Exhibit 10.21
EMPLOYMENT AGREEMENT
THIS AGREEMENT made this day of March, effective as of the 1st
day of May, 2000.
BETWEEN:
XXXXX X. XXXXXX,
(hereinafter referred to as the ("Employee")
OF THE FIRST PART
-and-
THINWEB SOFTWARE INCORPORATED,
a company incorporated under the laws of the Province of Nova Scotia
(hereinafter referred to as the ("Company")
OF THE SECOND PART
WHEREAS:
(a) The Company is presently engaged in the business of computer software
concentrating on the development of Internet and electronic commerce
applications;
(b) The Company and the Employee have agreed to enter into this Employment
Agreement upon the terms and conditions hereafter set out.
NOW THEREFOR IN CONSIDERATION OF the foregoing and the mutual
covenants and agreements set forth below, and for other good and valuable
consideration, the parties covenant and agree as follows:
ARTICLE 1 - EMPLOYMENT
1.1 Term of Agreement
The term of this Agreement shall commence effective on the date of this
Agreement and shall continue for an indefinite period or until and if terminated
by the Company or the Employee as contemplated herein; provided, however, that
the provisions hereof shall survive the termination of this Agreement with
respect to the rights and entitlements of the parties hereto which have accrued
prior to, or as a consequence of, such termination. The starting date of the
agreement may be varied upon agreement of both parties so as not to conflict
with Employee's notice period obligations to his current employer.
1.2 Survival of Covenants
Notwithstanding Section 1.1, the provisions of Articles 5, 6 and 7 of this
Agreement shall survive the termination of this Agreement and shall continue in
effect in accordance with the terms thereof.
1.3 Employment and Duties
Subject to the terms of this Agreement, the Employee shall perform the duties as
set forth on Schedule "A" hereto and shall serve the Company and any affiliates
of the Company in such capacity or capacities and shall perform such further
duties and exercise such powers as may be determined from time to time by the
President of the Company; provided however such duties shall be reasonably
consistent with the scope and stature of the duties and responsibilities with
which the Employee is empowered. The Employee shall:
(a) devote his full time and attention to the business and affairs of the
Company;
(b) perform those duties assigned to him faithfully and diligently and to
the best of his ability;
(c) use his best efforts to promote the interests and goodwill of the
Company and its affiliates; and
(d) comply with the Company's policies as they are established from time
to time.
1.4 Reporting Procedures
(i) The Employee shall be based in Toronto and Ottawa as required and will
report to or at the direction of the President of the Company. The
Employee shall report fully on the management, operations and business
affairs of the Company advising to the best of his ability and in
accordance with reasonable standards on matters that may arise from time to
time during the terms of this Agreement.
(ii) The Employee and the President shall annually agree upon performance
objectives in a Task and Performance Evaluation Record which shall be
reduced to writing and appended hereto as Schedule "C".
ARTICLE 2 - COMPENSATION AND BENEFITS
2.1 Remuneration and Benefits
(i) The Employee's remuneration shall be a base salary of CDN $120,000 per year
("Base Salary") and the benefits contemplated herein. The Base Salary
shall be reviewed annually, or more frequently if the Board of Directors of
the Company so determine in its absolute discretion. Notwithstanding
anything contained herein, the Company shall be under no obligation to
increase the Base Salary at the time of any such review. All payments of
Base Salary shall be made twice monthly, and all payments made by the
Company on account of Base Salary and other remuneration (if any) shall be
subject to all required deductions for income tax and other statutory
withholdings.
(ii) The Employee shall receive 100,000 common shares of thinWEB Technologies
Corporation. 33,333 of such shares will vest upon the first day of
employment and the remainder will vest in two equal annual instalments,
commencing 12 months from that date. 10,000 shares will be registered for
sale under the Company's Registration Statement with the SEC.
2.2 Benefits
The Employee shall also be entitled to such benefits as are set out in Schedule
"B" hereto. In addition, the Employee shall be entitled to participate in such
other benefits as are provided by the Company generally to other employees of
the Company. The Employee acknowledges and agrees that the Company has the
right to unilaterally revise the terms of any insurance or health benefits
package.
2.3 Bonus
Bonuses, if any, to be paid to the Employee and the criteria for determining the
same shall be as determined by the Board of Directors of the Company.
