EXHIBIT 10.13
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EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
Monday, the 17/th/ day of July, 2000, by and between ImagicTV Inc. (the
"Company") and Xxxxx Xxxxxx (the "Employee").
THIS AGREEMENT WITNESSES that in consideration of the covenants and
agreements contained herein, the parties hereto agree as follows:
ARTICLE 1
EMPLOYMENT
On the terms and subject to the conditions contained in this Agreement, the
Company hereby employs the Employee, and the Employee hereby accepts employment,
to serve the Company in the position described in Article 3.
ARTICLE 2
TERM
The term of the Employee's employment commenced on, November, 30/th/ 1998
(the "Commencement Date"), and shall be for the period ending on the second
anniversary of the Commencement Date, unless sooner terminated pursuant to the
terms of the Agreement, or by reason of the bankruptcy or insolvency of the
Company, in which case this Agreement will be of no further effect. Such
employment shall be automatically renewed on the second anniversary of the
Commencement Date and each anniversary thereafter for a period ending
immediately prior to the following anniversary, unless terminated in accordance
with the terms of Article 6. This Employment Agreement replaces any existing
written or oral Employment Agreement between the parties.
ARTICLE 3
DUTIES
3.1 Position
a) During the term of this Agreement, the Employee will serve as Vice
President of Marketing and Business Development of the Company. The Employee
will have the usual and customary duties of Vice President of Marketing and
Business Development, which without limitation include those responsibilities as
set out in Schedule C hereto. Subject to the direction and control of the
President and Chief Executive Officer of the Company, (the "President"), the
Employee will have such executive power and authority as is consistent with the
office of and as is necessary for him to discharge his duties as Vice President
of Marketing and Business Development. The Employee shall also perform such
other duties not inconsistent with the duties of Vice President of Marketing and
Business Development as may be assigned to him from time to time by the
President. Initially the Employee's primary office location will be working from
the Executive head office in Saint Xxxx, New Brunswick, Canada.
b) The Employee agrees that it is expected that the Company may transfer him
to Raleigh, North Carolina during the term. Should the Company transfer the
Employee to Raleigh, North Carolina the Company will pay the following
reasonable and receipted relocation expenses to the Employee, in conjunction
with the move including: moving expenses ( packing, unpacking and shipping),
real estate fees (selling); utility disconnect and connect, travel, meals and
accommodation.
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c) The work schedule for the Employee shall be consistent with the ordinary
office hours of the Company at the Employee's place of employment, as may be
amended from time to time. The Employee agrees that as a management level
employee, he will from time to time be required to work beyond regular office
hours. The Employee acknowledges and agrees that no overtime payment shall be
made for such work beyond regular office hours.
3.2 Outside Activities
The Employee will devote his full time, energy, skill and best efforts to the
performance of his duties hereunder, in a manner which will faithfully and
diligently further the business and interests of the Company, including, but not
limited to, attaining performance objectives such as revenue and profit goals
established by the Board of Directors for the Company but he may make or manage
personal investments of his choice and may serve as a director of any business
enterprise (not directly or indirectly in competition with the Company) or civic
organisation, provided that such service does not materially interfere with the
performance of his duties hereunder.
3.3 Rules and Regulations
The Employee shall comply, while on the premises used by the Company, while
conducting his duties under this Agreement, or when otherwise applicable, with
all the rules and regulations of the Company from time to time in force which
are brought to his notice or of which he could reasonably be aware.
ARTICLE 4
COMPENSATION
During the term of this Agreement, and during any severance or notice
periods, the Employee shall receive the following compensation and fringe
benefits:
4.1 Base Salary
The Employee shall receive a base salary (his "Base Salary") at an annual
rate of not less than $110,000.00 USD paid bi-weekly in equal installments.
While located in Canada, the Employee will be paid in Canadian dollars. Should
the Employee be relocated to the US, the Employee may be enrolled in a payroll
and benefits plan administered by a third party and will be paid in US dollars.
Acknowledging that the exchange rate will fluctuate, the Company will consider
the changes in the exchange rate on an annual basis, in conjunction with the
Employee's performance review. The Employee's Base Salary rate shall be
maintained at competitive market rates and shall be subject to annual review of
the Board of Directors.
