EMPLOYMENT AGREEMENT
Exhibit 10.23
THIS EMPLOYMENT AGREEMENT (the
"Agreement") made
effective on the second
day of January ,
2008 (the "Effective
Date").
BETWEEN:
a
corporation incorporated pursuant to the laws of Delaware
(hereinafter
called the "Company")
-and-
A. XXXXX
XXXXXXX,
an
individual residing in the State of California
(hereinafter
called the "Executive")
WHEREAS the Executive has been
employed by the Company in the position of Chief Executive Officer and President
pursuant to an Employment Agreement dated the 1st day of
February, 2006 (the "Prior
Agreement");
AND WHEREAS the Executive and
the Company wish to amend the terms by which the Executive is employed by the
Company to provide for, among other things, revised employment terms including
additional base salary for the Executive, and, in connection therewith, the
Executive and the Company have agreed to terminate the Prior Agreement and
replace same with the terms herein contained;
NOW THEREFORE in consideration
of the mutual covenants herein contained, and for other good and valuable
consideration (including, without limitation, revised employment terms including
additional base salary for the Executive), the parties hereto agree as
follows:
TERM
1. The
Executive's employment shall commence on the Effective Date and, subject to
termination by either party in accordance with the provisions of this Agreement,
shall conclude on the 31st day of
January, 2009 (the "Initial
Term"). Notwithstanding the foregoing, this Agreement
shall automatically renew for successive one (1) year terms (each, a "Successive Term") unless the Company
provides no less than sixty (60) days written notice (a "Non-Renewal Notice") to the
Executive notifying the Executive that the Agreement shall conclude upon the
expiration of the Initial Term or Successive Term, as the case may be, and not
automatically renew.
DUTIES
2. The
Executive shall serve the Company in the capacity of Chief Operating Officer and
shall perform such duties and exercise such powers pertaining to the management
and operation of the Company as may be determined from time to time by the board
of directors and Chief Executive Officer
of the Company, consistent with the description set forth in Schedule A attached
hereto. The Executive shall perform those duties that may reasonably be assigned
to him, diligently and faithfully to the best of ·his abilities. The Executive
shall devote such amount of working time and attention to the business affairs
of the Company as is required (as determined by the Company, acting in good
faith) to perform the functions consistent with the office of Chief Operating
Officer. The Executive further acknowledges that he is bound to follow the
policies and procedures established by the Company, from time to time, including
any code of business conduct adopted by the Company (including any future
revisions of such policy or procedure and code of conduct). In carrying out his duties
and responsibilities as Chief Operating Officer of the Company, the Executive
shall comply with all lawful instructions as may be given from time to time by
the Company.
COMPENSATION
3. The
Executive shall be entitled to salary and bonuses, as follows:
(a) Salary. The Executive shall
receive a base salary in the amount of USD$225,000 per annum, payable in
accordance with the Company's normal payroll cycle, which base salary shall be
reviewed at least annually by the board of directors of the Company. The board
of directors shall have sole discretion and authority to increase the
Executive's base salary, although, at a minimum, the Executive shall be entitled
to an annual base salary adjustment based on the annual change in the United
States Consumer Price Index.
(b) Bonus. In addition to the
Executive's base salary, the Executive shall be eligible to participate in any
discretionary employee bonus plan or other plan, which is implemented by the
Company in its sole and unfettered discretion, at a level commensurate with his
position.
(c) Stock Option Plan. Upon
establishment of a Company stock option plan, the Executive will participate,
according to the terms and conditions thereof, to the same degree as other
Company employees of like grade and status.
BENEFITS
4. The
Executive shall be entitled to participate in all of the Company's benefit plans
generally available to its senior level employees from time to time. The
Executive's rights under these benefit plans shall be determined entirely by the
terms and conditions of the plans and the Executive shall have no independent
rights as against the Company in connection with the said benefits.
