EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT dated for reference the 29th day of December, 2000
BETWEEN:
XXXXXXX TECHNOLOGIES INC., a company incorporated under the laws of
the Province of British Columbia, Canada
("Xxxxxxx Canada")
AND:
XXXX XXXXXX, Businessman, of 000 Xxxx 0xx Xxxxxx Xxxxxxxxx, Xxxxxxx
Xxxxxxxx X0X 0X0
(the "Executive")
AND:
GOLDEN SOIL, INC. , a company incorporated under the laws of the State
of Nevada, USA
("Xxxxxxx USA")
WHEREAS:
X. Xxxxxxx Canada is in the business of manufacturing computer hardware and
software products;
X. Xxxxxxx Canada has agreed to employ the services of the Executive as Vice
President- International Sales and the Executive has agreed to accept employment
with Xxxxxxx Canada on the terms and conditions hereinafter provided;
X. Xxxxxxx Canada is a wholly owned subsidiary of 613636 British Columbia, Inc.
("613636") and 613636 is, in turn, a wholly owned subsidiary of Golden Soil;
D. It is anticipated that Golden Soil will soon be changing its name to
"Xxxxxxx, Inc." and that 613636 will soon be changing its name to "Xxxxxxx
Holdings Inc."
ARTICLE 1 - EMPLOYMENT
1.1 Employment. Xxxxxxx Canada agrees to employ the Executive and the Executive
agrees to accept such employment on the terms and conditions contained in this
Agreement.
ARTICLE 2 - DUTIES OF EXECUTIVE
2.1 Responsibilities. The Executive shall assume the responsibilities and
perform the duties as Vice President-International Sales of Xxxxxxx Canada with
the following duties:
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The Executive shall also serve without additional compensation as an Officer and
Director of Xxxxxxx Canada in any of its parent companies or subsidiaries, if so
elected or appointed, but if he is not so elected or appointed his compensation
hereunder shall in no way be affected.
Such duties may be revised from time to time at the sole discretion of the Board
of Directors of Xxxxxxx Canada, and the Executive shall perform such duties as
Xxxxxxx Canada may direct form time to time. The Executive agrees to devote his
full time and energy to the furtherance of the business of Xxxxxxx Canada and
shall be loyal to Xxxxxxx Canada and use his best efforts to further its
interests, and shall not during the term hereof, without the prior written
consent of Xxxxxxx Canada, work or perform services in any advisory or other
capacity for any individual, firm , company or corporation other than for
Xxxxxxx Canada. Notwithstanding the foregoing, the Executive shall not be
precluded from devoting such time to his personal or financial affairs or to
community, charitable, trade and professional activities as shall not interfere
with his duties to Xxxxxxx Canada.
ARTICLE 3 - COMPENSATION
3.1 Base Salary. Xxxxxxx Canada shall pay the Executive as compensation for all
the services to be rendered by the Executive hereunder a base salary equal to a
rate of US Dollars $125,000.00 per year (the "Base Salary") for each of the
years during the Initial Term hereof (as hereinafter defined). Thereafter, if
this Agreement is extended pursuant to Section 4.1, the Executive's base salary
shall be subject to review in the discretion of the Board of Directors. The
Executive's salary shall be payable beginning with the period starting January
1, 2001 in equal monthly installments.
3.2 Performance Bonuses. The Executive shall be eligible to receive performance
and merit based bonuses in the sole discretion of the Board of Directors.
3.3 Stock Options. Subject to the Executive's execution of and compliance with
the terms of the Incentive Stock Option Agreement in the form attached a
Schedule "A" hereto ( the "Incentive Stock Option Agreement"), Xxxxxxx USA
grants to the Executive options to acquire that number of shares of the common
stock of Xxxxxxx USA at the price and on the other terms contained in the
Incentive Stock Option Agreement. Xxxxxxx USA hereby agrees to execute the
Incentive Stock Option Agreement concurrently herewith.
