EMPLOYMENT AGREEMENT
THIS AGREEMENT made this 1st day of August, 2000,
BETWEEN:
XXXXXXXXXX.XXX CORP.
(The "Employer")
- and -
XXXXXXX XXXX
(The "Employee")
WHEREAS:
The Employer agrees to employ the Employee as its Chief Information Officer and
the Employee accepts employment with the Employer.
In consideration of the mutual covenants and promises set forth below, the
Employer and the Employee hereby agree that their relationship shall be governed
by the following:
1. JOB DESCRIPTION -- The Employee shall provide services to the Employer
as described in the job description, attached to this Agreement as
SCHEDULE "A". The Employer may amend the job description from time to
time, after full consultation between the Employer and the Employee.
2. TERM -- This Agreement shall be deemed to have commenced on the 1st day
of August, 2000, and shall continue until terminated.
3. COMPENSATION
3.1 The Employer shall pay a salary to the Employee for his
services under this Agreement at a starting base salary of
$150,000.00 (Cdn.) per annum.
3.2 The Employee's salary shall be paid as follows:
(a) $100,000.00 will be paid to the Employee in equal
installments over the course of the year; and
(b) the remaining $50,000.00 will be paid to the Employee
in either cash or in common shares of the company (at
the then market value) on or before the anniversary
of the date on which the Employee commenced his
employment. The determination as to whether this
payment of $50,000 will be paid in cash or in equity
shall be at the sole discretion of the Employer. In
the case of a partial year of service, the $50,000
will be paid on a pro-rated basis.
3.3 The Employer may review and increase the Employee's salary on
the anniversary date of the Employee's employment, taking into
consideration, among other factors, cost of living, length of
service, performance and overall financial position of the
Employer.
3.4 Salary due to the Employee shall be paid in arrears on every
second Friday, or the last working day before these dates, or
such other regular pay day as may be agreed upon between the
Employer and the Employee.
3.5 Deductions and Contributions
(a) The Employer shall withhold from each salary payment
the statutory deductions for Employment Insurance
("EI") and Canada Pension Plan ("CPP") premiums, and
federal and provincial income tax and such other
deductions as may be required by law from time to
time.
(b) The Employer shall make the required employer
contributions to EI and CPP premiums and such other
payments required to be made by employers by law, on
behalf of the Employee and shall remit these together
with the Employee deductions to the Receiver General
for Canada, as required.
3.6 Additional Compensation
In addition to the above enumerated compensation, the Employer
will issue to the Employee 500,000 non-transferable options
pursuant to the Employer's Stock Option Plan, each entailing
the right to purchase one common share of the Employer and
bearing an exercise price of $0.33 USD (thirty-three cents US
Funds) per share, with 20 vesting dates (for 25,000 shares
each) over 20 successive fiscal year quarters. The first
vesting date shall be January 31, 2001. Upon notice of
termination of the Employee's employment with the Employer, by
either party, the Employee will have the right to exercise any
options that have vested, for a period of 30 days. After this
30 day period, the options will immediately be terminated. The
options will be governed by an option agreement which, when
executed, will form part of this contract.
4. BENEFITS
You will be entitled to participate in the employee benefits plans as
may be in effect at any given time at a level equivalent with other
senior executives of the Employer.
5. PERFORMANCE AND SUPERVISION
5.1 The Employee has represented to the Employer that he has been
involved in the software industry for the previous 10 years.
The Employee shall exercise the reasonable care, skill, and
diligence in performing the services set out in this Agreement
commensurate with a person having similar experience.
5.2 The Employee shall perform the duties required of him by the
President and shall act in accordance with all reasonable,
lawful directives given to him by the President and shall
report from time to time, as may be required, to the President
concerning his assigned tasks and activities.
5.3 The parties agree that performance appraisals are important
evaluative tools in the employment relationship, but are
impractical at this early stage in the Employer's business.
After consultation with the Employee, the Employer shall
reconsider the need for performance appraisals on an annual
basis. In the absence of regular formal performance
appraisals, it will be the responsibility of the President of
the Employer to advise the Employee of instances when the
Employee's performance does not meet the standard set out in
this agreement.
