Exhibit 10.23
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 1st day of October, 2001.
BETWEEN:
XXXX X XXXXXXX
of the City of Davie, Florida, USA
(hereinafter referred to as the "Employee")
AND:
X-XXXXXXX.XXX, INC.,
a corporation incorporated under the laws of Canada
(hereinafter referred to as the "Employer")
WHEREAS:
A. The Employer wishes to employ the Employee and the Employee wishes to
serve the Employer upon the terms and subject to the conditions herein
contained.
NOW THEREFORE in consideration of the premises and the mutual covenants herein
and other good and valuable consideration the receipt and sufficiency of which
is hereby acknowledged by each of the parties, the parties hereto covenant and
agree as follows:
1. DEFINITIONS
In this agreement, unless the context otherwise specifies or requires, the
following terms shall have the following meanings:
1.1 "Agreement," "hereto," "herein," "hereof," "hereunder" and similar
expressions refer to this Agreement and not to any particular
section or any particular portion of this Agreement and includes
all schedules attached to this Agreement;
1.2 "Chief Financial Officer" shall mean the chief financial officer
of the recruiting software operation of the Employer;
1.3 "Court" shall mean a Court of competent jurisdiction;
1.4 "Parties" shall mean the Parties to this Agreement and "Party"
shall mean one of the Parties to this Agreement.
2. EMPLOYMENT
2.1 The Employer agrees to employ the Employee and the Employee agrees
to act as Chief Financial Officer or in such other employment as
the Employer and the Employee may from time to time agree and the
Employee agrees to serve the Employer upon the terms and subject
to the conditions set out in this Agreement.
2.2 The Employee specifically undertakes and agrees with the Employer
that he shall be responsible for the following:
2.2.1 for fulfilling the title and role Chief Financial Officer
of the Employer; and
2.2.2 such other duties as required.
2.3 In connection with the Employee's employment by the Employer, the
Employee shall be based at the offices of the Employer located in
Fort Lauderdale, Florida except for reasonably required travel on
the Employer's business.
3. TERM
3.1 The term of this Agreement shall be a period of one (1) year from
the date on which this Agreement is signed (the "Term"). Unless
written notice is given by either party at least ninety (90) days
before the end of the initial one (1) year Term or any one (1)
year extension hereof, that they wish this Agreement to terminate
at the end of that Term, this Agreement will be automatically
extended by successive one (1) year terms. In the event that such
notice is given by the Employer and not by the Employee and the
Employer does not offer the Employee continued employment on terms
and conditions comparable to those contained herein following the
termination of this Agreement, such notice shall be deemed
termination of Employee's employment other than for cause and the
provisions of section 10 shall thereupon be applicable.
4. REMUNERATION
4.1 In consideration of the Employee's undertaking and the performance
of the obligations contained in this Agreement, the Employer
shall, unless otherwise agreed upon by all parties to this
Agreement, pay and grant the following remuneration to the
Employee:
4.1.1 Base Salary. The Employee shall be entitled to receive a
salary, not less than $125,000.00(U.S.) per year.
4.1.2 Bonuses. In addition to the base salary specified in
section 4.1.1 the Employee shall be entitled to receive, a
one time performance bonus in an amount to be determined
and mutually agreed by the Parties based on the performance
of the CFO, with such performance criteria as mutually
agreed by the Parties.
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4.1.3 Stock Options. In addition to the base salary outlined in
section 4.1.1 the employee shall be granted options to
purchase up to 50,000 common shares of X-Xxxxxxx.xxx (the
"Option Shares") at a price that is the closing price on
the NASDAQ market the date this agreement is signed.
5. BENEFITS
5.1 In consideration of the Employee's undertaking and the performance
of the obligations contained in this Agreement, the Employer
shall, unless otherwise agreed upon by all parties to this
Agreement, pay and grant the following benefits to the Employee:
5.1.1 Vacation. The Employee shall be entitled to vacation time
of three weeks. Such vacation time shall be used at times
mutually agreeable to the Employee and the Employer.
5.1.2 Other Benefits. The Employee shall be entitled to
participate in all health benefit plans that the Employer
provides at no cost to the Employee.
5.1.3 Expenses. The Employer shall reimburse the Employee for all
reasonable and necessary business expenses, including but
not limited to cellular phone expenses, upon the
presentation to the Employer of appropriate written
documentation and receipts.
6. ATTENTION TO DUTIES
The Employee shall devote his whole working time and attention to the
Employer during the Term of this Agreement and will not engage in any
other capacity or activity which, in the sole opinion of the Employer
acting reasonably, would hinder or interfere with the performance of
the duties of the Employee.
7. CONFIDENTIALITY
The parties acknowledge that in carrying out his duties under this
Agreement, the Employee will have access to and become entrusted with
confidential information regarding the business plans and operations of
the Employer, computer systems and technology, unique methodology and
other proprietary information. The Employee acknowledges that the right
to maintain such detailed confidential information constitutes a
proprietary right, which the Employer is entitled to protect.
