EMPLOYMENT AGREEMENT is entered into as of the 19th day of December,2006.
BETWEEN:
GPS INDUSTRIES, INC.,
a Nevada company, having an office and place of business at Suite
000 - 0000 000xx Xxxxxx, Xxxxxx, X.X., X0X 0X0
(Hereinafter called the "Company")
OF THE FIRST PART
AND:
XXXXXX X. XXXXXX, XX.,
0000 000xx Xxxxxx,
Xxxxxx, X.X.
(the "Executive")
OF THE SECOND PART
WHEREAS:
A. The Executive has been employed by the Company in the position of
Chairman and Chief Executive Officer since February 1, 1996, and as a result of
such employment has enjoyed and will continue to enjoy benefits therefrom;
B. Each of the Company and the Executive desire that the Executive
continue as Chairman and Chief Executive Officer of the Company;
C. The Company and the Executive have agreed to set out and confirm the
terms and conditions of the continued employment of the Executive by the Company
as hereinafter set forth.
THIS AGREEMENT WITNESSES that in consideration of the premises and of
the mutual covenants and agreements hereinafter contained, the parties hereto
hereby agree with each other as follows:
1. Position. The Executive will continue to serve the Company as the Chairman
and Chief Executive Officer and, in such offices, the Executive will manage and
have responsibility for the operations of the Company and all such other affairs
of the Company as may be designated from time to time by the Board of Directors
of the Company. In connection with his responsibilities, the Executive will
report to and be subject to the lawful and proper instructions and directions of
the Board of Directors of the Company.
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2. Term. The employment contract of the Executive with the Company is renewed on
January 1, 2007 and the employment of the Executive shall continue until
December 31, 2009 (the "Term"), or until the employment of the Executive is
otherwise terminated as provided herein. The Company will issue to Executive
five year options to purchase (on a cashless exercise basis) up to 15,000,000
shares of the Company's Common Stock with an exercise price equal to the fair
market value on the date hereof which for purposes of this Agreement shall be
December 19, 2006, the date of the execution of this Agreement.
The parties may renew this Agreement by mutual agreement provided that
for the purposes of renewal negotiations the provisions of this Agreement will
apply with all necessary incidental amendments unless specifically altered and
the salary and other remuneration provided for the Executive in the last year of
the Term will be the minimum remuneration for any renewal period. If either
party does not wish to renew the Agreement, that party will advise the other
party on or before June 30, 2009.
3. Compensation. The Company will pay to the Executive a salary of $250,000 (the
"Minimum Salary") for the period October 1, 2006 through September 30, 2007 and
thereafter the Company will pay the Executive an annual salary effective October
1 of each year of the Term as determined by the Compensation Committee of the
Company's board of directors (the "Compensation Committee") but in no event less
that the Minimum Salary.
The annual salary will be subject to applicable statutory withholdings
and deductions and will be paid in equal consecutive semi-monthly installments.
During the Term, the Executive shall be eligible to receive annual performance
bonuses (based on customary criteria for similarly situated companies) and such
stock awards as the Compensation Committee of the Board of Directors so
determines.
During the Term, the Company will review with the Executive, at least
once a year and prior to September 30, the annual salary, bonus payments and
benefits provided by the Company to the Executive to determine the basis for any
increases thereto in addition to those increases set out above with the
objective of ensuring that the remuneration is at least at market level.
4. Executive Benefits. The Company will pay or cause to be paid the entire
premium cost of the following insured benefits for the Executive and his family:
(a) Dental plan;
(b) medical plan which will be the B.C. Medical Services Plan if
available, and if not, an insured medical plan providing at least the
same benefits as the B.C. Medical Services Plan;
(c) group health and welfare insurance plan which will include life
insurance providing a benefit of at least the greater of $1,000,000 or
four times the annual base salary as established in ss.3, extended
health, short term disability, long term disability and accidental
death and dismemberment;
(d) key person insurance with a benefit equal to at least $5,000,000
payable 5% as directed by the Executive and 95% to the Company; and
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(e) and any other benefit or perquisite available to any other employees
of the Company or generally provided to executives of companies
similar to the Company as these benefit plans currently exist or, if
not in existence, as otherwise arranged by the Company on the terms as
set out herein.