5.4 The Employee shall use his best efforts to promote the
interests of the Employer, shall not disclose the business of
the Employer, and shall not use for his own purposes or for
the purposes of any other organization or individual any
information he may acquire concerning the operation of the
Employer.
5.5 The Employee shall be provided with all necessary information
regarding the policies and procedures of the Employer and its
operations required in the performance of the services set out
in this Agreement, as they are amended from time to time.
6. CONFIDENTIALITY AND COPYRIGHT
6.1 The Employee shall keep confidential any information obtained
about any employee of the Employer obtained in the course of
his employment, except where that information is required for
the functioning of the Employer, in which case, the Employee
shall give the information only to the party that requires the
information.
6.2 The Employee shall use discretion in releasing information
about the business and affairs of the Employer in any matter
where the Employer's interest may be harmed by the release of
such information.
6.3 Upon termination of employment, the Employee shall deliver to
the Employer all documents, correspondence, plans, or other
written material and any copies thereof, and other physical
property which belongs to the Employer or is obtained during
the course of employment.
6.4 All written materials, plans, models, software, coding or
other materials (the "Works") in which copyright or property
rights can exist which are prepared by the Employee in the
course of his employment shall be the sole property and
copyright of the Employer, and the Employee hereby waives
moral rights in said Works.
7. EMPLOYEE'S RIGHTS
7.1 There shall be no discrimination with respect to the Employee
by reason of age, marital status, family status, membership in
political parties, sex, sexual orientation, race, ancestry,
place of origin, colour, ethnic origin, citizenship, creed,
handicap (where the handicap does not prevent the Employee
from performing the major duties of the position with
reasonable accommodation on the part of the Employer), or
educational background, or on any further ground as might be
enumerated in the Ontario Human Rights Code.
7.2 There shall be no discrimination with respect to the Employee
by reason of membership in a collective bargaining unit, or
for exercising his rights under a collective agreement.
7.3 The Employer shall abide by all requirements placed on
employers under the Occupational Health and Safety Act.
8. DISCIPLINE
8.1 The Employer has the right to discipline the Employee for
cause. Discipline shall be "progressive"; that is, normally
discipline shall increase in severity if a form of
unsatisfactory behavior is repeated or if a pattern of
unsatisfactory behavior develops. Discipline shall be
administered by the President. In the case of suspension or
discharge, the President may act only with the approval of the
Board of Directors.
9. NON COMPETITION AGREEMENT
The Employee acknowledges and agrees that it is a condition of this
Employment Contract that he enter in to a non-competition agreement in
the form attached hereto as SCHEDULE "B".
10. TERMINATION AND JOB SECURITY
10.1 The Employer may terminate the services of the Employee under
this Agreement, as follows:
a. for cause, without notice or pay in lieu of notice;
b. because the Employer no longer wishes to maintain a
position with substantially similar duties, or
substantially alters the job description so that the
Employee is not competent to perform the position as
newly defined;
c. without cause.
10.2 If the discharge is for either of the reasons given in
subparagraphs 10.1 b or 10.1 c above, the Employer shall pay
the Employee 4 weeks' salary for every full year the Employee
has been in the employ of the Employer thereafter, up to a
maximum of 12 months' salary. The amount of compensation paid
shall be reduced by the amount of notice given.
10.3 The Employee may terminate this Agreement upon no less than 60
days' written notice to the Employer.
11. HOURS OF WORK
The Employee and Employer acknowledge and agree that due to the nature
of the employment duties and functions contemplated by this agreement,
there shall be no minimum and maximum scheduled hours of work. The
Employee shall report to work in the normal course on a timely basis
and shall perform all duties and functions required of him pursuant to
the terms and conditions of this Agreement.
12. HOLIDAYS
12.1 The Employee is entitled to a paid holiday at his regular rate
of pay on each of the following public holidays:
o New Year's Day
o Good Friday
o Victoria Day
o Canada Day
o Simcoe Day
o Labour Day
o Thanksgiving Day
o Christmas Day
o Boxing Day
12.2 When a public holiday falls on a non-working day, the Employee
may take a holiday on either the last working day before or
the first working day after the holiday, as may be agreed upon
between the Employer and the Employee.
