THIS AGREEMENT made as of the 1st day of October, 0000,
X X X X X X X:
INFOCAST CANADA CORPORATION
a corporation incorporated under the laws of Ontaio,
(hereinafter referred to as the "Corporation"),
OF THE FIRST PART,
- and -
XXXXX XXXXX
of the City of TORONTO, in the
Province of ONTARIO,
(hereinafter referred to as the "Executive")
OF THE SECOND PART.
WHEREAS the Corporation wishes to retain the services of the Executive
to provide the services hereinafter described during the term hereunder set out;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
mutual covenants and agreements herein contained and for other good and valuable
consideration, the parties agree as follows:
1. EMPLOYMENT OF EXECUTIVE
The Corporation shall employ the Executive as its VICE PRESIDENT,
MARKETING to perform the duties and responsibilities indicated to such position,
subject at all times to the control and direction of the Board of Directors of
the Corporation (the "Board").
2. DUTIES
The Executive shall serve the Corporation and any subsidiaries of the
Corporation in such capacity or capacities and shall perform such duties and
exercise such powers pertaining to the management and operation of the
Corporation and any subsidiaries and affiliates of the Corporation as may be
determined from time to time by the Board consistent with the office of the
Executive. The Executive shall:
(a) devote his full time (which shall not be less than 35 hours
per week) and attention and his best efforts during normal
business hours to the business and affairs of the Corporation;
(b) perform those duties that may reasonably be assigned to the
Executive diligently and faithfully to the best of the
Executive's abilities and in the best interests of the
Corporation; and
(c) use his best efforts to promote the interests and goodwill of
the Corporation.
3. REPORTING PROCEDURES
The Executive shall report to the person holding the office of
President. The Executive shall report fully on the management, operations and
business affairs of the Corporation and advise to the best of his ability and in
accordance with reasonable business standards on business matters that may arise
from time to time during the term of this agreement.
4. COMPENSATION
(a) The annual base salary payable to the Executive for his services
hereunder for the first year of the term of this agreement shall be Cdn$90,000,
exclusive of bonuses, benefits and other compensation. The annual base salary
payable to the Executive for his services hereunder for each successive year of
this agreement, exclusive of bonuses, benefits and other compensation, shall be
determined by the Board and agreed to by the Executive. The annual base salary
payable to the Executive pursuant to the provisions of this section 4 shall be
payable in equal semi-monthly installments in arrears on the 15th and 30th day
of each month or in such other manner as may be mutually agreed upon, less, in
any case, any deductions or withholdings required by law.
(b) The Corporation shall provide the Executive with employee benefits
comparable to those provided by the Corporation from time to time to other
senior executives of the Corporation and shall permit the Executive to
participate in any share option plan, share purchase plan, retirement plan or
similar plan offered by the Corporation from time to time to its senior
executives in the manner and to the extent authorized by the Board.
(c) InfoCast Canada Corporation will also pay the Executive a
commission based on performance. The commission will be paid on a semi-monthly
basis in addition to the Executive's base salary, in advance against commissions
earned. In the event of termination for any reason, any outstanding commissions
owing to the Company become due. (See Section 8: Terminations). The annual
maximum commission payable to the Executive for the first year of the term of
this agreement shall be Cdn$30,000. These commissions will be paid on a
semi-monthly basis for the first four (4) months of the term of this agreement.
At the end of the first four (4) months, the performance of the Executive will
be reviewed by the President and the Board of Directors and may be adjusted
accordingly. Any adjustments will be reviewed with the Executive and mutually
agreed upon.
-2-
5. PERFORMANCE BONUS
In addition to the Executive's annual base salary, the Executive shall
participate in the Corporation's executive bonus plan ["the Plan"], if
implemented. At the present time, the Corporation does not have a bonus plan
established.
6. VACATION
The Executive shall be entitled to three (3) weeks' paid vacation per
fiscal year of the Corporation at a time approved in advance by the Chairman
and/or the President, which approval shall not be unreasonably withheld but
shall take into account the staffing requirements of the Corporation and the
need for the timely performance of the Executive's responsibilities. In the
event that the Executive decides not to take all the vacation to which he is
entitled in any fiscal year, the Executive shall be entitled to take up to one
week (5 days) of such vacation in the next following fiscal year at a time
approved in advance by the Chairman and/or the President. Any remaining unused
vacation time shall be forfeited.
7. EXPENSES
The Executive shall be reimbursed for all approved, reasonable travel
and other out-of-pocket expenses in accordance with the Corporation's approved
travel and expense policies, as determined by the Board in its sole discretion,
actually and properly incurred by the Executive from time to time in connection
with carrying out his duties hereunder. For all such expenses, the Executive
shall furnish to the Corporation a signed expense report including originals of
all invoices or statements in respect of which the Executive seeks
reimbursement.
