SENIOR EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the day of September, 1999 (the "Effective
Date").
B E T W E E N:
INFOCAST CORPORATION, a corporation
incorporated under the laws of the State of Nevada,
in the United States of America
(hereinafter referred to as the "Employer")
OF THE FIRST PART
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XXXX XXXXXXX, of the City of Atlanta, in the State of
Georgia (hereinafter referred to as the "Employee")
OF THE SECOND PART
WHEREAS the Employer wishes to employ the Employee in the capacity of
President - Distance Learning Division effective September , 1999 (the "Start
Date");
AND WHEREAS the Employer recognizes that the Employee will render and
provide to the Employer special skills which are essential to the continued
growth of the Employer's business and the Employer believes that it is
reasonable and fair to the Employer that the Employee receive fair incentive and
security of employment and compensation terms;
AND WHEREAS the Employer and the Employee have agreed to enter into
this Employment Agreement to formalize in writing the terms and conditions
reached between them governing the Employee's employment;
NOW THEREFORE in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties hereto
agree as follows:
Article 1
RETENTION, DUTIES AND POWERS OF THE EMPLOYEE
1.1 Employment of Employee.
The Employer hereby employs the Employee effective the Start Date as
its President - Distance Learning Division, reporting to the Employer's
President, to perform the duties and responsibilities incident to such position
and as otherwise assigned by the Employer's President. Such employment shall
continue, unless and until terminated in accordance with Article 4 of this
Agreement.
1.2 Acceptance of Employment; Time and Attention.
The Employee hereby accepts such employment and agrees that throughout
the period of his employment hereunder he will devote substantially all his
time, attention, knowledge and skills, faithfully, diligently and to the best of
his ability, in furtherance of the business of the Employer, and will perform
the duties and responsibilities assigned to him pursuant to Section 1, subject,
at all times, to the direction and control of the Employer's President. As an
executive officer, the Employee shall perform such specific duties and shall
exercise such specific authority related to the management of the day-to-day
operations of the Employer consistent with his position as a Senior Vice
President as may be assigned to the Employee from time to time by the Employer's
President. The Employee shall at all times be subject to, observe and carry out
such rules, regulations, policies, directions and restrictions as the Employer
shall from time to time establish. During the period of his employment
hereunder, the Employee shall not, directly or indirectly, accept employment or
compensation from, or perform services of any nature for, any business
enterprise other than the Employer. The Employee shall be elected to such
offices of the Employer as may from time to time be determined by the Board.
During the period of the Employee's employment hereunder, he shall not be
entitled to additional compensation for serving in any offices of the Employer
to which he is elected or appointed.
Article 2
COMPENSATION AND BENEFITS
2.1 Remuneration.
For the performance of his services hereunder, the Employee shall be
paid a salary (the "Base Salary") of US$225,000 per annum, payable twice monthly
in arrears. The Employee's Base Salary shall be reviewed annually by the
Employer's Board of Directors (the "Board") based on recommendation from the
Employer's President and, from time to time during the term of this Agreement,
may be increased in the sole discretion of the Board.
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2.2 Benefits and Perquisites
Provided the Employee is otherwise eligible, the Employee will be
entitled to participate in all benefit plans and to receive all perquisites
enjoyed by the senior employees of the Employer. All benefit plans will be
governed and interpreted by their written terms, if applicable.
2.3 Incentive Plans.
The Employee will be entitled to participate in all incentive plans
(including, without limitation, a Bonus Planto be created which includes an
entitlement to an annual target bonus of 25 percent of Base Salary to be paid
within 90 days following the Employer's fiscal year end, and the Share Option
Plan) made available to any employee of the Employer. Except as provided for
herein, all incentive plans will be governed and interpreted by their written
terms, if applicable.
It is agreed that the Employee's bonus for the period ending 12 months
from the Start Date shall be US$50,000 which shall be paid prior to the end of
said 12 month period, at a time designated by the Employee.
It is agreed that, effective the Start Date, the Employer shall grant
the Employee 250,000 options to purchase common shares on terms substantially
the same as those set forth in the Infocast Corporation 1999 Share Option Plan
(a copy of which is attached as Schedule A hereto) except as otherwise provided
herein. These options will be issued with an exercise price of US$7.00 each. The
terms of these options will provide that they vest as to 83,333 options upon the
Employee assuming the position of the Employer's President - Distance Learning
Division, 83,333 on the first anniversary thereof and the remaining 83,334 on
the second anniversary thereof.