12.3 Where a public holiday falls during the Employee's vacation,
the day shall be considered a paid holiday and shall not count
as a vacation day.
13. VACATION
13.1 Subject to paragraph 13.2, the Employee is entitled to 4
weeks' paid vacation in the first and second year of
employment. Vacation is subsequent years thereafter shall be
agreed to by the Employer and Employee.
13.2 The Employee's vacation schedule shall be arranged by
agreement between the Employee and the President to conform
with the work requirements of the Employer. Approval for
vacation time shall not be unreasonably withheld.
13.3 No vacation benefits shall accrue to the Employee during an
unpaid leave of absence, but vacation time shall accrue during
an unpaid leave, in accordance with the Employment Standards
Act.
14. SICK LEAVE
14.1 Subject to paragraph 14.2, the Employee is entitled to leave
with pay in the event of ill health in the amount of 1 day for
each 2 months of employment to a maximum of 6 days per year.
Unused sick leave may accumulate to a maximum of 10 days. Sick
leave may be used in advance at the Employer's discretion and
where sick leave is exhausted, unpaid sick leave may be
granted at the Employer's discretion.
14.2 An Employee absent due to sickness or disability shall notify
the President, of his inability to report to work and shall,
at the time of notification, indicate the probable duration of
the absence. Such notification must be made by the Employee,
unless the nature of the sickness or disability makes this
impossible and this can be corroborated to the satisfaction of
the Employer.
14.3 The Employer shall have the right to require medical evidence
satisfactory to the Employer for the purpose of verification
of absence due to sickness or disability or for the purpose of
determining fitness or unfitness to work.
15. MISCELLANEOUS LEAVE
15.1 Personal Leave -- Personal leave without remuneration may be
granted by the President in consultation with the Board of
Directors.
15.2 Family Illness -- Where no one other than the Employee can
provide care during the illness of an immediate family member
or significant other, the Employee may use a maximum of 3
days' paid leave per occasion for this purpose, to a maximum
of 6 days per calendar year.
15.3 Pregnancy, Parental and Adoption Leave -- The Employer will
grant the Employee unpaid leave for the purposes of parental
or adoption leave in accordance with current provisions of the
Employment Standards Act.
15.4 Compassionate/Bereavement Leave -- The Employee is allowed up
to 5 days paid leave per occasion in the case of death of an
immediate family member or significant other. The Employer
shall grant such further leave on an unpaid basis as the
Employee shall require in the event of such a death.
15.5 Jury Duty -- The Employee shall receive paid leave if called
to jury duty or subpoenaed as a witness to a maximum of 3
weeks. Monies received as a result of jury duties or
attendance as a witness, less actual expenses incurred, shall
be paid to the Employer during the initial three week period,
after which time such monies shall be retained by the
Employee.
16. EXPENSES -- The Employee is entitled to reimbursement for the following
expenses reasonably incurred in the performance of work duties, on
presentation of valid receipts or documentation:
a. automobile travel at the current Ontario Government
rate;
b. actual fares for public transit;
c. actual expenses for parking, taxi cab, train, bus or
air travel; and
d. hotel expenses when the Employee is required for
purposes of his employment to remain away from home
overnight.
The above shall not include the cost of daily travel to or from work,
or parking while at work. However, the Employer shall make parking
spaces available to the Employee at no cost to the Employee as space
permits.
Significant expenses incurred by the Employee during the course of
Employment shall be approved by the President.
17. PERSONNEL RECORDS
17.1 A personnel file for the Employee shall be kept in the office
of the Employer. The file shall contain the following:
(a) copies of all letters of agreement and contracts
between the Employer and the Employee and the
attached schedules;
(b) payroll information;
(c) termination and other notices; and
(d) any other information respecting employment and
performance.
17.2 Personnel records shall be kept for at least 24 months after
the termination of the Employee's employment with the
Employer.
