Confidential
Professional Services Agreement
THIS AGREEMENT made as of the __________________________
between Urbanalien Corporation, a Corporation duly existing
and organized under the laws of The State of Nevada having
it's main operational offices at 0000 Xxxxxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxx, X0X-0X0 (hereinafter "Company") and
Xxxxx Xxxxxxxxx (the "Employee").
WHEREAS:
A. The Company desires to have the Employee provide
professional services on the terms and conditions hereafter
set forth;
B. The Employee desires to provide professional services
on the terms and conditions hereafter set forth;
C. The Company and the Employee have agreed to enter into
a professional services consulting relationship for their
mutual benefit;
NOW THEREFORE in consideration of the mutual covenants and
premises hereinafter contained, this Agreement witnesses the
terms and conditions of the relationship that the parties
have mutually agreed upon.
1. Duties
The Company appoints the Employee and the Employee
hereby accepts to undertake (a) duties and exercise the
powers of CEO, or such other additional roles and duties as
may be requested of the Employee by the Board of Directors
(the "Board") and (b) the other offices to which he or she
may be appointed with the subsidiary or affiliated companies
of the Company, provided however that such additional roles,
duties or positions contemplated herein are consistent with
a senior executive position similar to the position being
contemplated herein. The Employee's duties include, but are
not limited to, the attached "Role Profile" (Appendix A).
The Employee shall competently and faithfully fulfill
his duties to the Company and use his best efforts to
promote and serve the interests, business and affairs of the
Company during the Term (as defined herein). The Employee
shall also abide by all rules, policies and practices now
and reasonably established hereafter by the Company.
2. Term
The commencement date of the Employee's professional
services shall be the date the Company raises $250,000 US,
or generates such amount through business activities, or a
combination thereof, or such mutually agreeable date and
such services shall continue for a period no less than three
years from this date and thereafter on an indefinite basis
until terminated as provided for herein. The Employee's
period of providing professional services shall be referred
to as the Term.
3. Compensation
(a) The compensation for said professional services
shall be paid upon receipt of invoice from Employee and at a
rate of twenty one thousand Canadian dollars ($21,000CDN)
per calendar month, a calendar month to represent sixteen
(16) working days. Compensation to be paid no less than
eight (8) working days after Company's receipt of invoice
from Employee. Thereafter the fee for professional services
shall be reviewed on 1st January of each calendar year. The
review will be undertaken by the Board, having regard to the
market rates of remuneration paid in Canada for executives
occupying similar positions or for professional services
with similar duties and responsibilities. Notwithstanding
this review the compensation provided to the Employee by the
Company for these professional services will not be reduced.
The Company will make best efforts to present to the
Employee, in writing, overall objectives for each calendar
year by March 31st of each calendar year.
Compensation and any benefit payments under this
Agreement shall be subject to such deductions, as the
Company is from time to time required to make pursuant to
law, government regulations or by written consent of the
Employee.
(b) The Employee will be issued shares of Company's common
stock on the following dates, so long as employee is still
an employee of Company at the end of each quarterly period
specified below:
First Year of Agreement-Q1 100,000.00
First Year of Agreement-Q2 125,000.00
First Year of Agreement-Q3 150,000.00
First Year of Agreement-Q4 175,000.00
Second Year of Agreement-Q1 200,000.00
Second Year of Agreement-Q2 225,000.00
Second Year of Agreement-Q3 250,000.00
Second Year of Agreement-Q4 275,000.00
---------------
2,500,000.00
(c) Company shall provide the Employee with reasonable
health club membership or similarly, the Company shall
reimburse the Employee for reasonable health club membership
fees, which shall include the one-time initiation fees and
monthly dues.
(d) It is understood and agreed that the Employee will
incur expenses in connection with performing these services
as per this Agreement. The Company will reimburse the
Employee for any business related expenses, provided that
the Employee submits an itemized written account to the
Company and provides original receipts acceptable to the
Company for all expenses. Business related expenses would
include, but are not limited to, subscription fees,
Internet, television and telephone connection.
(e) The Employee shall be entitled to receive the Company's
standard benefits plan that it presently provides to all of
its employees and executives, with the exception of
additional four times total yearly compensation life
insurance coverage upon medical underwriting approval by the
Company's insurer. Details of current "Benefits Plan" shall
be attached hereto as Appendix B.
