Exhibit 10.9
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 21st day of December, 1999.
BETWEEN:
Canadian Cable Consultants Inc.
a corporation incorporated under the laws of Ontario
(hereinafter referred to as the "Corporation")
OF THE FIRST PART,
- and -
Xxxxxxx XxXxxx
of the City of Barrie
in the Province of Ontario
(hereinafter referred to as the "Executive"),
OF THE SECOND PART.
WHEREAS the Corporation wishes to retain the services of the Executive to
provide the services hereinafter described during the term hereinafter set out;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual
covenants and agreements herein contained and for other good and valuable
consideration, the parties agree as follows:
1. EMPLOYMENT
The Corporation shall employ the Executive, unless such employment shall be
terminated earlier as hereinafter provided. Subject to the terms and conditions
of this Agreement and applicable law, the Corporation hereby employs Executive,
and the employee agrees to serve, as President of the Corporation. In such
capacity, the Executive shall perform such duties and exercise such power
related thereto as may from time to time be assigned to him by the Chief
Executive Officer to achieve the annual business plans.
This agreement is effective January 3, 2000.
2. DUTIES
The Executive shall serve the Corporation and any associates or affiliates of
the Corporation in such capacity or capacities and shall perform such duties and
exercise such powers pertaining to the management and operation of the
Corporation and any associates or affiliates of the Corporation (as
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those terms are defined in the Canada Business Corporations Act) as may be
determined from time to time by the board of directors of the Corporation
consistent with the office of the Executive.
Without limitation of the foregoing, the Executive shall occupy the office
of President of the Corporation. The Executive shall:
(a) devote his full time and attention and his best efforts during normal
business hours to the business and affairs of the Corporation;
(b) perform those duties that may reasonably be assigned to the Executive
diligently and faithfully to the best of the Executive's abilities and
in the best interests of the Corporation; and
(c) use his best efforts to promote the interests and goodwill of the
Corporation.
The nature of the Executive's duties hereunder may also require reasonable
amounts of domestic and international travel. It is understood, however, that
the Executive will not be required to relocate without his consent.
3. REPORTING PROCEDURES
The Executive shall report to the Chief Executive Officer. The Executive
shall report fully on the management, operations and business affairs of the
Corporation and advise to the best of his ability and in accordance with
reasonable business standards on business matters that may arise from time to
time during the term of this agreement.
4. REMUNERATION
The annual base salary payable to the Executive for his services hereunder
for the first year of the term of this agreement shall be $105,000, exclusive of
bonuses, benefits and other compensation. The annual base salary payable to the
Executive for his services hereunder for each successive year of the term of
this agreement, exclusive of bonuses, benefits and other compensation, shall
increase based on the performance of the Executive and the Corporation in the
preceding fiscal year of the Corporation.
The annual base salary payable to the Executive pursuant to the provisions
of this section 4 shall be payable in bi-weekly installments in arrears or in
such other manner as may be mutually agreed upon. The Chief Executive Officer
shall review base salary annually.
5. SHARE BONUS
If the holding company is publicly trading and if the corporation employs the
Executive two years after the execution of this agreement, the Executive shall
be entitled to purchase up to 300,000 shares of the holding company at an
exercise price of $1.00 Canadian.
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In the event that the Corporation or its holding company completes an
initial public offering or other going public transaction, the Executive agrees
to pool or escrow some or all of the Bonus Shares as may be required by
underwriters or agents retained by the Corporation or its holding company or by
applicable securities regulation.
6. BENEFITS
During the term of this agreement, the Executive shall be entitled to
participate in the benefits program offered by the Corporation to members of its
senior management.
7. NO FURTHER SALARY OR BONUS ADJUSTMENTS
Other than as herein provided, there shall be no cost-of-living increase or
merit increase in the annual base salary or the Executive bonus unless agreed to
in writing by the Board of Directors of the Corporation.
8. VACATION
The Executive shall be entitled to three weeks' paid vacation per fiscal
year of the Corporation at a time approved in advance by the Chief Executive
Officer of the Corporation, which approval shall not be unreasonably withheld
but shall take into account the staffing requirements of the Corporation and the
need for the timely performance of the Executive's responsibilities.