4.2 Incentive Compensation
Beginning with the Fiscal year 2001, the Employee shall be eligible to
receive additional compensation by way of a bonus ( the "Bonus") in respect of
each fiscal year of the Company during the term of this Agreement no later than
120 days following the end of each period or fiscal year. The Bonus will be in
the form of a cash payment in the amount of 0-50% of Base Salary with a target
of 35% of the Employee's Base Salary if the Company achieve certain targeted
profit and revenue performance levels as set forth in the chart below (the
"Plan"). In the event that the Company does not achieve the targeted gross
revenues as set forth in the Plan, the amount of the Bonus shall be in an amount
as set by the Board based on the Employee's performance and also based on
principles of reasonableness
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considering the actual gross revenue earned by the Company. The Board of
Directors of the Company, with the consent of the Employee, have the authority
to amend these figures.
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Earnings Before
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Interest, Tax, Depreciation
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and Amortisation
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Period ("EBITDA") Gross Revenue
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$US Millions
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Fiscal year ending February 28/th/,
2001 10 Million USD
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Fiscal year ending February 28/th/, 100% of duly authorised 100% of duly authorised
2002 business plan as approved by business plan as approved by
the Board the Board
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Fiscal year ending February 28/th/, 100% of duly authorised 100% of duly authorised
2003 business plan as approved by business plan as approved by
the Board the Board
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4.3 Benefits
For the term of this Agreement, and during any severance or notice periods,
the Company agrees:
a) to provide to the Employee a car allowance of $1585.00 per month
b) to provide, under the ImagicTV Savings Incentive Plan, a contribution
that matches the contribution of the employee up to a maximum of 6% of your
annual salary
c) should the Company determine to relocate the Employee to the United
States at a later date, the Company will pay the Employee, in Canadian
dollars, toward receipted and reasonable relocation expenses in conjunction
with the move including: moving expenses - packing and unpacking and
shipping, real estate fees (selling); utility disconnect and connect,
travel, meals and accommodation to the United States. In addition, the
Company will assume all reasonable costs and expenses associated with
applying for and obtaining an appropriate work-authorized temporary visa
status in the US and for dependent visa classification for the immediate
members of Employee's family (if applicable).
4.4 Company Benefit Plans
The Employee shall also participate in a medical, dental, prescription,
life, short-term and long-term disability, accidental death and dismemberment
and travel plan to be approved by the Board of Directors, as it may be modified
from time to time in the Company's sole discretion. The Employee agrees to
accept a change in the administration of such plan as required by the Company.
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4.5 Vacation; Holidays
The Employee shall be entitled to 4 weeks of annual vacation time at such
times that do not unreasonably interfere with the Company's business. Such
vacation time shall not be carried into subsequent years, without prior written
consent of the President. The Employee shall be entitled to all statutory
holidays regularly observed by the Company.
4.6 Options
The Employee shall participate in the Company's ESOP Employee share option
plan as established by the Boards of Directors of the Company, subject to
execution by the Employee of an option agreement in the form prescribed by the
Company from time to time. The Employee's entitlements under such plans will be
determined from time to time by the Board of Directors of the Company. and shall
be subject to the terms and conditions set out in the Management Employment
Option Agreement attached as Schedule A hereto. The Employee acknowledges and
agrees that such options and the underlying shares shall be subject to the terms
and conditions of the Unanimous Shareholders' Agreement, as amended or
superseded, dated December 17th, 1999 among the Company and its shareholders.
ARTICLE 5
REIMBURSEMENT OF EXPENSES
During the term of the Agreement, the Company shall promptly reimburse the
Employee for all reasonable and necessary business expenses incurred by him in
promoting the business of the Company, upon receipt of itemised vouchers
therefor and in accordance with the policies and procedures of the Company as in
effect from time to time for its officers. In addition, the Company shall
promptly reimburse the Employee for his professional training and education as
well as membership fees, required to maintain his good standing with relevant
professional associations.
ARTICLE 6
TERMINATION
6.1 Death or Disability
(a) Death
The Employee's employment by the Company shall terminate automatically upon
the death of the Employee, in which event the Company shall remain liable to the
Employee's estate/heirs/devises only for the then accrued but unpaid
compensation and benefits (including, for greater certainty, options granted
under Section 4.6 which have vested in accordance with their terms) vested at
the time of death, payable to the Employee under Article 4. All payments shall
be made to the Employee's estate, payable to the named beneficiary under the
terms of the plan, or otherwise in accordance with the Company's policies and
applicable plans the current version of which have been made available to the
Employee for his inspection and review.
