EXHIBIT 6.09
EMPLOYMENT AGREEMENT
This Agreement is made as of the 15th day of March, 1999.
BETWEEN:
SHOWSTAR ENTERTAINMENT CORP., a company
incorporated under the laws of the State of Colorado
and having a place of business at 0000 - 000 Xxxxxx
XX, Xxxxxxxx, Xxxxxxxxxx
(hereinafter called "Showstar")
OF THE FIRST PART
AND:
XXXXX X. Xxxx, of 000 Xxxx 00xx Xxxxxx, Xxxxxxxxx,
X.X. X0X 0X0
(hereinafter called "Udow")
OF THE SECOND PART
WHEREAS:
A. Showstar carries on the business of developing e-commerce and internet
marketing systems (hereinafter called the "Business");
B. In British Columbia, Showstar operates the Business through its wholly
owned Canadian subsidiary, Showstar North Entertainment Inc., at premises
located at 00 - 00000 Xxxxxxxxxxx Xxx, Xxxxxxxx, Xxxxxxx Xxxxxxxx and other
locations;
C. Effective March 15th, 1999, Showstar has employed and wishes to
continue to employ Udow in the Business on the terms and conditions hereinafter
set out, which terms and conditions are acceptable to Udow;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and
provisions herein the parties agree as follows:
1.0 Employment
1.1 Showstar shall employ Udow in the Business to provide the services
described herein upon the terms and conditions contained herein.
1.2 Udow accepts such employment and agrees to provide such services in
accordance with the terms and conditions contained herein.
2.0 Services of Udow
2.1 Udow shall perform such duties as Showstar may from time to time
require relating to his position as Vice President of Internet Marketing and in
particular his duties shall include project management and internet marketing.
2.2 Udow shall devote his full time and attention to the duties described herein
and he shall act in the best interests of Showstar.
2.3 During his employment by Showstar, Udow shall not engage in any business
which is, or may reasonably be seen to be, in competition with the Business nor
which shall interfere with his obligation to devote his full time to the
Business.
2.4 Udow shall use his best efforts to serve Showstar in a competent and
efficient manner and in accordance with Showstar's contractual and other legal
obligations.
3.0 Duration, termination and severance
3.1 The initial term of Udow's employment hereunder shall be from March 15th,
1999 to March 14th, 2004 (hereinafter called the "Initial Term") unless
terminated earlier in accordance with the provisions hereof.
3.2 This Agreement may be terminated at the option of Showstar at any time if:
(a) Showstar has just cause to terminate Udow;
(b) Showstar ceases to carry on the Business or is adjudicated a bankrupt or
is insolvent or makes an assignment for the benefit of its property; or
(c) Showstar chooses to terminate Udow and apply paragraphs 3.4 or 3.6.
3.3 This Agreement may be terminated at the option of Udow at any time:
(a) Showstar defaults in the performance of any material term hereunder and such
default is not remedied as soon as reasonably possible after written notice has
been given to Showstar;
(b) Showstar ceases to carry on business;
(c) control of Showstar changes, or
(d) Udow gives Showstar written notice of his intention to terminate his
employment, such notice to be for a period of not less than ninety days.
3.4 In the event this Agreement is terminated by Showstar in circumstances in
which Showstar does not have just cause (which circumstances include those set
out in subparagraph 3.2(b)), in addition to any period of notice which Showstar
may give Udow, Showstar shall pay Udow severance pay of to month's pay for each
year or part year that Udow has been employed by Showstar since March 15th,
1999.
3.5 Following the Initial Term, Udow's employment by Showstar shall be
automatically renewed for another year, and thereafter from year to year, unless
either party notifies the other, not less than three months prior to the end of
the Initial Term, or thereafter not less than three months prior to the end of
each renewal year, that this Agreement shall expire at the end of the Initial
Term, or thereafter at the end of any renewal year.
3.6 If this Agreement is continued beyond the Initial Term and is subsequently
terminated by Showstar, other than in accordance with paragraph 3.5, in
circumstances in which Showstar does not have just cause, Showstar shall give
Udow severance pay of two month's pay for every year or part year that Udow has
been employed by Showstar since March 15th, 1999.
3.7 "Severance pay" as used herein shall include both base salary and bonuses
(as provided in paragraph 4.2) and shall be deemed to be compensation for the
loss of employment and, accordingly, subject to statutory limitations, eligible
at the option of Udow to be received as a retiring allowance.
3.8 The termination of this Agreement shall not excuse either party from
performing any obligations arising out of or in connection with the period prior
to the termination.
3.9 In the event of the termination of Udow's employment hereunder, his right to
exercise share options pursuant to paragraph 4.6 shall terminate in accordance
with the terms of the Stock Option Agreement referred to in that paragraph.