4. Vacation
The Employee shall be entitled during each year to six
(6) weeks paid vacation. The vacation shall be taken at the
time or times mutually agreed upon by the Company and the
Employee.
5. Rights and Interests
The Employee acknowledges and agrees that all rights
and interests, including but not limited to, copyright,
trademarks, trade secrets and all intellectual property
rights, publishing rights, merchandizing rights and any
rights ancillary thereto arising from any designs, works of
authorship, and all other works, products and materials
conceived, developed or created within or relating to or
from the scope of these services hereunder, are solely owned
by the Company, its successors, licensees, and assigns by
operation of law, whether they were created before the date
of this Agreement and brought into the performance of
services for the Company or created after the date of this
agreement. The Employee fully assigns to the Company and its
successors, licensees and assigns any rights, including but
not limited to, the right to create derivative works and
revisionary interests, titles and interest that he may have
any idea, design, and other work of authorship, or work of
development that he has solely or jointly made, developed,
created, discovered, conceived, written wholly or in part by
his, or otherwise generated to date and thereafter as it
relates in any matter to the actual business, research or
development of the Company, its successors or affiliates
and/or to reasonably anticipated business, research or
development of the Company, its successors or its affiliates
of which the Employee is aware of by virtue of his
performing professional services for the Company.
The Employee further acknowledges and agrees that the
Company, its successors and or its affiliates are entitled
to deal with all results and proceeds of the Employee's
services in any legal manner and in any and all media,
whether now or hereafter devised in perpetuity and through
the world.
The Employee agrees to sign such documentation as may
be reasonably requested by the Company to confirm the
Company's exclusive ownership of rights and interests herein
discussed.
6. Waiver of Moral Rights
The Employee hereby expressly and irrevocably waives
any and all moral rights arising under the Copyright
Act (Canada) or at common law and to the results and
proceeds of his services in favour of the Company and
it's successors, licensees and assigns.
7. Confidentiality and Trade Secrets
All trade secrets, intellectual property, and
confidential Information as described hereunder are the sole
property of the Company. In this regard, the Employee shall
not, either during the Term or any time thereafter disclose
or assist in the disclosure of any Confidential Information,
trade secrets of the Company, or intellectual property,
whether it is in written or oral form, to any person other
than the Directors, officers or senior employees of the
Company where required for the performance of their duties,
without the prior written consent of the Company and its
Board.
Nor shall the Employee use for his own benefit of for the
benefit of any person other than that of the Company any
Confidential Information that he may acquire in relation to
the business and affairs of the Company.
For the purposes of this Agreement, the term
"Confidential Agreement" shall include, without limitation,
any information now known or hereafter developed by the
Company which gives the Company an opportunity to obtain an
advantage over competitors who do not know of such
information, including, but not limited to: information
which relates to the Company's inventions, technological
development," know how"; billing strategies; marketing
strategies; merchandising; licensing; computer software and
databases; as well as every document (in written or
electronic form), proposal, report, specification, customer
list, computer disc or file, computer program, notation,
record, diary, memorandum or other tangible or electronic
material containing such Confidential Information, whether
or not marked as Confidential.
Confidential Information shall also include any
Confidential Information of the Company's clients,
affiliates, or persons or entities which license
confidential information or technology rights to the
Company, which has been disclosed to the Employee in his
capacity as a provider of professional services to the
Company.
The Employee shall not be bound by the obligations
restricting disclosure and use set forth in this Agreement
with respect to Confidential Information, or any part
thereof which:
a) Was known by the Employee prior to disclosure, as duly
evidenced by documentation in accordance with applicable
statures as the case may be;
b) Was lawfully in the public domain prior to disclosure,
or becomes publicly available other than through a breach of
this Agreement;
c) Was disclosed to the Employee by a third party provided
the third party or any party from whom such third party
receives information is not in breach of any confidentiality
obligation in respect of such information;
d) Is independently developed by the Employee, as
evidenced by his business records; or,
e) Is disclosed when such disclosure is compelled pursuant
to legal, judicial or administrative proceeding, or
otherwise required by law, subject to the Employee giving
all reasonable prior notice to the Company to allow it to
seek protective or other court order.