Accordingly, the Employee shall not, during the Term of this Agreement,
or at any time thereafter, disclose any of such detailed confidential
information, trade secrets or other private affairs of the Employer to
any person or persons, firm, association or corporation, nor shall the
Employee use the same for any purpose other than on behalf of the
Employer.
8. OWNERSHIP OF INVENTIONS
8.1 The Employee shall promptly communicate and disclose to the
Employer all inventions, improvements, modifications, discoveries,
designs, formulae, methods and processes made, discovered or
conceived by the Employee either alone or jointly with others,
during the period of his employment with the Employer, providing
the same relate to or are capable of being used by the corporation
or any affiliate thereof in the normal course of their businesses.
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8.2 The Employee acknowledges and declares that all inventions,
improvements, modifications, discoveries, designs, formulae,
methods, processes, as are described in section 8.1 hereof, and
all patents and patent applications relating thereto are the
property of the Employer and hereby assigns to the Employer all of
the right, title and interest of the Employee in any such
inventions, improvements, modifications, discoveries, designs,
formulae, methods and processes, and in any patents or patent
applications relating thereto. The Employee shall execute all
instruments and documents and do all such further acts and things
as may be necessary or desirable, in the Employer's opinion to
carry out the provisions of this section.
9. NON-COMPETITION
The Employee shall not, without prior written consent of the Employer
for the period of his employment hereunder or for a period of one (1)
year following the termination of this Agreement or any renewal hereof,
for any reason be it for cause or not, either alone or in conjunction
with any individual, firm, corporation, association or any entity,
except for the Employer, whether as principal, agent, shareholder,
employee or in any other capacity whatsoever, perform the duties of or
provide the services as are described in section 2.2 hereof in a
business which competes with the Employer, within any geographical
location where the Employer has carried on business or expended time
and personnel and financial resources or been involved in any capacity
in any business. Furthermore, the Employee also agrees that upon the
termination of his employment he will not attempt to hire or encourage
to leave their employ, any of the Employer's other employees, provided,
however, that the Employee shall not be precluded from competing with
the business of the Employer in the event of a termination of
Employee's employment as a result of a material breach by the Employer
of the provisions of this Agreement or in the event that Employee's
employment is terminated by the Employer other than for cause, unless
the Employer provides the applicable compensation and benefits set out
in section 10 hereof in which case, the Employee shall be precluded
from competing until such time as such compensation and benefits are
terminated.
10. TERMINATION
10.1 The parties understand and agree that employment pursuant to this
Agreement may be terminated during the Term in the following
manner in the specified circumstances:
10.1.1 by the Employee for any reason, on the giving of not less
than three (3) months prior written notice to the Employer,
which the Employer may waive, in whole or in part;
10.1.2 by the Employer within six (6) months of the signing of
this Agreement, in its absolute discretion, on giving the
Employee payment of the equivalent of three (3) months
salary, benefits and entitlements in lieu thereof, along
with all salary or entitlements to which the Employee is
entitled in accordance with any relevant statute, or this
Agreement, whichever is greater, including termination pay,
severance pay, unpaid vacation pay, if applicable and all
salary and benefits due to that date. The payment
representing this amount shall be paid within thirty (30)
days from notice provided herein;
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10.1.3 by the Employer without notice or payment in lieu thereof
for cause. The parties agree that for the purposes of
this Agreement, "cause" shall include, but shall not be
limited to, the following, and that the Employee shall be
terminated without notice or payment in lieu thereof for
such cause:
10.1.3.1 any material breach of the provisions of this
Agreement or of the established policies of the
Employer known to the Employee in the performance
of his duty under this Agreement;
10.1.3.2 consistent poor performance of the Employee's
part, after being advised as to the standard
reasonably required;
10.1.3.3 any intentional or negligent disclosure of any
confidential information as described in section 7
hereof, by the Employee;
10.1.3.4 in carrying out his duties hereunder, the
Employee; (i) has been grossly negligent, or (ii)
has committed willful gross misconduct;
10.1.3.5 personal conduct on the Employee's part which is
of such a serious and substantial nature that, as
determined in the sole discretion of the Employer,
it would injure the reputation of the Employer if
the Employee is retained as an Employee; or
10.1.3.6 any and all omissions, commissions or other
conduct which would constitute cause at law, in
addition to the specified causes.
10.2 The Parties understand and agree that the giving of notice or the
payment of termination pay, and severance pay, as required by the
Employer to the Employee on termination shall not prevent the
Employer from alleging cause for the termination.
10.3 The Employee authorizes the Employer to deduct from any payment,
any amounts properly owed to the Employer by the Employee by
reason of advances, loans or in recommence for damages to or loss
of the Employer's property and equipment, save only that this
provision shall be applied so as not to conflict with any
applicable legislation.
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11. RESULTS OF TERMINATION
11.1 If this Agreement is terminated for cause, as described in section
10.1.3 hereof, the Employee shall be entitled to receive his
remuneration to the date of such termination for cause, including
any and all vacation pay earned to date.