17.3 The Employee shall have a right of access to his personnel
file at any time, in the presence of a representative of the
President or his designate. The Employee shall have the right
to make copies of any of the contents, to add any documents
and/or written comments to the file at any time and to see any
evaluations or comments on his job performance as they are
placed in the file.
17.4 Access to personnel records shall be limited to the President,
the Board of Directors and the Employee. It is also understood
that those who have access to the file will use the
information gained only in relation to matters relevant to the
running of the Employer and/or providing letters of reference
for the Employee.
18. ENTIRE AGREEMENT -- This Agreement and the Schedules referenced herein
shall comprise the entire agreement and understanding between the
Employer and the Employee with respect to the subject matter in this
Agreement and supersedes any prior agreement, representation or
understanding with respect thereto.
19. PERSONNEL POLICIES
The parties acknowledge that the Employer does not at the present time,
have in place a personnel policy. The Employee acknowledges and agrees
that should the Employer develop a personnel policy during the term of
this agreement, it will form part of this Agreement.
20. AMENDMENT -- Except as expressly provided herein, the terms and
conditions of this Agreement may be amended at any time only by the
mutual written agreement of the parties to this Agreement.
21. GOVERNING LAW -- This Agreement shall be governed by the laws of the
Province of Ontario and the laws of Canada applicable hereto.
22. EMPLOYEE ACKNOWLEDGEMENT -- The Employee acknowledges that he has read
and understands the terms of this Agreement and that the Employer has
advised him that the foregoing substantially alters, removes, supplants
and supersedes his common law rights. The Employee acknowledges that
the Employer has advised him to seek independent legal advice prior to
executing this Agreement.
IN WITNESS WHEREOF the Employer, through its duly authorized officers has
executed this agreement and has affixed its corporate seal on this document, and
the Employee has executed this agreement in the presence of the witness whose
name is set out below.
NAME:
TITLE:
c/s
I have the authority to
bind the Corporation.
SCHEDULE "B", EMPLOYMENT AGREEMENT Page 10
)
SIGNED, SEALED AND DELIVERED in
the presence of: ) ) )
)
Witness ) XXXXXXX XXXX
SCHEDULE "A"
JOB DESCRIPTION
Responsibilities include participation in executive and corporate
decision-making, designing architecture of Information Technology
infrastructure, managing and IT staff, and overseeing the development of
information systems. The CIO will be responsible for the maintenance and quality
assurance of the LazyGrocer website, and the design of LazyGrocer's IT expansion
plans.
Personnel reporting to the CIO will be all IT related staff, including
Programmers, Developer, and the LAN Administrator.
SCHEDULE "B"
NON COMPETITION AGREEMENT
Non-Competition Agreement made the 1st day of August, 2000.
BETWEEN:
XXXXXXXXXX.XXX CORP.
(The "Employer")
and
XXXXXXX XXXX
(The "Employee")
WHEREAS the Employer or has entered into an Employment Agreement (the
"Agreement") with the Employee;
AND WHEREAS the entering into of this Non Competition Agreement is a
condition of the Employment Agreement;
NOW THEREFORE in consideration of the mutual covenants and promises
contained herein and in the Employment Agreement it is agreed by and between the
parties hereto as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions. In this Agreement, the following terms shall have
the meanings set out below unless the context requires otherwise:
SCHEDULE "C", EMPLOYMENT AGREEMENT
(a) "affiliate" means, with respect to any Person, any
other Person who directly or indirectly controls, is
controlled by, or is under direct or indirect common
control with such Person, and includes any Person in
like relation to an affiliate. A Person is deemed to
control another Person if such Person possesses,
directly or indirectly, the power to direct or cause
the direction of the management and policies of such
other Person, whether through the ownership of voting
securities, by contract or otherwise; and the term
"controlled" has a corresponding meaning.
(b) "Agreement" means this Non Competition Agreement,
including any schedules to this Agreements it or they
may be amended from time to time, and the expressions
"hereof", "herein", "hereto", "hereunder", "hereby"
and similar expressions refer to this Agreement and
not to any particular Section or other portion of
this Agreement.