2.4 Out-of-Pocket Expenses.
The Employee shall, upon production of supporting statements and
vouchers, be reimbursed forthwith by the Employer in accordance with applicable
policies of the Employer for all reasonable out-of-pocket expenses actually
incurred by the Employee in the performance of his duties under this Agreement.
2.5 Vacation.
The Employee is entitled to a minimum of three weeks paid vacation in
respect of each 12 month period of his employment hereunder. To the extent that
the Employee does not utilize his full vacation entitlement in any given year,
the Employee shall be entitled to carry forward his vacation entitlement to the
next year provided that the Employee shall not be entitled to accumulate more
than five weeks vacation.
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Article 3
EMPLOYEE'S NEGATIVE COVENANTS
3.1 Confidential Information.
The Employee acknowledges that, in the course of carrying out,
performing and fulfilling his obligations to the Employer under this Agreement,
the Employee will have access to and will be entrusted with information that
would reasonably be considered confidential to the Employer and its affiliates,
clients or suppliers, the disclosure of any of which to competitors of the
Employer or any of its affiliates, clients or suppliers, or the general public,
would be highly detrimental to the best interests of the Employer. Except as may
be required in the course of carrying out his duties under this Agreement, the
Employee therefore covenants and agrees that he will not disclose or directly or
indirectly cause to be disclosed, during his employment or any time thereafter,
any of such information to any person, other than the directors, officers or
employees of the Employer or any of its affiliates that have a need to know such
information, nor shall the Employee use or exploit, directly or indirectly, the
same for any purpose other than the purposes of the Employer. This provision
will not apply to any confidential information which is publicly available
through no fault of the Employee or which the Employee is required by law to
disclose.
3.2 Corporate Opportunities.
Any business opportunities related to the business of the Employer or
any of its affiliates which become known to the Employee during the period of
his employment hereunder must be fully disclosed and made available to the
Employer by the Employee and the Employee agrees not to take or omit to take any
action if the result would be to divert from the Employer or any of its
affiliates any opportunity which is within the scope of its business as known to
the Employee from time to time.
3.3 Proprietary Information.
The Employee acknowledges and agrees that all right, title and interest
in and to any information, trade secrets, inventions, discoveries, improvements,
research materials and databases, including but not limited to patents,
copyright, design and moral rights in the results thereof, made or conceived by
the Employee during his employment with the Employer relating to the business or
affairs of the Employer or any of its affiliates shall belong to the Employer
and the Employee hereby waives any and all moral rights he may have in
connection thereto. The Employee shall promptly communicate to the Employer all
information concerning such proprietary information and, if requested by the
Employer, the Employee shall provide, at the expense of the Employer, all such
assistance as the Employer considers necessary to secure the vesting of such
rights in the Employer. The Employee hereby, for the term of this Agreement,
irrevocably appoints the Employer as the Employee's attorney with full power in
Employee's name to execute
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and deliver documents and do any things which the Employer may consider
necessary or desirable for the purposes of giving effect to this Section 3.3.
The Employee hereby agrees to ratify and confirm whatever the Employer may
lawfully do as the Employee's attorney.
