EMPLOYMENT AGREEMENT
THIS AGREEMENT effective as of the 31st day of July, 1999 (the "Effective
Date").
BETWEEN:
XXXXXXXXXXXXXX.XXX, INC., a company duly incorporated pursuant to the federal
laws of Canada having an office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx, XXX, 00000
(the "Company")
OF THE FIRST PART
AND:
XXXX XXXXX, businessman, residing at 0000 Xxx Xxxxxx Xxxxx, Xxxxxxxxxxxx,
Xxxxxxx, XXX, 00000
(the "Employee")
OF THE SECOND PART
WITNESSES THAT WHEREAS:
I. The Company is a publicly traded company and is engaged in, inter
alia, the business of e-commerce and telecommunications;
II. The Employee has certain skills and expertise required by the
Company for its operations;
III. The Company wishes to obtain and the Employee wishes to provide
certain services to the Company on the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants set forth below, the parties hereto agree as follows:
1. DUTIES AND DEVOTION OF TIME
1.1 Duties. During the term of this Agreement the Employee shall be
responsible for the duties contained in Schedule "A" attached hereto and
incorporated herein by this reference (the "Duties").
1.2 Devotion of Time. The parties hereto acknowledge and agree that
the work of the Employee is and shall be of such a nature that regular hours may
not be sufficient and occasions may arise whereby the Employee shall be required
to work more than eight (8) hours per day and/or five (5) days per week. The
Employee agrees that the consideration set forth herein shall be in full and
complete satisfaction for such work and services, regardless of when and where
such work and services are performed. The Employee further releases the Company
from any claims for overtime pay or other such compensation which may accrue to
the Employee. Notwithstanding the foregoing, the Company agrees that so long as
the Employee properly discharges his duties hereunder, the Employee may devote
the remainder of his time and attention to other non-competing business
pursuits.
1.3 Business Opportunities the Property of the Company. The Employee
agrees to communicate immediately to the Company all business opportunities,
inventions and improvements in the nature of the Company's business which,
during the term of this Agreement, the Employee may conceive, make or discover,
become aware of, directly or indirectly, or have presented to him in any manner
which relates in any way to the Company, either as it is now or as it may
develop, and such business opportunities, inventions or improvements shall
become the exclusive property of the Company without any obligation on the part
of the Company to make any payments therefor in addition to the salary and
benefits herein described to the Employee.
1.4 No Personal Use. The Employee shall not use any of the work the
Employee shall perform for the Company for any personal purposes without first
obtaining the prior written consent of the Company.
2. SALARY, BONUSES AND BENEFITS
2.1 Salary. In consideration of the Employee providing the services
referred to herein, the Company agrees to pay the Employee an annual base salary
(the "Annual Base Salary") of one hundred and fifty thousand U.S. dollars
($150,000) less applicable deductions, payable subject to increase as from time
to time approved by the Board of Directors of the Company; provided that the
Company will not be obligated to pay any of the Annual Base Salary until the
Company records a profit as determined in accordance with United States
Generally Accepted Accounting Principles. The Employee acknowledges and agrees
that any of the Annual Base Salary is not payable until at least six (6) months
from the Effective Date.
2.2 Benefits. The Company shall provide, maintain and pay for:
(a) medical insurance for the Employee and his immediate family as is
provided by the Company's medical services plan; and
(b) such extended health and other benefits for the Employee and his
immediate family as are provided to senior management employees of the Company,
subject to the eligibility of the Employee.
2.3 Payment in Cash or Shares. All payments payable by the Company to
the Employee, including the Annual Base Salary and reimbursement of expenses
under Section 4.1 hereof, shall be payable in cash or, at the election of the
Employee, and subject to the approval of the regulatory authorities, such will
be paid in whole or in part in common shares in the capital stock of the Company
("Remuneration Shares"), issued at the 10 day average closing price (for the 10
days prior to the Employee's election) of the Company's common shares on any
stock exchange or quotation system upon which the Company's common shares are
listed for trading.
2.4 Signing Bonus. As a signing bonus the Company agrees to pay the
Employee one million (1,000,000) common shares (the "Signing Bonus Shares") in
the capital of the Company. The Signing Bonus Shares shall be paid within
thirty (30) days from the Effective Date of this Agreement. The Employee
acknowledges that the Signing Bonus Shares will be subject to certain hold
periods, which to the knowledge of the Company is one year; however, the Company
will add registration of the Signing Bonus Shares to any other share
registration that the Company may file with the United States Securities and
Exchange Commission (the "SEC") during the year. The Employee acknowledges and
agrees that the Signing Bonus Shares and any Remuneration Shares may be subject
to additional resale restrictions should the Employee become an affiliate (as
defined under United States securities laws) of the Company.
