__________
Exhibit 10.3
SALES AND
MARKETING
EMPLOYMENT
AGREEMENT
Among each of :
FORTUNE PARTNERS, INC
And :
DON CECI
Fortune Partners, Inc.
1050 West Pender
Street, Suite 1100, Vancouver, British Columbia, Canada, V6E
3S7
__________
SALES AND MARKETING
EMPLOYMENT AGREEMENT
THIS SALES AND MARKETING
EMPLOYMENT AGREEMENT is made and dated for reference
effective as at October 3, 2005 (the " Effective Date ") as
fully executed on this 1 st day of October, 2005
.
AMONG EACH OF :
FORTUNE PARTNERS, INC.
(to changed its name to "
Power Air Corporation "
or otherwise), a company
incorporated under the laws of the State of Nevada, U.S.A., and
having an executive office and an address for notice and delivery
located at 1050 West Pender Street, Suite 1100, Vancouver,
British Columbia, Canada, V6E 3S7
(the " Company " );
OF THE FIRST
PART
AND :
DON CECI , businessperson, having an address for notice
and delivery located at 5828 Grousewoods Crescent North Vancouver,
British Columbia, Canada, V7R 4V2
(the " Employee " );
OF THE SECOND
PART
(the Company and the Employee 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
State of Nevada, U.S.A., and has its common shares listed for
trading on the NASD Over-The-Counter Bulletin Board;
B. The
Company owns a wholly-owned subsidiary called Power Air Tech, Inc.
("Power Air") which is incorporated under the laws of the State of
Delaware, U.S.A;;
C. In
conjunction with the recent completion by the Company of its
acquisition of Power Air the resulting Company is now involved in
the principal business of Power Air; which is the development,
manufacturing and marketing of a zinc-air fuel cell technology that
has been developed at the Lawrence Livermore National Laboratory ("
LLNL "), in Livermore, California, U.S.A., through its
exclusive world-wide license with LLNL (collectively, the resulting
" Business "); and, as a consequence thereof, the Company is
hereby desirous of retaining the Employee as the Vice-President of
Sales and Marketing, and the Employee is hereby desirous of
accepting such position, in order to provide such related services
to the Company (collectively, the " General Services ");
D.
Since the introduction of the
Parties hereto the Parties hereby acknowledge and agree that there
have been various discussions, negotiations, understandings and
agreements between them relating to the terms and conditions of the
General Services and, correspondingly, that it is their intention
by the terms and conditions of this agreement (the "
Agreement "
) to hereby replace, in their
entirety, all such prior discussions, negotiations, understandings
and agreements with respect to the General Services; and
E.
The Parties hereto have agreed to
enter into this Agreement which replaces, in its entirety, all such
prior discussions, negotiations, understandings and agreements,
and, furthermore, which necessarily clarifies their respective
duties and obligations with respect to the within General Services
to be provided hereunder, all in accordance with the terms and
conditions of this Agreement;
NOW THEREFORE THIS AGREEMENT
WITNESSETH that, in
consideration of the mutual covenants and provisos herein
contained, THE PARTIES HERETO AGREE AS FOLLOWS
:
Article 1
DEFINITIONS AND
INTERPRETATION
1.1
Definitions
. For all purposes of this
Agreement, except as otherwise expressly provided or unless the
context otherwise requires, the following words and phrases shall
have the following meanings:
(a) "
Agreement "
means this Sales and Marketing
Employment 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) "
Arbitration Rules " means the Rules of the American
Arbitration Association , as
amended from time to time, as set forth in Article "8"
hereinbelow;
(c) "
Benefits "
has the meaning ascribed to it in
section " 4.10 "
hereinbelow;
(d) "
Board of Directors "
means the Board of Directors of
each or either of the Company and Power Air as duly constituted
from time to time;
(e) "
Bonus " has the meaning ascribed to it in
section " 4.4 "
hereinbelow;
(f) "
Business "
has the meaning ascribed to it in
recital " C. "
hereinabove.