3.4 Other Benefits. The Executive shall be entitled to receive extended health,
dental and vacation benefits and other benefits substantially similar to those
provided to other Executives of Xxxxxxx Canada. Xxxxxxx Canada shall have the
right to change its benefit program at any time or times.
3.5 Reimbursement of Expenses. In addition to the compensation described in this
Agreement, the Executive shall be entitled to reimbursement by Xxxxxxx Canada
for all actual, reasonable and direct expenses incurred by him in the
performance of his duties hereunder, provided such expenses are properly
characterized as being business expenses that are properly tax deductable for
Xxxxxxx Canada, and further provided that such expenses were incurred only in
accordance with the policies and procedures established by the Board of
Directors from time to time. The Executive shall provide Xxxxxxx Canada with
written documentation of such expenses in form complying with the records
required of Xxxxxxx Canada by Canada Customs and Revenue Agency for tax
deductibility purposes in such cases, and reimbursement for each item of
approved expense shall be made within a reasonable time after receipt by Xxxxxxx
Canada of the written documentation thereof.
3.6 Vacation. The Executive shall be entitled to four (4) number of weeks annual
paid vacation and such holidays as the Board of Directors may approve. Vacation
entitlement cannot be carried forward beyond the year in which it is earned.
3.7 Withholdings. All amounts payable to the Executive pursuant to this
Agreement shall be subject to the usual deductions at source for Income Tax,
Canada Pension Plan, Employment Insurance and other deductions as may be
required from time to time.
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ARTICLE 4 - TERM AND TERMINATION
4.1 Term and Termination. This Agreement shall be effective upon the date first
set forth above and, unless earlier terminated as provided herein, shall remain
in full force and effect for an initial period which ends on December 31, 2002 (
the "Initial Term"). This Agreement shall be deemed to be renewed on the same
terms and conditions for additional successive periods of one (1) year absent
notice from Xxxxxxx Canada or the Executive at least twelve (12) months prior to
the end of the term then in effect. The purpose of the preceding sentence shall
be to provide, beginning on the anniversary date of this Agreement on January 1,
2002, with a continuing term of this Agreement of greater than one (1) year but
no more than two (2) years at all times thereafter until notice is given by
either party to this Agreement to the contrary.
Notwithstanding anything contained herein to the contrary, Xxxxxxx Canada may
terminate the Executive's employment immediately for cause. For purposes of this
Agreement, "for cause" shall include, without limitation, any of the following:
(i) the commission of any act of fraud, dishonesty materially harmful to Xxxxxxx
Canada, misappropriation or moral turpitude on the part of the Executive, (ii) a
material breach by the Executive of duties and obligations hereunder, (iii)
continued neglect by the Executive in fulfilling his duties as an Executive
officer of Xxxxxxx Canada as a result of alcoholism, addiction to illegal
substances, or excessive unauthorized absenteeism, after written notification
from the Board of Directors of such neglect, setting forth in detail the matters
involved and the Executive's failure to cure the problem resulting in such
neglect within a reasonable time thereafter, (iv) the Executive becomes
Completely Disabled (as hereinafter defined), or (v) the death of the Executive.
For the purposes of this Agreement, "Completely Disabled" shall mean the
Executive's inability, due to illness, accident or any other physical or mental
incapacity, to perform the duties provided for herein for an aggregate of 91
days during any period of 180 consecutive days during the term hereof.
(a) Upon a termination for cause:
(1) the Executive shall be entitled to his prorated Base Salary
through the date of termination;
(2) the Executive shall be entitled to reimbursement for any expenses
incurred and properly documented pursuant to Section 3.5;
(3) the Executive shall be entitled to his pro rata amount of pay for
vacation earned but not yet taken in the year during which
termination occurs;
(4) all benefits provided by Xxxxxxx Canada referred to in Section
3.4 shall cease on the date of termination, to the extent
permitted by law; and
(5) the Executive shall be entitled to exercise, for a 30 day period
following the termination date, all stock options that had vested
as at the termination date. Failure to exercise any vested stock
options within such 30 day period will result in forfeiture of
all vested stock options.