8. TERMINATION
(a) For Cause
The Corporation may terminate the employment of the Executive
without notice or any payment in lieu of notice for cause which, without
limiting the generality of the foregoing, shall include:
(i) if there is a repeated and demonstrated failure on the part of
the Executive to perform the material duties of the
Executive's position in a competent manner and where the
Executive fails to substantially remedy the failure within a
reasonable period of time after receiving written notice of
such failure from the Corporation;
(ii) if the Executive is convicted of a criminal offence involving
fraud or dishonesty;
(iii) if the Executive or any member of his family makes any
personal profit arising out of or in connection with a
transaction to which the Corporation is a party or with which
it is associated without making disclosure to and obtaining
the prior written consent of the Corporation;
-3-
(iv) if the Executive fails to honor his fiduciary duties to the
Corporation, including the duty to act in the best interests
of the Corporation; or
(v) if the Executive disobeys reasonable instructions given in the
course of employment by the Chairman, the President or the
Board that are not inconsistent with the Executive's
management position and not remedied by the Executive within a
reasonable period of time after receiving written notice of
such disobedience.
(b) For Disability/Death
This agreement may be immediately terminated by the Corporation by
notice to the Executive if the Executive becomes permanently disabled. The
Executive shall be deemed to have become permanently disabled if in any year
during the employment period, because of ill health, physical or mental
disability, or for other causes beyond the control of the Executive, the
Executive has been continuously unable or unwilling or has failed to perform the
Executive's duties for 120 consecutive days, or if, during any year of the
employment period, the Executive has been unable or unwilling or has failed to
perform his duties for a total of 180 days, consecutive or not. The term "any
year of the employment period" means any period of 12 consecutive months during
the employment period.
This agreement shall terminate without notice upon the death of the
Executive.
9. SEVERANCE PAYMENTS
(a) Upon termination of the Executive's employment: (i) for cause; or
(ii) by the voluntary termination of employment of the Executive, the Executive
shall not be entitled to any severance payment other than compensation earned by
the Executive before the date of termination calculated pro rata up to and
including the date of termination.
(b) If the Executive's employment is terminated for any other reason
other than the reasons set forth in subsection 9(a), the Executive shall be
entitled to receive the lesser of:
(i) the total of:
(A) 2 months' salary at the then applicable base salary
rate;
(B) the present value, as determined by the Chairman and/or
the President, acting reasonably, of the benefits
described in section 4(b) that would be enjoyed by the
Executive during the next 3 months assuming his
employment was not terminated and assuming the then
current level of benefits were continued for those 3
months; and
(C) the present value, as determined by the Chairman and/or
the President, acting reasonably, of the amount that
the Chairman and/or the President estimates would be
the amount payable to the
-4-
Executive out of the Plan assuming that the Executive's
employment was not terminated until the end of the
current fiscal year and all other participants of the
Plan continued in the employment of the Corporation for
the full then current fiscal year; and
(ii) the salary otherwise payable to the Executive for the
unexpired term of this agreement together with the other
amounts described in clause 9(b)(i), mutatis mutandis.
The payment described in this subsection 9(b) is the only severance payment the
Executive will receive in the event of the termination of this agreement for
reasons contemplated in this subsection 9(b).
(c) If the Executive's employment is terminated as a result of the
permanent disability or death of the Executive, the Executive or his estate, as
applicable, shall be entitled to receive, within 30 days of the date of such
termination, the balance of the base salary that would otherwise be paid to the
Executive during the remainder of the term of this agreement. The Executive
agrees to reasonably comply with all requirements necessary for the Corporation
to obtain life insurance on the life of the Executive for the term of this
agreement.
10. CONFIDENTIALITY
The Executive acknowledges and agrees that:
(a) in the course of performing his duties and responsibilities as an
officer of the Corporation, he has had and will continue in the future to have
access to and has been and will be entrusted with detailed confidential
information and trade secrets (printed or otherwise) concerning past, present,
future and contemplated products, services, operations and marketing techniques
and procedures of the Corporation and its subsidiaries, including, without
limitation, information relating to addresses, preferences, needs and
requirements of past, present and prospective clients, customers, suppliers and
employees of the Corporation and its subsidiaries (collectively, "Trade
Secrets"), the disclosure of any of which to competitors of the Corporation or
to the general public, or the use of same by the Executive or any competitor of
the Corporation or any of its subsidiaries would be highly detrimental to the
interests of the Corporation;
(b) in the course of performing his duties and responsibilities for the
Corporation, the Executive has been and will continue in the future to be a
representative of the Corporation to its customers, clients and suppliers and as
such has had and will continue in the future to have significant responsibility
for maintaining and enhancing the goodwill of the Corporation with such
customers, clients and suppliers and would not have, except by virtue of his
employment with the Corporation, developed a close and direct relationship with
the customers, clients and suppliers of the Corporation;
(c) the Executive, as an officer of the Corporation, owes fiduciary
duties to the Corporation, including the duty to act in the best interests of
the Corporation; and
-5-
(d) the right to maintain the confidentiality of the Trade Secrets, the
right to preserve the goodwill of the Corporation and the right to the benefit
of any relationships that have developed between the Executive and the
customers, clients and suppliers of the Corporation by virtue of the Executive's
employment with the Corporation constitute proprietary rights of the
Corporation, which the Corporation is entitled to protect.
