EXHIBIT 10.1
CEO EXECUTIVE SERVICES AGREEMENT
AMONG:
NATURALLY ADVANCED TECHNOLOGIES INC.
AND:
MERIWETHER ACCELERATORS, LLC.
NATURALLY ADVANCED TECHNOLOGIES INC.
Suite 402 - 1008
Homer Street, Vancouver, British Columbia, Canada, V6B 2X1
__________
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CEO EXECUTIVE SERVICES AGREEMENT
THIS CEO EXECUTIVE
SERVICES AGREEMENT is made and dated
for
reference effective
as at August 24, 2008 (the "EFFECTIVE DATE") as fully
executed on this 14th day of October, 2008.
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 Suite 402 - 1008 Homer Street, Vancouver,
British Columbia, Canada, V6B 2X1
(the "COMPANY");
OF THE FIRST PART
AND :
MERIWETHER
ACCELERATORS, LLC., a
company incorporated
under
the laws of the State of Oregon, U.S.A., and having an address
for notice and delivery located at 2001 NW 19th,
Suite 103B,
Portland, Oregon, U.S.A., 97209
(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 both the
United States
Over-the-counter
Bulletin
Board market and the TSX Venture Exchange;
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 involved in the
product-focused
business of
specializing
in the market and sale of
sustainable,
environmentally
friendly apparel and
fabrics as well as the
development of proprietary technology for the production of bast
fibers and
fabrics (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 accepting
such positions
in order to provide
such corporate
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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. The
Company and the Executive's Company entered into a CEO Executive
Services Agreement effective August 24, 2007 (the "2007 CEO
Agreement") and
the
initial term of the 2007 CEO Agreement expired on August 24, 2008
and,
in
accordance
with Article 3 of the 2007 CEO Agreement, both the
Executive's Company
and the Company now wish to renew the terms of the
agreement between the Parties in writing;
E. 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
F. 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;
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(g)
"COMPANY'S
NON-RENEWAL
NOTICE" has the meaning ascribed to it in
section "3.2" hereinbelow;
(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 Meriwether
Accelerators, LLC., 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;
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(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;
(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; and
(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.
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
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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 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)
on
the date which is 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
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connection with and
within 30 calendar
days prior to the end
of any such
one-month term renewal period. Any such renewal on 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's 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
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(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.
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.
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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 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 VESTING OPTION
PREDICATED ON CERTAIN DELIVERABLES. Subject to the following
pre-delivery and vesting provisions, and as soon as reasonably
practicable
after 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 h