4.0 Compensation and benefits
4.1 (a) Commencing June 1st, 1999, Showstar shall pay Udow a base salary of
$6,000.00 CDN per month in semi-monthly installments in arrears.
(b) Upon the completion of Phase I financing or December Ist, 1999,
whichever is earlier, and thereafter on the anniversary of this Agreement, the
parties shall undertake a review of Udow's performance and of his base salary.
(c) Udow' s base salary following each review shall not be less than
the salary for the preceding period.
4.2 From time to time, but solely at the discretion of Showstar, Udow shall
receive bonuses based upon his and Showstar's performance, provided that his
entitlement to such bonuses shall be consistent with the entitlement to bonuses
of other management employees of Showstar.
4.3 Forthwith upon the execution of this Agreement, Showstar shall issue to
Udow, as a signing bonus, 200,000 common shares in the capital stock of
Showstar, such shares to be section 144 shares @ $.50 per share, available as of
April 11th, 2000.
4.4 Udow shall be entitled to health and other fringe benefits, if any, received
by other management employees of Showstar.
4.5 (a) During the Initial Term, Udow shall receive three weeks paid vacation in
each twelve month period commencing March 15th of each year at such time or
times as the parties shall agree.
(b) Following the Initial Term, Udow shall receive four weeks paid vacation
in each twelve Month period commencing March 15th of each year at such time or
times as the parties shall agree.
4.6 Showstar hereby grants to Udow an option to purchase common shares in the
capital stock of Showstar in accordance with the Stock Option Agreement made as
of March 15th, 1999, a copy of which is attached hereto as Schedule A.
4.7 (a) Udow shall be reimbursed for reasonable expenses incurred by him in the
performance of this Agreement, provided that a request for reimbursement of such
expenses shall be accompanied by appropriate receipts or other evidence and an
expense report approved by the executive of Showstar.
(b) Approved expenses shall be reimbursed on the 15th of the month following the
month in which such expense report is submitted.
5.0 Confidentiality and non-competition
5.1 During the currency of this Agreement, Udow shall not, without the prior
written consent of Showstar, directly or indirectly either individually or in
partnership or in conjunction with any other person, firm, syndicate, company or
corporation, whether as principal, agent or shareholder or in any other manner
whatsoever, carry on or be engaged in or concerned with or advise, lend money
to, guarantee the debts of or obligations of or permit his name to be used in
connection with any other business or enterprise which would place Udow in a
position of conflict with his obligations hereunder or prevent or impede him
from devoting his best efforts or sufficient time to the performance of his
duties hereunder.
5.2 Udow acknowledges that, in the course of his employment by Showstar, he may
be given in confidence, or have access to or acquire, knowledge or information
which is the valuable, special and unique property of Showstar or of Showstar's
suppliers, customers or potential customers or of other persons with whom
Showstar has business dealings (hereinafter called, collectively, the "Connected
Persons") including, without limiting the generality of the foregoing:
(a) technical information;
(b) financial information concerning Showstar or Connected Persons;
(c) information concerning Showstar's contracts or commitments with, or the
contracts or commitments of, Connected Persons;
(d) information concerning past, present or prospective suppliers or customers
of Showstar; and
(e) knowledge or information conceived, devised or developed by Showstar;
(hereinafter called, collectively, the "Information").
5.3 Udow covenants and agrees that he will:
(a) hold the information in strict confidence and not disclose the
information except as required in performance of his duties hereunder or with
the prior written consent of Showstar;
(b) make no use of the information except in the performance of his duties
hereunder; and
(c) upon termination of this Agreement, deliver to Showstar all written or
recorded materials in his possession or under his control containing, or
relating to, the information.
5.4 Udow covenants that, following termination of this Agreement for any reason
whatsoever, and for a period of three years, he will not make use or avail
himself of the Information which was not already in his possession or is in the
public domain.
5.5 Udow covenants that, in the event he is terminated with cause or that he
terminates this Agreement, he will not, for a period of three years after
termination, unless with the prior written consent of Showstar, either
individually or in partnership or in conjunction with any other person, firm,
association, syndicate, company or corporation, whether as principal, agent,
shareholder or in any other manner whatsoever, solicit any persons with whom
Showstar had a contractual relationship at the time of termination.
5.6 Udow acknowledges and agrees that the scope of the covenants contained in
paragraphs 5.3 to 5.5 are reasonable and commensurate with the protection of the
legitimate interests of Showstar.
5.7 The covenant contained in paragraph 5.3 shall survive the expiry or earlier
termination of this Agreement.