2.4 Employee Stock Option Plan
The Employee shall be entitled to participate in any employee stock option plan
("ESOP") established by the Company from time to time for the general benefit of
employees of the Company at a level that is commensurate with his position,
provided that the Employee is and remains eligible for such participation in
accordance with the terms and conditions of the ESOP. We have agreed that you
will be entitled to an option on 100,000 common shares
of thinWEB Technologies Corporation, to be issued at such time as the shares
become publicly traded, at a strike price of USD$5.00 per share.
2.5 Vacation
The Employee shall be entitled to three (3) weeks paid vacation per calendar
year in accordance with the vacation policies and practices of the Company.
2.6 Business Expenses
The Company shall pay or reimburse the Employee for all reasonable and approved
out-of-pocket expenses actually and properly incurred from time to time in
connection with carrying out her duties hereunder in accordance with the
Company's general policies as they may be established or amended form time to
time. The Employee shall furnish to the Company an expense statement and
invoices or receipts (or such other supporting information as the Company may
require) for expenses for which the Employee seeks reimbursement or payment.
ARTICLE 3 - TERMINATION
3.1 Termination for Cause
Notwithstanding anything contained in this Agreement, the Company may terminate
the employment of the Employee without notice, or any payment in lieu of notice,
for cause, which for the purposes of this Agreement shall be restricted to the
following;
(a) any cause which would entitle the Company at law to terminate the
services of the Employee without either notice or pay in lieu of
notice, including, without limitation, serious misconduct, habitual
neglect of duty, incompetence, conduct incompatible with his duties,
conduct prejudicial to the Company's business or disobedience to the
Company's directions in a matter of substance. The Employee shall
first receive written notice from the Company advising of the acts or
omissions that constitute the cause of termination of his employment
with the Company in accordance with this subsection 3.1(a) and he
shall have a reasonable opportunity to correct the act or omission so
complained of, unless they are of such serious nature or so
detrimental to the interests of the Company that the Board of
Directors of the Company has determined that any opportunity to
correct such acts or omissions would not serve the best interests of
the Company; or
(b) any material breach of this Agreement.
3.2 Termination for Disability/Death
Subject as is hereinafter provided, the Company may terminate the employment of
the Employee immediately upon notice to the Employee if he becomes permanently
disabled; provided however, if such termination would jeopardize the Employee's
right to receive long-term disability payment, which he would otherwise receive
from the Company's insurers, the Company may terminate the employment of the
Employee immediately upon cessation of the Employee's entitlement thereto. The
Employee 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 Employee, the Employee
has been continuously unable or unwilling or has failed to perform his duties
for one hundred and eighty (180) consecutive days, or if, during any year of the
employment period, the Employee has been unable or unwilling or has failed to
perform his duties for a total of one hundred eighty (180) days, consecutive or
not. The term "any year of the employment period" means any period of twelve
(12) consecutive months during the employment period. This Agreement shall,
subject to the provisions of Section 1.1, terminate without notice upon the
death of the Employee.
3.3 Termination Without Cause
The Company may terminate the employment of the Employee for any other reason
not set out in Sections 3.1 and 3.2, on 3 months prior written notice.
3.4 Company's Remedies Not Affected
The Company's right of termination shall be in addition to and shall not affect
its other rights and remedies under this Agreement or at law, and such other
rights and remedies hereunder or at law shall survive termination of this
Agreement and the Employee's employment with the Company.
3.5 Termination by Employee
The Employee may terminate his employment with the Company by providing no less
than three (3) months' notice in writing prior to the effective date of the
termination of his employment. Such notice may be reduced to a shorter term at
the option of the Company. Upon giving such notice, the Employee shall
forthwith execute and deliver to the Company his written resignation from any
and all offices of the Company and its affiliates, without claim for
compensation for loss of office.
3.6 Payments Due on Termination
Upon termination of the Employee's employment:
(a) for Cause as defined in Section 3.1, the Employee shall not be
entitled to any payment other than compensation earned by the Employee
from Base Salary, benefits and entitlement to expense reimbursement
with respect to the period ending on the date of termination of
employment;
(b) as a result of the permanent disability or death of the Employee as
set forth in Section 3.2, the Employee or his estate, as applicable,
shall be entitled to receive, within thirty (30) days of the date of
such termination, an amount equal to the then applicable Base Salary
which would have been earned by the Employee during the succeeding
ninety (90) day period following the date of termination of
employment; and
(c) for any reason other than those set forth in Section 3.1, 3.2 or 3.5,
the Employee shall be entitled to be paid an amount equal to the
Employee's Base Salary for 3 months and, to the extent reasonably
available from the Company's insurers, shall be entitled to continue
to participate in the Company's benefit programs to which he was then
entitled in each case for the period in respect of which the Employee
was entitled to notice of termination of employment, or such portion
thereof in respect of which prior notice was not given.
