Exhibit 10.2
THIS AGREEMENT made as of the 1st day of January, 1999.
BETWEEN:
XXXXXXXXX.XXX INC., a corporation incorporated
under the laws of the State of Delaware
(hereinafter called the "CORPORATION")
OF THE FIRST PART
- and -
XXXXXX XXXXXXXXX, of the City of Toronto,
in the Province of Ontario
(hereinafter called the "EXECUTIVE")
OF THE SECOND PART
WITNESSETH that in consideration of the sum of Two Dollars ($2.00) now
paid by each of the parties hereto to the other (the receipt of which is hereby
acknowledged by each of them) and the mutual covenants and agreement herein set
forth, the parties hereto hereby agree as follows:
TERM
1. The Corporation hereby agrees to engage the services of the Executive
and the Executive hereby agrees to serve the Corporation in a
management capacity and to fulfill such functions as the Corporation
may from time to time direct, upon and subject to the terms and
conditions herein set forth for a period of employment which shall
commence on the date hereof (the "COMMENCEMENT DATE") and which shall
run for three (3) years from such date (the "TERM") or until terminated
as herein provided.
EXECUTIVE'S OBLIGATIONS
2. Subject to the Executive's obligations to D.G. Jewelry Inc., during the
term of his employment hereunder, the Executive shall devote his time
and personal attention to the business of the Corporation and shall not
engage in any other business or occupation without first having
obtained the written consent of the Corporation.
3. The Executive shall well, faithfully and diligently perform the duties
of his employment with the Corporation and any office or offices held
by him in the Corporation, and shall give his best efforts and skill to
the business and interests of the Corporation, will perform such
services, in and about such business of the Corporation as may from
time to time be assigned to him and shall do all in his power to
promote, develop and extend the business of the Corporation and to
enhance and develop the best interests and welfare of the Corporation
in all respects.
COMPENSATION
4. As compensation for his services hereunder:
(a) from the Commencement Date to and including _June 30, 1999,
the Corporation shall pay to the Executive the amount of Fifty
Thousand ($50,000.00) Dollars U.S., which amount shall be
payable to the Executive in equal weekly instalments of
$_1923.08.
(b) From July 1, 1999 to and including the expiration of the first
year of the Term, the Corporation shall pay to the Executive
the amount of $50,000 U.S., which amount shall be payable to
the Executive in equal weekly instalments of $1923.08 U.S..
(c) Notwithstanding the foregoing paragraphs (a) and (b) of this
Section 4, if the Corporation's proposed initial public
offering of its common stock (the "IPO") is completed to the
reasonable satisfaction of the Corporation, then the
compensation payable to the Executive from the date of
completion of the IPO to and including the expiry of the Term
shall be based on an annual salary of One Hundred and Fifty
Thousand Dollars ($150,000.00) U.S.
(d) The parties further agree that the amount payable to the
Executive during each year of the Term pursuant to section 4,
shall be reviewed by the parties on the anniversary date of
the Commencement Date and shall be subject to minimum
increases of at least Fifteen Thousand Dollars ($15,000.00)
U.S. per annum.
It is understood and agreed that all payments made pursuant to this
paragraph (c) and (d) above are payable by the Corporation in equal
weekly instalments during each year of the Term on the last business
day of each and every week of the Term.
5. The Executive may receive an annual bonus if, as and when determined
by the Corporation.
6. The Corporation at its expense shall pay to the Executive an automobile
allowance of One Thousand ($1,000.00) Dollars U.S. monthly. The
Corporation shall further reimburse the Executive for all reasonable
promotion and entertainment expenses actually and properly incurred by
him after having received the approval of the Corporation. For all such
expenses, the Executive shall furnish to the Corporation, statements
and vouchers as and when reasonably required by it.
TERMINATION OF EMPLOYMENT
7. Notwithstanding anything herein contained to the contrary, the
Executive's employment hereunder shall, unless otherwise directed by
the board of directors of the Corporation, cease forthwith upon the
happening of the following events:
(a) if the Executive dies or shall be adjudicated bankrupt or
suspends payment or compounds with his creditors or makes
unauthorized assignment or is declared insolvent;
(b) if the Executive shall be guilty of any gross default or gross
misconduct or any breach or non-observance of any of the
provisions contained in this Agreement, if any of the
foregoing are not remedied within fifteen (15) days after
receipt of notice in writing from the Corporation of any such
conduct;
(c) if the Executive shall become an alcoholic or drug addict;
(d) if the Executive shall absent himself from the business and
affairs of the Corporation without leave;
(e) if the Executive shall disobey or refuse to respond to any of
the reasonable orders or directions of the directors of the
Corporation, if the Executive shall not explain to the
reasonable satisfaction of the Corporation the reasons for any
disobedience or refusal to follow any of the orders or
directions, within five (5) days after receipt of notice in
writing from the Corporation of its intention to terminate
pursuant to this subparagraph;
(f) if the Executive shall do or cause to be done any action
detrimental to the welfare of the Corporation or injurious to
its reputation, which is not remedied within fifteen (15) days
after receipt of notice in writing from the Corporation of any
such conduct.
