EXHIBIT 4.5
COI SOLUTIONS INC. OFFICER AGREEMENT
THIS AGREEMENT made this first day of January 1998, among COI SOLUTIONS INC., a
corporation duly incorporated under the laws of Nevada, having its head office
at Las Vegas, (the "COMPANY ") and WHITE SAILS LTD. a corporation duly
incorporated under the laws of Nassau, the Bahamas, having its head office at
Nassau and XXXX X. XXXXX, (Co Name. and Xxxx X Xxxxx are hereinafter referred to
collectively as the "OFFICER").
WHEREAS:
1. The Company is engaged in the design, sourcing, development, licensing,
marketing and distribution of various telecommunications products, concepts and
related consulting services to both business and consumer markets.
2. The Company and the Officer have agreed to enter into an employment
relationship for their mutual benefit;
NOW THEREFORE in consideration of the mutual covenants and agreements contained
in this Agreement and other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged by each of the parties), the
parties hereto agree as follows:
1. DUTIES
The Company appoints the Officer to undertake the duties and exercise
the powers as Secretary of the Company as may be requested of the Officer by the
Board of Directors of the Company, and in the other offices to which he may be
appointed by any subsidiary companies of the Company, and the Officer accepts
the office together with the initial mandate established by the Board of
Directors outlined in Schedule A hereto, on the terms and conditions set forth
in this Agreement.
2. TERM
The appointment shall commence with effect from January 1 1999, for a
minimum of two years and shall continue thereafter until terminated in
accordance with the provisions of this Agreement.
3. COMPENSATION
(1) The fixed remuneration of the Officer for his services shall be at the
rate of US$120,000.00 for the first year of employment pursuant to this
contract commencing January 1, 1999. The fixed remuneration will be payable
in equal instalments semi-monthly in arrears in each month during the Term.
The fixed remuneration shall be reviewed 90 days prior to the anniversary of
employment pursuant to this contract. The review will be undertaken by
assessing the Officer's achievement of the over-all objectives established by
the Company and by having regard to the market rates of remuneration paid in
the United States for similar duties and responsibilities.
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(2) In addition to the fixed remuneration, the Officer shall be entitled to
receive such bonus remuneration, and to participate in officer incentive and
stock option plans, if any, in respect of each year of employment during the
Term, as the Board of Directors of the Company or any committee thereof, in
its sole discretion may authorise.
4. BENEFITS
(1) AUTOMOBILE ALLOWANCE. The Officer shall be provided with an automobile
allowance of US$650.00 per month plus reimbursement for fuel expenses
generated by the use of the automobile on behalf of the Company on the
provision by the Officer or receipts acceptable to the Company in connection
with it.
(2) EXPENSES. It is understood and agreed that the Officer will incur
expenses in connection with his duties under this Agreement. The Company will
reimburse the Officer for any expenses provided that the Officer provides to
the Company an itemised written account acceptable to the Company with thirty
days after they have been incurred. The Officer will not be reimbursed for
any item in excess of US$5,000.00 unless approved in advance by the Board of
Directors.
(3) BENEFIT PLANS. The Officer shall participate in all benefit plans which
the Company provides from time to time to employees of the Company generally
in accordance with and subject to the terms of the applicable fund, plan or
arrangement in effect to the Company from time to time.
5. AUTHORITY
(1) The Officer shall have, subject always to the general or specific
instructions and directions of the Board of Directors of the Company, full
power and authority to manage and direct the business and affairs of the
Company (except only the matters and duties as by law must be transacted or
performed by the Board of Directors or by the shareholders of the Company in
general meeting), including power and authority to enter into contracts,
engagements or commitments of every nature of kind in the name of and on
behalf of the Company and to engage and employ and to dismiss all managers
and other employees and agents of the Company other than officers of the
Company, provided always that no contract shall be made which might involve
the Company in an Expenditure exceeding US $50,000.00 and no person shall be
engaged or appointed as an employee of the Company at remuneration in excess
of US$100,000.00 per annum without, in each case, the prior approval of the
Board of Directors.
