EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective the 20th day of September, 1999.
BETWEEN:
ABLE AUCTIONS (1991) LTD., a company incorporated under the
laws of British Columbia and having its head office located
0000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Company")
OF THE FIRST PART
AND:
XXXXXX XXXXXXXXX, of 00000 Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 0X0
("Xxxxxxxxx")
OF THE SECOND PART
WHEREAS:
A. The Company is an auctioneer and liquidator of a broad range of office
equipment, furniture, and industrial equipment;
B. Under an asset purchase agreement dated for reference September 20, 1999 (the
"Asset Purchase Agreement"), the Company purchased all of the property, assets,
and undertaking of the business of Xxxx Auctioneers & Appraisers Ltd. ("Xxxx"),
being the auction of tools, vehicles, industrial equipment, government surplus
equipment, and police seized goods (the "Business");
C. Pursuant to the Asset Purchase Agreement, the Business became a division of
the Company effective September 20, 1999; and
D. The Company has agreed to continue to employ Xxxxxxxxx in the Business and
Xxxxxxxxx has agreed to accept that employment, subject to the terms and
conditions set out in this Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSES that, for valuable consideration, the
parties mutually agree as follows:
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1. EMPLOYMENT
1.1 Subject to the terms and conditions of this Agreement, the Company employs
Xxxxxxxxx to perform the duties set out in section 2.1 (the "Duties").
1.2 Xxxxxxxxx'x obligation to perform the Duties and the Company's obligation
to pay the remuneration to Xxxxxxxxx will commence on September 20, 1999 (the
"Effective Date") and will continue until September 30, 2004 unless earlier
terminated in accordance with Article 5 of this Agreement (the "Term").
1.3 The Company may, at its option, renew this Agreement at the end of the Term
for an additional term or as negotiated by the parties. If the Company elects
not to renew this Agreement at the end of the Term, the Company will pay the sum
of $20,000 to Xxxxxxxxx on the last business day of the Term.
2. DUTIES
2.1 Xxxxxxxxx will use his best efforts to serve the Company as manager of
industry operations and, in that capacity, will perform any duties and exercise
any powers that may from time to time be directed by the Company's Board of
Directors, subject always to the control and direction of the Board.
2.2 Xxxxxxxxx will perform the Duties in a diligent, professional, and
efficient manner to preserve and enhance the Company's corporate image and will
faithfully devote the time, effort, and ability necessary to perform the Duties.
3. REMUNERATION
3.1 The Company will pay Xxxxxxxxx $1,668 for the period September 20 to
September 30, 1999. Beginning October 1, 1999, the Company will pay Xxxxxxxxx at
the monthly rate of $5,000, payable in two equal instalments (less applicable
source deductions) on the 15th day (or the business day immediately before the
15th day, if the latter is not a business day) and the last business day of each
month during the Term.
3.2 The Company will pay all reasonable expenses actually and properly incurred
by Xxxxxxxxx in connection with his performance of the Duties against delivery
to the Company of invoices evidencing those expenses.
3.3 The Company will pay Xxxxxxxxx a cash bonus as follows:
(a) $10,000 if gross revenues from the Business in any fiscal year of the
Company are at least CDN$1,500,000; or
(b) $25,000 if gross revenues from the Business in any fiscal year of the
Company are at least CDN$2,500,000,
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payable within 14 days of the date of completion of the audit and Board approval
of the Company's financial statements for that fiscal year.
4. RELATIONSHIP OF THE PARTIES
4.1 The Duties are personal in character and Xxxxxxxxx cannot assign either
this Agreement or any rights or benefits arising under this Agreement. In
performing the Duties, Xxxxxxxxx will operate as and will have the status of an
employee and will not act or hold himself out as or be an agent or partner of
the Company.
5. TERMINATION AND RENEWAL
5.1 During the Term, the Company may terminate this Agreement and the
employment of Xxxxxxxxx at any time for "just cause" by giving written notice to
Xxxxxxxxx. For the purpose of this Agreement, "just cause" is defined as:
(a) the wilful and continued failure by Xxxxxxxxx to substantially perform
the Duties 10 days after a written demand for substantial performance
is delivered to Xxxxxxxxx, which demand specifically identifies the
manner in which Xxxxxxxxx has not substantially performed his duties
and responsibilities;
(b) any dishonesty on the part of Xxxxxxxxx that materially affects the
Company;
(c) the conviction of Xxxxxxxxx for any crime involving moral turpitude,
fraud, or misrepresentation; and
(d) any wilful and intentional act on Xxxxxxxxx'x part that demonstrably
and materially injures the reputation, business, or business
relationships of the Company.
5.2 Xxxxxxxxx may terminate this Agreement if, without his express written
consent, the Company breaches any material terms of this Agreement and fails to
remedy that breach within 10 days of Xxxxxxxxx'x written notice to the Company.
5.3 On termination of this Agreement for any reason, Xxxxxxxxx will deliver to
the Company all documents pertaining to the Company or its business, including
without limitation all correspondence, reports, contracts, data bases related to
the Company, and anything included in the definition of "Work Product" set out
in section 6.1.
6. CONFIDENTIALITY
6.1 All reports, documents, customer lists, concepts, and products, together
with any business contracts or any business opportunities prepared, produced,
developed, or acquired by Xxxxxxxxx, directly or indirectly, in connection with
Xxxxxxxxx'x performance of the Duties (collectively, the "Work Product") will
belong exclusively to the Company or any of its
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affiliates, as appropriate (collectively, the "Ableauctions Companies"), which
will be entitled to all rights, interest, profits, or benefits in respect of the
Work Product.
