or any payment in lieu
of notice for cause which, without limiting the generality of the foregoing,
shall include:

 


	8.4.1  	
      if
      there is a repeated and demonstrated failure on the part of the Manager to
      perform the material duties of the Manager's position in a competent
      manner and where the Manager fails to substantially remedy the failure
      within a reasonable period of time after receiving written notice of such
      failure from Poly-Pacific;




 


	8.4.2  	
      if
      the Manager is convicted of a criminal offence involving fraud or
      dishonesty;




 


	8.4.3  	
      if
      the Manager or any member of his family makes any personal profit arising
      out of or in connection with a transaction to which Poly-Pacific is a
      party or with which it is associated without making disclosure to and
      obtaining the prior written consent of
Poly-Pacific;




 


	8.4.4  	
      if
      the Manager fails to honour his fiduciary duties to Poly-Pacific,
      including the duty to act in the best interests of Poly-Pacific;
      or




 


	8.4.5  	
      if
      the Manager disobeys reasonable instructions given in the course of his
      services to the Chairman by the board of directors of Poly-Pacific that
      are not inconsistent with the Manager's position and not remedied by the
      Manager within a reasonable period of time after receiving written notice
      of such disobedience.




 

8.5  For
Disability or Death of Manager

 

This
Agreement may be immediately terminated by Poly-Pacific by notice to PPI if the
Manager becomes permanently disabled. The Manager shall be deemed to have become
permanently disabled if in any year during the term of this Agreement, because
of ill health, physical or mental disability, or for other causes beyond the
control of the Manager, the Manager has been continuously unable or unwilling or
has failed to perform the Manager's duties for 120 consecutive days, or if,
during any year of the employment period, the Manager has been unable or
unwilling or has failed to perform his duties for a total of 180 days,
consecutive or not. This Agreement shall terminate without notice or payment in
lieu thereof upon the death of the Manager.

 

8.6  If the
Agreement is terminated for any other reason other than the reasons set forth or
referred to in sections 8.4 and
8.5 above,
PPI shall be entitled to receive two (2) years management fees.

 

 







8












 

SECTION
9 -
NON-COMPETE/NON-SOLICITATION

 

9.1  Non-Competition

 

PPI and
the Manager shall not at any time within two (2) years from the termination of
this Agreement, either solely or jointly with, or as agent for any other person,
directly, carry on or be concerned or interested in carrying on any business
which directly competes with the Business of Poly-Pacific, within the area where
the Business of Poly-Pacific is carried out or such other area that a court of
competent jurisdiction determines is reasonable having regard to the nature and
extent of Poly-Pacific's Business, except as Poly-Pacific may agree in
writing.

 

9.2  Non-Solicitation

 

PPI and
the Manager further agree and acknowledge that they shall not, for a period of
two (2) years following the termination of this Agreement, directly or
indirectly, either as employer, consultant, agent, principal, partner,
co-venturer, shareholder, proprietor, investor, financier, employee, director,
or in any other individual or representative capacity:

 


	9.2.1  	
      solicit,
      encourage or facilitate clients or customers of Poly-Pacific, or any of
      its affiliates, to alter, modify, vary, diminish or cease their client or
      customer relationship with Poly-Pacific, or any of its
      affiliates;




 


	9.2.2  	
      solicit,
      induce, encourage or facilitate other employees or consultants of
      Poly-Pacific, or any of its affiliates, to leave the employment of, or
      consulting relationship with, Poly-Pacific, or any of its
      affiliates.




 

PPI and
the Manager acknowledge and agree that the covenants contained in this Agreement
are reasonably required to protect the interests of Poly-Pacific, and its
affiliates, and do not materially impact, or affect, PPI or the Manager's
ability to obtain other service arrangement or employment nor work harshly upon
them.

 

9.3  Assignment
of Confidential Information and Intellectual Property

 

Any
concept, idea, invention or improvement or design made or process or information
discovered or copyright work or trade mark or trade name ("Intellectual
Property") relating to the Business or Poly-Pacific or capable of being used or
adapted for use by Poly-Pacific created by the Manager or PPI or communicated to
the Manager or PPI by any other employee of Poly-Pacific, its subsidiaries,
associates or affiliates, during the term of this Agreement and one (1) year
after the termination of this Agreement shall belong to and be the absolute
property of Poly-Pacific. Furthermore, the Manager and PPI shall assign to the
Poly-Pacific all Confidential Information and Intellectual Property whether it
is capable of being patented or registered or not and whether or not it is made
or discovered in the course of the provision of the Services unless such
Confidential Information or Intellectual Property was in existence prior to the
commencement of a similar business by any subsidiary, associate or affiliate of
Poly-Pacific.

 

 







9












 

Both PPI
and the Manager hereby assign and agree to assign to Poly-Pacific all of their
right, title and interest in and to all Confidential Information or Intellectual
Property conceived or reduced to practice during the term of this Agreement and
for one (1) year after the termination of this Agreement, all applications
disclosing any such Confidential Information or Intellectual Property, and all
letters certificates of grants upon such Confidential Information or
Intellectual Property. PPI and the Executive further agree to sign promptly and
return to Poly-Pacific all assignments and documents required to properly enable
Poly-Pacific to establish its rights.

 

The
Manager acknowledges that prior to the Effective Date, he was employed by
Poly-Pacific, during which time of employment certain inventions and works may
have been conceived and produced by him. The Manager and PPI acknowledge and
agree that the assignment obligations as prescribed in this Section
9 apply
also to the Confidential Information and Intellectual Property conceived and
produced during his earlier time of employment with Poly-Pacific.