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(2) The Officer shall conform to all lawful instructions and directions given
to him by the Board of Directors of the Company, and obey and carry out the
by-laws of the Company.
6. SERVICE
(1) The Officer, throughout the term of his appointment, shall devote his
full time and attention to the business and affairs of the Company and its
subsidiaries.
(2) The Officer shall well and faithfully serve the Company and its
subsidiaries and use his best efforts to promote the interests thereof and
shall not disclose the private affairs or trade secrets of the Company and
its subsidiaries to any person other than the Directors of the Company or for
any purposes other than those of the Company any information he may acquire
in relation to the Company's business.
(3) The Officer may, during the Term perform duties and provide services to
other entities, provided that all proposed arrangements are approved in
advance by the Company, such approval not to be unreasonably withheld and
that the proposed arrangements do not relate to a competitive business.
7. NON-COMPETITION
(1) The Officer agrees with and for the benefit of the Company that for a
period of three months from the date of termination of the Officer's
employment, however caused, he will not for any reason, directly or
indirectly, either as an individual or as a partner or joint venturer or as
an employee, principal, consultant, agent, shareholder, officer, director, or
salesperson for any person, firm association, organisation, syndicate,
company or corporation, on in any manner carry on, be engaged in, concerned
with, interested in, advise, lend money to, guarantee the debts or
obligations of, permit his name or any part of it to be used or employed by
any person, business, firm, association, syndicate, company, organisation or
corporation concerned with or engaged or interested in a business which is
the same as, or competitive with, the business of the Company including,
without limitation, any business relating to Telecommunications within the
geographical area North America; nor will the Officer solicit or accept
business with respect to products competitive with those of the Company from
any of the Company's customers, wherever situate; provided that the Officer
shall be entitled, for investment purposes, to purchase and trade shares of a
public company which are listed and posted for trading on a recognised stock
exchange and the business of which public company may be in competition with
the business of the Company, provided that the Officer shall not directly or
indirectly, own more than 10% of the issued share capital of the public
company, or participate in its management or operation or in any advisory
capacity.
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(2) The Officer further agrees that, during employment pursuant to this
Agreement and for a period of six months following termination of employment,
however caused, he will not hire or take away or cause to be hired or taken
away any employee of the Company or, following termination of the Officer's
employment, any employee who was in the employ of the Company during the six
months preceding termination.
8. CONFIDENTIAL INFORMATION
(1) The Officer acknowledges that as the President and in any other position
as the Officer may hold, the Officer will acquire information about certain
matters and things which are confidential to the Company ("Confidential
Information"), and which information is the exclusive property of the Company
including but not limited to the following:
a. product design and manufacturing information and computer
programs, codes, materials, prototypes, products samples,
analyses, reports;
b. names and addresses, buying habits and preferences of present
customers of the Company, as well as prospective customers and all
other proprietary lists;
c. pricing and sales policies, techniques and concepts;
d. trade secrets; and
e. other Confidential Information concerning the business operations
or financing of the Company.
(2) The Officer acknowledges the information as referred to in paragraph 9(1)
could be used to the detriment of the Company. Accordingly, the Officer
undertakes not to disclose same to any third party either during the term of
his employment except as may be necessary in the proper discharge of his
employment under this Agreement, or after the term of his employment, however
caused, except with the written permission of an officer of the Company.
(3) The Officer acknowledges and agrees that without prejudice to any other
rights of the Company, in the event of his violation or attempted violation
of any of the covenants contained in paragraphs 8 and 9 of this Agreement, an
injunction or any other like remedy shall be the only effective remedy or
protect the Company's rights and property as set out in paragraphs 8 and 9,
and that an interim injunction may be granted immediately on the commencement
of any suit.
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(4) The Officer understands and agrees that the Company has a material
interest in preserving the relationship it has developed with its customers
against impairment by competitive activities of a former employee.