3.4 Non-Competition.
(a) In consideration of his employment hereunder, the Employee shall
not, during the Employee's term of employment (as set forth in
Section 1.1) and during the 6 month period following the date
that the Employee ceases to be an employee of the Employer or
other termination of this Agreement (regardless of who initiated
the termination and whether with or without cause), either
individually or in partnership or in conjunction in any way with
any person or persons, corporation, partnership or other entity,
whether as principal, agent, director, member, officer,
consultant, shareholder, guarantor, creditor in or any other
manner whatsoever, directly or indirectly:
(i) solicit, interfere with, endeavour to entice away from the
Employer or any of its affiliates, accept any business
related to the Restricted Business from, or sell any
product or render any service related to the Restricted
Business to, any person, firm, or corporation who is or was
a client, customer or supplier of the Employer or any of
its affiliates with whom the Employer or its affiliate has
or has had any dealing during the 6 month period
immediately preceding the date upon which the Employee
ceases to be an employee of the Employer;
(ii) offer employment to (unless previously terminated by the
Employer) or endeavour to entice away from the Employer or
any of its affiliates, any person employed by the Employer
or its affiliates at the date upon which the Employee
ceases to be an employee of the Employer or interfere in
any way with the employment relationship between such
employee and the Employer or its affiliate, as the case may
be or induce, influence or seek to induce or influence any
person engaged as an employee, representative, agent,
independent contractor or otherwise by the Employer, to
terminate his or her relationship with the Employer;
(iii) engage in, carry on or otherwise be concerned with or have
any interest in, or advise, lend money to, guarantee the
debts or obligations of, or permit the Employer's name or
any part
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thereof to be used or employed by, and person, firm,
association, syndicate or corporation engaged in or
concerned with, a Restricted Business in North America; or
(iv) own, manage, operate, join, control, participate in, invest
in, or otherwise be connected with, in any manner, whether
as an officer, director, employee, partner, investor or
otherwise, any business entity engaged in or concerned
with, a Restricted Business in North America.
For the purposes of this Section 3.4(a), "Restricted Business"
means any business carried on by the Employer or any of its
affiliates at the date upon which the Employee ceases to be an
employee of the Employer.
(b) The foregoing covenants are given by the Employee acknowledging
that the Employee either has or will have specific knowledge of
the affairs of the Employer and its business. Therefore, the
Employee hereby acknowledges and agrees that all covenants,
provisions and restrictions contained in this Article 3 are
reasonable and valid in the circumstances of this Agreement, and
all defenses to the strict enforcement thereof by the Employer
are hereby waived by the Employee. The Employee acknowledges and
agrees that any breach by the Employee of the covenants,
provisions and restrictions contained in this Article 3 during
the term of his employment under this Agreement shall constitute
cause for termination.
(c) The Employee further acknowledges and agrees that in the event of
a breach of the covenants, provisions and restrictions in this
Article 3, the Employer's remedy in the form of monetary damages
may be inadequate and that the Employer shall be and is hereby
authorized and entitled, in addition to all other rights and
remedies available to the Employer, to apply for and obtain from
any court of competent jurisdiction interim and permanent
injunctive relief and an accounting of all profits and benefits
arising out of such breach. The Employee also acknowledges that
the operation of the foregoing covenants may seriously constrain
his freedom to seek other remunerative employment.
3.5 Investments.
Nothing in this Agreement shall be deemed to prevent or prohibit
the Employee from owning shares in a public company as an investment, so long as
the Employee does not own more than 5 percent of the outstanding voting shares
thereof.
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3.6 Survival.
Neither the termination of this Agreement, nor of the Employee's
employment hereunder, shall terminate or affect in any manner any provision of
this Article 3 that is intended by its terms to survive such termination.
3.7 Qualification of Non-Competition.
If the provisions of Section 3.4 are ever adjudicated to exceed
the limitations on time or geographic scope permitted by applicable law, then
such provisions shall be deemed to be amended to the maximum time or geographic
scope permitted by applicable law.
Article 4
TERMINATION
4.1 Termination for Cause, Disability, Etc.
(a) The Employer may terminate this Agreement and the Employee's
employment hereunder without payment of any compensation either
by way of anticipated earnings or damages of any kind for any of
the following reasons:
(i) cause which, for the purposes of this Agreement, means a
wilful refusal on the part of the Employee to perform the
services required of him under this Agreement (including
the wilful and intentional withholding of services
thereunder), any breach of his fiduciary duties to the
Employer likely to cause material harm to the Employer,
fraud or any conviction of a felony or indictable offence
or any crime involving moral turpitude or any of theft or
dishonesty relating to a matter material to the Employer,
provided that a wilful refusal to perform the services
required under this Agreement will constitute cause only
if the Employee fails to terminate the relevant actions or
cure the relevant failure to act and remedy any harm
therefrom within 10 business days after receipt of written
notice to such wrongful act, failure to act or harm from
the Employer;
(ii) disability which, for the purposes of this Agreement,
means the eligibility of the Employee for long term
disability benefits under the disability insurance
referred to in Section 2.2 of this Agreement; or
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(iii) death of the Employee.