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(b) Disability
The Company may terminate the Employee's employment with the Company if the
Employee becomes unable to perform the duties to be performed by him hereunder
due to a physical, mental or other disability for a period of at least 6
consecutive months upon at least 60 days' prior written notice to the Employee,
in which event the Company shall remain liable to the Employee only for the then
accrued but unpaid compensation and benefits vested at the date of termination
payable to the Employee under Section 4 and all payments shall be made to the
Employee, his legal representative or otherwise in accordance with the Company's
policies and applicable plans, the current version of which have been made
available to the Employee for his inspection and review. Notwithstanding the
above, in such a case the Employee shall continue to be eligible for short term
and long term disability benefits, subject to the terms of such plans and
continued availability subject to the carriers acceptance of the claim.
6.2 Termination by the Company
(a) Termination for Cause
The Company may at any time terminate the Employee's employment for just
cause, the notice of which shall specifically set forth the nature of the breach
that is the reason for such termination. For purposes of this Agreement, "just
cause" shall include the following: (i) dishonesty or fraud; (ii) conviction of
a felony or an indictable offence; and (iii) gross negligent performance of
duties as set out herein which remain unsatisfactorily remedied, notwithstanding
a previous written notice given to the Employee, or (iv) an act of material
insubordination or against the best interest of the Company in a manner that has
or could have a material impact on the financial condition of the Company.
Upon termination under this Section 6.2(a), the Employee shall be entitled
to no further compensation or benefits whatsoever except for Base Salary due and
payable for services performed and benefits vested pursuant to Section 4 before
such termination under the policies of the Company as in effect at that time.
No prior notice will be required for termination with cause.
(b) Termination without Cause
The Board of Directors of the Company may terminate the Employee's
employment without cause at any time. In such event, the Employee shall be
entitled to monthly severance payments equal to one-twelfth of the Base Salary
for one year plus coverage for any benefits and Bonus to which the Employee may
be entitled pursuant to Article 4, determined in accordance with Section 6.6.
6.3 Termination by the Employee
If the Employee terminates his employment with the Company following a
substantial breach (as defined below), the Employee shall be entitled to the
severance payment and benefits as provided in Section 6.2(b). As used in this
Section, "substantial breach" shall mean either (i) the Employee's demotion,
without his consent to a position or duties materially inconsistent with or
inferior to those specified in Section 3; or (ii) the failure by the Company to
provide compensation and other vested benefits to the Employee in accordance
with Section 4, and the failure of the Company to correct such breach within
thirty days after written notice from the Employee of its occurrence.
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6.4 Change of Control
The Company may terminate the Employee's employment in the event of a
change of control of the Company. Such action may constitute termination without
cause. The Employee shall also have the right to terminate his employment in the
event of a change of control, but shall not in such event be entitled to
severance pay except for the Base Salary and Bonus in accordance with sections
4.1 and 4.2 respectively and the Options under section 6.7.
For purposes of Article 6, change of control shall mean the acquisition by
a person of 51% or more of the issued and outstanding voting shares of the
Company.
6.5 Resignation
On any termination, the Employee will tender his resignation as an officer
of the Company and any subsidiaries if requested by the Company.
6.6 Bonus and Options on Termination
(a) Bonus on Termination
The amount of the Bonus to which the Employee shall be entitled pursuant to
Section 4.2 for the portion of the period specified therein up to the time of
termination of the Employee's employment, shall be equal to the pro-rated
portion of the Employee's earned Bonus in such fiscal year, except that in the
event the employment is terminated for cause, the Employee shall not be entitled
to any Bonus.
(b) Options on Termination
In the event of termination of the Employee's employment:
(i) because of death, disability or any other reason except (A)
termination with or without cause or (B) as a result of a change of
control, the Employee or his estate, as the case may be, shall have 90 days
from termination to exercise those options which are already vested in
accordance with the vesting schedule set out in the applicable option
agreement (the "Vested Options"), after which all options will lapse;
(ii) by the Company without cause, the Employee shall be entitled, during
the 90 days following termination, to exercise the Vested Options and those
unvested options held by the Employee which otherwise would have vested in
the 12 month period following termination, whether or not such options have
otherwise vested, after which all options will lapse; or,
(iii) by the Company with cause, the Employee shall have no right to
exercise any options, whether vested or not, except for those vested
options for which a Notice of Exercise was received by the Company prior to
the notice of termination.