(b) Notwithstanding anything contained herein to the contrary, the
Executive shall have the right to voluntarily terminate this Agreement and his
employment with Xxxxxxx Canada at any time. Such voluntary termination shall not
be considered a breach of this Agreement. Upon such voluntary termination:
(1) the Executive shall be entitled to his prorated Base Salary
through the date of termination;
(2) the Executive shall be entitled to reimbursement for any expenses
incurred and properly documented pursuant to Section 3.5;
(3) the Executive shall be entitled to his pro rata amount of pay
for vacation earned but not yet taken in the year during which
termination occurs;
(4) all benefits provided by Xxxxxxx Canada referred to in Section
3.4 shall cease on the date of termination, to the extent
permitted by law; and
(5) the Executive shall be entitled to exercise, for a 30 day period
following the termination date, all stock options that had vested
as at the termination date. Failure to exercise any vested stock
options within such 30 day period will result in forfeiture of
all vested stock options.
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(c) In all cases of termination of the Executive not described in
Subsections 4.1(a) or (b):
(i) the Executive shall be entitled to all Base Salary, and benefits
referred to in Section 3.4 for the lesser of:
(A) the period from the date of such termination until the end
of the Initial Term, as the same may have been extended, but
in no event less than six (6) months; or
(B) fifteen (15) months from the date of such termination,
provided that there shall be deducted from the sum payable
by Xxxxxxx Canada under this subparagraph 4.2(c)(i), on a
dollar for dollar basis, any salary, bonus or other
compensation paid or accrued payable to the Executive as a
result of alternate employment during the fifteen (15)
months from the date of termination;
(ii) the Executive shall be entitled to his pro rata amount of pay for
vacation earned but not yet taken in the year during which
termination occurs; and
(iii)any stock options held by the Executive which would have
otherwise become vested within the fifteen (15) month period
immediately following such termination shall be deemed
immediately vested and exercisable and the Executive shall have 6
months following the date of termination to exercise all vested
and deemed vested stock options.
4.2 Return of Documents. Upon termination of employment for any reason, the
Executive shall return immediately to Xxxxxxx Canada all documents, property and
other records of Xxxxxxx Canada, Xxxxxxx USA or any affiliate and all copies
thereof, within the Executive's possession, custody or control, including but
not limited to any materials containing any Trade Secrets or Confidential
Information (each as defined below) or any portion thereof. The Executive shall
be entitled to retain all electronic equipment which has been assigned to him
for his personal use during employment including notebook computer, cellular
phone, pager, etc. provided that the Executive shall immediately assume all
usage charges associated therewith commencing with the date of termination.
ARTICLE 5 - TRADE SECRETS AND CONFIDENTIAL INFORMATION
5.1 Confidentiality. Xxxxxxx Canada may disclose to the Executive certain Trade
Secrets and Confidential Information (each as defined below). The Executive
acknowledges and agrees that the Trade Secrets and Confidential Information are
the sole and exclusive property of Xxxxxxx Canada (or a third party providing
such information to Xxxxxxx Canada ) and that Xxxxxxx Canada or such third party
owns all worldwide rights therein under patent, copyright, trade secret,
confidential information, or other property rights laws. The Executive
acknowledges and agrees that the disclosure of the Trade Secrets and
Confidential Information to the Executive does not confer upon the Executive any
license, interest or rights of any kind in or to the Trade Secrets or
Confidential Information. The Executive may use the Trade Secrets and
Confidential Information solely for the benefit of Xxxxxxx Canada wile the
Executive is employed or retained by Xxxxxxx Canada. Except in the performance
of services for Xxxxxxx Canada, the Executive will hold in confidence and not
reproduce, distribute, transmit, reverse engineer, recompile, disassemble, or
transfer, directly or indirectly, in any form by any means, or for any purpose,
the Trade Secrets or the Confidential Information or any portion thereof. The
Executive agrees to return to Xxxxxxx Canada, upon request by Xxxxxxx Canada,
the Trade Secrets and Confidential Information and all materials relating
thereto. Notwithstanding the above, the Executive may disclose any Trade Secrets
or Confidential Information compelled by summons or service of process, or as
otherwise required by law. The Executive agrees, to the extend reasonably
possible, to provide advance notice to Xxxxxxx Canada of any such request for
information.