In acknowledgement of the matters described above and in consideration
of the payments to be received by the Executive pursuant to this agreement, the
Executive hereby agrees that he will not, during the term of this agreement and
for one (1) year thereafter, directly or indirectly disclose to any person or in
any way make use of (other than for the benefit of the Corporation), in any
manner, any of the Trade secrets, provided that such Trade Secrets shall be
deemed not to include information that is or becomes generally available to the
public other than as a result of disclosure by the Executive.
11. NON-SOLICITATION
The Executive hereby agrees that he will not, during the term of this
agreement and ending one (1) year following the expiration of the term of this
agreement, be a party to or abet any solicitation of customers, clients or
suppliers of the Corporation or any of its subsidiaries, to transfer business
from the Corporation or any of its subsidiaries to any other person, or seek in
any way to persuade or entice any employee of the Corporation or any of its
subsidiaries to leave that employment or to be a party to or abet any such
action.
12. DISCLOSURE
During the employment period, the Executive shall promptly disclose to
the Chairman full information concerning any interest, direct or indirect, of
the Executive (as owner, shareholder, partner, lender or other investor,
director, officer, employee, consultant or otherwise) or any member of his
family in any business that is reasonably known to the Executive to purchase or
otherwise obtain services or products from, or to sell or otherwise provide
services or products to the Corporation or any of its subsidiaries or affiliates
or to any of its suppliers or customers.
13. RETURN OF MATERIALS
All files, forms, brochures, books, materials, written correspondence,
memoranda, documents, manuals, computer disks, software products and lists
(including lists of customers, suppliers, products and prices) pertaining to the
business of the Corporation or any of its subsidiaries and affiliates that may
come into the possession or control of the Executive shall at all times remain
the property of the Corporation or such subsidiary or affiliate, as the case may
be. On termination of the Executive's employment for any reason, the Executive
agrees to deliver promptly to the Corporation all such property of the
Corporation in the possession of the Executive or directly or indirectly under
the control of the Executive. The Executive agrees not to make for his personal
or business use or that of any other party, reproductions or copies of any such
property or other property of the Corporation.
-6-
14. GOVERNING LAW
This agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario.
15. SEVERABILITY
If any provision of this agreement, including the breadth or scope of
such provision, shall be held by any court of competent jurisdiction to be
invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remaining provisions, or part thereof, of this agreement and such remaining
provisions, or part thereof, shall remain enforceable and binding.
16. ENFORCEABILITY
The Executive hereby confirms and agrees that the covenants and
restrictions pertaining to the Executive contained in this agreement, including,
without limitation, those contained in sections 10 and 11 hereof, are reasonable
and valid and hereby further acknowledges and agrees that the Corporation would
suffer irreparable injury in the event of any breach by the Executive of his
obligations under any such covenant or restriction. Accordingly, the Executive
hereby acknowledges and agrees that damages would be an inadequate remedy at law
in connection with any such breach and that the Corporation shall therefore be
entitled in lieu of any action for damages, temporary and permanent injunctive
relief enjoining and restraining the Executive form any such breach.
17. NO ASSIGNMENT
The Executive may not assign, pledge or encumber the Executive's
interest in this agreement nor assign any of the rights or duties of the
Executive under this agreement without the prior written consent of the
Corporation.
18. SUCCESSORS
This agreement shall be binding on and enure to the benefit of the
successors and assigns of the Corporation and the heirs, executors, personal
legal representatives and permitted assigns of the Executive.
-7-
19. NOTICES
Any notice or other communication required or permitted to be given
hereunder shall be in writing and either delivered by hand or mailed by prepaid
registered mail. At any time other than during a general discontinuance of
postal serve 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
hereof or, if delivered by hand, shall be deed to have been received at the time
it is delivered. 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. Notices shall be addressed as follows:
(a) If to the Corporation:
InfoCast Canada Corporation
0 Xxxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX
X0X 0X0
(b) If to the Executive:
XXXXX XXXXX
00 XXXX XXXXXX
XXXXXXX, XX, X0X 0X0
-8-
20. LEGAL ADVICE
The Executive hereby represents and warrants to the corporation and
acknowledges and agrees that he had the opportunity to seek and was not
prevented nor discouraged by the Corporation from seeking independent legal
advise prior to the execution and delivery of this agreement and that, in the
event that he did not avail himself of that opportunity prior to signing this
agreement, he did so voluntarily without any undue pressure and agrees that his
failure to obtain independent legal advice shall not be sued by him as a defence
to the enforcement of his obligations under this agreement.
IN WITNESS WHEREOF the parties have executed this agreement as of the
date first written above.
INFOCAST CANADA CORPORATION
Per:/s/ Xxxxx Xxxxx
--------------------------------
XXXXX XXXXX
Per:/s/ Xxxxx Xxxxx
--------------------------------
-9-