2.5 Compensation Shares . In consideration of the Employee entering
into this Agreement and continuing in such employment for a period of at least
one year, the Company also agrees to pay the Employee one million (1,000,000)
common shares (the "Compensation Shares") in the capital of the Company. Upon
or as soon as is practical after the issuance of the last tranche of the
Compensation Shares, the Company will file a form S-8 or other appropriate form
with the SEC to effect registration. The Shares shall vest as to 250,000 shares
on each of the following dates ("Vesting Dates"):
(a) at the end of three (3) months from the Effective Date - 250,000 shares
(b) at the end of six (6) months from the Effective Date - 250,000 shares
(c) at the end of nine (9) months from the Effective Date - 250,000 shares
(d) at the end of twelve (12) months from the Effective Date - 250,000
The share certificates representing the Compensation Shares shall be delivered
on or immediately after each of the Vesting Dates. If this Agreement is
terminated for any reason, those Compensation Shares that have vested in the
Employee at the date of notice of termination shall be deemed to have been
earned by the Employee, no reduction or refund shall take place and no claim for
any additional shares, compensation, severance or consideration of any kind may
be made by the Employee.
2.6 Number of Shares The number of shares payable to the Employee
hereunder is subject to adjustment from time to time if the Company is subject
to a consolidation, merger or transfer of assets which reclassifies or changes
its outstanding common shares, in which case the successor corporation (or
corporation controlling the successor corporation of the Company, as the case
may be) shall by operation of law assume the Company's obligations under this
Agreement. As a condition to the consummation of such transaction, the Employee
shall arrange for the person or entity obligated to issue securities or deliver
cash or other assets to assume, concurrently with the consummation of such
transaction, the Employee's obligations hereunder by executing an instrument so
providing and further providing for adjustments which shall be as nearly
equivalent as may be practical to the adjustments provided herein.
3. VACATION
3.1 Entitlement to Vacation. The Company acknowledges that the
Employee shall be entitled to an annual vacation of three (3) weeks. The
Employee shall use his best efforts to
ensure that such vacation is arranged with the Company in advance such that his
does not unduly affect the operations of the Company.
3.2 Increase in Vacation. The period set out in Section 3.1 above may
be increased from time to time as mutually agreed to by the Employee and the
Board of Directors of the Company.
4. REIMBURSEMENT OF EXPENSES
4.1 Reimbursement of Expenses. The Employee shall be reimbursed for
all reasonable out-of-pocket expenses incurred by the Employee in or about the
execution of the Duties contained herein. All payments and reimbursements shall
be made within thirty (30) days of submission by the Employee of vouchers, bills
or receipts for such expenses.
5. CONFIDENTIAL INFORMATION
5.1 Confidential Information. The Employee shall not, either during
the term of this Agreement or for a term of three years after termination,
without specific consent in writing, disclose or reveal in any manner whatsoever
to any other person, firm or corporation, nor will it use, directly or
indirectly, for any purpose other than the purposes of the Company, the private
affairs of the Company or any confidential information which he may acquire
during the term of this Agreement with relation to the business and affairs of
the directors and shareholders of the Company, unless the Employee is ordered to
do so by a court of competent jurisdiction or unless required by any statutory
authority.
5.2 Non-Disclosure Provisions. The foregoing provision shall be
subject to the further non-disclosure provisions contained in Schedule "B"
attached hereto and incorporated herein by this reference.
5.3 Provisions Survive Termination. The provisions of this section
shall survive the termination of this Agreement for a period of three years.
6. TERM
6.1 Term. This Agreement shall remain in effect until terminated in
accordance with any of the provisions contained in this Agreement.
7. TERMINATION
7.1 Termination by Employee. Notwithstanding any other provision
contained herein, the parties hereto agree that the Employee may terminate this
Agreement, with or without cause, by giving fourteen (14) days written notice of
such intention to terminate.
7.2 Resignation or Cessation of Duties. In the event that the Employee
ceases to perform all of the Duties contained herein, other than by reason of
the Employee's death or disability, or if the Employee resigns unilaterally and
on his own initiative from all of his positions this Agreement shall be deemed
to be terminated by the Employee as of the date of
such cessation of Duties or such resignation, and the Company shall have no
further obligations under Section 2 hereof.
7.3 Termination by Company. The Company may terminate this agreement
at any time for just cause. The parties further agree that except for
termination for just cause, the Company may not terminate this Agreement without
payment, at that time, to the Employee of a termination allowance equivalent to
fourteen (14) days in value of the Annual Base Salary payable by the Company to
the Employee, regardless of the date of termination.
7.4 Death. In the event of the death of the Employee during the term
of this Agreement, this Agreement shall be terminated as of the date of such
death.