(g) "
business day "
means any day during which
Chartered Banks are open for business in the City of vancouver, BC,
Canada.;
(h) "
Car Allowance "
has the meaning ascribed to it in
section " 4.6 "
hereinbelow;
(i) "
Companies "
means the Company and Power
Air;
(j) "
Company "
means Fortune Partners, Inc., a
company incorporated under the laws of the State of Nevada, U.S.A.,
or any successor company, however formed, whether as a result of
merger, amalgamation or other action;
(k) "
Effective Date "
has the meaning ascribed to it on
the front page of this Agreement;
(l) "
Effective Termination
Date " has the meaning
ascribed to it in each of sections " 3.2 " , " 3.3 " and " 3.4 " hereinbelow;
(m) "
Employee "
means Don Ceci;
(n) "
Expenses "
has the meaning ascribed to it in
section " 4.5 "
hereinbelow;
(o) "
Fee " has the meaning ascribed to it in
section " 4.1 "
hereinbelow;
(p) "
General Services "
has the meaning ascribed to it in
section " 2.1 "
hereinbelow;
(q) "
Indemnified Party "
has the meaning ascribed to it in
section " 6.1 "
hereinbelow;
(r) "
Option Plan "
has the meaning ascribed to it in
section " 4.8 "
hereinbelow;
(s) "
Option Shares "
has the meaning ascribed to it in
section " 4.8 "
hereinbelow;
(t) "
OTCBB " means the NASD Over-The-Counter Bulletin
Board ;
(u) "
Parties "
or " Party " means, individually and collectively, the
Company, Power Air and/or the Employee hereto, as the context so
requires, together with each of their respective successors and
permitted assigns as the context so requires;
(v) "
Power Air "
means Power Air Tech, Inc., a
company incorporated under the laws of the State of Delaware,
U.S.A., or any successor company, however formed, whether as a
result of merger, amalgamation or other action;
(w) "
Regulatory Approval "
means the acceptance for filing, if
required, of the transactions contemplated by this Agreement by the
Regulatory Authorities;
(x) "
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 Company, Power Air and/or the Employee and including,
without limitation, and where applicable, the United States
Securities and Exchange Commission, the NASD, the OTCBB and 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;
(y) "
Exchange Act "
, " Form S-8 Registration Statement "
, " SEC " , " Registration Statement "
and " Securities Act " have the meanings ascribed to them in
section " 4.9 "
hereinbelow;
(z) "
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;
(aa) "
Vacation "
has the meaning ascribed to it in
section " 4.7 "
hereinbelow; and
(ab) "
Vesting Option "
has the meaning ascribed to it in
section " 4.8 "
hereinbelow.
1.2
Interpretation
. For the purposes of this
Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
(a)
the words " herein " , " hereof " and " hereunder " and other words of similar import refer to this
Agreement as a whole and not to any particular Article, section or
other subdivision of this Agreement;
(b)
any reference to an entity shall
include and shall be deemed to be a reference to any entity that is
a permitted successor to such entity; and
(c)
words in the singular include the
plural and words in the masculine gender include the feminine and
neuter genders, and vice versa .
Article 2
GENERAL SERVICES AND DUTIES OF THE
EMPLOYEE
2.1
General Services . During the continuance of this Agreement the
Companies hereby agree to retain the Employee as the
Vice-President of Sales and Marketing of each of the Companies,
and the Employee hereby agrees to
be subject to the direction and supervision of, and to have the
authority as is delegated to the Employee by, the Board of
Directors of the Company (the " Board of Directors " herein) consistent with such positions, and the
Employee also agrees to accept such positions in order to provide
such related services as the Board of Directors shall, from time to
time, reasonably assign to the Employee 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 Employee shall commit and
provide to the Companies the General Services on a full-time basis
during the continuance of this Agreement for which the Company, as
more particularly set forth hereinbelow, hereby agrees to pay and
provide to the order and direction of the Employee each of the
proposed compensation amounts as set forth in Articles "
4 " hereinbelow.
In this regard it is hereby
acknowledged and agreed that the Employee shall be entitled to
communicate with and shall rely upon the immediate advice,
direction and instructions of the President of the Company, or upon
the advice or instructions of such other director or officer of the
Company as the President of the Company shall, from time to time,
designate in times of the President ' s absence, 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 Employee will, during the continuance
of this Agreement, devote substantially all of the Employee
' s employment time to the General
Services of the Employee as may be determined and required by the
Board of Directors of the Company for the performance of said
General Services faithfully, diligently, to the best of the
Employee ' s abilities and
in the best interests of the Companies and, furthermore, that the
Employee ' s employment
time will be prioritized at all times for the Companies in that
regard.
2.3
Adherence to rules and
policies of the Companies . The Employee hereby acknowledges and agrees
to abide by the reasonable rules, regulations, instructions,
personnel practices and policies of the Companies 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 Employee as the
Vice-President of Sales and Marketing of each of the Companies
.
Article 3
EFFECTIVENESS AND
TERMINATION
3.1
Effectiveness of the Agreement . This Agreement
commences on the Effective Date as set forth hereinabove, however,
is subject, at all times, to the Companies' 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.
3.2
Termination without cause by the Employee .
Notwithstanding any other provision of this Agreement, this
Agreement may be terminated by the Employee at any time after the
Effective Date and during the continuance of this Agreement upon
the Employee's delivery to the other Parties hereto 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 Employee's
ongoing obligation to provide the General Services will continue
until the Effective Termination Date and the Companies ongoing
obligation to provide and to pay to the Employee all of the amounts
otherwise payable to the Employee under Article "4" hereinbelow
will continue until the Effective Termination Date.
3.3
Termination without cause by the Company .
Notwithstanding any other provision of this Agreement, this
Agreement may be terminated by the Companies at any time after the
Effective Date and during the continuance of this Agreement upon
the Company's delivery to the Employee of prior written notice of
its intention to do so (the " Notice of Termination "
herein) at least 90 calendar days prior to the effective date of
any such termination (the end of such 90-day period from such
Notice of Termination being the " Effective Termination Date
" herein). In any such event the Employee's ongoing obligation to
provide the General Services will immediately cease upon the date
of the Notice of Termination, however, the Companies shall
immediately pay a lump sum payment equal to three months salary and
continue to be obligated to provide and to pay to the Employee all
of the amounts otherwise payable to the Employee under Article "4"
hereinbelow until the Effective Termination Date.
