EMPLOYMENT AGREEMENT
| BETWEEN : |
XLGENERATION
AG.,
corporation legally constituted according to the Laws
of Switzerland and
having its head office at Xxxxxxxxxxxx 00, Xxx, Xxxxxxxxxxx
|
(Hereinafter
referred to as the « Employer »)
| AND : |
XXXXXX
XXXXXXXX,
domiciled and residing at 5135 A Xxxxxx-Xxxxx, in the city of Montréal,
province of Québec, Canada;
|
(Hereinafter
referred to as the « Employee »)
PREAMBLE
| WHEREAS |
the
Employer agrees to retain the services of the Employee following
the terms
mentioned below;
|
| WHEREAS |
the
Employee declares knowing the policies and employment conditions
of the
Employer and is satisfied with the employment conditions following
the
present agreement.
|
THEREFORE,
THE PARTIES AGREE UPON THE FOLLOWING TERMS :
| 1. |
PREAMBLE
AND SCHEDULES
|
| 1.1. |
The
Preamble and Schedules form an integral part
hereof.
|
| 2. |
TERM
OF THE AGREEMENT
|
| 2.1. |
The
present Agreement will be valid for an indefinite time and may be
terminated at any time by either of the parties as provided herein.
Notwithstanding the date of execution hereof.
|
| 3. |
DESCRIPTION
OF THE EMPLOYMENT AND
TASKS
|
| 3.1. |
The
Employee shall fulfill the position of Vice President, legal
affairs.
|
| 3.2. |
The
Employee will be under the direction and the supervision of the Chief
Executive Officer of the Employer.
|
-1-
| 3.3. |
The
Employee shall respect the deadlines, orientations, functioning criteria
and directives given by the
Employer.
|
| 3.4. |
The
Employee acknowledges and accepts that the Employer may unilaterally
modify his tasks, functions, job description, hierarchical relationship
and geographical position of his workplace without any of these
modifications affecting or modifying an other part of the present
agreement. The Employer commits to inform the Employee of these
modifications. However, the modification shall not be interpreted
as an
indirect termination of the employment agreement without
cause
|
| 4. |
SALARY,
BONUS AND EXPENSES
|
| 4.1. |
SALARY
AND BONUS
|
| 4.1.1. |
The
base salary is 175 000$ USD
|
| 4.1.2. |
The
Employee acknowledges that the Employer is a public company and that
the
bonus package should be governed and ruled by a regime applicable
to each
employee. In consequence, the Employer has undertaken to implement
a Bonus
package for high level staff employee The Bonus Package will enter
into
force during year 2006
|
| 4.1.3. |
The
performance of the Employee shall be evaluated at the end of each
year and
the results of the evaluation shall be communicated to the Employee.
During the performance appraisal all other relevant matters shall
also be
discussed.
|
| 4.1.4. |
Your
official employment for which a salary will be paid will begin on
January
1st
2007, or at any earlier date mutually consent depending of the needs
of
the Employer.
|
| 4.1.5. |
The
Employee can, upon agreement between the Parties, split his monthly
salary
with a charge to a designated corporate entity duly registered in
a legal
jurisdiction. The Employer can request copy of registration document
and
list of Directors.
|
| 4.2. |
STOCK
OPTION PLAN
|
| o |
The
Employee shall benefit from a stock option plan that will be implemented
during year 2006.
|
| 4.3. |
ALLOCATION
FOR APPARTEMENT AND
CAR
|
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| 4.3.1 |
The
Employee, if he moves to Switzerland to work at the head office,
will be
entitled to a Housing allocation of 3 000 CHF per month and a Car
allowance of 7 500 CHF per year.
|
| 4.4. |
EXPENSES
|
| 4.4.1. |
The
Employer shall reimburse all reasonable and authorized expenses of
the
Employee required in carrying out his functions (including representation
fees, transportation, parking, conference
fees).
|
| 5. |
ANNUAL
LEAVE
|
| 5.1. |
The
Employee shall be entitled to an annual leave of five (5)
weeks
|
| 5.2. |
The
dates regarding the period of holidays should be discussed with the
CEO of
the Employer.
|
| 6. |
POLICIES
OF THE EMPLOYER
|
| 6.1. |
The
Employee shall comply with the Employer's policies, rules, regulations,
systems and procedures.
|
| 6.2. |
The
Employee acknowledges and accepts that the Employer may modify his
policies, rules, regulations, systems and procedures at any
moment.