6.7 Options on Change of Control
In the event of a change of control of the Company, the Employee shall be
entitled, during the 90 days following change for control to exercise the Vested
Options and all other options held by the
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Employee at such time, whether or not such options have otherwise vested, after
which time all options will lapse.
6.8 Excess Parachute Payment
In the event a change of control of the Company occurs and it is determined
that the Employee has received an "excess parachute payment" under Internal
Revenue Code Section 280G, the Company agrees to reimburse the Employee for the
actual amount of Excise Tax imposed on the Employee pursuant to Internal Revenue
Code Section 4999 (the "Excise Tax Amount") plus an amount (the "Gross Up
Amount") sufficient to offset the additional income taxes payable by the
Employee by reason of receiving the Excise Tax Amount and the Gross Up Amount. .
This only applies should the Employee be relocated to the United States.
ARTICLE 7
RESTRICTIVE COVENANTS
7.1 Non-Disclosure
The Employee recognises that the Company, and its affiliates and
subsidiaries are engaged in a continuous program of software research and
development and the marketing of software products and related services. The
Employee also recognises the importance of protecting the trade secrets,
confidential information, partner and customer relationships of the Company and
other proprietary information and related rights acquired through the
expenditure of time, effort and money by the Company. In consideration of the
foregoing and the salary and benefits contemplated by this Agreement, the
Employee shall comply with the Proprietary Rights Protection Provisions set out
as Schedule "B" to this Agreement.
7.2 Non-Competition
The Employee recognises that, in light of his position with the Company
under this Agreement, his employment with or investment in an enterprise in the
business of designing, manufacturing, marketing, selling and/or servicing
equipment or products, including hardware, software and firmware, that competes
with currently offered equipment or products of the Company, those under
development, or those contemplated in any business plan duly approved by the
Company, being the development, delivery and sale of software for digital
interactive television services over a broadband network (the "Business"), would
cause irreparable harm to the Company; therefore, the Employee agrees that
during the period of his employment hereunder and for 12 months thereafter;
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(a) neither he nor any spouse, including a common law spouse, will be
interested, directly or indirectly, as an investor in any other business or
enterprise substantially similar to the Business (except as an investor in
securities listed on a national securities exchange or actively traded over
the counter so long as such investments are in amounts not significant as
compared to his total investments or to the aggregate of the outstanding
securities of the issuer of the same class of issue) in Canada, the United
States, Europe and other markets in which the Company conducts a material
amount of Business from time to time in the future; (b) he will not,
directly or indirectly, for his own account or as the Employee, officer,
director, partner, consultant, shareholder, joint venturer or in any other
manner whatsoever, engage within Canada, the United States, Europe and
other markets in which the Company conducts its "This contract is subject
to iMagic TV Management and Board Approval".
(b) Business from time to time during the aforementioned limitation period
under this clause 7.2, in any business or enterprise materially similar to
the Business; and
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(c) he will not directly or indirectly solicit, interfere with or endeavour to
direct or entice away from the Company any customer, client or any person,
firm or corporation in the habit of dealing with the Company or interfere
with, entice away or otherwise attempt to obtain the withdrawal of or hire
any employee of the Company or.
7.3 Equitable Relief
The Employee confirms that all restrictions in Article 7 are reasonable and
valid and all defences to the strict enforcement thereof by the Company are
waived by the Employee. The Employee expressly acknowledges that his covenants
and agreements in this Article 7 are fundamental to the Company and his
engagement by the Company and damages alone will be an inadequate remedy for any
breach or violation of any of the provisions of this Article 7, and that the
Company, in addition to all other remedies, shall be entitled as a matter of
right to equitable relief, including injunctions and specific performance, in
any court of competent jurisdiction.
ARTICLE 8
INSURANCE
The Employee acknowledges that the Company shall have the right to take out
insurance on the life of the Employee and designate the Company as beneficiary
and agrees for such purposes to submit to all required medical examinations, at
the Company's expense. Notwithstanding the right of the Company to take out
insurance on the life of the Employee, all of the Employee's medical records
shall be confidential to the Employee and the insurance company and the Company
shall have no right of access thereto.