3.4
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 Parties of such Party's intention to do so at
least 30 calendar days prior to the effective date of any such
termination (herein also the " Effective Termination Date
"), and damages sought, if:
(a) any
of the Parties 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) any
of the Parties is willfully non-compliant in the performance of its
respective duties under this Agreement within 10 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) any
of the Parties commits fraud or serious neglect or misconduct in
the discharge of its respective duties hereunder or under the law;
or
(d) any
of the Parties 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.
3.5
Disability or death and
Advance .
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 Employee, 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 Employee 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 Employee and the Company;
provided that if the Employee and the Company do not agree on a
physician, the Employee 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 Employee ' s employment is terminated by death or because
of disability pursuant to this Agreement, the Company shall pay to
the estate of the Employee or to the Employee, as the case may be,
all amounts to which the Employee would otherwise be entitled under
Article " 4 "
hereinbelow until the Effective
Termination Date.
3.6
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 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" and "3.5" hereinabove shall survive the termination of this
Agreement.
Article 4
COMPENSATION OF THE EMPLOYEE
4.1
Fee . It is hereby acknowledged and agreed that the
Employee shall render the General Services as defined hereinabove
during the continuance of this Agreement and shall thus be
compensated from the Effective Date of this Agreement to the
termination of the same by way of the payment by the Company to the
Employee, or to the further order or direction of the Employee as
the Employee may determine, in the Employee's sole and absolute
discretion, and advise the Company of prior to such payment, of the
gross monthly fee of U.S. $10,000.00 which, on a quarterly basis,
in advance, is converted to Canadian dollars. For greater certainty
the quarter ended December 31, 2005 will be at a rate of 1.2
Canadian dollars for each 1 U.S. dollar. Each quarter thereafter
will be converted to Canadian dollars at the closing exchange rate
as posted by the Bank of Canada at the end of each quarter. (the "
Fee "). All such Fees will be due and payable by the Company
to the Employee, or to the further order or direction of the
Employee as the Employee may determine, in the Employee'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 service during the
continuance of this Agreement.
4.2
Payment of Fee and status as
an employee . It is
hereby also acknowledged and agreed that the Employee will
be classified as a taxable employee of the Company for all
purposes, such that all compensation which is provided by the
Company to the Employee under this Agreement, or otherwise, will be
calculated on the foregoing and gross Fee basis, however, will then
actually be distributed to the Employee by the Company on a net
basis; that being net of all applicable provincial and federal
taxes, Canada Pension Plan, Employment Insurance and miscellaneous
deductions pursuant to the Company's benefit plan which will first
be deducted by the Company and remitted to the applicable taxing
authority before any such compensation will actually be paid by the
Company to the Employee hereunder on such net basis.
4.3
Increase in the
Fee . It is hereby
acknowledged that the proposed Fee payments under this
Agreement were negotiated as
between the Parties hereto in the context of the stage of
development of the Company existing as at the Effective Date of
this Agreement. Correspondingly, it is hereby acknowledged and
agreed that the Fee
shall be reviewed and renegotiated at the request of either Party
on a reasonably consistent basis during the continuance of this
Agreement and, in the event that the Parties cannot agree, then the
Fee shall be increased on an annual basis by the greater of (i) 10%
and (ii) the percentage which is the average percentage of all
increases to management salaries and fees within the Companies
during the previous 12-month period. Any dispute respecting either the effectiveness
or magnitude of the final Fee hereunder shall be determined by
arbitration in accordance with Article " 8 " hereinbelow.
4.4
Bonus payments
. It is hereby also acknowledged
that the Board of Directors of the Company shall, in good faith,
consider the payment of reasonable industry standard annual bonuses
(each being a " Bonus " ) based upon the performance of the Companies
and upon the achievement by the Employee and/or the Companies of
reasonable management objectives to be reasonably established by
the Board of Directors (after reviewing proposals with respect
thereto defined by the Employee in the Employee '
s capacity as the
Vice-President Sales and Marketing of the Companies, and delivered to the Board of Directors of the
Company by the Employee at least 30 calendar days before the
beginning of the relevant year of the Company (or within 90
calendar days following the commencement of the Company '
s first calendar year commencing on
the Effective Date)). These management objectives shall consist of
both financial and subjective goals and shall be specified in
writing by the Board of Directors of the Company, and a copy shall
be given to the Employee prior to the commencement of the
applicable year. The payment of any such Bonus shall be payable no
later than within 120 calendar days of the ensuing year after any
calendar year commencing on the Effective Date. Any dispute
respecting either the effectiveness or the magnitude of any Bonus
hereunder shall be determined by arbitration in accordance with
Article " 8 "
hereinbelow.
4.5
Reimbursement of Expenses . It is hereby acknowledged
and agreed that the Employee shall also be reimbursed, within 7
days, for all direct, reasonable expenses actually and properly
incurred by the Employee for the benefit of the Companies
(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 Employee as t