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VEHICLE
ALLOWANCE
5. The
Company shall provide the Executive with a company-owned vehicle for use in
connection with services provided hereunder.
VACATION
6. During
his employment hereunder, the Executive shall be entitled to four (4) weeks paid
vacation per calendar year, to be scheduled at such times as are acceptable to
the board of directors of the Company having regard to the business requirements
of the Company
EXPENSES
7. The
Executive shall be reimbursed at cost for all reasonable travel, cell phone and
other out-of-pocket expenses, which the Executive incurs in connection with
carrying out his duties hereunder, in accordance with and subject to the terms
of Company's expense policy, as amended from time to time. For all such expenses
the Executive shall furnish the Company with appropriate receipts.
TERMINATION
8. For Cause. The Company may
terminate the employment of the Executive for cause, without notice or any
payment in lieu thereof. "Cause" shall mean just cause at common
law.
9. Without Cause. The Company
may terminate the Executive's employment at any time without just cause
provided, however, that in the event of such termination without cause, the
Company shall provide the Executive with the following payments and benefits, in
lieu of notice:
(a) the Company
shall pay to the Executive the amount of all outstanding salary and bonuses
earned by the Executive under section 3 hereof to the date of
termination;
(b) the Company
shall pay to the Executive a lump sum payment equal to three (3) months of the
Executive's then current annual base salary for each year or portion thereof
that the Executive has been employed by the Company in the capacity of
Chief Operating Officer, or prior thereto, as Chief Executive Officer and
President.
The lump
sum payments referred to above shall be paid within thirty (30) calendar days of
the termination of the Executive's employment.
It is
acknowledged by the Executive that delivery of a Non-Renewal Notice shall not
constitute termination without cause pursuant to this section 9 and shall not
entitle the Executive to any termination payment, other than payment of all
outstanding salary and bonuses earned by the Executive under section 3 hereof to
the date of expiration of the Agreement.
The
Executive acknowledges and agrees that payment by the Company as provided for in
Section 8 shall be in full and final settlement of any and all claims, demands,
actions and suite whatsoever which the Executive has or may have against the
Company, its affiliates and any of their directors, officers, employee and their
successors and assigns. The Executive further agrees, that if required by the
Company, he will sign a release in favour of the Company.
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10. Resignation by Executive. The
Executive may terminate his employment hereunder at any time, by giving to the
Company two (2) months written notice of his intention to resign. The Company
may waive all or a part of such notice provided, however, that the Executive
shall be paid the amount of any salary, bonus and benefits that would have been
earned by him, had he continued to work until the expiry of such two (2) months
notice of resignation.
11. Termination upon Death or
Disability. The employment of the Executive and this Agreement shall
automatically terminate without liability to the Company beyond amounts due and
owing through the date of the termination, provided that (i) if death or
disability occurs in the course of the Executive carrying out his duties as
Chief Operating Officer, such occurrence shall be deemed a termination without
cause and the Executive shall have the benefits contemplated under Section 8
hereof, and (ii) nothing hereunder shall disentitle the Executive or the
Executive's estate or beneficiaries to any entitlements that would properly
arise as a result of the death or disability of the Executive under the terms of
any applicable benefits plan, upon the happening of any of the
following:
(a) the death
of the Executive;
(b) the
Executive remaining totally disabled, as that term is defined in any long term
disability plan in effect for employees of the Company (or, if such plan is not
in effect, meaning the Executive's physical or mental incapacity which, in the
reasonable, good faith determination of the board of directors of the Company,
renders him incapable of carrying out her duties under this Agreement), for a
consecutive period of one hundred and twenty (120) days or a cumulative period
of one hundred and twenty (120) days in any six (6) month period, subject to the
provisions of the Ontario Human Rights Code. Any statutorily required payments
due to the Executive shall be payable as per the applicable legislation. All
other payments due to the Executive shall be payable as prescribed with this
Agreement or within thirty (30) calendar days of receipt of an executed
release.
