Exhibit 10.40
THIS AGREEMENT made the 11th day of October, 2000.
BETWEEN:
Xxxxxxx X. Xxxxxxxx
000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
(hereinafter referred to as the "Board Member")
OF THE FIRST PART;
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cMeRun Corp.,
a corporation incorporated pursuant to the
laws of the State of Delaware (hereinafter
referred to as the "Company")
AND WHEREAS the Company wishes to retain the services of the Board Member to
provide Services to the Company;
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the mutual
covenants and conditions hereinafter contained, the parties agree as follows:
ARTICLE 1.00 - APPOINTMENT AND TERM
1.1 APPOINTMENT The Company hereby retains the Board Member to act as a director
of the Company effective September 20, 2000. The Company will make press
releases and other appropriate announcements regarding this appointment upon
written consent by the Board Member. This appointment is subject to approval by
the shareholders of the Company. The Board Member agrees to perform the duties
and exercise such powers consistent with the Board Member's position and such
additional powers as may from time to time be assigned or vested in the Board
Member by the Bylaws of the Company or by the resolutions of the Board of
Directors of the Company. In particular, the Board Member shall, without
limiting the foregoing:
(a) assist in the development of the profile of the Company with the
general public and with the financial community; and
(b) introduce the Company and its executive officers to contacts of the
Board Member who would be of assistance to the Company in obtaining
funds or achieving other objectives of the Company;
all such duties being hereinafter referred to as the "Services". The Board
Member shall perform the Services faithfully and to the best of his abilities.
While the role of external director is not a full-time position, the Board
Member agrees to devote such time and attention as is reasonably necessary for
the fulfillment of the Services and is consistent with standards for external
directors.
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1.2 TERM The Board Member is retained hereunder for a term commencing on the
date hereof and continuing until a successor has been duly chosen and has been
qualified as provided in the Bylaws of the Company (the "Term").
1.3 INDEMNIFICATION The Company hereby indemnifies the Board Member in
accordance with (i) the Bylaws of the Company and (ii) the General Corporation
Law of the State of Delaware.
ARTICLE 2.00 - COMPENSATION
2.1 BOARD MEETING FEE The Board Member shall also be compensated as a director
of the Company in the same manner as other members of the Board of Directors for
attending board meetings. The Board Member acknowledges that, as of the date
hereof, no compensation has been determined by the Compensation Committee of the
Board of Directors.
2.2 EXPENSES The Board Member shall also be entitled to be reimbursed for any of
his expenses incurred while performing the Services on behalf of the Company
that fall within the parameters of the Company's expense policy including
entertainment, meals, travel and accommodation expenses. All expenses must be
presented to the Company on an Expenses Report accompanied by receipts.
ARTICLE 3.00 - TERMINATION
3.1 TERMINATION BY COMPANY This Agreement may be terminated by the Company for
any reason prior to the expiration of the Term if the Board Member is in default
in the performance of the Services and such default continues for a period of
thirty (30) days after notice thereof, hereinafter referred to as "cause", or
upon the death or disability of the Board Member. Disability shall occur if the
Board Member is unable to attend to his duties due to medical reasons for a
continuous period of 30 days during the Term.
3.2 TERMINATION BY THE BOARD MEMBER This Agreement may only be terminated by the
Board Member by resignation prior to the expiration of the Term if the Company
is in default in the performance of any of its covenants, obligations or
agreements herein contained and such default shall continue for a period of
thirty (30) days following notice thereof.
3.3 TERMINATION BY MUTUAL AGREEMENT It is acknowledged that this Agreement may
be terminated at any time upon the mutual agreement of the parties hereto.
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ARTICLE 4.00 - STOCK OPTION
4.1 OPTION ISSUANCE The Company hereby grants to the Board Member options to
purchase a total of 100,000 common shares of the Company at a strike price equal
to the fair market value of the Company's common stock at the close of business
on October 11, 2000. 33,333 options shall vest on October 11, 2001, 33,333
options shall vest on October 11, 2002 and the balance shall vest on October 11,
2003. Any unexercised options will expire on October 11, 2004.
4.2 CHANGE OF CONTROL Should a Change of Control occur in the Company, all
unvested options shall vest immediately upon written notice given of the Change
of Control. All vested options must be exercised within 3 months of the date of
notice. To the extent possible, options will be in registered stock.