6.0 Representations of Udow
6.1 Udow Represents that:
(a) he has not been convicted of any offence under the Criminal Code of Canada,
(b) he has never filed, or caused to filed, a petition under the United States
Bankruptcy Code or any comparable Canadian legislation;
(c) he has not knowingly violated, or been found to have violated, any federal,
state or Candadian securities laws or regulation; and
(d) he has no business affiliations which would conflict with the obligations he
has undertaken by entering into this Agrement.
7.0 Cause and breach
7.1 Where reference is made in this Agreement to termination by Showstar with or
without cause, "cause" shall mean cause resulting from actions or inactions of
Udow and is limited to the following:
(a) repeated failure or refusal to carry out the reasonable directions of
Showstar, provided such directions are consistent with the duties and
obligations herein set forth to be performed by Udow;
(b) willful violation of a provincial, state or federal law involving the
commission of (i) a crime against Showstar adversely affecting Showstar or (ii)
a felony of any kind;
(c) Udow's medically confirmed misuse of alcohol or use of any controlled
substance; or
(d) Any material breach by Udow of this Agreement or the falsity of any material
representation or warranty of Udow herein not corrected as provided in
paragraph 7.3.
7.2 Where reference is made in this Agreement to termination being by Udow with
or without cause, "cause" shall mean by any breach of this Agreement by Showstar
no corrected as provided in paragraph 7.3.
7.3 Whenever a breach of this Agreement by either party is relied upon as a
justification for any action taken by the other party pursuant to any provision
of this Agreement (including, without limitation, termination hereof), before
such action is taken, the party asserting the breach shall give the other party
written notice of the existence and nature of the breach and such other party
shall have the opportunity to correct such breach during the 30-day period
following such notice. If such cure is effected within that 30-day period, then
any such breach shall not be a basis for the party intending to rely thereon.
8.0 General provisions
8.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
8.2 Dispute resolution Any dispute arising out of, or in connection with, the
interpretation or application of this Agreement shall be resolved by a single
arbitrator in accordance with the rules of the American Arbitration Society
whose decision shall be binding on the parties.
8.3 Entire Agreement. This Agreement supersedes and voids all previous
understandings and agreements between the parties with respect to the
employment of Udow by Showstar.
8.4 Amendment. This Agreement may only be amended in writing signed by both
parties.
8.5 Severability. Should any part of this Agreement be declared invalid, such
decision shall not affect the validity of the remaining parts, which
remaining parts shall remain in force and effect as if this Agreement had
been executed without the invalid part and it is declared that the intention
of the parties is that they would have executed the remaining parts of this
Agreement without including therein any such part which may be declared
invalid.
8.6 Waiver. No waiver by either party of any default in performance on the
part of the other party and no waiver by either party of any breach or of a
series of breaches of any of the terms, covenants or conditions of this
Agreement shall constitute a waiver of any subsequent or continuing breach of
such terms, covenants or conditions. The failure of either party hereto to
assert any claim in timely fashion for any of his rights or remedies under
this Agreement shall not be construed as a waiver of any such claim and shall
not modify, after or restrict any such party's right to assert such claim at
any time thereafter.
8.7 Notice.
(a) Any notice or other communication required or permitted to be
given hereunder or for the purposes hereof shall be sufficiently given if
personally delivered to Udow or, in the case of Showstar, a director.
(b) Alternatively, any notice or other communication may be delivered
by facsimile or e-mail at the facsimile number or e-mail address of the party
ordinarily used by that party provided that, if sent in this fashion, such
notice shall be deemed to have been received three business days after proof of
transmission.
8.8 Non-Assignability. This Agreement may not be assigned or transferred by
either party except with the prior written consent of the other party, provided
that Udow may assign his interest in this contract to any corporation in which
he has, and maintains, a controlling interest defined as not less than 51% of
the issued and outstanding voting shares.
8.9 Paragraphs. References herein to paragraph numbers are references to the
correspondingly numbered paragraphs of this Agreement.
8.10 Burden and Benefit. This Agreement shall be binding upon, and shall
enure to the benefit of, the parties and their respective successors and
permitted assigns.
IN WITNESS WHEREOF the parties have executed this agreement effective the date
first above written.
SIGNED, SEALED AND DELIVERED ) SHOWSTAR ENTERTAINMENT CORP.
in the presence of: )
)
)
/s/ ) /s/
)
SIGNED, SEALED AND DELIVERED )
In the presence of: )
)
)
/s/ /s/
XXXXX X. XXXX
MADE AS OF THE 15TH DAY OF MARCH, 1999
BETWEEN:
SHOWSTAR ENTERTAINMENT CORP
AND:
XXXXX X. XXXX
EMPLOYMENT AGREEMENT
XXXXXXXX & COMPANY
Barristers & Solicitors
000 - 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Attention: Xxxxx X. Xxxxxx
Telephone No. 000-0000
TMM/km File No. 1361/004