Upton termination of this Agreement or upon request by
the Company at any time on or before or after
termination, the Employee will deliver to the Company any
and all written and tangible material in the Employee's
possession incorporating the Confidential Information or
otherwise relating to the Company's business.
8. Non-Competition and Non-Solicitation
The Employee acknowledges that by reason of providing
professional services to the Company, the Employee will
develop a close working relationship with the Company's
customers and clients, gain a knowledge of the
Company's methods of operation, and acquire and be
exposed to Confidential Information, all of which will
cause irreparable harm and injury to the Company if
made available to a competitor or if used for
competitive purposes. Accordingly, and in consideration
of the services provided hereunder:
a) The Employee agrees for that a period of six (6) months
from the date of termination of this Agreement for whatever
reason, he will not alone or in association with any legal
person or partnership, and whether as principle, partner, or
agent, director, officer, or otherwise, directly or
indirectly engage in, or have any interest in, any business
or enterprise which competes directly with the Company's
business in North America, or contact any of the Company's
contracted clients or customers at the time of termination,
which the Employee knows of or the Employee has contacted on
behalf of the Company during the course of this Agreement's
Term, for the purpose or intent of competing with the
Company. This paragraph (a) shall survive the termination of
this Agreement. Company's business shall mean the
interactive kiosk business.
b) Nor shall the Employee intentionally act in any manner
or make any statements written or oral which would have the
effect of disparaging the Company, its employees, officers,
directors, clients or services or which would reasonably
expected to interfere with contractual or employment
relationship with Company's clients, suppliers or employees;
c) The Employee agrees that for a period of six (6) months
following the termination of the Employee's professional
services, he shall not actively solicit, induce or attempt
to induce any of the Company's employee's to leave their
employment and thereafter offer employment to any Employee
of the Company.
d) The Employee agrees that during the Term he shall
refrain from engaging in independent business that would
constitute a conflict of interest in relation to the
Employee's employment obligations and services for the
Company. Such conflict of interest shall include the
identity of the Employee's independent client and/or the
nature and content of the independent business where either
(inclusively) is in direct competition with the Company.
e)
It shall be the Employee's obligation to disclose all
circumstances under which a conflict of interest may be
deemed to arise or exist. Nothing herein shall be
construed so as to prevent the Employee from sitting on
board of directors for companies that do not engage in a
competitive business, but will nonetheless be forthwith
declared to the Company for informational purposes.
f) Provided, however, that these provisions shall not be
construed in any way to restrict the Employee's right to
accept employment with or engage in a business which is
carried on by the Company.
9. Termination of Employment
The parties understand and agree that this Agreement may be
terminated in the following manner in the specified
circumstances:
a) By the Employee, at any time, for any reason, on the
giving of not less than 45 days written notice to the
Company, or such other time period as may be mutually agreed
upon by the parties.
b) By the Company summarily and without notice or payment
in lieu of notice, severance payment, benefits or damages,
on the occurrence of any one or more of the following
events:
i. For cause at common law resulting from, without
limiting the generality of the foregoing, fraud, dishonesty,
illegality, breach of statute or regulation, gross
negligence and/or acts of gross insubordination rendering
the Employee unfit to continue in a position filled by him
as determined in good faith by the Company's President, CEO
and Broad of Director;
ii. For failure of the Employee to disclose any material
facts as required herein;
iii. For a material breach of this Agreement;
iv. For declaration of personal bankruptcy of the Employee
by a court of competent jurisdiction wherein the petition is
initiated by a creditor or alternatively, the Employee's
voluntary assignment into bankruptcy; or,
v. The death of the Employee, except that the estate of
the Employee shall receive all Company benefits to which it
is entitled as a consequence of such event.
Failure by the Company to rely on the provision of this
paragraph in any given instance or instances shall not
constitute a precedent or be deemed a waiver.
c) By the Company in its absolute discretion, without
cause and for any reason, on paying the Employee in lieu of
notice a sum equal to an amount based on the following:
During the first twelve (12) months of the Term, the
"in lieu of notice sum" will be equal to twelve (12) months
of the Employee's annual base salary remuneration, excluding
all other perquisites except as otherwise agreed and set out
below. After the completion of the first twelve (12) months
the "in lieu of notice sum" will be equal to the Employee's
annual remuneration (excluding all other perquisites except
as otherwise agreed below) for the remainder of the Term.