11.2 If this Agreement is terminated upon written notice as described
in paragraphs 10.1.1, 10.1.2 and 10.1.3 hereof, the Employer shall
pay to the Employee to the end of the notice period his salary and
at the end of the date terminating the notice provision, the
Employer shall pay to the Employee vacation pay equivalent and any
other monies due under applicable United States federal or state
law .
12. MEDIATION/ARBITRATION
12.1 Should any dispute or disagreement of any kind arise at any time;
(i) the rights and liabilities of the Parties hereof or with
respect to the interpretation, validity, construction, meaning,
performance, effect or application of this Agreement, as amended
from time to time; or (ii) between the Employer and the Employee,
the Parties agree that good faith negotiations shall take place
between the Employer and the Employee. If such good faith
negotiations have not resolved the dispute or disagreement within
a reasonable period of time, either Party may request a mediation
between the Parties, or either Party may refer the dispute or
disagreement directly to arbitration without going to mediation.
12.2 The mediator shall be agreed upon by the both Parties. In the
event that the Parties are unable to agree upon the mediator, the
dispute or disagreement shall be referred to arbitration in
accordance with this clause.
12.3 All discussions before the mediator shall be non-binding,
confidential and without prejudice to the position of either
Party. The Parties agree that if the mediation process does not
result in a satisfactory solution of the dispute or disagreement
after the lesser of either; (a) ten (10) hours of mediation, or
(b) thirty (30) days from the commencement of the mediation, then
either Party may refer the dispute or disagreement to arbitration
pursuant to the provisions of the American Arbitration
Association's National Rules for the Resolution of Employment
Disputes in effect at the time of the arbitration demand, in
accordance with the following:
12.3.1 the reference to arbitration shall be to one (1)
arbitrator.
12.3.2 any such arbitration shall be held in the city of Ottawa.
The arbitration shall be completely private. The
arbitrator shall fix the appropriate procedures which may
include an oral hearing. The issue or issues to be
decided by the arbitrator shall be defined in an
arbitration agreement filed on consent by the aggrieved
party. In the event the Parties to the arbitration shall
be unable to agree upon the issue or issues to be decided
by the arbitrator in any arbitration pursuant to this
paragraph, the arbitrator shall have jurisdiction to
determine the issue or issues to be so decided. The
Employee shall do all such acts and thing as are
necessary to enable the arbitrator to make a proper
finding respecting the matters in issue. The arbitrator
may order interest on any award and the arbitrator may
award costs to either Party. In the absence of any award
of costs, each of the Parties shall bear their own costs
of any arbitration pursuant to this paragraph and
one-half of the cost of the arbitrator. The arbitrator
shall be strictly bound by legal principals and the
general nature of this Agreement in rendering his/her/its
decision.
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12.3.3 The Parties agree that good faith negotiations, mediation
and arbitration shall all be without recourse to the
Courts. The award of the arbitrators shall be final and
binding, except that either Party may appeal an
arbitration award to the Courts on a question of law.
Judgement upon the award rendered by the arbitrator may
be entered in any Court having jurisdiction.
13. RIGHT TO INJUNCTIVE RELIEF
As a violation by the Employee of the provisions of paragraphs 7 and 9
hereof could cause irreparable injury to the Employer and there is no
adequate remedy at law for such violation, the Employer shall have the
right, in addition to any other remedies available to it at law or in
equity, to enjoin the Employee in a court of equity from violating such
provisions. The provisions of paragraphs 7 and 9 hereof shall survive
the termination of this Agreement.
14. ASSIGNMENT OF RIGHTS
The rights which accrue to the Employer under this Agreement shall pass
to its successors or assigns. The rights of the Employee under this
Agreement are not assignable or transferable in any manner.
15. CURRENCY
All dollar amounts referred to in this Agreement are in United States
funds.
16. AMENDMENT OF AGREEMENT
This Agreement may be altered or amended at any time by the mutual
consent in writing of the parties hereto.
17. TIME OF ESSENCE
Time shall be of the essence hereof.
18. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario.
19. HEADINGS
The headings appearing throughout this Agreement are inserted for
convenience only and form no part of the Agreement.
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20. SEVERABILITY
The invalidity or unenforceability of any provision of this Agreement
will not affect the validity or enforceability of any other provision
hereof and any such invalid or unenforceable provision will be deemed
to be severable.
21. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties and
supersedes all prior and contemporaneous agreements, understandings and
discussions, whether oral or written, and there are no other
warranties, agreements or representations between the parties except as
expressly set forth herein.
22. AGREEMENT BINDING
This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective personal representatives,
executors, administrators, successors and assigns.
23. INDEPENDENT LEGAL ADVICE
The Employee acknowledges that he has read and understands the
Agreement and acknowledges that he has had the opportunity to obtain
independent legal advice regarding the terms of the Agreement and their
legal consequences.
IN WITNESS WHEREOF this Agreement has been executed by the parties hereto as of
the date first set forth above.
SIGNED, SEALED & DELIVERED
/s/ Xxx Xxxxxxx /s/ Xxxx Xxxxxxx
----------------------------- --------------------------------------------
Witness Xxxx X. Xxxxxxx
X-XXXXXXX.XXX
Per: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Title: Chief Executive Officer & President
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