6.2 Xxxxxxxxx will not make any copies, summaries, or other reproductions of
any Work Product without the Company's express written permission, provided that
the Company permits Xxxxxxxxx to maintain one copy of the Work Product for his
own use.
6.3 Xxxxxxxxx will not disclose any information, documents, or Work Product
which Xxxxxxxxx develops or to which Xxxxxxxxx may have access by virtue of his
performance of the Duties to any person not expressly authorized in writing by
the Company for that purpose. Xxxxxxxxx will comply with any directions that the
Company may make to ensure the safeguarding or confidentiality of all
information, documents, and Work Product.
6.4 Xxxxxxxxx will not disseminate or distribute any of the Work Product or any
other written or printed information about the Ableauctions Companies or their
business to the media, members of the public, shareholders of the Ableauctions
Companies, prospective investors, members of the investment or brokerage
community, securities regulators, or any other third party, without the Company
first reviewing and approving the Work Product or other information before
dissemination or distribution.
6.5. Xxxxxxxxx and his agents, employees, consultants, or associates
(collectively, the "Xxxxxxxxx Associates") will not, during the Term and for one
year following termination of the Term, either directly or indirectly as a
member or associate of any person, make any use of any confidential information
for the purpose of soliciting the business of any customer or former customer of
the Ableauctions Companies, or for the purpose of appropriating any business
opportunity whatsoever available to or which might be available to the
Ableauctions Companies. The term "associates" as used above will have the
meaning ascribed to it in the Company Act (British Columbia).
6.6 Xxxxxxxxx acknowledges and agrees that the confidential information is and
will be of a special and unique character, the loss of which cannot be
reasonably, readily, or accurately calculated in monetary terms. Accordingly,
the Ableauctions Companies will be entitled to injunctive or other equitable
relief to prevent or cure any breach or threatened breach of this Agreement by
Xxxxxxxxx. Resort to equitable relief, however, will not be construed to be a
waiver of any other right or remedy which the Ableauctions Companies may have
for damages or otherwise.
6.7 Xxxxxxxxx agrees that during the Term and for one year following the
termination of the Term, neither he nor any of the Xxxxxxxxx Associates will:
(a) encourage or entice any persons who are employees, contractors, or
suppliers of the Ableauctions Companies during the Term of this
Agreement, or who were employees, contractors, or suppliers of the
Ableauctions Companies at any time within the 30 days preceding the
date of this Agreement, to seek employment or service or contracts for
supply with persons other than the Ableauctions Companies; or
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(b) offer employment or service or contracts, directly or indirectly, to
any persons who are employees, contractors, or suppliers of the
Ableauctions Companies during the Term of this Agreement, or who were
employees, contractors, or suppliers of the Ableauctions Companies at
any time within the 30 days preceding the date of this Agreement.
6.8 On termination of this Agreement, Xxxxxxxxx will furnish to the Company a
certificate in a form approved by the Company's solicitors which declares that
Xxxxxxxxx has not:
(a) divulged, disclosed, distributed, or otherwise made available to any
person any confidential information; or
(b) reproduced or made any use whatsoever of any confidential information;
or
(c) acted contrary to the provision of the above; except with the
Company's prior written consent.
The remedies afforded to the Ableauctions Companies by this Agreement will be
cumulative and not alternative and will be in addition to and not in
substitution for any other rights and remedies available to the participants at
law or in equity, including the remedy of injunctive relief.
7. NON-COMPETITION CLAUSE
7.1 Xxxxxxxxx, on his own behalf and on behalf of the Xxxxxxxxx Associates
except for Xxxxx Xxxxxxx and Xxxxxxx Xxxxx, agrees with the Company that he will
not, except as an employee of the Company or any of its affiliates:
(a) at any time during the Term or any other association with an
affiliated company and during any notice period while Xxxxxxxxx is
receiving remuneration from the Company or an affiliated company, or
(b) for a period of one year, where the Term or the association of
Xxxxxxxxx with an affiliated company is terminated for whatever
reason,
either individually or in a partnership or jointly or in conjunction with any
person, firm, corporation, government, association, or syndicate (a "Business
Entity") as principal, agent, employee, director, officer, consultant, or in any
other manner, carry on or be engaged in any Business Entity engaged in or
concerned with or interested in the Business or any other business of the
Ableauctions Companies within the Lower Mainland of British Columbia.
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8. NOTICES
8.1 Any notices to be given by either party to the other will be sufficiently
given if delivered personally or transmitted by facsimile or if sent by
registered mail, postage prepaid, to the parties at their respective addresses
shown on the first page of this Agreement, or to any other addresses as the
parties may notify to the other from time to time in writing. This notice will
be deemed to have been given at the time of delivery, if delivered in person or
transmitted by facsimile, or within three business days from the date of posting
if mailed from Vancouver, British Columbia.
9. FURTHER ASSURANCES
9.1 Each party will at any time and from time to time, at the other's request,
sign and deliver other documents and do other things that the other party may
reasonably request to carry out and give full effect to the terms, conditions,
and intent of this Agreement.
10. ENUREMENT
10.1 This Agreement will enure to the benefit of and be binding on the parties
to this Agreement and their respective personal representatives, successors, and
permitted assigns.
11. LAW
11.1 This Agreement will be governed by and construed in accordance with the
laws of British Columbia and the parties irrevocably attorn to the courts of
British Columbia.
IN WITNESS WHEREOF the parties have signed this Agreement as of the date
written on the first page of this Agreement.
ABLE AUCTIONS (1991) LTD.
Per:
/s/ Xxxxx Xxxxx
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Authorized Signatory
/s/ Xxxxxx Xxxxxxxxx
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xxxxxx Xxxxxxxxx