The in lieu of notice sum will be a lump sum payment. The
Company shall make best efforts to pay in lieu of notice sum
within forty-five (45) days of the effective date of
termination, or such other reasonable and mutually agreeable
time period.
The Employee's benefits pursuant to paragraph 3(e) shall be
maintained for the severance/in lieu of notice period, to
the extent permitted under the Company's benefit plans and
benefit contract, as if the Employee's services had not been
terminated. Employee's accrued and unused vacation to the
date of termination will be also be paid
to the Employee in accordance with the Company's policy and
applicable statutory obligations.
The Employee acknowledges that any payment pursuant to this
paragraph shall be in satisfaction of the Employee's
entitlement to any monies whatsoever pursuant to the
Employment Standards Act (Ontario) including, without
limitation, entitlements to severance pay, vacation pay,
notice of termination of employment or payments in lieu
thereof, and at common law.
The Employee acknowledges and agrees that upon termination
and thereafter he shall not in any way falsely represent
himself as an employee of the Company or actively permit
such an understanding or belief to be held by another party.
The Company will deliver to the Employee as soon as
reasonably possible, after a Change of Control written
notice thereof. If after the Employee has been made aware of
the Change of Control and the employment of the Employee is
terminated by the Company without Cause or by the Employee
for Good Reason within the period that commences on the date
of such Change in control and ends on the date that is
ninety (90) days after such date, the Employee shall be
entitled to the rights, payments, and benefits set forth in
paragraph 9(c) as appropriate.
"Change of Control" shall mean a change in the legal or
effective control of the Company by way of an acquisition,
amalgamation, consolidation, or merger whereby either all of
the assets of the company become the property of any other
corporation or a third party corporation becomes entitled to
exercise more than 50% of the voting rights attached to the
outstanding voting shares of the Company (provided that
prior to any offer, the offeror was not entitled to exercise
more than 50% of the voting rights attached to the
outstanding voting shares of the Company).
Termination by the Employee of his provision of professional
services for "Good Reason" shall mean termination based on a
material reduction or substantial downward change in the
responsibilities or compensation of the Employee's position,
notwithstanding any change of the Employee's formal title of
resignation or retirement by the Employee.
10. Injunctive Relief
The employee hereby acknowledges and expressly agrees
that any breach by the Employee of this Agreement which does
or may result in loss of confidentiality of the Confidential
Information would cause the Company, its successors and
affiliates irreparable harm for which damages would not be
an adequate remedy, and therefore, the Employee hereby
agrees that, in the event of any breach by the Employee of
this Agreement, the Company, its successor and affiliates
shall have the right to seek injunctive relief against the
continuing or further breach by the Employee, without the
necessity of proof of actual damages. This right to seek
injunctive relief without necessity of proof of actual
damages shall be in addition to any other right which the
Company, its successors and affiliates may have under this
Agreement or otherwise in law or in equity.
11. Assignment of Company's Rights and Obligations
The rights and obligations of the Company under this
Agreement shall pass to and be binding upon its successors
and assigns. The Company may assign this contract to and
Affiliate of the Company, as that term is defined in the
Canadian Business Corporations Act, and guarantee the
payment terms if this Agreement is assigned. The Employee
may not assign this Agreement.
12. Severability
In the event that a court of competent jurisdiction
shall deem any provision or part of this Agreement void or
invalid, the remaining provisions or parts shall be and
remain in full force and effect.
13. Further Assurances
Employee agrees that upon the written request of the
Company, at any time and from time to time whether before or
after the expiration of this Agreement, Employee will do all
such acts and execute or cause to be executed and delivered
all such further documents, conveyances, deeds, consents,
assignments, transfers, and other instruments as may be
reasonably requested by the Company in order to give
fulfillment to the terms hereof.