|
| 7. |
EXCLUSIVE
RIGHTS OF SERVICES
|
| 7.1. |
During
the whole duration of his employment, the Employee devotes all his
time,
energies, dynamism and abilities to carry out her functions for the
Employer.
|
| 7.2. |
The
Employee can not occupy another employment without having previously
obtained the written consent of the Employer, which consent can be
revoked
at any time.
|
| 8. |
CONFIDENTIAL
INFORMATIONS
|
| 8.1. |
The
Employee acknowledges that, in carrying on or in the course of his
work,
he will receive confidential informations concerning the Employer
and the
past, present and future activities of the Employer. The Employee
acknowledges that the disclosing of such confidential informations
could
be detrimental for the Employer and against the Employer’s
interests.
|
-3-
| 8.2. |
Consequently,
the Employee commits, during the course of his work and for a period
of
twelve (12) months beginning at the termination of the present employment
agreement, to respect the confidential character of these informations
and
not to disclose or discuss with any person, neither to use these
informations, otherwise than in the course of her work for the
Employer.
|
| 8.3. |
The
term " confidential
informations "
is
defined as follows : financial informations, marketing launch
strategies, lists of suppliers and clients, ideas, concepts, processes,
designs, formulas, data compilations, procedures as well as any other
information related to the Employer, whether or not such information
has
been communicated verbally or in writing, in any form whatsoever,
including audiotapes, videocassettes, diskettes, images, prototypes,
designs, plans and specifications, drawings or any other medium which
can
be read, decoded or interpreted by individuals, by machine or by
any type
of technological equipment.
|
| 8.4. |
The
word " person "
includes all individuals, corporate bodies, partnerships, trusts
or other
associations duly constituted.
|
| 9. |
RESILIATION
|
| 9.1. |
Except
for the obligations surviving the termination of this agreement,
the
parties acknowledge and expressly accept that the present employment
agreement can be terminated :
|
| o |
At
any time for cause by the Employer by given a written notice to the
Employee, without any other notice, indemnity in lieu of notice or
any
other indemnity whatsoever, except if required by
law;
|
| o |
At
any time, by the Employee, by given a written notice of six (6)
months to
the other party. However, the Employer can at its sole discretion
replace
the said notice by a compensatory indemnity equal to six (6) months
of
salary. The six (6) month notice or the indemnity, as the case
may be,
will be in lieu of any notice to which the Employee is entitled
to and,
consequently, subject to the following the
Employee renounces to exercise or institute any recourse against
the
Employer regarding the said notice or indemnity.
|
| o |
At
any time without cause, by the Employer, by given a written notice
of
three (3) months to the other party. However, the Employer can at
its sole
discretion replace the said notice by a compensatory indemnity equal
to
three (3) months of salary. In addition of the compensatory indemnity,
the
Employer will pay to the Employee, as liquidated damages for termination
without cause, an amount represented the annual salary of the Employee,
including the Bonus, for the last completed calendar year, payable
on an
annual basis until the employee reach the age of 65 years old. The
three
(3) month notice and the additional indemnity, will be in lieu of
any
notice to which the Employee is entitled to and, consequently,
the
Employee renounces to exercise or institute any recourse against
the
Employer regarding the said notice or indemnity.
|
-4-
| 9.2. |
Upon
termination of this agreement, the Employee will return to the Employer
all documents, material, equipment, software material, programs or
any
other item used, obtained or produced during the execution of the
present
employment agreement. Such items must also be considered confidential
by
the parties.
|
| 10. |
INTERPRETATION
RULES
|
| 10.1. |
The
present employment agreement shall be construed and enforced in accordance
with the laws of Switzerland.
|
| 10.2. |
If
a section, phrase, paragraph, or part of this agreement is, for any
reason, declared invalid by a competent court, the decision will
not
modify the rest of the agreement or nullify
it.
|
| 10.3. |
All
the words and terms used within the present agreement must be interpreted
as including masculine and feminine, and the singular and plural,
following the context or the meaning of this
agreement.
|
| 10.4. |
The
titles used in the present agreement are only used as reference and
for
convenience. They do not affect or change the meaning or the extent
the
sections they designate.
|
| 10.5. |
The
present employment agreement shall not be amended or modified except
by
another written document duly signed by all the
parties.
|
| 10.6. |
The
parties undertake not to disclose any information or document, any
information or conversation relating to the present agreement, unless
express authorization is obtained from the other party and/or if
it is
otherwise required by the law.