If this Agreement is terminated for any reason other than for just
cause, the Company will provide to the Executive and his family the foregoing
benefits for the unexpired period of the Term.
5. Holidays. The Executive will be entitled to five weeks' vacation with pay in
each year of the contract, at such time or times as the Executive may determine
consistent with the requirements of the Company's business. The Executive's
vacation will be cumulative and, accordingly, if the Executive fails to take his
vacation in any calendar year it will be carried over to the following year or
the Executive may choose to be paid in lieu. If this Agreement is terminated
during the Term, the Company will calculate the vacation entitlement for that
year on a pro rata basis and add it to any vacation entitlement accrued from
prior years. In addition to any other provision of this Agreement, accrued but
untaken vacation entitlement at the time of termination of employment will be
paid to the Executive by the Company based on the Executive's salary at the time
of termination.
6. Automobile. The Company will pay to the Executive the sum of $1,200 a month
in 2006 thru term of contract and in addition, will pay to the Executive the
aggregate of all expenses actually and properly incurred by him in connection
with the operation of his automobile (except depreciation expense and
insurance).
7. Expense Reimbursement. The Company will reimburse the Executive for all
travelling and other expenses actually and properly incurred by him in
connection with his duties hereunder and the Executive will be entitled to
travel first class and stay in top class, five star hotels. The Company will
also reimburse the Executive for all travelling expenses actually and properly
incurred by him for his spouse where it is determined by the Executive to be
reasonably in the interests of the Company for the Executive's spouse to travel
with him on Company business.
8. Executive's Covenant. Subject to ss.5, the Executive will well and faithfully
serve the Company full time and will use his best endeavors' to promote the
interests of the Company and shall devote his full time, skill, labor and
attention to the business of the Company.
9. Confidentiality. The Executive acknowledges that:
(a) in the course of carrying out, performing and fulfilling his
responsibilities to the Company hereunder, he will have access to and will be
entrusted with detailed confidential information, know how and trade secrets
relating to the business affairs of the Company including, without limitation,
finances, products, services, dealings and transactions of the Company, and the
names, address, preferences or other particular business requirements of its
customers and that the disclosure of confidential information, know how and
trade secrets of the Company to competitors or to the public would be highly
detrimental to the best interest of the Company;
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(b) in the course of performing his obligations to the Company hereunder
the Executive will be one of the principal representatives of the Company and as
such will be significantly responsible for maintaining or enhancing the goodwill
of the Company; and
(c) the right to maintain the confidentiality of such confidential
information, know how and trade secrets of the Company and the right to preserve
its goodwill constitute proprietary rights which the Company is entitled to
protect;
and the Executive will not, either during the Term or at any time thereafter,
disclose to any person, firm or corporation or otherwise use any such detailed
confidential information, know how and trade secrets for any purpose other than
the purposes of the Company and the Executive will not disclose or use for any
purpose other than for those of the Company the private affairs of the Company,
or any other private information which he may acquire during the course of his
employment hereunder with relation to the business and affairs of the Company,
except as required by law. The Executive acknowledges that the covenant
contained in this paragraph is necessary and fundamental for the protection of
the business of the Company and that a breach by the Executive will result in
damage to the Company which would not be adequately compensated by monetary
award to the Company and that in addition to all of the remedies available to
it, the Company shall be entitled to the immediate remedy of a restraining
order, injunction or other form of relief as may be decreed or issued by any
court of competent jurisdiction to restrain or enjoin the Executive from
breaching any such covenant or provision.
10. Termination by the Company. The Company may at any time during the Term
terminate the employment of the Executive for just cause, without notice and
without liability for any claim, action or demand. "Just cause" for termination
of this Agreement will mean just cause as determined under the common law of
British Columbia.
The Company acknowledges that the Executive has prior to the date of
this Agreement made, and will in the future make, a valuable contribution to the
Company not recognized in salary or bonuses paid or to be paid to the Executive
hereunder, which is relevant to the entitlement of the Executive to the
severance pay, including without limitation the performance bonuses and common
stock grants and options, owed in the event this Agreement is terminated prior
to the end of the Term.