12. Termination upon Change of Control.
In the event
the Company experiences a change in control through the purchase of over fifty
percent (50%) of the Company's issued and outstanding shares by a third party,
or corporate reorganization having the same effect, and notice of termination is
given by the Company within 6 months thereafter, then the lump sum payment
stipulated in 9(b) above shall be increased to 18 months, and stock options with
vesting provisions will vest immediately.
CONFIDENTIALITY
13. The Executive
acknowledges and agrees that he will not, during his employment hereunder and
following the termination of such employment, whether voluntary or involuntary,
directly or indirectly disclose to any person or in any way make use of (other
than for the benefit of the Company), any confidential information concerning
the business and affairs of the Company. Nothing in this section shall preclude
the Executive from disclosing such information if such disclosure is required by
law or a court of competent jurisdiction.
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MISCELLANEOUS
14. Amendment. If both parties
agree, this agreement may be amended in whole or in part, as long as any such
amendments are in writing and signed by the parties hereto.
15. Governing Law. This Agreement
shall be governed by and construed in accordance with the laws of the State of
California, and the federal laws applicable therein.
16. Successors and Assigns. This
Agreement shall be binding on and enure to the benefit of the successors and
assigns of the Company.
17. Notices. Any notice or other
communication required or permitted to be given hereunder shall be in writing
and either delivered by hand, mailed by prepaid registered mail or sent by
facsimile or other electronic communication. At any time other than during a
general discontinuance of postal service due to strike, lock-out or otherwise, a
notice so mailed shall be deemed to have been received three business days after
the postmarked date thereof or, if delivered by hand, shall be deemed to have
been received at the time it is delivered or, if delivered by facsimile or other
electronic communication, shall be deemed to have been received on the next
business day after it is sent. If there is a general discontinuance of postal
service due to strike, lock-out or otherwise, a notice sent by prepaid
registered mail shall be deemed to have been received three business days after
the resumption of postal service. Notice shall be addressed as
follows:
(a) If to the
Company:
0000
Xxxxx Xxxxxx Xx.
Xxxxx
000
Xxxxxxx
Xxxx, XX 00000
Attention:
Chief Executive Officer
(b) If to the
Executive, the last address of the Executive In the records of the
Company.
18. Withholdings. All taxable
amounts set forth in this Agreement are subject to applicable withholding or
source deductions.
19. Entire Agreement. This
Agreement constitutes the entire agreement and understanding of the parties
hereto, with respect to the subject matter hereof, and supersedes all prior
written or verbal agreements and understandings between the Company and the
Executive relating to such subject matter.
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IN WITNESS WHEREOF the parties
hereto have executed this Agreement as of the date first above
written.
|
/s/
A. Xxxxx Xxxxxxx
|
Per:
|
/s/ Xxxxxxx Akerfeldt | |
| A. Xxxxx Xxxxxxx | Authorized Signatory | ||
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SCHEDULE
A
The Chief
Operating Officer shall have, subject always to the general or specific
instructions and directions of the Chief Executive Officer, full power and
authority to oversee the operations of the Company (except only the matters and
duties as by law must be transacted or performed by the Board of Directors or by
the shareholders of the Company in general meeting), and to perform such duties
and exercise such powers generally performed or exercised by chief operating
officers, as may be assigned to him, from time to time, by the Chief Executive
Officer or the Board of Directors of the Company, as the case may
be.
The Chief
Operating Officer shall provide timely reports to the Chief Executive Officer,
on the general affairs of the Company, including changes in strategy, changes in
material contracts, emergence of sensitive customer or regulatory issues and a
monthly written report to the Chief Executive Officer with financial results and
highlights and a commentary on operations.
The Chief
Operating Officer shall conform to all lawful instructions and directions given
to him by the Chief Executive Officer from time to time, and obey and carry out
the policies, practices and procedures of the Company, as they exist from time
to time.