(b) In the event of termination pursuant to Section 4.1(a)(i), the
Employee's sole entitlement shall be his Base Salary to and
including the date of termination, all benefits accrued to the
date of termination and all rights pursuant to any Share Option
Plan governing options issued to the Employee. For greater
certainty, the Employee shall not be entitled to any part or pro
rata payment for any unpaid bonus or payments pursuant to any
incentive plans except to the extent earned but not yet paid for
the fiscal year immediately preceding the date of termination.
(c) In the event of termination pursuant to Section 4.1(a)(ii) or
(iii) above, the Employee's sole entitlement shall be his Base
Salary to and including the date of termination, all benefits
accrued to the date of termination, all rights pursuant to any
Share Option Plan governing options issued to the Employee
(provided that all such options shall immediately accelerate and
vest in the Employee or the legal representative of his estate,
as applicable) and a pro rata payment for all bonuses (calculated
as the greater of the bonus which would be paid under the
Employer's bonus plan on the basis that targets were met and 25%
of annual Base Salary) and payments pursuant to any incentive
plans up to the date on which the Employee's active employment
ceased.
4.2 Other Termination by Employer without Cause.
Notwithstanding anything contained in this Agreement, where the
provisions of Section 4.1 do not apply, this Agreement and the Employee's
employment under this Agreement may be terminated at any time by the Employer
during the term set out in Section 1.1 as follows:
(a) the Employer shall pay to the Employee his Base Salary
to and including the date of termination, together with
a lump sum amount equal to his annual Base Salary (the
"Base Severance"); and
(b) all options for shares of the Employer issued to the
Employee shall immediately accelerate and vest in the
Employee and the exercise period for all options for
shares of the Employer issued to the Employee shall be
12 months from the date of the termination;
4.3 Other Termination by Employee.
Notwithstanding anything contained in this Agreement, where the
provisions of Section 4.1 do not apply, this Agreement and the Employee's
employment under this Agreement may be terminated at any time by the Employee
during the term set out in Section 1.1 upon three (3) months' notice in the case
of
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termination before the second anniversary of the Start Date, and one (1) months'
notice in the case of termination on or after the second anniversary of the
Start Date, in writing by the Employee to the Employer. In that event, the
following shall apply:
(a) the Employer shall pay to the Employee his Base Salary
to the effective date of resignation; and
(b) the exercise period for all options for shares of the
Employer issued to the Employee shall be as provided
pursuant to the Share Option Plans under which they were
issued.
4.4 General Termination Provisions.
(a) Upon any termination of this Agreement for any reason,
the Employee shall at once deliver or caused to be
delivered to the Employer all books, documents, effects,
money, securities or other property belonging to the
Employer or for which the Employer is liable to others,
which are in the possession, charge, control or custody
of the Employee.
(b) All amounts referred to in this Agreement, specifically
including the Employer's payment obligations pursuant to
this Article 4, shall constitute when due a debt owed by
the Employer to the Employee. The Employee shall not be
required to mitigate damages by seeking other employment
or otherwise, nor shall the amount provided for under
this Agreement be reduced in any respect in the event
that the Employee shall secure alternative employment,
or not reasonably pursue alternative employment,
following the termination of the Employee's employment
with the Employer. Notwithstanding the foregoing, should
the Employee replace any life, health or accident plan,
at an equivalent level, upon obtaining alternate
employment or otherwise, the Employer shall not be
required to continue such benefits.
(c) As a condition to any payment pursuant to this Article
4, the Employee agrees to deliver to the Employer at the
time of payment a full and final release from all
actions or claims, such release to be in a form
reasonably satisfactory to the Employer and to be for
the benefit of the Employer, its affiliates, directors,
officers and employees.
Article 5
DIRECTORS AND OFFICERS
5.1 Resignation.
If the Employee is a director or officer at the relevant time, the
Employee agrees that, after termination of his employment with the Employer for
any reason, he
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will tender his resignation from any position he may hold as an officer or
director of the Employer or any of its affiliated or associated companies. If
the Employee fails to resign, the Employer is irrevocably authorized to appoint
another person to act in his name and on his behalf to sign any documents
necessary to give effect to the resignation.