The Company may at any time during the Term terminate the employment of
the Executive by paying to the Executive a lump sum amount equal to the present
value (calculated using an 8% discount factor) of his salary for the unexpired
period of the Term, and by providing to him the amount of any performance bonus
and common stock grants and options to which the Executive is or becomes
entitled. Notwithstanding the foregoing, the Executive will be entitled to a
minimum payment of $1,000,000 if the Company terminates the employment of the
Executive without just cause. The lump sum payment, performance bonus and stock
rights under this ss.10 would constitute severance pay in lieu of notice of
termination.
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11. Termination by the Executive. If any one of the following occurs during the
Term;
(a) change of control except in connection with a financing of not to
exceed $30,000,000 presently contemplated; or
(b) material alteration of the duties and responsibilities of the Executive
without his prior written consent, it being understood that a change in the
location of the Company's headquarters outside of the Vancouver, B.C. area shall
be deemed to be a material alteration unless the Company provides at its expense
reasonable accommodation to allow Executive to retain his personal residence in
the Vancouver, B.C. area.
The Executive may in his sole discretion terminate his employment within one
hundred and twenty (120) days of becoming aware of such event by giving the
Company ninety (90) days notice in writing of his resignation. In the event of
any such termination by the Executive under this ss. 11, the Company will pay or
cause to be paid to the executive a lump sum amount equal to the present value
(calculated using an 8% discount factor) of the Executive's salary for the
unexpired period of the Term and will provide to him any performance bonus and
common stock grants and options to which the executive is or becomes entitled to
pursuant to the terms of this Agreement. Notwithstanding the foregoing, the
Executive will be entitled to a minimum payment on termination of $1,000,000
under this ss.11, except that such minimum payment shall be $1,500,000 in the
case of a change of control.
For the purposes of this Agreement, "change of control" means the
occurrence of:
(a) the sale or a series of sales occurring within any 12 month period,
other than a sale to an affiliate of the Company, of net assets of the Company
having a value greater than 50% of the fair market value of the net assets of
the Company determined on a consolidated basis prior to such sale or prior to
the first of a series of sales occurring within any 12 months period;
(b) the disposition of all or substantially all of the assets of the
Company where such sale or disposition is required by applicable law to be
approved as a special resolution of the shareholders of the Company; or
(c) any event or series of events pursuant to which on any date those
persons who are members of the board of directors of the Company as of the date
of this Agreement and continue to be members of the board of directors no longer
represent a majority of the total number of members of the board of directors.
12. Payment of Severance. The Company will pay to the Executive all monies owing
under ss.10 or ss.11 within 30 days of the date of termination. The amount of
performance bonus payable to the Executive for the unexpired portion of the Term
will be calculated using the projections of the Company as they exist at the
time of termination for Net Income over that period and using an 8% discount
factor. The Company will promptly provide to the Executive upon request any
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information including documentation relevant to the calculation of monies owing
or claimed owing under this Agreement, the Company will pay to the Executive the
minimum payment under ss.10 or ss.11 within 30 days of termination of employment
of the Executive.
13. Non-Competition. The Executive will not during the Protected Period (as
hereinafter defined), directly or indirectly, either individually or in
partnership or in conjunction with any person, firm, association, syndicate or
corporation as principal, agent, employee, director, officer, shareholder or
contractor or in any other manner whatsoever, carry on or be engaged in or
concerned with or work for or financially interested in any business competitive
with the business of the Company in the world. Notwithstanding the foregoing,
the Executive may invest in or have an interest in entities traded on any public
market or offered by any national brokerage house, if and so long as the
interest does not exceed 9% of the voting control any such entity. "Protected
Period" means the period commencing from the date hereof and ending 12 months
after the termination of this employment of the Executive hereunder.
The Executive agrees and acknowledges this covenant is given for good
and valuable consideration (receipt of which is hereby acknowledged) and that by
reason of his unique knowledge of and his association with the business of the
Company, the scope of this covenant as to both time and area is reasonable and
commensurate with the protection of the legitimate interests of the Company.