9. AUTOMOBILE
The Corporation shall pay the Executive mileage, at rates permitted by the
Income Tax Act (Canada), to reimburse the Executive for all reasonable operating
costs of a vehicle, including leasing costs, insurance, maintenance, gas and
oil, properly incurred or to be incurred in connection with the Executive
carrying out his duties hereunder. The Executive shall supply the Corporation
with such documentation in support of his claims as the Corporation may
reasonably require.
10. EXPENSES
The Executive shall be reimbursed for all reasonable travel and other out-
of-pocket expenses actually and properly incurred by the Executive from time to
time in connection with carrying out his duties hereunder. For all such
expenses the Executive shall furnish to the Corporation originals of all
invoices or statements in respect of which the Executive seeks reimbursement.
11. TERMINATION
(a) For Cause
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The Corporation may terminate the employment of the Executive
without notice or any payment in lieu of notice for cause, which without
limiting the generality of the foregoing, shall include:
(i) if there is a repeated and demonstrated failure on the part of the
Executive to perform the material duties of the Executive's position
in a competent manner and where the Executive fails to substantially
remedy the failure within a reasonable period of time after receiving
written notice of such failure from the Corporation;
(ii) if the Executive is convicted of a criminal offence involving fraud
or dishonesty;
(iii) if the Executive or any member of his family makes any personal
profit arising out of or in connection with a transaction to which
the Corporation is a party or with which it is associated without
making disclosure to and obtaining the prior written consent of the
Corporation;
(iv) if the Executive fails to honour his fiduciary duties to the
Corporation, including the duty to act in the best interests of the
Corporation; or
(v) if the Executive disobeys reasonable instructions given in the course
of employment by the Board of Directors of the Corporation that are
not inconsistent with the Executive's management position and not
remedied by the Executive within a reasonable period of time after
receiving written notice of such disobedience.
(b) For Disability/Death
The Corporation may immediately terminate this agreement by notice to the
Executive if the Executive becomes subject to a disability. As used herein,
"disability" shall mean that the Executive shall fail or be unable to
perform his duties hereunder as the result of any physical or mental
disability, with reasonable accommodation as required by law, for a period
of 60 days whether or not consecutive in any 180 day period. The parties
agree that the Corporation shall have the option to declare that this
Agreement shall have been frustrated and the Corporation may at its option
terminate this Agreement upon not less than fifteen (15) calendar days'
notice.
This agreement shall terminate without notice upon the death of the
Executive.
12. SEVERANCE PAYMENTS
Upon termination of the Executive's employment: (i) for cause; (ii) by the
voluntary termination of employment of the Executive (resignation); (iii) as a
result of disability; (iv) as a result of death; or (v) by the non-renewal of
this Agreement, the Executive shall not be entitled to any severance payments
other than compensation earned by the Executive before the date of termination
calculated pro rata up to and including the date of termination and
reimbursement for business expenses as provided in paragraph 11 that were
incurred prior to the termination of the Executive's employment. The
Corporation shall not be obligated to pay any other amounts under this agreement
after the date of such termination, including any liabilities pursuant to the
Employment Standards Act (Ontario).
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13. CONFIDENTIALITY
The Executive acknowledges and agrees that:
(a) in the course of performing his duties and responsibilities as an
Executive of the Corporation, he has had and will continue in the
future to have access to and has been and will be entrusted with
detailed confidential information and trade secrets (printed or
otherwise) concerning past, present, future and contemplated products,
services, operations and marketing techniques and procedures of the
Corporation and its subsidiaries, including, without limitation,
information relating to addresses, preferences, needs and requirements
of past, present and prospective clients, customers, suppliers and
Executives of the Corporation and its subsidiaries (collectively,
"Trade Secrets"), the disclosure of any of which to competitors of the
Corporation or to the general public, or the use of same by the
Executive or any competitor of the Corporation or any of its
subsidiaries, would be highly detrimental to the interests of the
Corporation;
(b) in the course of performing his duties and responsibilities for the
Corporation, the Executive has been and will continue in the future to
be a representative of the Corporation to its customers, clients and
suppliers and as such has had and will continue in the future to have
significant responsibility for maintaining and enhancing the goodwill
of the Corporation with such customers, clients and suppliers and
would not have, except by virtue of his employment with the
Corporation, developed a close and direct relationship with the
customers, clients and suppliers of the Corporation;
(c) the Executive, as an officer of the Corporation, owes fiduciary duties
to the Corporation, including the duty to act in the best interests of
the Corporation; and
(d) the right to maintain the confidentiality of the Trade Secrets, the
right to preserve the goodwill of the Corporation and the right to the
benefit of any relationships that have developed between the Executive
and the customers, clients and suppliers of the Corporation by virtue
of the Executive's employment with the Corporation constitute
proprietary rights of the Corporation, which the Corporation is
entitled to protect.