3.7 Timing of Payments
Any payment referred to in subsection 3.6 (b) or (c) will be made in
instalments, each instalment to be equivalent to the Employee's then current
periodic salary and other benefit payments and payable at the same time
intervals.
3.8 Deductions
All payments made by the Company as a result of the Employee's termination shall
be subject to all required deductions for income tax and other statutory
withholdings.
3.9 Payments in Full Settlement
The Employee acknowledges and agrees that the payments pursuant to this Article
shall be in full satisfaction of all claims, losses, costs, damages or expenses
in connection with the termination of his employment, including termination pay
and severance pay pursuant to the applicable Labour Standards legislation as
amended form time to time. Except as otherwise provided in this Article, the
Employee shall not be entitled to any further termination payments, damages or
compensation whatsoever in connection with the employment of the Employee and
the termination thereof. As a condition precedent to any payment pursuant to
this Article, the Employee agrees to deliver to the Company, prior to any such
payment , a full and final release form all actions or claims in connection with
the termination of his employment or any losses, costs, damages or expenses
resulting therefrom in favour of
the Company, its affiliates, subsidiaries, directors, officers, employees and
agents, in form satisfactory to the Company.
3.10 Return of Materials
On termination of the Employee's employment for any reason, the Employee shall
deliver promptly to the Company all property of the Company and its affiliates
in the possession of the Employee or directly or indirectly under his control.
The Employee agrees not to make reproductions or copies of any such property of
the Company and its affiliates for his personal or business use or that of any
other party.
ARTICLE 4 - ACKNOWLEDGEMENTS BY THE EMPLOYEE
4.1 Acknowledgements by Employee
The Employee acknowledges that:
(a) the Company is presently engaged in the development of computer
software and the sale of products and services based upon such
software, primarily aimed at Internet and electronic commerce
applications;
(b) his services to the Company are special and unique and that he has
significant responsibilities in connection with the Company, its
business and affairs;
(c) his work for the Company gives him access to trade secrets of and
confidential information concerning the Company and its affiliates
("Confidential Information") which Confidential Information includes,
without limitation: trade secrets; know-how; marketing plans; cost
figures; client lists; names and addresses of suppliers and business
contacts; software and operating systems; and information relating to
employees and other persons in a contractual relationship with the
Company;
(d) the business of the Company is national and international in scope;
(e) a primary purpose of this Agreement is to evidence the agreements
between the Employee and the Company contained in Articles 5, 6 and 7
hereof; and
(f) the agreements contained in Articles 5,6 and 7 hereof are reasonable
and essential to protect the business and goodwill of the Company and
its business.
4.2 Remedies Available to Company
The Employee acknowledges that a breach by the Employee of the covenants
contained in Articles 5, 6 and 7 would result in immediate and irreparable
damages to the Company that could not adequately be compensated for by monetary
award. Accordingly, it is expressly agreed by the Employee that, in addition to
all other remedies available to it, the Company and its affiliates shall be
entitled to the immediate remedy of an interim, interlocutory and permanent
injunction as well as an accounting of all profits arising out of any breach by
the Employee.
ARTICLE 5 - NON-COMPETITION
5.1 Non-Competition
The Employee shall not, while employed by the Company or:
(a) for the two (2) year period following the termination of his
employment if the Employee initiated the termination; or
(b) for the twelve (12) month period following the termination of this
employment if the Company initiated the termination, whether with or
without Cause,
directly or indirectly, either individually or in partnership or in conjunction
in any way with any person or persons, whether as principal, agent, employee,
consultant, advisor, shareholder, director, guarantor, creditor or in any other
manner whatsoever:
(c) solicit, interfere with or endeavour to entice away from the Company
or its affiliates, accept any business from or the patronage of or
render any service to, sell to or contract or attempt to contract with
any person, firm or corporation who was a client, customer or supplier
of the Company, its affiliates or associates or a prospective client,
customer or supplier of the Company, its affiliates or associates with
whom the Company, its affiliates or associates have had any dealing,
to the extent that such business, patronage, service, or contract is
competitive with the business of the Company;
(d) offer employment to or endeavour to entice away from the Company or
its affiliates, any person employed by the Company or its affiliates
at the date of the termination of her employment, or who was so
employed at any time during the previous twelve (12) month period or
interfere in any way with the employment relationship between any such
employee and the Company or its affiliates; or
(e) engage in, carry on or otherwise be concerned with or have any
interest in, or advise, lend money to, guarantee the debts or
obligations of, permit his name, or any part thereof, to be used or
employed by any person, firm, association, syndicate or corporation
engaged in or concerned with or having any interest in a business
which is the same as or substantially the same as or competes with the
Company's business ("Competitive Business").