(c) "Information" means any information proprietary to
the Employer concerning the Employer's business and
affairs or the business and affairs of an affiliate,
and without limitation includes busniess plans,
business processes, inventions and documents relating
to business plans, business processes and inventions,
whether in writing, orally communicated or stored in
electronic form.
(d) "Person" is to be broadly interpreted and includes an
individual, a corporation, a partnership, a trust, an
unincorporated organization, the government of a
country or any political subdivision thereof, or any
agency or department of any such government, and the
executors, administrators or other legal
representatives of an individual in such capacity.
(e) "Restriction Period" for purposes of this Agreement,
means the period commencing on the date of this
Agreement and ending three (3) years from the date of
the termination of the Employment Agreement.
1.2 Article and Section Headings. The division of this Agreement
into Articles and Sections and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation of this
Agreement. Unless the context requires otherwise, references in this Agreement
to Sections or Schedules are to Sections or Schedules of this Agreement.
1.3 Number and Gender. Unless the context requires otherwise,
words importing the singular include the plural and vice versa and words
importing gender include all genders.
ARTICLE 2
NON-SOLICITATION
2.1 Non-Solicitation. The Employee will not, at any time during
the Restriction Period, without the prior written consent of the Employer,
directly or indirectly, either alone or in conjunction with any individual or
firm, corporation, association or other entity, whether as principal, agent,
covenantor, employee, creditor or in any other capacity whatsoever, engage or
hire or attempt to solicit away from the Employer any employees of the Employer.
ARTICLE 3
NON COMPETITION
3.1 Non Competition and Restriction Period. For a period of 1
(one) year from the effective date of termination of the Employment Agreement,
the Employee shall not:
a. be directly or indirectly engaged in any company or firm which
is a direct competitor to the Employer or its affiliates in
any province in Canada where the Employer is carrying on
business;
b. be employed by any other similar business which may start up
in Canada;
c. intentionally act in any manner that is detrimental to the
relations between the Employer and its customers, employees,
dealers, affiliates or other persons; and
d. solicit any of the customers of the Employer or its affiliates
or be connected with any person, firm or corporation
soliciting or servicing any of the customers of the Employer.
3.2 The Employee acknowledges that by reason of employment with
the Employer, he will develop a close working relationship with the Employer's
customers, clients and affiliates, gain a knowledge of the Employer's methods
of operation, and acquire and be exposed to Information or materials
confidential to the Employer generally, all of which would cause irreparable
harm and injury to the Employer if made available to a competitor or if used for
competitive purposes.
3.3 The Employee acknowledges and agrees that the foregoing time
and geographic limitations pursuant to this Agreement are reasonable and
properly required for the adequate protection of the exclusive property and
business of the Employer, and in the event that any such time or geographic
limitation is found to be unreasonable by a court, then the Employee agrees
to be bound to such reduced time or geographic limitation as said court deems to
be reasonable.
3.4 The Employee acknowledges and agrees and understands that
without prejudice to any and all remedies available to the Employer, an
injunction is the only effective remedy for any breach of the Employee's
covenants under this Section and that the Employer would suffer irreparable
harm and injury in the event of any such breach and that monetary damages shall
be inadequate to compensate the Employer for the breach. Accordingly, the
Employee hereby agrees that the Employer may apply for and have injunctive
relief, including an interim or interlocutory injunction, in any court of
competent jurisdiction or threatened breach thereof. The Employee further agrees
that the Employer may apply for said injunctive relief. The terms and conditions
regarding injunctive relief are more particularly described in Article Four
herein.
3.5 The Employee understands and agrees that the restrictions and
covenants imposed pursuant to the terms of this Agreement and the Employment
Agreement constitute a material inducement to the Employer to enter into this
Agreement and the Employment Agreement to employ the Employee, and that the
Employer would not enter into the Employment Agreement absent such inducement.
The Employee agrees that the restrictions and covenants contained in this
Section shall be construed independently of any other provision of this
Agreement, and the existence of any claim or cause of action by the Employee
against the Employer, whether predicated under this Agreement or the Employment
Agreement or otherwise, shall not constitute a defense to the enforcement by
the Employer of the restrictions and covenants contained herein and in the
Employment Agreement.