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5.2 Duration. The Executive's obligations under this Agreement with regard to
the Trade Secrets shall remain in effect for as long as such information shall
remain a trade secret under applicable law. The Executive acknowledges that its
obligations with regard to the Confidential Information shall remain in effect
while the Executive is employed or retained by Xxxxxxx Canada and for five (5)
years thereafter. As used herein, "Trade Secrets" means information of Xxxxxxx
Canada, its licensors, suppliers, customers, or prospective licensors or
customers, including, but not limited to, technical or nontechnical data, source
codes, formulas, patterns, compilations, programs, devices, methods, techniques,
drawings, processes, financial data, financial plans, product plans, or a list
of actual or potential customers or suppliers, which (i) derives economic value,
actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use; and (ii) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy. As used herein,
"Confidential Information" means information, other than Trade Secrets, that is
of value to its owner and is treated as confidential, including, but not limited
to, future business plans, financial information, marketing strategies and
advertising campaigns, information regarding Xxxxxxx Canada's the Executives and
employees, and the terms and conditions of this Agreement. For purposes of this
Agreement, "Confidential Information" and "Trade Secrets" shall not include
anything or any information: (i) that was or becomes generally available to the
public other than as a result of a disclosure by the Executive, (ii) that was
available to the Executive on a nonconfidential basis prior to its disclosure to
the Executive by Xxxxxxx Canada, (iii) that becomes available to the Executive
on a nonconfidential basis from a source other than Xxxxxxx Canada, provided
that such source is not prohibited from disclosing such information by a
contractual or legal obligation to Xxxxxxx Canada of such information, or (iv)
that the Executive can conclusively show by documentary evidence was
independently developed by the Executive without use of any information
disclosed to the Executive by Xxxxxxx Canada. The Executive and Xxxxxxx Canada
acknowledge that the intent of this Section 5 is not to restrict the Executive's
employment following his tenure with Xxxxxxx Canada, but rather it is to protect
the rights that Xxxxxxx Canada has in its Trade Secrets and Confidential
Information.
ARTICLE 6 - COVENANT NOT TO COMPETE
In consideration of his employment hereunder, the Executive agrees as follows.
6.1 Term. The Executive will not, during the term of his employment with Xxxxxxx
Canada and for a period of two (2) years after termination for any reason of his
employment with Xxxxxxx Canada, directly or indirectly, engage in or carry on
any business, like or similar to that engaged in by Xxxxxxx Canada (including,
without limitation, any business engaged in the manufacture and sale of hardware
and software internet connectivity and firewall solutions), either individually
or as a stockholder, director, officer, consultant, independent contractor,
employee, agent, member or otherwise of or through any corporation, partnership,
association, joint venture, firm, individual or otherwise, or in any other
capacity in any country in which Xxxxxxx Canada either has an office or sells
its products through a distribution relationship. The above two (2) year period
shall be extended by any period of time during which the Executive is in default
of the covenants contained in this Agreement.
6.2 Remedies. In the event of a breach or threatened breach by the Executive of
all or any part of the provisions of Xxxxxxx 0.0, Xxxxxxx Xxxxxx shall be
entitled to an injunction restraining the Executive from such breach without
limiting any other rights or remedies available to Xxxxxxx Canada for such
breach or threatened breach.
ARTICLE 7 - CUSTOMER NON-SOLICITATION
7.1 Non-Solicitation of Customers. The Executive agrees that for a period of
eighteen (18) months immediately following termination of the Executive's
employment with Xxxxxxx Canada for any reason, including, without limitation,
voluntary resignation form employment by the Executive ( the "Non-Solicitation
Period"), the Executive shall not, on the Executive's own behalf or on behalf of
any person, firm, partnership, association, corporation or business
organization, entity or enterprise, solicit, contact, call upon, communicate
with or attempt to communicate with any customer or prospect of Xxxxxxx Canada,
with a view to selling or providing any product or service competitive or
potentially competitive with any product or service sold or provided or under
development by Xxxxxxx Canada during the time of two (2) years immediately
preceding cessation of the Executive's employment with Xxxxxxx Canada.