 

Both PPI
and the Manager hereby irrevocably appoints Poly-Pacific be their attorney in
their names and on their behalf to execute and do any such instrument or thing
and generally to use their names for the purpose of giving to Poly-Pacific the
full benefit of this Section
9 and a
certificate in writing signed by any director or by the secretary for the time
being of Poly-Pacific that any instrument or act falls within the authority
hereby conferred shall be conclusive evidence that such is the case and any
third party shall be entitled to rely on such certificate without further
enquiry.

 

SECTION
10 -
MISCELLANEOUS

 

10.1  No
Partnership, Joint Venture, Trust or Agency

 

The
parties to this Agreement are not and shall not be deemed to be partners or
joint venturers with one another pursuant to this Agreement and nothing herein
shall be construed so as to impose any liability as such on any of
them.

 

The
parties to this Agreement agree that PPI and the Manager shall perform their
obligations under this Agreement as independent contractors and shall not be,
and shall not be deemed to be, a trustee for or agent of any person, whether or
not a party hereto, in connection with the discharge by PPI and the Manager of
such obligations.

 










10












 

10.2  Amendments

 

This
Agreement shall not be amended or varied in its terms by oral agreement or by
representations or otherwise except by instrument in writing executed by the
duly authorized representatives of the parties hereto or their respective
successors or assigns.

 

10.3  Assignment

 

Neither
PPI or the Manager may assign, pledge or encumber their interest in this
Agreement nor assign any of the rights or duties of PPI or the Manager under
this Agreement without the prior written consent of Poly-Pacific.

 

The
parties herein further agree and recognize that Poly-Pacific will have full
authority to assign this Agreement to any one of Poly-Pacific's subsidiaries,
associates, affiliates or related entities or persons (as those terms are
defined in the Income
Tax Act (Canada). PPI and
the Manger specifically understand and agree that such assignment will not
create a termination of this Agreement and will not create a requirement for the
Manger to relocate. Both PPI and the Manger further recognize and agree that
upon such assignment occurring, the Manager shall report to, and take directions
from, the assignee.

 

10.4  Severability

 

The
provisions of this Agreement are severable. In the event of the unenforceability
or invalidity of any one or more of the terms, covenants, conditions or
provisions of this Agreement under applicable law, such unenforceability or
invalidity shall not render any of the other terms, covenants, conditions or
provisions hereof unenforceable or invalid; and the parties agree that this
Agreement shall be construed as if such an unenforceable or invalid term,
covenant or condition was never contained herein.

 

10.5  Force
Majeure

 

No party
shall be deemed to be in default in respect of non-performance of its
obligations hereunder, if any, so long as its non-performance is due to strike,
walk out, industrial disturbance, storm, fire, flood, explosion, lightning,
tempest, act of God or the Queen’s enemies, governmental restraint, or any other
cause (whether similar or dissimilar to those enumerated) beyond its control;
provided that lack of finance shall in no event be deemed to be a cause beyond
the party’s control.

 

 







11












 

10.6  Governing
Law

 

The
provisions of this Agreement shall be governed by and construed in accordance
with the laws of the Province of Alberta.

 

10.7  Further
Assurances

 

Each
party hereto agrees to execute any and all documents and to perform such other
acts as may be necessary or expedient to further the purpose of this Agreement
and the transactions contemplated hereby.

 

10.8  Time
of the Essence

 

Time
shall be of the essence in respect of this Agreement.

 

10.9  Entire
Agreement

 

This
Agreement constitutes the entire agreement between the parties hereto, and
supersedes all prior agreements, in respect of the subject matter
hereof.

 

10.10  Enurement

 

This
Agreement shall enure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns.

 

 

IN
WITNESS WHEREOF the parties hereto have executed this Agreement by their proper
officers duly authorized in that behalf as of the day and year first above
written.

 



	 	
       

      POLY-PACIFIC
      INTERNATIONAL INC.

	 	 	 
	 	
      per
	
      /s/
      David Tam

	 	 	 
	 	
      per
	
      /s/
      Mike Duff

	 	 	 
	 	 	 
	 	POLY-PACIFIC
      INC.
	 	 	 
	SIGNED,
      SEALED AND DELIVERED in the presence of:
       

      
 

      /s/
      R A Nobbs 
	
      )

      )

      )

      )
	/s/
      Thomas Lam
	WITNESS	)	THOMAS
      LAM



 


 

 



 







12















AFFIDAVIT OF
EXECUTION

 

 





	
      CANADA

      PROVINCE
      OF ALBERTA

      TO
      WIT:
	
      )

      )

      )
	
      I,
      Richard Nobbs, of the City of Edmonton, in the Province of
      Alberta,
      MAKE OATH AND SAY:













1. THAT I
was personally present and did see THOMAS LAM named in the annexed instrument,
who is personally known to me to be the person named therein, duly sign and
execute the same for the purpose named therein.







2. THAT the
same was executed at the City of Edmonton, in the Province of Alberta, and that
I am the subscribing witness thereto.







3. THAT I
know the said THOMAS LAM and he is in my belief of the full age of eighteen
years.











	
      SWORN
      BEFORE ME at
      the City of Edmonton, in the Province of Alberta, this 5thday
      of July, 2002.

       

       

       

      /s/
      Lydia Cheng
	
      )

      )

      )

      )

      )

      )

      )
	
       

       

       

       

      /s/
      R A Nobbs

	
      A
      Commissioner for Oaths in and for the Province of Alberta
	 














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