ARTICLE 4
CONFIDENTIALLY
4.1 Confidentiality. The parties acknowledge that the Employee
has had, and may have, access to confidential information belonging to the
Employer and its affiliates. In addition to the covenants contained in the
Employment Agreement, the Employee therefore undertakes that he shall not
neither during the term of this Agreement not at any time thereafter:
(a) disclose the private affairs or secrets of the
Employer or its affiliates, including any
Information to any third party other than with the
consent of the Employer; and
(b) use for his own purposes or for any purposes other
than those of the Employer or its affiliates any
confidential information that he may have relating
to the businesses of the Employer or its affiliates.
ARTICLE 5
GENERAL
5.1 Severability. Each provision of this Agreement shall
constitute a separate and distinct covenant shall be severable from all other
such separate and distinct covenants contained in this Agreement. Any provision
of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to that jurisdiction, be ineffective to the extent of such
prohibition or unenforceability and shall be severed from the balance of this
Agreement, all without affecting the remaining provisions of this Agreement
or affecting the validity or enforce ability of such provision in any other
jurisdiction.
5.2 Reasonableness of Restrictions. The Employer and Employee
agree that all restrictions in this Agreement are necessary and fundamental to
the protection of the respective businesses of the parties and are reasonable
and valid. All defenses to the strict enforcement of this Agreement against the
parties or any of their Affiliates are hereby waived.
5.3 Successors and Assigns. This Agreement shall endure to the
benefit of, and be binding on each of the Employer and Employee and their
respective successors and permitted assigns. Neither party may assign or
transfer, whether absolutely, by way of security of otherwise, all or any part
of its respective rights or obligations under this Agreement without the prior
written consent of the other.
5.4 Amendment. No amendment of this Agreement shall be effective
unless made in writing and signed by both of the parties.
5.5 Waiver. A waiver of any default, breach or non-compliance
under this Agreement shall not be effective unless in writing and signed by the
party to be bound by the waiver. No waiver shall be inferred from or implied but
any failure to act or delay in acting by a party in respect of any default,
breach or non-observance or by anything done or omitted to be done by any other
party. The waiver by a party of any default, breach or non-compliance under this
Agreement shall not operate as a waiver of that party's rights under this
agreement in respect of any continuing or subsequent default, breach or
non-observance (whether of the same or any other nature)
5.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Province of Ontario and the
laws of Canada applicable therein and shall be treated in all respects as an
Ontario contract. Any action, suit or other legal proceeding commenced by any
party hereto based upon, arising out of or otherwise with respect to this
Agreement or the transactions contemplated hereby shall be commenced only
in a court of the Province of Ontario.
5.7 Employee Acknowledgement. The Employee acknowledges that
he has read and understands the terms of this Agreement. The Employee
acknowledges that the Employer has advised him to seek independent legal
advice prior to executing this Non Competition Agreement.
IN WITNESS WHEREOF the Employer, through its duly authorized officers has
executed this agreement and has affixed its corporate seal on this document, and
the Employee has executed this agreement in the presence of the witness whose
name is set out below.
NAME:
TITLE:
I have the authority to
bind the Corporation.
SIGNED, SEALED AND DELIVERED in
the presence of: ) ) )
)
Witness )
) XXXXXXX XXXX
XXXXXXXXXX.XXX INC.
OPTION AGREEMENT
Common Shares
THIS AGREEMENT made as of the 1st day of August, 2000.
BETWEEN:
XXXXXXXXXX.XXX INC.,
a corporation incorporated under the laws of the State of Florida
(hereinafter called the "Corporation")
AND:
Xxxxxxx Xxxx,
of the City of Ottawa in the Country of Canada
(hereinafter called the "Grantee"),
WHEREAS:
Pursuant to a resolution dated whereby the Board has granted effective August 1,
2000 (the "Date of the Grant") to the Grantee, the Option to purchase the number
of Shares of the Corporation hereinafter referred to based on the Fair Market
Value thereof on the Date of the Grant.