ARTICLE 9
MISCELLANEOUS
9.1 Notices
Any notice or other communication required or permitted hereunder shall be
in writing and shall be deemed to have been given on the date of delivery if
delivered personally or by overnight courier, or three days after mailing if
mailed by first class certified mail, postage prepaid and return receipt
requested, addressed as follows, providing the postal services are working
normally:
to the Company: ImagicTV Inc.
One Brunswick Square
00/xx/ Xxxxx, X.X. Xxx 000
Xxxxx Xxxx, Xxx Xxxxxxxxx
X0X 0X0
Attention: Xxxxxx Xx Xxxx, President & CEO
to the Employee: Xxxxx Xxxxxx
000 Xxxxx-X-Xxxx Xxxx
Xxxxxxx, Xxxxx, XX
X0X 0X0
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or to such address (or to such other person's attention) as
either party may specify in a notice to the other given in accordance with this
Section.
9.2 Assignment
This Agreement shall be binding upon and shall inure to the benefit of the
respective heirs, executors, administrators, successors, and assigns of the
parties, provided however that the Employee may not assign any obligations
hereunder without the prior written consent of the Company. The Company may
assign its rights and obligations hereunder only to an affiliate or successor
without the consent of the Employee, provided such assignment is not to an
unfriendly or hostile successor or will not materially affect the Employee's
rights or obligations hereunder.
9.3 Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the Province of New Brunswick, Canada applicable to contracts entered
into and performed within the Province of New Brunswick, Canada.
9.4 Cumulation of Benefits
Any payment made by the Company to the Employee in accordance with the
present agreement shall be added to any amount owing to the Employee or that may
be paid to him under any pension plan, annuity, insurance or any other
employment benefit plan.
9.5 Best Efforts
The Company will use its best efforts to take such corporate action as is
necessary or appropriate with respect to this Agreement, particularly as it
relates to the plans of the Company.
9.6 Dollar Amounts
All dollar amounts hereunder are in CDN dollars unless otherwise
specifically stated.
9.7 Entire Agreement
This Agreement (including any Schedules) constitutes the entire agreement
of the parties with respect to the subject matter hereof and supersedes any and
all prior oral or written negotiations, correspondence, understandings, and
agreements.
9.8 Severability
The provisions of this Agreement shall be deemed severable. If any
provision of this Agreement shall be held unenforceable by any court of
competent jurisdiction, the remaining provisions shall remain in full force and
effect.
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9.9 Modifications
All modifications to the Agreement must be made in writing and signed by
both parties.
9.10 Counterparts
The Agreement may be signed in two counterparts (delivered by facsimile
transmission or otherwise), each of which shall be deemed an original and both
of which shall together constitute the same instrument.
9.11 Legal Advice
The Employee acknowledges having had the opportunity to seek independent
legal advice in connection with the negotiation and execution of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
ImagicTV Inc.
by: ________________________
Xxxxxx XxXxxx, President and CEO
SIGNED, SEALED AND DELIVERED )
in the presence of: )
)
)
________________________________ ) _____________________________
Witness ) Xxxxx Xxxxxx
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SCHEDULE "B"
Proprietary Rights Protection Provisions
1. Definitions: For the purposes of this Schedule:
(a) "Company" means ImagicTV Inc. , its parent corporation, ImagicTV Inc.and
its affiliated and associated corporations and subsidiaries ;
(b) "Confidential Information" includes any of the following: a) any and all
versions of the software and related documentation owned or marketed or
developed by the Company, including all related algorithms, concepts, data,
designs, flowcharts, ideas, programming techniques, specifications and source
code listings; b) all Developments (as defined below); c) information
regarding the Company's business operations, methods and practices, including
marketing strategies, product pricing, margins and hourly rates for staff,
and information regarding the financial affairs of the Company; d) the names
of the Company's clients and the names of the Company's business partners and
suppliers of computer services and software to the Company, and the nature of
the Company's relationships with these clients, partners and suppliers; e)
technical and business information of or regarding the clients of the Company
obtained in order for the Company to provide such clients with software
products and services, including information regarding the requirements and
the business operations, methods and practices and products and plans of such
clients; and f) any other trade secret or confidential or proprietary
information in the possession or control of the Company; but Confidential
Information does not include information which is or becomes generally
available to the public without the Employee's fault or which the Employee
can establish, through written records, was in hispossession prior to its
disclosure to the Employee as a result of his work for the Company; and
(c) "Developments" include all a) software, documentation, data, designs,
reports, flowcharts, training materials, trade-marks, specifications and
source code listings, and any related works, including any enhancements,
modifications, or additions to the software products owned, marketed or used
by the Company; and b) inventions, devices, discoveries, concepts, ideas,
algorithms, formulae, know-how, processes, techniques, systems and
improvements, whether patentable or not; developed, created, generated or
reduced to practice by the Employee, alone or jointly with others, during his
engagement with the Company or which result from tasks assigned to the
Employee by the Company or which result from the use of the premises or
property (including without limitation equipment, supplies or Confidential
Information) owned, leased or licensed by the Company.