All of the foregoing are acknowledged to be without prejudice to any of
the Corporation's rights to terminate the employment of the Executive
for any cause that would in law permit an employer to terminate such
employment without notice of termination.
8. The Corporation shall have the right to terminate the Executive's
employment forthwith at any time following the expiry of ninety (90)
consecutive days of illness on the part of the Executive rendering the
Executive unable to perform his duties and obligations pursuant to this
Agreement. For the purposes of this Agreement, once any period of
consecutive days of illness on the part of the Executive has occurred,
no new consecutive period of illness on the Executive's part shall be
deemed to have commenced unless the Executive shall have returned to
the performance of his duties and obligations pursuant to this
Agreement for thirty (30) consecutive days following any previous
consecutive period of illness.
CONFIDENTIALITY
9. The Executive shall not, either during the period of employment
hereunder, or at any time thereafter, disclose to any person, firm or
corporation, any information concerning the business or affairs of the
Corporation or which the Executive may have acquired in the course of
or incidental to his employment by the Corporation or otherwise,
(whether prior to the date of commencement of this Agreement or
otherwise). whether for his own benefit or to the detriment or
intended- or probable detriment of the Corporation. Without limiting
the generality of the foregoing, the Executive hereby specifically
acknowledges and agrees that the following remains confidential
information of the Corporation:
(a) names and requirements of present and prospective customers of
the Corporation;
(b) names of persons who have traded and dealt with the
Corporation and data pertaining to such dealings; and
(c) processes and methods by which and the manner in which the
Corporation promotes its business and obtains customers
therefor.
Upon the termination of this Agreement, the Executive will surrender to
the Corporation any and all documents, list and records relating in any
way to the business of the Corporation, whether or not original or
copies, and notwithstanding that any of these may have been made at the
Executive's own expense.
GENERAL TERMS
10. The parties specifically acknowledge and agree that any change or
changes in any terms of this Agreement shall not operate as the
cancellation of this Agreement, but rather will operate as an amendment
hereto, and all other unamended terms, provisions and conditions of
this Agreement shall remain as herein provided.
11. If during the term of this Agreement, the Executive shall violate any
of the provisions contained herein, the Corporation shall be entitled
to apply for a restraining order and for an injunction to be issued by
any competent court having jurisdiction, restraining the Executive and
each and every other person, firm, partnership, corporation or
association concerned therein from continuance of any such violation,
in addition to any other remedies available to the Corporation.
12. This Agreement is personal to the Executive and shall not be assignable
by him, but shall accrue to the Corporation's successors and assigns.
13. The failure of the Corporation to insist upon the punctual performance
of any of the covenants or obligations of the Executive hereunder, or
the failure of the Corporation to exercise any right or H remedy
available to the Corporation under this Agreement, or any forbearance
on the part of the Corporation, shall not constitute a waiver by the
Corporation of any subsequent default-or breach by the Executive
hereunder. All demands for performance and all notice of default
hereunder are hereby waived by the Executive.
14. Any notice, direction or other instrument required or permitted to be
given by one party to the other hereunder shall be in writing and may
be given by mailing to the same postage prepaid or delivering the same
addressed:
to the Corporation at: 0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
to the Executive at: 0000 Xxxxxxxx Xx. #000
Xxx. 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Any notice, direction or other instrument aforesaid if delivered shall
be deemed to have been given or made on the date on which it was
delivered or if mailed, except in the event of an intervening postal
disruption, shall be deemed to have been given or made on the 3rd
business day following the day on which it was mailed.
The Corporation or the Executive may change its or his address for
service from time to time by notice given in accordance with the
foregoing.
15. This Agreement and the terms hereof shall constitute the entire
Agreement between the parties hereto with respect to all 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 whatsoever not incorporated herein and made a part hereof, and
this Agreement shall not be amended, altered or qualified except by a
memorandum in writing signed by all of the parties hereto, and any
amendment, alteration or in qualification hereof shall be null and void
and shall not be binding upon any party who has not given its or his
written confirmation thereof.
IN WITNESS WHEREOF the parties have hereto executed this Agreement.
XXXXXXXXX.XXX INC.
Per: /s/ Xxx Xxxxxxxxx
----------------------
Name: Ben Berkovitgs
Title: President
I have the authority to bind the Corporation.
/s/ Xxxxxx Xxxxxxxxx
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XXXXXX XXXXXXXXX