Accordingly, the Officer agrees that the restrictions and covenants contained
in paragraph 9 and those contained in paragraph 8 of this Agreement and the
Officer's Agreement to it by his execution of this Agreement, are of the
essence to this Agreement and constitute a material inducement to the Officer
to enter into this Agreement and to employ the Officer, and that the Company
would not enter into this Agreement absent an inducement. Furthermore, the
claim or cause of action by the Officer against the Company whether
predicated on this Agreement or otherwise, shall not constitute a defence to
the enforcement by the Company of the covenants or restrictions provided,
however, that if any provision shall be held to be illegal, invalid or
unenforceable in any jurisdiction, the decision shall not affect any other
covenant or provision of this Agreement or the application of any other
covenant or provision.
9. INTELLECTUAL PROPERTY
(1) Intellectual Property means all legally recognised rights that result or
derive from the Officer's services provided to the Company or with the
knowledge, use or incorporation of Confidential Information, and includes but
is not limited to developments, inventions, designs, works of authorship,
topographies, improvement and ideas, whether or not patentable, copyrightable
or registrable, conceived or made by the Officer (individually or in
collaboration with others) during the Term or which result from or derive
from the Company's resources or which are reasonably related to the business
of the Company.
(2) The Officer agrees to disclose to the Company all Intellectual Property
developed by the Officer during the Term, either individually or in
collaboration with others, that relates directly or indirectly to the
business of the Company. The Officer acknowledges and agrees that all right
title and interest of any kind whatsoever in and to such Intellectual
Property and all other matters that the Officer now has or may at any time in
the future acquire in or relating to the subject matter of Confidential
Information and all copyrights, patents, rights to apply for patents,
licenses and all other intellectual property rights that the Officer now has
or may at any time in the future have in any of the foregoing is and will be
the exclusive property of the Company and the Company will have absolute
discretion to determine how to use this intellectual property. All work done
by the Officer or any other member of the Company is a work for hire under
which the Company is the first author for copyright purposes. Copyright will
vest in the Company. On notice from the Company the Officer shall execute
such documents and do such things, without further consideration but at the
Company's expense as the Company will reasonably request in order to confirm
the Officer's assignment of the foregoing property and rights to the Company.
(3) The Officer hereby waives all moral rights he has or will have in the
Intellectual Property. The Company may assign the benefit of this waiver to
any purchaser, assignee or licensee of the Intellectual Property or of any
portion of the Intellectual Property.
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10. VACATION
The Officer shall be entitled during each year to four week's vacation.
The vacation shall be taken at the time or times as the Board of Directors may
determine. The Officer shall be allowed to carry forward any unused vacation
into the next calendar year but not further.
11. DISABILITY
If the Officer shall at any time by reason of illness or mental or
physical disability by incapacitated from performing his duties and at the
request of the Company, furnish to the Company satisfactory evidence of the
incapacity and the cause of it, he shall receive his full remuneration for the
first three months or any shorter period and one-half of his full remuneration
for the subsequent three consecutive months during which the incapacity shall
continue. If the Officer shall continue to be incapacitated for a longer period
than six consecutive months or if he shall be incapacitated at different times
for more than six months in the aggregate in any period of one year, then in
either case his employment and appointment shall, at the option of the Company,
immediately terminate.
12. TERMINATION OF EMPLOYMENT
(1)If the Officer's employment is terminated for any reason whatsoever
except as defined in section 13 below, the Officer shall receive the
appropriate portion of the Officer's Compensation, Benefits and fully
earned bonus remuneration (if any) in respect to the balance of the full
two year term of this contract which commenced January 1 1999.
(2)The parties understand and agree that this Agreement may be terminated
in the following manner in the specified circumstances:
a. By the Officer, at any time, for any reason, on the giving of six
months' written notice to the Company. The Company may waive
notice, in whole or in part.
b. By the Company, in its absolute discretion, without any notice
for cause. For the purposes of this Agreement, cause includes the
following:
(i) any material breach of the provisions of this Agreement;
(ii) the commission of any act of bankruptcy by the Officer or
compounding with his creditors generally;
(iii)conviction of the Officer of a criminal offence punishable
by indictment, where the cause is not prohibited by law;
(iv) any mental or physical disability or illness which results
in the Officer being unable to substantially perform his
duties for a continuous period of 150 days or for periods
aggregating 180 days, in any period of 365 days. Failure by
the Company to rely on the provision of this paragraph in
any given instance or instances, shall not constitute a
precedent or be deemed a waiver.