2. Non-Disclosure of Confidential Information: At all times during and
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subsequent to the termination of his engagement with the Company, the Employee
shall keep in strictest confidence and trust the Confidential Information, the
Employee shall take all necessary precautions against unauthorised disclosure of
the Confidential Information, and the Employee shall not directly or indirectly
disclose, allow access to, transmit or transfer the Confidential Information to
a third party, nor shall the Employee copy or reproduce the Confidential
Information except as may be reasonably required for the Employee to fulfil his
consulting or other obligations to the Company from time to time.
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3. Restricted Use of Confidential Information:
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(a) At all times during and subsequent to the termination of his engagement
with the Company, the Employee shall not use the Confidential Information in
any manner except as reasonably required for the Employee to fulfil his
consulting or other obligations to the Company from time to time.
(b) Without limiting his obligations under subsection 3(a) of this Schedule,
the Employee agrees that at all times during and subsequent to the
termination of his engagement with the Company, the Employee shall not use or
take advantage of the Confidential Information for creating, maintaining or
marketing, or aiding in the creation, maintenance or marketing, of any
software or services which are competitive with any software, hardware,
documentation or services developed, owned or marketed by the Company or for
providing any products and services competitive with the products and
services provided by the Company.
(c) Upon the request of the Company, and in any event upon the termination of
his engagement with the Company, the Employee shall immediately return to the
Company all materials, including all copies in whatever form, containing the
Confidential Information which are in his possession or under his control and
destroy any electronic copies of Confidential Information which may be in his
possession or control.
4. Ownership of Confidential Information:
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(a) The Employee acknowledges and agrees that he shall not acquire any right,
title or interest in or to the Confidential Information.
(b) The Employee agrees to make full disclosure to the Company of each
Development promptly after its creation. The Employee hereby assigns and
transfers to the Company, and agrees that the Company shall be the exclusive
owner of, all of his right, title and interest to each Development throughout
the world, including all trade secrets, patent rights, copyrights and all
other intellectual property rights therein. The Employee further agrees to
cooperate fully at all times during and subsequent to his engagement with
respect to signing further documents and doing such acts and other things
reasonably requested by the Company to confirm such transfer of ownership of
rights, including intellectual property rights, effective at or after the
time the Development is created and to obtain patents or copyrights or the
like covering the Developments. The Employee agrees that the obligations in
this clause (b) shall continue beyond the termination of his engagement with
the Company with respect to Developments created during his engagement with
the Company. In the event that the Employee refuses or neglects to so execute
any assignments, transfers, consents, or other documents as required herein,
the Employee hereby irrevocably appoints the President of the Company as his
true and lawful attorney to execute any such documentation.
(c) The Employee acknowledges the validity of any patents, industrial designs,
copyrights, software, algorithms, trademarks and other intellectual property
rights related to the Confidential Information, which may now or in the
future be owned by the Company. The Employee undertakes not to contest or to
procure or induce others to contest the validity of the title of the Company
to any patents, industrial designs, copyrights, trademarks and other
intellectual property rights related to the Confidential Information, which
may now or in the future be owned by the Company. The Employee undertakes not
to contest or to procure or induce
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others to contest the confidential nature of the Confidential Information.
The Employee undertakes not to infringe or to procure or induce others to
infringe any patents, industrial designs, copyrights, trademarks or other
intellectual property rights related to the Confidential Information, which
may now or in the future be owned by the Company, or to engage in any
activity which might undermine the validity or strength thereof.
(d) The Employee agrees that if his work involves any photographic, visual or
audio recording of him, the Employee hereby grants to the Company the
royalty-free right to record his likeness and/or voice and/or performance on
film, tape or other medium, to edit, alter or modify in any way such film,
tape or other medium, to use any portion thereof in a CD-based product, in an
on-line format or in any other media (now or hereafter known) including video
and television, throughout the world in perpetuity and to use his name,
likeness and voice in relevant publicity. The Employee hereby releases the
Company and anyone using such film, tape or other material from any and all
claims, damages, liabilities, costs and expenses which the Employee has now
or may hereafter have by reason of any use thereof.