8. RIGHTS AND OBLIGATIONS UPON TERMINATION
8.1 Rights and Obligations. Upon termination of this Agreement, the
Employee shall deliver up to the Company all documents, papers, plans, materials
and other property of or relating to the affairs of the Company, other than the
Employee's personal papers in regard to his role in the Company, which may then
be in the Employee's possession or under his control.
9. NOTICES AND REQUESTS
9.1 Notices and Requests. All notices and requests in connection with
this Agreement shall be deemed given as of the day they are received either by
messenger, delivery service, or mailed by registered or certified mail with
postage prepaid and return receipt requested and addressed as follows:
(a) if to the Company:
XxxxxxxXxxxxxx.xxx, Inc.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx, XXX, 00000
with a copy to:
XXXXX, XXXXXX
Xxxxx 000-000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Xxxxxxx Xxxxxx
(b) If to the Employee:
Xxxx Xxxxx
0000 Xxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx, XXX, 00000
or to such other address as the party to receive notice or request so designates
by written notice to the other.
10. INDEPENDENT PARTIES
10.1 Independent Parties. This Agreement is intended solely as a
management services agreement and no partnership, agency, joint venture,
distributorship or other form of agreement is intended.
11. AGREEMENT VOLUNTARY AND EQUITABLE
11.1 Agreement Voluntary. The parties acknowledge and declare that in
executing this Agreement they are each relying wholly on their own judgment and
knowledge and have not been influenced to any extent whatsoever by any
representations or statements made by or on behalf of the other party regarding
any matters dealt with herein or incidental thereto.
11.2 Agreement Equitable. The parties further acknowledge and declare
that they each have carefully considered and understand the provisions contained
herein, including, but without limiting the generality of the foregoing, the
Employee's rights upon termination and the restrictions on the Employee after
termination and agree that the said provisions are mutually fair and equitable,
and that they executed this Agreement voluntarily and of their own free will.
12. CONTRACT NON-ASSIGNABLE; INUREMENT
12.1 Contract Non-Assignable. This Agreement and all other rights,
benefits and privileges contained herein may not be assigned by the Employee.
12.2 Inurement. The rights, benefits and privileges contained herein,
including without limitation the benefits of Sections 2 and 7 hereof, shall
inure to the benefit of and be binding upon the respective parties hereto, their
heirs, executors, administrators and successors.
13. ENTIRE AGREEMENT
13.1 Entire Agreement. This Agreement represents the entire Agreement
between the parties and supersedes any and all prior agreements and
understandings, whether written or oral, between the parties. The Employee
acknowledges that it was not included to enter into this Agreement by any
representation, warranty, promise or other statement, except as contained
herein.
13.2 Previous Agreements Cancelled. Save and except for the express
provisions of this Agreement, any and all previous agreements, written or oral,
between the parties hereto or on their behalf relating to the services of the
Employee for the Company are hereby terminated and cancelled and each of the
parties hereby releases and further discharges the other of and from all manner
of actions, causes of action, claims and demands whatsoever under or in respect
of any such Agreement.
14. WAIVER
14.1 Waiver. No consent or waiver, express or implied, by either party
to or of any breach or default by the other party in the performance by the
other of its obligations herein shall be deemed or construed to be a consent or
waiver to or of any breach or default of the same or
any other obligation of such party. Failure on the part of any party to
complain of any act or failure to act, or to declare either party in default
irrespective of how long such failure continues, shall not constitute a waiver
by such party of its rights herein or of the right to then or subsequently
declare a default.
15. SEVERABILITY
15.1 Severability. If any provision contained herein is determined to
be void or unenforceable in whole or in part, it is to that extent deemed
omitted. The remaining provisions shall not be affected in any way.
16. AMENDMENT
16.1 Amendment. This Agreement shall not be amended or otherwise
modified except by a written notice of even date herewith or subsequent hereto
signed by both parties.
17. HEADINGS
17.1 Headings. The headings of the sections and subsections herein are
for convenience only and shall not control or affect the meaning or construction
of any provisions of this Agreement.
18. GOVERNING LAW
18.1 Governing Law. This Agreement shall be construed under and
governed by the laws of the State of Illinois and the laws of the United States
applicable therein.
19. EXECUTION
19.1 Execution in Several Counterparts. This Agreement may be executed
by facsimile and in several counterparts, each of which shall be deemed to be an
original and all of which shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
31st day of July, 1999.