In acknowledgement of the matters described above and in consideration of
the payments to be received by the Executive pursuant to this agreement, the
Executive hereby agrees that he will not, during the period commencing on the
date hereof and ending ten years following the termination of the term of this
agreement, directly or indirectly disclose to any person or in any way make use
of (other that for the benefit of the Corporation), in any manner, any of the
Trade Secrets, provided that such Trade Secrets shall be deemed not to include
information that is or becomes generally available to the public other than as a
result of disclosure by the Executive.
14. NON-SOLICITATION
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The Executive hereby agrees that he will not, during the period commencing
on the date hereof and ending two years following the termination of the term of
this agreement, be a party to or abet any solicitation of customers, clients or
suppliers of the Corporation or any of its associates or affiliates (as those
terms are defined in the Canada Business Corporations Act) to transfer business
from the Corporation or any of its associates or affiliates to any other person,
or seek in any way to persuade or entice any Executive of the Corporation or any
of its associates or affiliates to leave that employment or to be a party to or
abet any such action.
15. NON-COMPETITION
The Executive covenants and agrees that he will not, either during the term
of this agreement and his employment, or at any time within a period of one year
following the date of termination of his employment for any reason whatsoever,
without the prior written consent of the Board of Directors of the Corporation,
whether individually or in partnership or jointly or in conjunction with any
person or persons, firms, partnership, corporation, or other legal entity,
whether as principal, agent, shareholder or in any other capacity whatsoever,
carry on, be engaged in, employed by, or have any interest in any business
similar to the business now or at any time during the employment of the
Executive hereunder was carried on by the Corporation or any of its associates
or affiliates (a "Competitive Business"). This will not prohibit, however, the
Executive from acquiring or holding not more than 5% of any class of equity
securities of any publicly traded corporation engaged in a Competitive Business.
16. DISCLOSURE
During the employment period, the Executive shall promptly disclose to the
Board of Directors full information concerning any interest, direct or indirect,
of the Executive (as owner, shareholder, partner, lender or other investor,
director, officer, Executive, consultant or otherwise) or any member of his
family in any business that is reasonably known to the Executive to purchase or
otherwise obtain services or products from, or to sell or otherwise provide
services or products to the Corporation or to any of its suppliers or customers.
17. RETURN OF MATERIALS
All files, forms, brochures, books, materials, written correspondence,
memoranda, documents, manuals, computer disks, software products and lists
(including lists of customers, suppliers, products and prices) pertaining to the
business of the Corporation or any of its associates or affiliates (as those
terms are defined in the Canada Business Corporations Act) that may come into
the possession or control of the Executive shall at all times remain the
property of the Corporation or such associates or affiliates, as the case may
be. On termination of the Executive's employment for any reason, the Executive
agrees to immediately deliver to the Corporation all such property of the
Corporation in the possession of the Executive or directly or indirectly under
the control of the Executive. The Executive agrees not to make for his personal
or business use or that of any other party, reproductions or copies of any such
property or other property of the Corporation.
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18. GOVERNING LAW
This agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario.
19. SEVERABILITY
If any provision of this agreement, including the breadth or scope of such
provision, shall be held by any court of competent jurisdiction to be invalid or
unenforceable, in whole or in part, such invalidity or unenforceability shall
not affect the validity or enforceability of the remaining provisions, or part
thereof, of this agreement and such remaining provisions, or part thereof, shall
remain enforceable and binding.