NOW THEREFORE in consideration of the premises and other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged by each of the parties hereto) and the covenants contained herein
the parties hereto covenant and agree as follows:
1. Definitions
1.1 Unless the context otherwise specifies or requires, in this
Agreement the following terms shall have the meanings specified in this
paragraph:
(a) "Agreement" "hereto", "herein", "hereof", "hereunder" and similar
expressions refer to this Option Agreement and not any particular
paragraph or any particular portion of this agreement and includes all
schedules attached to this agreement;
(b) "Board" means the board of directors of the Corporation as the same may
be constituted from time to time;
(c) "Date of Grant" means for any Option, the date specified by the Board
at the time it grants the Option;
(d) "Disability" means the permanent and total disability as determined
under procedures established by the Board for the purposes of this
Agreement;
(e) "Exercise Price" means the price per Share as determined herein from
time to time;
(f) "Option" means a non-transferable option to purchase Shares granted
pursuant to this Agreement;
(g) "Shares" means the common shares of the Corporation issued and
outstanding from time to time.
1.2 Capitalized terms not defined herein shall have the meaning
prescribed in the XxxxXxxxxx.xxx, Inc. 2000 Stock Option Plan, the
terms of which are included herein by reference.
2. Grant of Options
The Corporation hereby confirms the grant to the Grantee of an Option, which
shall be treated as an ISO, to purchase from the Corporation up to 500,000
presently unissued Shares, at an Exercise Price of $0.10 per Share being the
Fair Market Value thereof on the Date of the Grant and subject to the terms and
conditions hereinafter set out.
3. Expiry of Option
The term of the vested Options shall be from the date hereof and shall expire on
the earlier of the following:
(a) 5 years following the Date of Grant;
(b) 30 days following the termination of employment without cause of the
Grantee or termination of the Grantee's consulting contract by the
Corporation or an Affiliate for any reason, other than a failure of
the Grantee to fulfill the terms of the consulting contract, as
applicable;
(c) the period specified in a notice given pursuant to paragraph 7 hereof;
(d) 1 day prior to the termination of employment for cause of the Grantee
or to the termination of the Grantee's contract by the Corporation or
an Affiliate for failure of the Grantee to fulfil the terms of the
consulting contract, as applicable; and
(e) 120 days following the Disability, retirement or death of the Grantee.
4. Vesting
The Options will become immediately exercisable and vest in respect of any and
all Shares not yet exercised upon the determination of the Board, in its sole
discretion and on such terms and conditions as it deems appropriate.
5. Exercise of Option
The Option shall be exercisable at any time from time to time during the term
thereof with respect to all or any lesser number of the Shares referred to in
Section 2 that have vested in accordance with Section 4 by written notice given
to the Corporation in the form attached hereto as Schedule "A" to this Agreement
specifying the number of Shares in respect of which such Option is being so
exercised at such time, accompanied by cash, certified cheque, bank draft, money
order or such other means as may be specified by the Board in favour of the
Corporation in payment in full for such Shares at the price per Share specified
in Section 2, whereupon the purchase pursuant to the said Option of the Shares
so specified shall be deemed for all purposes to have been completed and the
said Option exercised to such extent.
The Option shall be exercisable only by the Grantee during her lifetime or by
the legal personal representative or representatives of the Grantee.
The Grantee shall not be entitled to either transfer, assign, gift or transfer
the Shares to any person whatsoever or to pledge, hypothecate or in any way
encumber the Shares without the written consent of the Corporation.
6. Alterations of Capital Stock
If at any time after:
(a) a reconstruction, reorganization or recapitalization of the Corporation,
or its consolidation, amalgamation or merger into or with another
corporation; or
(b) a consolidation, subdivision or other change of the Shares then covered
by the said Option, or the issue of further shares as a stock dividend;
(c) the Board shall determine that, in order to preserve as nearly as may be
possible the original scope and intent of this agreement, the said
Option should thereafter cover a different class and/or number of Shares
and/or should be exercisable at a different Exercise Price per Share;
the Corporation shall give notice to the Grantee designating such new class,
number and/or price, whereupon this Agreement shall, without further act or
formality, be thereby amended accordingly, and any notice so given by the
Corporation pursuant to a determination so made by its directors shall be final
and binding for all purposes of this Agreement.