A Change of Control shall occur upon the occurrence of any one of the following
events following the effective date of this Agreement:
(a) Any person, association or company acquires or becomes the
beneficial owner of either directly or indirectly, more than forty
percent (40%) of the voting shares of the Company, or
(b) Any resolution is passed or any action or proceeding is taken with
respect to the liquidation, dissolution or winding-up of the
Company.
4.3 TERMINATION Should the Company terminate the Board Member or the Board
Member terminate his position on the Board for any reason other than change of
control, all options will be governed by the terms and conditions of the
Company's 2000 Equity Incentive Plan.
ARTICLE 5.00 - CONFIDENTIALITY AND NON-DISCLOSURE
5.1 In this Article, the following words have the following meanings:
(a) "BUSINESS SECRETS" means confidential or sensitive business
information, including without limitation, data, business
strategies, plans, contracts, financial records and budgets,
marketing techniques, pricing policies, costing information, and
information relating to or pertaining to targeted acquisitions of
the Company.
(b) "CONTRACTORS" of the Company means customers, suppliers, partners,
co-venturers and other contractors of the Company and also includes
potential customers of the Company in respect of whom access to
Business Secrets has been obtained for the purpose of evaluating
proposed projects or for submitting of tenders, bids or proposals.
(c) "COMPANY", in this Article 5.00 only, shall mean the Company and
any and all affiliated or related corporations.
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(d) "DOCUMENTATION" means all materials constituting or containing
Technology or Business Secrets, including electronic storage media.
(e) "TECHNOLOGY" means all computer programs, protocols, product
technical specifications including installation, performance and
maintenance specifications, patents, designs, drawings, manuals and
generally all knowledge, know-how, expertise and information of a
technical nature, whether or not protected under patent, design,
copyright or other intellectual property laws, and includes any and
all future changes, modification, additions, improvements and
enhancements thereof.
5.2 The Board Member will not divulge Technology or Business Secrets belonging
to the Company or Contractors of the Company to any persons whatsoever, other
than to:
(a) employees of Company;
(b) persons to whom the Board Member is authorized and directed to
release such Technology or Business Secrets, and only then to the
extent of such authorization.
5.3 The Board Member shall always:
(a) exercise reasonable care and diligence to protect the
confidentiality and integrity or Technology or Business Secrets
belonging to the Company or its Contractors; and
(b) strictly adhere to all policies, procedures and directions of the
Company relating to the protection and custody of Technology and
Business Secrets of the Company or its Contractors.
5.4 All Technology and Business Secrets belonging to the Company will be assumed
by the Board Member to be confidential.
5.5 The Board Member will only use Technology and Business Secrets belonging to
the Company in performance of the Board Member's duties hereunder and for no
other use whatsoever.
5.6 The obligation of confidentiality in this Article shall apply unless the
Board Member can establish that such Technology or Business Secrets were
generally known in the industry.
5.7 Upon any termination of this agreement for any reason, the Board Member
shall forthwith return to the Company all Documentation relating to the
Technology and Business Secrets of either the Company or its Contractors, and if
any such information is electronically copied and stored by the Board Member,
upon request he shall destroy such electronically stored copies.
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5.8 The obligations of the Board Member set out in this Article shall continue
in full force and effect after termination of this Agreement regardless of the
reason or cause of such termination.
5.9 The Board Member agrees that during the term of this agreement and for a
period of two (2) years immediately following the termination of this Agreement:
(a) within Canada or the United States, directly or indirectly, own,
manage, operate, control, be employed by, participate in, or be
connected in any manner with the ownership, management, operation,
or control of any business which is directly competitive with the
Company or any business which the Company plans to engage in which
the Board Member has received Business Secrets with respect thereto
(determined, in the case of termination, as of the date thereof),
it being specifically recognized by the Board Member that due to
the nature of the Internet and web related businesses of the
Corporation that such geographical restriction is reasonable and
necessary to protect the Company;
(b) the Board Member will not induce any executive or employee of the
Company or any of its affiliates to leave the service of the
Company, nor will it employ, in any business competitive with the
Company, such executive or employee for a period of six (6) months
following such executive's or employee's employment with the
Company;
(c) the Board Member agrees not to divert or attempt to divert (by
solicitation or other means) the customers or Prospective Customers
of the Company who are or were customers or Prospective Customers
of the Company at any time throughout the duration of this
Agreement (Prospective Customers being defined as entities with
which the Company is then in formal negotiations or discussions, as
evidenced by correspondence or other documentation);
Should the Board Member breach this covenant, in addition to other relief to
which the Company may be entitled, the Employee agrees that the Company shall,
in addition to all other remedies, also be entitled to injunctive relief from a
court of competent jurisdiction, enjoining the Board Member, his or her agents,
attorneys, and all others acting on his or her behalf from any further actions
in breach of this Agreement.