5.2 Covenants are Reasonable
The Employee has and will have specific knowledge of the affairs of the Company
and its business, including Confidential Information. Therefore, the Employee
hereby acknowledges and agrees that all covenants, provisions and restrictions
contained in this Article are reasonable, necessary and valid in the
circumstances of this Agreement (including the time and geographic limitations)
and all defences to the strict enforcement thereof by the Company or its
affiliates are hereby waived. The Employee acknowledges and agrees that any
breach by the Employee of the covenants, provisions and restrictions contained
in this Article during the term of his employment shall constitute Cause for
termination.
5.3 Revision to Restrictions
If the provisions of this Article 5 are ever adjudicated to exceed the
limitations on time or geographic scope permitted by applicable law, then such
provisions shall be deemed reformed to the maximum time or geographic scope
permitted by applicable law.
5.4 Portfolio Exception
Notwithstanding the foregoing, nothing in this Agreement shall prevent the
Employee from acquiring and holding, directly or indirectly (and including the
holdings of any other person not acting at arm's length with the Employee (as
defined in the Income Tax Act (Canada)) not more than five percent (5%) of the
outstanding share of any corporation engaged in a Competitive Business if such
shares are listed on a stock exchange, provided that the Employee is not a
member of the board of directors or an officer or employee of, or consultant to,
or otherwise involved with, directly or indirectly, such corporation.
ARTICLE 6 - CONFIDENTIALITY
6.1 Confidentiality
The Employee acknowledges and agrees that the Confidential Information as
defined in Article 4 is the exclusive property of the Company and its affiliates
and that such property is being held by the Employee in trust for the
Company. Except as may be required in the course of carrying out his duties
hereunder, the Employee covenants and agrees that the Employee will not disclose
(directly or indirectly) any of the Confidential Information to any person,
other than to the directors, officers or employees of the Company, nor will the
Employee disclose, for any purpose other than for the purpose of the Company,
the private affairs of the Company or any other information which the Employee
may acquire during his employment with respect to the business and affairs of
the Company.
6.2 Permitted Disclosure
Notwithstanding Section 6.1, the Employee shall be entitled to disclose such
Confidential Information if required pursuant to a subpoena or order issued by a
court, arbitrator or governmental body, agency or official, provided that the
Employee shall first have:
(a) promptly notified the Company of the request to make such disclosure;
(b) consulted with the Company on the advisability of taking steps to
resist such requirements; and
(c) if the disclosure is required or deemed advisable, co-operate with the
Company in an attempt to obtain an order or other assurance that such
information will be accorded confidential treatment.
6.2 Remedies of Company
Nothing in this Article 6 shall be construed as limiting or impair in any way
any of the rights of the Company whether at law, in equity or otherwise against
the Employee with respect to the disclosure, use or exploitation in any manner
whatsoever to any person or for any purpose, as the case may be, of any of the
Confidential Information.
6.3 Obligations Survive in Perpetuity
The obligations of the Employee under this Article 6 shall continue during the
course of his employment with the Company and, unless otherwise authorized in
writing by the Company, shall survive the termination of this Agreement,
regardless of which party initiated the termination and whether with or without
Cause.
ARTICLE 7 - INTELLECTUAL PROPERTY
7.1 Inventions
The Company shall be the sole owner of all of the products and proceeds of the
Employee's services as an Employee of the Company, whether before or after the
date of this Agreement, including, but not limited to, all materials, ideas,
concepts, formats, suggestions, developments, writings, arrangements, packages,
programs, trade secrets, discoveries, research materials, data bases and other
intellectual property that the Employee may acquire, obtain, develop or create
in connection with and during the term of the Employee's employment by the
Company, whether before or after the date of this Agreement, including any and
all inventions and improvements relating or in any way appertaining to or
connected with the business of the Company free and clear of any claims by the
Employee (or anyone claiming under the Employee) of any kind or character
whatsoever. The Employee shall, at the request of the Company, execute such
assignments, certificates or other instruments as the Company may from time to
time deem necessary or desirable to evidence, establish, maintain, perfect,
protect, enforce or defend its right, title and interest in or to any such
properties, including all such applications, assignments and other instruments
with which the Company shall deem necessary in order to apply for and obtain
patents in Canada or foreign countries for such inventions or improvements and
in order to assign and convey to the Company the sole and exclusive right, title
and interest in the inventions or improvements, all expenses in connection
therewith to be borne by the Company. The Employee's obligation to execute such
documents shall continue beyond the termination of the period of her employment
with respect to any and all such properties, inventions or improvements.