7. Reorganization
Notwithstanding anything herein contained, in the event of a proposed
reconstruction, reorganization or recapitalization of the Corporation, or its
consolidation, amalgamation or merger into or with another corporation, the
Corporation shall have the right to give written notice to any Grantee requiring
such Grantee within the period specified in such notice (which in no event shall
be shorter than 30 days following the giving of such notice) to exercise such
Option with respect to all Shares covered thereby and not theretofore purchased
by such Grantee. Upon such notice being given, such Grantee shall have the right
to exercise such Option accordingly with such period and such option shall
terminate at the expiry of such period with respect to all Shares covered
thereby which shall not have been theretofore purchased thereunder.
8. Notices
Any notice to be given pursuant to the provisions hereof shall be deemed to have
been validly given if reduced to writing and either mailed by prepaid ordinary
post or delivered to the party to whom the same is to be given at the following
applicable address:
the Corporation XxxxXxxxxx.xxx, Inc.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX X0X 0X0
the Grantee or ________________________________________
the legal personal ________________________________________
representative or ________________________________________
representatives of ________________________________________
the Grantee ________________________________________
or at such other address as the party to whom the same is given to be given
shall have theretofore designated by notice given in the manner specified in
this section; and any such notice shall be deemed to have been given on the day
of delivery thereof or on the day following the day of mailing thereof in Canada
or the United States, as the case may be.
9. Further Assurances
The parties hereto shall do all further acts and things and execute all further
documents reasonably required in the circumstances to effect the provisions and
intent of this Agreement.
Applicable Law
This Agreement and the provisions hereof shall be governed and construed
according to the laws of the State of New York.
10. Assignment
This Agreement is not assignable by the Grantee or the legal personal
representative or representatives of the Grantee.
11. Entire Agreement
This Agreement together with the Schedule attached hereto 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.
12. Agreement Binding
This Agreement shall enure to the benefit of and be binding upon the parties
hereto and their respective personal representative, executors, administrators,
successors and assigns.
13. Waivers
No amendment, waiver or termination of this Agreement will be binding unless
executed in writing by the parties to be bound hereby. No waiver of any
provision of this agreement will be deemed or will constitute a waiver of any
other provision, nor will any such waiver constitute a continuing waiver unless
expressly provided.
14. Counterparts
This Agreement may be executed in several counterparts, each of which together
shall constitute one and the same instrument. The parties hereto agree that this
Agreement may be transmitted by facsimile or such similar device and that the
reproduction of signatures by facsimile or such similar device will be treated
as binding as if originals and each party hereto undertakes to provide each and
every other party hereto with a copy of the agreement bearing original signature
forthwith upon demand.
IN WITNESS WHEREOF the parties hereto have executed this agreement as
of the date first set forth above.
XXXXXXXXXX.XXX, INC.
Per:
------------------------------------
Title:
-----------------------------------
Witness to Grantee's Signature Grantee
SCHEDULE "A"
OPTION EXERCISE FORM
TO EXECUTE THIS OPTION, COMPLETE AND RETURN THIS FORM
The undersigned Grantee (or the Grantee's legal representative(s)
permitted by the Option Agreement) hereby irrevocably elects to exercise this
Option for the number of Shares of XxxxXxxxxx.xxx, Inc. as set forth below:
(a) Number of shares to be acquired:
--------------------
(b) Option exercise price per share: $
--------------------
(c) Aggregate purchase price [(a) times (b)]: $
--------------------
and hereby tenders a certified cheque for such aggregate purchase price,
directing such Shares to be registered and a certificate therefore to be issued
as directed below.
DATED this day of , 20.
WITNESS TO EXECUTION )
)
)
) [NAME OF GRANTEE]
)
)
-------------------------
) [SIGNATURE OF GRANTEE]
Direction as to Registration:
[Name of Registered Holder]