ARTICLE 6.00 - GENERAL PROVISIONS
6.1 NOTICES All notices, requests, demands, or other communications required or
designed to be given or made by one party to another shall be given in writing
by personal delivery or prepaid registered mail or by facsimile transmission or
other means of instantaneous transmission in regular commercial usage at such
time, verified by a transmission report, as follows:
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to the Company: cMeRun Corp.
Xxx Xxxxx Xxxx
Xxxxxx, XX 00000
Attention: Corporate Secretary
Facsimile: 000-000-0000
to the Board Member: Xxxxxxx X. Xxxxxxxx
000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Facsimile:
or at such other address as may be given by any of them to the others. Any
notice or other communication so given or made shall be conclusively deemed to
have been given and received when delivered personally, if delivered personally,
provided that if it is delivered on a day which is not a business day then the
notice or communication shall be deemed to have been given and received on the
next business day following such date, or on the fifth (5th) business day
following the date of mailing, if mailed by prepaid registered mail, except in
the event of disruption of mail services, in which event any notice shall be
delivered personally.
6.2 TIME OF THE ESSENCE Time is of the essence of this Agreement and every part
of this Agreement and no extension or variation of this Agreement shall operate
as a waiver of this provision.
6.3 CHOICE OF LAW This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts and the laws of
the United States of America applicable therein, and the parties hereto attorn
to the non-exclusive jurisdiction of the courts of such Commonwealth.
6.4 ENTIRE AGREEMENT This Agreement and the terms hereof constitute the entire
agreement between the parties hereto with respect to all of the matters herein
and its execution has not been induced by, nor do any of the parties hereto rely
upon or regard as material, any representations or writings not incorporated
herein and made a part hereof and this Agreement shall not be amended or altered
or qualified except by memorandum in writing signed by both of the parties.
6.5 SEVERABILITY If any of the provisions contained in this Agreement are, for
any reason, held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement, but this Agreement shall be construed as if such invalid,
illegal or unenforceable provision or provisions had never been contained in
this Agreement unless the deletion of such provision or provisions would result
in such a material change as to cause the completion of the transactions
contemplated in this Agreement to be unreasonable.
6.6 FURTHER ASSURANCES The parties convenant and agree to execute such further
and other documents and undertake such other actions as may be reasonably
required to give effect to the terms and intent of the transactions contemplated
in this Agreement.
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6.7 SUCCESSORS AND ASSIGNS The provisions hereof, where the context permits,
shall enure to the benefit of and be binding upon the heirs, executors,
administrators or other legal representatives of the Board Member and the
successors and assigns of the Company. With respect to the Board Member, this
Agreement, being personal, may not be assigned.
6.8 TIME PERIODS When calculating the period of time within which or following
which any act is to be done or step taken pursuant to this Agreement, the date
which is the reference day in calculating such period shall be excluded.
6.9 EXTENDED MEANINGS In this Agreement, where the context requires, the
singular number includes the plural and vice versa, the masculine gender
includes the feminine and neuter genders and vice versa, and the word "person"
is not limited to an individual but includes any entity recognized by law.
6.10 HEADINGS All headings are included solely for convenience of reference and
are not intended to be full or accurate descriptions of the contents thereof.
6.11 RECITALS Each of the parties acknowledges that the recitals of this
Agreement, so far as they relate to such party, are true and correct in
substance and in fact.
6.12 COUNTERPARTS This Agreement may be extended in separate counterparts, each
of which shall serve as an original for all purposes and all of which together
shall constitute one and the same agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first above written.
CMERUN CORP.
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Xxxxx X. Xxxxx
Chief Executive Officer
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Xxxxxxx X. Xxxxxxxx