7.2 Career Opportunities
Any business opportunities related to the business of the Company and its
affiliates which become known to the Employee during her employment with the
Company must be fully disclosed and made available to the Company by the
Employee. The Employee agrees not to take or attempt to take any action if the
result will be to divert from the Company any opportunity which is within the
scope of the Company's business or that of its affiliates.
7.3 Disclosure
During the employment period, the Employee shall promptly disclose to the board
of directors of the Company full information, concerning any material interest,
direct or indirect, of the Employee (as owner, shareholder, partner, lender or
other investor, director, officer, employee, consultant or otherwise) or any
member of her family in any business that is reasonably known to the Employee,
to purchase or otherwise obtain a material amount of services or products from,
or to sell or otherwise provide services or products to the Company and its
affiliates or to any of their suppliers or customers.
ARTICLE 8 - NOTICES
8.1 Notices
Any notice, direction or other communication to be given under this Agreement or
any ancillary agreement shall be in writing and given by delivering it or
sending it by telecopy or other similar form of recorded communication
addressed:
If to the Employee at:
00 Xxxxxx Xx.
Xxxxxxx, Xxxxxxx
Telephone:
Fax:
If to the Company at:
0 Xxxxxxx Xxxxx,Xxxxx 0, Xxxxx 000
Xxxxxx, Xxxxxxx
X0X 0X0
Telephone: (000) 000-0000
Fax: (000) 000-0000
8.2 Timing
Any communication shall be deemed to have been validly and effectively given (i)
if personally delivered, and the date of such delivery if such date is a
business day and such delivery was made prior to 4:00 p.m. (Toronto time) and
otherwise on the next business day: or (ii) if transmitted by telecopy or
similar means of recorded communication on the business day following the date
of transmission. Any party may change its address for service from time to
timely notice given in accordance with the foregoing and any subsequent notice
shall be sent to such party at its changed address.
ARTICLE 9 - GENERAL
9.1 Amendment and Waiver
This Agreement may not be amended, supplemented or waived except in writing
signed by the party against which such amendment or waiver is to be enforced.
The waiver by any party of a breach of any provision of this Agreement shall not
operate to, or be construed as a waiver of, any other breach of that provision
nor as a waiver of any breach of another provision.
9.2 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.
9.3 Severability
If any provision of this Agreement 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.
9.4 No Restriction on Conduct of Business
Nothing in this Agreement shall restrict the Company in the conduct of its
business and affairs and, without limiting the generality of the foregoing, the
Company shall be free to sell any or all of its assets, to merge, amalgamate or
combine its business with the business of any other person or to discontinue the
business, and no such event shall constitute a breach of the Company's
obligations hereunder.
9.5 Successors
This Agreement shall be binding on and enure to the benefit of the successors
and assigns of the Company and the heirs and executors of the Employee.
9.6 Entire Agreement
This Agreement constitutes the entire agreement and understanding between the
parties with respect to the employment arrangement addressed herein and
supersedes all prior agreements and understandings, written or oral, between the
parties relating to such subject matter.
9.7 Legal Advice
The Employee hereby represents and warrants to the Company and acknowledges and
agrees that he had the opportunity to seek and was encouraged by the Company to
seek independent legal advice 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 used by him as a defence to the enforcement of his obligations
under this Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the date first above written.
SIGNED, SEALED and DELIVERED )
)
) ___________________________________
in the presence of: ) XXXXX X. XXXXXX
)
) THINWEB SOFTWARE INCORPORATED
)
) per:________________________________
SCHEDULE "A"
EMPLOYEE DUTIES
Employee is engaged as Chief Technology Officer and shall perform all
duties normally associated with such a position and any duties reasonably
ancillary thereto. Employee is also be expected to be actively involved in
customer sales focusing especially in telecommunications.
SCHEDULE "B"
EMPLOYEE BENEFITS
Company group health and insurance benefits plan (currently through Sun Life).
Employee stock option plan.
SCHEDULE "C"
Task and Performance Evaluation Record