14. Waiver
No waiver by either party hereto of any breach, failure
or default in performance by the other party, or the
failure, refusal or neglect by other party hereto exercise
any right hereunder or to insist upon strict compliance with
or performance of any of the other parties' obligations
hereunder, shall constitute a waiver of the provisions of
this Agreement with respect to any subsequent breach,
failure or default and shall not constitute a waiver by such
party hereto of its rights at any time or thereafter to
require strict compliance with the provisions thereof.
15. Entire Agreement
This Agreement together with the Appendices attached
hereto constitute the entire Agreement between the parties
with respect to the employment of the Employee and any and
all previous agreements, written or oral, express of
implied, between the parties or on their behalf relating to
the employment and appointment of the Employee by the
Company, are terminated and cancelled and each of the
parties releases and forever discharges the other of and
from all manner of actions, causes of actions, claims and
demands whatsoever, under or in respect of any such
agreement.
16. Modification of Agreement
This Agreement may not be amended, modified, or changed
in any way except by an instrument in writing executed by
both the Employee and an authorized officer of the Company.
17. Notice
Any notice given pursuant to this Agreement shall be in
writing and shall be deemed to have been validly given if
delivered by hand, mail or sent by telecopier transmission
(with confirmation of receipt) to the party to whom the same
is to be given at the following applicable address. Any
notice given by mail shall be deemed to have been received
on the fifth business day following the date of mailing.
a) To the Company: Urbanalien Incorporated
0000 Xxxxxxx Xxxxx
Xxxxxxxxxxx, XX X0X 0X0
Attention: Xxxxx Xxxxx
(Fax) 000 000 0000
b) To the Employee Xxxxxx Xxxxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX
18. Headings
The headings used in this Agreement are for convenience
only and are not to be construed in any way as additions or
to limitations of the covenants and agreements contained
herein.
19. Governing Law
This Agreement shall be governed and construed in
accordance with the laws of the Province of Ontario and the
Laws of Canada applicable therein. The parties hereby
expressly to the jurisdiction of the courts of the Province
of Ontario.
20. Independent Legal Advice
The Employee acknowledges that he has read and
understands this Agreement and acknowledges that he either
has had the benefit of independent legal advice with respect
to it or has had an opportunity to obtain independent legal
advice regarding the terms and conditions of this Agreement,
but has chosen not to do so.
21. Signature By Counterpart or Facsimile
This Agreement may be consented to in writing, whether
by document, telegram, telex or facsimile or by any other
method of transmitting legibly, in as many counterparts as
may be necessary, each of which shall be deemed to be an
original, and such counterparts together shall constitute
one and the same instrument and notwithstanding the date of
execution shall be deemed to bear the effective date set
forth below.
IN WITNESS THEREOF the parties as of the day, month, and
year written above have executed this Agreement.
Signed, sealed and Delivered Urbanalien Corporation
-------------------------- ----------------------
Xxxxxx Xxxxxxxxx Xxxxx Xxxxx, CFO
Date: ________________________
APPENDIX B
Health
- 100% Reimbursable = Drugs; Hospitalization;
Travel Insurance; Other Eligible Expenses
- Deductible = $5.00 per prescription; &
$25/$50 for other eligible expenses per year
- Limits of Eligible Expenses = Semi private
room coverage; $5000 max Nursing care per year; $750
for each Paramedical Services per year
Dental
- Currently No coverage
Long Term Disability( to age 65)
- 66 2/3% of the first $2,250 of monthly
Earnings, plus 50% of the next $2,250 and 40% of the
balance, rounded to the next $1, if not already a
multiple, up to a maximum of $5,000
- Non-evidence maximum of insurability = $4,050
- Elimination period = 17 weeks
- Non-taxable
Life Insurance (to age 70)
- 1 times annual Earnings up to a maximum of $100,000
- Dependent coverage = $10,000 for Spouse;
Each Child is 50% of the Dependent Life for the Spouse
- Any increases to the standard coverage has
to be individually underwritten and direct
communicate will need to take place with our broker,
Xxx Xxxx. This will be paid separately.
Accidental Death and Dismemberment ( to age 70)
- 1 times annual Earnings to a maximum of $100,000
- Non-evidence maximum of insurability = $100,000
Premiums are 50/50 - The employer pays 50% of the premiums and the
employee 50%
GYM facilities are also available at the 50/50 cost. The current monthly
cost to the employee is $24, which is a salary deduction.