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ARTICLE 8 - EMPLOYEE NON-SOLICITATION
8.1 Non-Solicitation of Employees. Executive agrees that he shall not call upon,
solicit, recruit, or assist others in calling upon, recruiting or soliciting any
person who is or was an Employee of Xxxxxxx Canada within the Non-Solicitation
Period, for the purpose of having such person work in any other corporation,
association, entity, or business engaged in providing products or services of
the same or similar kind as offered by Xxxxxxx Canada.
ARTICLE 9 - EQUITABLE RELIEF
9.1 Equitable Relief. The parties acknowledge that a breach by the Executive of
any of the terms or conditions of this Agreement will result in irrevocable harm
to Xxxxxxx Canada and that the remedies at law for such breach may not
adequately compensate Xxxxxxx Canada for damages suffered. Accordingly, the
Executive agrees that in the event of such breach, Xxxxxxx Canada shall be
entitled to injunctive relief or such other equitable remedy as a court of
competent jurisdiction may provide. Nothing contained herein will be construed
to limit Xxxxxxx Canada's right to any remedies at law, including the recovery
of damages for breach of this Agreement.
ARTICLE 10 - ARBITRATION
10.1 Arbitration. Any difference, claim or matter in dispute arising between the
parties out of this Agreement or connected therewith (other than requests by
Xxxxxxx Canada for injunctive relief to enforce the provisions of Sections 5
through 8 hereof) shall be submitted by them to arbitration by a single
arbitrator under the provisions of the Commercial Arbitration Act (R.S.B.C. 1996
C. 55) or any successor statute.
ARTICLE 12 - GENERAL
12.1 This Agreement shall be governed by and construed in accordance with the
laws of the Province of British Columbia.
12.2 No waiver by any party hereto of any default in performance on the part of
the other party and no waiver by any party of any breach or of a series of
breaches of any of the terms, covenants or conditions of this Agreement shall
constitute a wavier of any subsequent or continuing breach of such terms,
covenants or conditions. The failure of any party hereto to assert any claim in
timely fashion for any of its rights or remedies under this Agreement shall not
be construed as a waiver of any such claim and shall not serve to modify, alter
or restrict any such party's right to assert such claim at any time thereafter.
12.3 Should any part of this Agreement for any reason be declared invalid, such
decision shall not affect the validity of any remaining portion, which remaining
portion shall remain in force and effect as if this Agreement had been modified
as required or executed with the invalid portion thereof eliminated and it is
hereby declared the intention of the parties hereto that they would have
executed this Agreement as so modified or would have executed the remaining
portion of this Agreement without including therein any such part, parts, or
portion which may, for any reason be hereafter declared invalid.
12.4 This Agreement may be simultaneously executed and delivered in
counterparts, each of which when so executed and delivered shall be deemed to be
an original and such counterparts together shall constitute one and the same
agreement.
12.5 This Agreement may be executed by the parties and transmitted by telecopy
and if so executed and transmitted this Agreement will be for all purposes as
effective as if the parties had delivered an executed original Agreement.
12.6 This Agreement shall enure to the benefit of and be binding upon Xxxxxxx
Canada, Xxxxxxx USA and the Executive and their respective heirs, executors,
successors and assigns.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first above written.
XXXXXXX TECHNOLOGIES INC.
Per:
------------------------
Authorized Signatory
Signed, sealed and delivered )
by XXXX XXXXXX )
in the presence of: )
------------------------- )
Name )
------------------------- )
Address ) ----------------------------
------------------------- ) XXXX XXXXXX
Occupation )
GOLDEN SOIL, INC.
Per:
-----------------------
Authorized Signatory