|
| 10.7. |
The
Employee acknowledges that he has had the necessary time to examine
the
present agreement and that she was able to ask all pertinent questions
and
verify the extent of her rights and obligations. Moreover, the Employee
acknowledges that many elements of the present agreement intervened
following negotiations and consequently, he understands and accepts
the
nature and the extent of his rights and obligations pursuant to the
terms
and conditions of the present
agreement.
|
-5-
| 10.8. |
The
present agreement replace and supersede any previous written or verbal
agreement.
|
| 10.9. |
The
parties hereto have expressly agreed that the present employment
agreement
as well as all other documents relating thereto be drawn up only
in
English. Les parties ont expressément convenu que ce contrat de même que
tous les documents s'y rattachant soient rédigés en anglais
seulement.
|
SIGNED,
SEALED AND DELIVERED IN MONTREAL, THIS 30TH DAY OF MARCH
2006.
|
XLGENERATION
AG
/s/
Xxxxx Xxxxxxx
|
/s/
Xxxxxx
Xxxxxxxx
|
|||
|
By:
|
Xxxxx
Xxxxxxx
|
Xxxxxx
Xxxxxxxx
|
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SCHEDULE
4.1.2
FORMULA
FOR DETERMINATION
OF
THE
BASE SALARY
FOR
A
GIVEN YEAR
1%
x
(A
+
B)
2
A
is
equal to the amount of bonus received for the preceding year
B
is the
amount of increase or decrease of the Gross Sales in the preceding year compare
to the year before the preceding year.
Example
in ($000)
|
A
|
B
|
C
|
D
|
E
|
F
|
G
|
H
|
|
|
ANNÉE
|
Base
salary
Year
-1
|
Gross
income of year minus 1
|
Gross
income of year minus 2
|
Difference
Delta
|
Bonus
of year
-1
|
Result
E+D
2
|
1%
of F
|
New
base salary
|
|
2006
|
3,000
|
—
|
—
|
—
|
—
|
240
|
||
|
2007
|
240
|
20,000
|
3,000
|
17,000
|
—
|
8500
|
85
|
325
|
|
2008
|
325
|
25,000
|
20,000
|
5,000
|
150
|
2,575
|
25,75
|
350,75
|
|
2009
|
350
|
20,000
|
25,000
|
-5000
|
0
|
2,500
|
25
|
325,75
|
It
is
understood that this formula is only to determine the base salary for a given
year. The bonus has to be determined on a yearly basis according to the
provisions of the agreement by the board of directors or the remuneration
committee
as the
case may be.
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SCHEDULE
9.1
LIQUIDATED
DAMAGES IN
CASE
OF
TERMINATION WITHOUT CAUSE
| 1- |
Any
option that is not vested at the time of the termination without
cause
shall be considered as vested for the Employee so that the Employee
shall
be entitled to levy all his options net yet vested at the time of
the
termination without cause at any time after such a
termination.
|
| 2- |
The
Employer undertakes to pay the Employee an amount for each of the
three
years following the termination, each amount being equivalent
to:
|
| a. |
The
annual average salary paid to the Employee during the last 5 years,
including any bonuses and any other advantages.
|
| b. |
If
the Employee has not been employed for 5 years, the amount shall
be the
annual average salary paid since the beginning of his
employment
|
| 3- |
The
Employer shall grant to the Employee options to buy, a certain number
of
shares of the Employer determined as
follows:
|
| a. |
75
000 shares per annum during a certain number of years determined
as
follows: the number "60" less the age of the
Employee.
|
| b. |
The
price of the levy of the option shall be determined each year for
the
shares to be allocated for a given year and shall be fixed at 25% of
the aggregate market value of the last thirty trading days preceding
the
date of anniversary of the dismissal.
|
| c. |
If
the Employer has decided to proceed to a “split” of the shares of its
capital stock or a reorganization or consolidation of shares, the
number
of shares provided in a) will be adjusted
consequently.
|
| 4. |
The
foregoing grant of options and shares underlying such options shall
be
made to Employee under exemption from registration by the Securities
Act
of 1933, as amended (the "Securities Act") provided by Regulation
S
promulgated under the Securities Act. For purposes of such grant
the
issuance of shares underlying such options, Employee represents and
warrants to the Employer that Employee is not a "U.S. Person" as
defined
under Rule 902 of Regulation S, a copy of which is appended hereto.
Notwithstanding anything to the contrary herein, the obligation of
the
Employer to grant such options and issue the shares underlying such
options shall be subject to the continuing qualification of Employee
as a
"Non-U.S. Person" and the continuing availability of exemption from
registration of the issuance by the Company of such options and shares
underlying such options as otherwise required by the Securities
Act.
|
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