(3) The parties understand and agree that the giving of notice by the
Company to the Officer on termination of the Officer's employment shall not
prevent the Company from alleging cause for the termination.
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(4) On termination of employment the Officer shall immediately resign all
offices held (including directorships) in the company.
(5) Company Property. The Officer acknowledges that all items of any and
every nature or kind created or used by the Officer pursuant to the
Officer's employment under this Agreement, or furnished by the Company to
the Officer, and all equipment, automobiles, credit cards, books, records,
reports, files, manuals, literature, Confidential Information or other
materials shall remain and be considered the exclusive property or the
Company at all times and shall be surrendered to the Company, in good
condition, promptly on the termination of the Officer's employment
irrespective of the time, manner or cause of the termination.
13. ASSIGNMENT OF RIGHTS
The rights which accrue to the Company under this Agreement shall pass
to its successors or assigns. The rights of the Officer under this Agreement are
not assignable or transferable in any manner.
14. NOTICES
(1) Any notice required or permitted to be given to the Officer shall be
sufficiently given if delivered to the Officer personally or if mailed by
registered mail to the Officer's address last known to the Company.
(2) Any notice required or permitted to be given to the Company shall be
sufficiently given if mailed by registered mail to the Company's Head
Office at its address last known to the Officer.
15. SEVERABILITY
In the event that any provision or part of this Agreement shall be
deemed void or invalid by a court of competent jurisdiction, the remaining
provisions or parts shall be and remain in full force and effect.
16. ENTIRE AGREEMENT
The contract constitutes the entire Agreement between the parties with
respect to the employment and appointment of the Officer and no representations,
promises, agreements or understandings, written or oral, express or implied, not
contained in this Agreement, shall be valid or binding unless it is in writing
and signed by the party intended to be bound. No waiver of any provision of this
Agreement shall be valid unless the same is in writing and signed by the party
against whom the waiver is sought to be enforced; moreover, no valid waiver of
any provision of this Agreement at any time shall be deemed a waiver of any
other provision of this Agreement at the time or shall be deemed a valid waiver
of the provision at any other time.
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17. MODIFICATION OF AGREEMENT
Any modification to this Agreement must be in writing and signed by the
parties or it shall have no effect and shall be void.
18. HEADINGS
The headings used in this Agreement are for convenience only and are
not to be construed in any way as additions to or limitations of the covenants
and agreements contained in it.
19. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the State of
Nevada.
IN WITNESS WHEREOF this Agreement has been executed by the parties to it, the
day, month and year first written above.
SIGNED, SEALED AND DELIVERED in the presence of:
COI SOLUTIONS INC.
per:__________________________________
"I have authority to bind the company"
WHITE SAILS LTD.
per:__________________________________
"I have authority to bind the company"
_________________________ ______________________________________
WITNESS
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SCHEDULE A
The Company agrees to retain the professional services of White Sails Ltd. and
Xxxx X. Xxxxx (collectively the "Officer"). The key responsibilities of the
Officer pursuant to this engagement shall be to initiate, implement and manage
certain business relationships of the Company including but not exclusive to the
following:
o Establish the Company processes for the operational function including
cost and event management systems.
o Establish operational performance standards and monitor results. These
standards will focus on maintaining strong investor interest in the
Company.
o Establish program management criteria for all projects that ensure
delivery of the projects within contractual guidelines.
o Establish criteria for selection of alliance partners and
sub-contractors to ensure delivery of projects to meet and exceed
contractual agreements.
o Establish criteria for the operational requirements in the selection
and due diligence processes relating to acquisitions and major
investments.
o Provide overall project or operational project primeship
responsibility and accountability as deemed appropriate by the board
of directors
o Provide active engagement of Company decisions on project and other
business matters pertinent to the Company's financial and operational
direction.
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