XXXXXXXXXXXXXX.XXX, INC.
per: /s/ signed
Authorized Signatory
)
SIGNED, SEALED AND DELIVERED by XXXX XXXXX in the presence of:. )
)
Xxxxxxx X. Xxxxxx . . . . . . . . . . . . . . . . . . . . . . . )
--------------------------------------------------------------- )
Name. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . )
000 X. XxXxxxx. . . . . . . . . . . . . . . . . . . . . . . . . )
--------------------------------------------------------------- )
Address . . . . . . . . . . . . . . . . . . . . . . . . . . . . )
Xxxxxxx XX 00000 )
--------------------------------------------------------------- )
CFO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ) /s/ Xxxx Xxxxx
--------------------------------------------------------------- ) --------------
Occupation. . . . . . . . . . . . . . . . . . . . . . . . . . . ) XXXX XXXXX
SCHEDULE "A"
Employee'S DUTIES
1. The Employee shall be appointed by the Company as the full time
Director of Sales and Marketing of the Company, and the Employee shall
faithfully, honestly and diligently serve the Company and each of the Company's
subsidiaries (if any) in these capacities.
SCHEDULE "B"
NON-DISCLOSURE PROVISIONS
1. CONFIDENTIAL INFORMATION AND MATERIALS
1.1 "Confidential Information" shall mean, for the purposes of this
Agreement, non-public information which the Company designates as being
confidential or which, under the circumstances surrounding disclosure ought
reasonably to be treated as confidential. Confidential Information includes,
without limitation, information, whether written, oral or communicated by any
other means, relating to released or unreleased Company software or hardware
products, the marketing or promotion of any product of the Company or the
Company business policies or practices, and information received from others
which the Company is obliged to treat as confidential. Confidential Information
disclosed to the Employee by any subsidiary and/or agents of the Company is
covered by this Agreement.
1.2 Confidential Information shall not include that information defined
as Confidential Information hereinabove which the Employee can exclusively
establish:
(a) is or subsequently becomes publicly available without breach of any
obligation of confidentiality owed by the Company;
(b) became known to the Employee prior to disclosure by the Company to the
Employee;
(c) became known to the Employee from a source other than the Company other
than by the breach of any obligations of confidentiality owed to the Company; or
(d) is independently developed by the Employee.
1.3 Confidential Materials shall include all tangible materials
containing Confidential Information, including, without limitation, written or
printed documents and computer disks or tapes, whether machine or user readable.
2. RESTRICTIONS
2.1 The Employee shall not disclose any Confidential Information to
third parties for a period of three (3) years following the termination of this
Agreement, except as provided herein. However, the Employee may disclose
Confidential Information during bona fide execution of the Duties or in
accordance with judicial or other governmental order, provided that the Employee
shall give reasonable notice to the Company prior to such disclosure and shall
comply with any applicable protective order or equivalent.
2.2 The Employee shall take reasonable security precautions, at least
as great as the precautions it takes to protect its own confidential
information, to keep confidential the Confidential Information, as defined
hereinabove.
2.3 Confidential Information and Materials may be disclosed,
reproduced, summarized or distributed only in pursuance of the business
relationship of the Employee with the Company, and only as provided hereunder.
3. RIGHTS AND REMEDIES
3.1 The Employee shall notify the Company immediately upon discovery of
any unauthorized use or disclosure of Confidential Information or Materials, or
any other breach of this Agreement by the Employee, and shall co-operate with
the Company in every reasonable manner to aid the Company to regain possession
of said Confidential Information or Materials and prevent all such further
unauthorized use.
3.2 The Employee shall return all originals, copies, reproductions and
summaries of or relating to the Confidential Information at the request of the
Company or, at the option of the Company, certify destruction of the same.
3.3 The parties hereto recognize that a breach by the Employee of any
of the provisions contained herein would result in damages to the Company and
that it could not be compensated adequately for such damages by monetary award.
Accordingly, the Employee agrees that in the event of any such breach, in
addition to all other remedies available to the Company at law or in equity, the
Company shall be entitled as a matter of right to apply to a court of competent
jurisdiction for such relief by way of restraining order, injunction, decree or
otherwise, as may be appropriate to ensure compliance with the provisions of
this Agreement.
4. MISCELLANEOUS
4.1 All Confidential Information and Materials are and shall remain the
property of the Company. By disclosing information to the Employee, the Company
do not grant any express or implied right to the Employee to or under any and
all patents, copyrights, trademarks, or trade secret information belonging to
the Company.
4.2 All obligations created herein shall survive change or termination
of any and all business relationships between the parties for a period of three
years after such termination.
4.3 The Company may from time to time request suggestions, feedback or
other information from the Employee on Confidential Information or on released
or unreleased software belonging to the Company. Any suggestions, feedback or
other disclosures made by the Employee are and shall be entirely voluntary on
the party of said Employee and shall not create any obligations on the part of
the Company or a confidential agreement between the Employee and the Company.
Instead, the Company shall be free to disclose and use any suggestions, feedback
or other information from the Employee as the Company sees fit, entirely without
obligation of any kind whatsoever to the Employee.