This restrictive covenant will continue in effect after the termination of the
employment and the termination of this agreement for any reason and this
restrictive covenant is severable for that purpose. If any part of this covenant
is held to be void or unenforceable by a court of competent jurisdiction, that
part may be severed and replaced by the widest term that would not be held to be
void or unenforceable. The Executive waives all defenses to the strict
enforcement of this provision.
14. Survival. The obligations and acknowledgements of the Company and Executive
set out in ss. 4, 10, 11, 12 and 13 will survive the termination of this
Agreement.
15. Waiver or Modification. No failure or delay of the Company or the Executive
in exercising any power or right hereunder shall operate as a waiver thereof nor
shall any single or partial exercise of such right or power preclude any other
right or power hereunder. No amendment, modification or waiver of any condition
of this agreement or consent to any departure by the Executive therefrom shall
in any event be effective unless the same shall be in writing signed by the
Company.
16. Time of Essence. Time shall be of the essence hereof.
17. Further Assurances. The Executive and the Company will do, execute and
deliver, or will cause to be done, executed and delivered, all such further
deeds, instruments, documents, acts, documents and things as the Company or
Executive may reasonably require for the purpose of giving effect to this
Agreement.
18. Governing Law. This agreement and its application and interpretation will be
governed exclusively by the laws prevailing in British Columbia.
19. Notices. Any notice required to be given hereunder by any party shall be
deemed to have been well and sufficiently given if mailed by prepaid registered
mail or delivered at the address of the other parties hereto set forth or at
such other address in British Columbia as the other parties may from time to
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time direct in writing, and any such notice shall be deemed to have been
received, if mailed, telexed or telegraphed, 48 hours after the time of mailing,
telexing or telegraphing, and if delivered, upon the date of delivery. If normal
mail service, telex service or telegraph service is interrupted by strike,
slowdown, force majeure or other cause, a notice sent by the impaired means of
communication will not be deemed or other cause, a notice sent by the impaired
means of communication will not be deemed to be received until actually
received, and the party sending the notice shall utilize any other services
which have not been so interrupted or shall deliver such notice in order to
ensure prompt receipt thereof. The addresses for notice will, until changed, be:
In the case of the Company:
Suite 214 - 0000 000xx Xxxxxx,
Xxxxxx, X.X., X0X 0X0
In the case of the Executive:
0000 000xx Xxxxxx,
Xxxxxx, X.X.
20. Change of Address. Any party may, by notice to the other, change its address
for notice to some other address located in British Columbia and will so change
its address for notice whenever its existing address for notice ceases to be
adequate for delivery both by band and in the ordinary course of the mail.
21. Entire Agreement. This Agreement supersedes and replaces all previous
rights, agreements and understandings between the parties hereto whether written
or oral, and sets out the entire agreement between the parties hereto with
respect to the employment of the Executive by the Company.
22. Captions. The captions appearing in this Agreement have been inserted for
reference and as a matter of convenience only and in no way define, limit or
enlarge the scope or meaning of this Agreement or any provision hereof.
23. Binding Agreement. This agreement will inure to the benefit of and be
binding upon the respective successors and permitted assigns of the parties.
24. Severability. If any part of this Agreement is determined to be void or
unenforceable in whole or in part, it will not be deemed to affect or impair the
validity of any part hereof which will continue in full force and effect and be
construed as if this Agreement had been executed without the invalid part and it
is hereby declared the intention of the parties at this Agreement would it been
executed without reference to any part which may for any reason be determined to
be void or unenforceable.
25. Expenses. The Company will pay all reasonable out-of-pocket expenses of the
Executive, including fees and disbursements of his solicitors, in connection
with the preparation and negotiation of this Agreement.
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26. Independent Legal Advice. The Executive hereby acknowledges that he has been
advised by the Company to seek independent legal advice.
27. Currency. All dollar amounts referenced herein are to US dollars.
IN WITNESS WHEREOF this agreement has been executed as of the day and
year first above written.
GPS INDUSTRIES, INC.
By:
Xxxxxxx Xxxx
By:
Xxxx Xxxxxxx
XXXXXX XXXXXX, XX.