5.3 Indemnity.
(a) Subject to the provisions of applicable law, the
Employer agrees to indemnify and save the Employee
harmless from and against all demands, claims, costs,
charges and expenses, including an amount paid to settle
an action or satisfy a judgment, reasonably incurred by
him in respect of any civil, criminal or administrative
action or proceeding to which the Employee is made a
party by reason of being or having been a director or
officer of the Employer or of any affiliated company,
whether before or after any termination if:
(i) the Employee acted honestly and good
faith with a view to the best interests
of the Employer; and
(ii) in the case of a criminal or
administrative action or proceeding that
is enforced by a monetary penalty, the
Employee had reasonable grounds for
believing that his conduct was lawful.
(b) Subject to the provisions of applicable law, the Employer
agrees, with the approval of the court, to indemnify and
save the Employee harmless from and against all demands,
claims, costs, charges and expenses reasonably incurred
by him in connection with an action by or on behalf of
the Employer to procure a judgment in the Employer's
favour to which the Employee is made a party by reason of
being or having been a director or officer of the
Employer or of any affiliated company, whether before or
after any termination, if:
(i) the Employee acted honestly and in good
faith with a view to the best interest of
the Employer; and
(ii) in the case of a criminal or
administrative action or proceeding that
is enforced by a monetary penalty, the
Employee had reasonable grounds for
believing that his conduct was lawful.
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Article 6
GENERAL CONTRACT PROVISIONS
6.1 Notices.
Any notice or other document ("Notice") required or permitted to be
given hereunder shall be in writing and shall be given by hand delivery,
responsible over night delivery service, or facsimile transmission (with
confirmation of receipt), to be addressed to:
(a) the Employer or the Board of Directors at:
0 Xxxxxxxx Xx. Xxxx, Xxxxx #000
Xxxxxxx, Xxxxxxx
X0X 0X0
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to:
Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
or to such other person as the Employer may designate;
(b) the Employee at:
Any Notice hand delivered personally or by delivery service or
transmitted by facsimile shall be deemed to have been received by and given to
the addressee on the day of delivery or transmission, provided that if the date
of transmission is not a business day, or the transmission occurs after normal
business hours, on the business day next following the date of transmission.
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6.2 Currency.
All dollar amounts set forth or referred to in this Agreement and all
uses of the dollar sign ($) used herein refer to currency of the United States
of America, except as otherwise indicated.
6.3 Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
6.4 Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Nevada and the laws of the United States of America
applicable therein. The parties hereto attorn to the jurisdiction of the courts
of the State of Nevada.
6.5 Interpretation not Affected by Headings, etc.
Any headings preceding the text and paragraphs in this Agreement hereof
have been inserted for convenience and reference only and shall not be construed
to affect the meaning, construction, or effect of this Agreement.
6.6 Deemed Amendments.
If any paragraph or provision of this Agreement is adjudicated to be
invalid or unenforceable, in whole or in part then such paragraph or provision,
or part thereof, shall be deemed amended to delete therefrom the objectionable
portion and the remaining portions of this Agreement shall continue to remain in
full force and effect.
6.7 Non-Assignability.
Neither this Agreement, nor the right to receive any payments
hereunder, may be assigned by the Employee without the prior written consent of
the Employer.
6.8 Time of the Essence.
Time shall be of the essence of this Agreement.
6.9 Binding Effect.
This Agreement shall be binding upon and shall enure to the benefits of
each of the parties and their respective heirs, executors, administrators,
successors and permitted assigns.
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6.10 Entire Agreement.
This Agreement (together with the plans and documents referred to
herein) supersedes and replaces all prior negotiations and/or agreements made
between the parties, whether oral or written, and shall constitute the entire
Agreement between the parties with respect to all matters relating to the
Employee's employment and the execution of this Agreement has not been induced
by, nor do any of the parties hereto rely upon or regard as material any
representations or writings whatsoever not incorporated into and made a part of
this Agreement. This Agreement shall not be amended, altered or modified except
in writing signed by the parties hereto.
6.11 Taxes.
All payments under this Agreement shall be subject to withholding of
such amounts, if any relating to tax or other payroll deduction as the Employer
may reasonably determine should be withheld pursuant to any applicable law or
regulation.
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement
as of the Effective Date.
INFOCAST CORPORATION
Per:/s/ Xxxxx Xxxxx
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Per:______________________________
)
)
)
) /s/Xxxx Xxxxxxx
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Witness Xxxx Xxxxxxx
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