(e) The Employee agrees that the Company, its assignees and their licensees are
not required to designate the Employee as the author of any Developments. The
Employee hereby waives in whole all moral rights which the Employee may have
in the Developments, including the right to the integrity of the
Developments, the right to be associated with the Developments, the right to
restrain or claim damages for any distortion, mutilation or other
modification of the Developments, and the right to restrain use or
reproduction of the Developments in any context and in connection with any
product, service, cause or institution.
5. No Conflicting Obligations:
(a) The Employee acknowledges and represents to the Company that his performance
of his obligations hereunder and as an Employee of the Company shall not
breach any agreement or other obligation to keep confidential the
proprietary information of any prior employer of the Employee or any other
third party. The Employee further acknowledges and represents that the
Employee is not bound by any agreement or obligation with any third party,
which conflicts, with any of his obligations under this Agreement.
(b) The Employee represents and agrees that he will not bring to the Company,
and shall not use in the fulfilment of his obligations for the Company, any
Employee's Inventions (as defined below), any trade secrets, confidential
information and other proprietary information of any prior employer of the
Employee or any other third party. "Employee's Inventions" as used herein
shall mean any work or invention created by the Employee alone or jointly
with others, prior to, or outside of, his engagement by the Company. To the
extent that any Employee's Inventions are incorporated into the Confidential
Information of the Company by the Employee, Employee hereby grants to the
Company a perpetual, irrevocable, world-wide, royalty-free licence to use
such Employee's Inventions for any and all purposes in the Company's
discretion. The Employee represents and agrees that in his work creating
Developments the Employee will not knowingly infringe the intellectual
property rights, including copyright, of any third party.
(c) The Employee acknowledges and agrees that, in the event that the Employee
should become aware of any potentially conflicting obligation, immediate
notice shall be given to the Corporation of the existence, and to the extent
known, nature of such conflict. The Employee also agrees that no further
action will be taken until the written consent of the Company to proceed has
been obtained.
5
SCHEDULE "C"
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CUSTOMARY DUTIES OF VICE PRESIDENT MARKETING & BUSINESS DEVELOPMENT
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Key Role
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. Reporting to the President and Chief Executive Officer (CEO), the primary
responsibilities of the Vice President of Marketing and Business Development
will be establishing and directing the development and implementation of the
Company's strategic planning, marketing, product planning, business and
professional services programs and strategy.
. As a member of the senior management team, contributes significantly to
establish corporate strategic annual long-term objectives and plans of the
Company and will work closely with the firm's President and CEO. Makes final
decisions on operational matters and ensures effective achievement of Company
objectives.
. Directs and controls the activities of a broad functional area through
several department managers within the company having overall responsibility
for planning, budgeting, implementing and maintaining costs, methods and
employees.
MAJOR RESPONSIBILITIES:
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1. Working with the President and Senior Director Strategic Planning, develops
corporate business plan
2. Assesses existing and potential markets, plans and coordinates product
strategies
3. Defines global promotional activities and product launches including
technical and product sales support, product advertising and promotion and
plans
4. Works with the Vice President Sales and Customer Service to build sales
support team globally including proposal writing and developing marketing
plans targeted at specific customers
5. Develops, implements and directs the development of Company market
requirements for specific product(s) or product line(s)
6. Build and lead a marketing and product line management team to introduce the
company's new technology via recruiting, hiring, developing and mentoring
staff
7. Ensures personnel execute the programs within budget to achieve or exceed
objectives
8. Determine customer requirements and product definition, working closely with
Engineering and other departments to assure products meet customer needs and
expectations, performing competitive cost/performance analysis and product
positioning, featuring and releasing planning to ensure continued leadership
position in industry, profitable cost/price and product life-cycle management
9. Oversee business development's establishment of partnerships and
relationships globally, with suppliers, software firms etc. to increase
sales, enhance products, or position the Company
6
strategically
10. Oversee professional services in the building of iMagicTV's consulting
division globally, to establish billable revenue in conjunction with the
implementation of iMagicTV products
11. Meet or exceed corporate yearly financial objectives