20. LIFE INSURANCE
It is agreed that the Corporation or any of its associates or affiliates
(as those terms are defined in the Canada Business Corporations Act) shall have
the right to obtain life insurance on the Executive's life, at the Corporation's
sole expense and with the Corporation or such associate or affiliate as the sole
beneficiary thereof. The Executive shall: (a) cooperate fully in obtaining such
life insurance; (b) sign any necessary consents, applications and other related
forms or documents and (c) take any reasonably required medical examinations.
21. ENFORCEABILITY
The Executive hereby confirms and agrees that the covenants and
restrictions pertaining to the Executive contained in this agreement, including,
without limitation, those contained in sections 14, 15, 16, 17 and 18 hereof,
are reasonable and valid and hereby further acknowledges and agrees that the
Corporation would suffer irreparable injury in the event of any breach by the
Executive of his obligations under any such covenant or restriction.
Accordingly, the Executive hereby acknowledges and agrees that damages would be
an inadequate remedy at law in connection with any such breach and that the
Corporation shall therefore be entitled in lieu of any action for damages,
temporary and permanent injunctive relief enjoining and restraining the
Executive from any such breach.
22. MODIFICATION
This Agreement may not be orally canceled, changed, modified or amended,
and no cancellation, change, modification or amendment shall be effective or
binding, unless in writing and signed by the parties to this Agreement.
23. NO ASSIGNMENT
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The Executive may not assign, pledge or encumber the Executive's interest
in this agreement nor assign any of the rights or duties of the Executive under
this agreement without the prior written consent of the Corporation.
24. SUCCESSORS
This agreement shall be binding on and enure to be benefit of the
successors and assigns of the Corporation and the heirs, executors, personal
legal representatives and permitted assigns of the Executive.
25. NOTICES
Any notice or other communication required or permitted to be given
hereunder shall be in writing and either delivered by hand or mailed by prepaid
registered mail. At any time other than during a general discontinuance of
postal service due to strike, lock-out or otherwise, a notice so mailed shall be
deemed to have been received three (3) business days after the postmarked date
thereof or, if delivered by hand, shall be deemed to have been received at the
time it is delivered. If there is a general discontinuance of postal service
due to strike, lock-out or otherwise, a notice sent by prepaid registered mail
shall be deemed to have been received three (3) business days after the
resumption of postal service. Notices shall be addressed as follows:
a) If to the Corporation:
Canadian Cable Consultants Inc.
00 Xxxx Xxxxxx Xxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxx
X0X 0X0
Tel: 000-000-0000
Fax: 000-000-0000
b) If to the Executive:
Xxxxxxx XxXxxx
000 Xxxxxx Xx. X. Xxxxx 000
Xxxxxx, XX X0X 0X0
Tel: (000) 000-0000
Fax: (000) 000-0000
26. COUNTERPARTS
This Agreement may be executed simultaneously in several counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same original.
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27. ENTIRE AGREEMENT
This Agreement represents the entire agreement between the Company and the
Executive with respect to the subject matter hereof and all prior agreements
relating to the Executive's employment or compensation, written or oral, are
nullified and superseded hereby.
28. LEGAL ADVICE
The Executive hereby represents and warrants to the Corporation and
acknowledges and agrees that he had the opportunity, at the Corporation's
expense to seek and was not prevented nor discouraged by the Corporation from
seeking independent legal advice prior to the execution and delivery of this
agreement and that, in the event that he did not avail himself of that
opportunity prior to signing this agreement, he did so voluntarily without any
undue pressure and agrees that his failure to obtain independent legal advice
shall not be used by him as a defence to the enforcement of his obligations
under this agreement.
IN WITNESS WHEREOF this agreement has been executed by the parties hereto as
of the date first above written.
SIGNED, SEALED & DELIVERED ) Canadian Cable Consultants Inc.
in the presence of: )
)
) /s/ Xxx Xxxxx
------------------------------------
) Xxx Xxxxx
) Chief Executive Officer
)
)
/s/ Xxxxxx Xxxxxx ) /s/ Xxxxxxx XxXxxx
_________________________ ------------------------------------
Witness ) Xxxxxxx XxXxxx
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