EXHIBIT 10.5.7
AMENDED AND RESTATED EMPLOYMENT AGREEMENT DATED AS OF MARCH 15, 1996, BETWEEN
INTERNATIONAL VERIFACT INC. AND XXXXXX XXXXXXX
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT is amended and restated as of March 15, 1996.
B E T W E E N
INTERNATIONAL VERIFACT INC.,
a corporation continued under the laws of Canada,
(hereinafter referred to as the "Corporation")
OF THE FIRST PART
-and -
XXXXXX XXXXXXX,
of the Town of Cave Creek, in the State of Arizona,
(hereinafter referred to as the "Executive")
OF THE SECOND PART
WHEREAS by agreement dated January 6, 1995 (the "Original Agreement") both
the Corporation and the Executive set out the terms and conditions governing the
Executive's employment with the Corporation;
AND WHEREAS the parties to the Original Agreement wish to amend and restate
the Original Agreement;
NOW THEREFORE in consideration of the mutual covenants and agreements
contained in this Agreement and other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged by each of the
parties), the parties hereto agree that the Original Agreement is hereby amended
and restated in its entirety as follows:
1. DEFINITIONS
(a) "CHANGE OF CONTROL" means the occurrence of both:
(i) the acquisition or continuing ownership of common shares of the
Corporation and/or securities ("Convertible Securities") convertible
into, exchangeable for or representing the right to acquire common
shares of the Corporation as a result of which a person, group of
persons or persons acting jointly or in concert, or persons
associated or affiliated within the meaning of the Canada Business
Corporations Act with any such person, group of persons or any of
such persons acting jointly or in concert (collectively the
"Acquirors"), beneficially own shares of the Corporation and/or
Convertible Securities such that, assuming only the conversion,
exchange or exercise of Convertible Securities beneficially owned by
the Acquirors, the Acquirors would beneficially own shares that would
entitle the holders thereof to cast more than 30% of the votes
attaching to all shares in the capital of the Corporation that may be
cast to elect directors of the Corporation; and
(ii) the exercise of the voting power of all or any such shares so as to
cause or result in the election of three or more directors of the
Corporation who were not Incumbent Directors.
(b) "INCUMBENT DIRECTOR" means any member of the Board of Directors of the
Corporation who was a member of the Board of Directors of the Corporation
immediately prior to a Change of Control and any successor to an
Incumbent Director who was recommended or elected or appointed to succeed
any Incumbent Director by the affirmative vote of a majority of the
Incumbent Directors then on the Board of Directors of the Corporation.
2. TERM
This Agreement shall be in effect immediately as at and from the date first
written above and shall remain in effect until the earlier of December 31, 2000
and the date of termination as provided in Section 7 hereafter.
3. DUTIES
The Executive shall serve the Corporation and any subsidiaries and
affiliates of the Corporation in such capacity or capacities and shall perform
such duties and exercise such powers pertaining to the management and operation
of the Corporation and any subsidiaries and affiliates of the Corporation (as
those terms are defined in the Canada Business Corporations Act) as may be
determined from time to time by the Board of Directors of the Corporation
consistent with the office of the Executive. Without limiting the foregoing, the
Executive shall occupy the office of Chairman of the Board of Directors of the
Corporation. The Executive shall:
(a) devote his full time and attention and his best efforts during normal
business hours to the business and affairs of the Corporation;
(b) perform those duties that may reasonably be assigned to the Executive
diligently and faithfully to the best of the Executive's abilities and in
the best interests of the Corporation; and
(c) use his best efforts to promote the interests and goodwill of the
Corporation.
4. REMUNERATION
(a) Commencing January 1, 1997, and for the remainder of the term of this
Agreement, the annual base salary payable to the Executive for his
services hereunder shall be US $150,000 exclusive of those benefits set
forth herein. The annual base salary payable to the Executive pursuant to
this subsection shall be payable semi-monthly in arrears or in such other
manner as may be mutually agreed upon, less, in any case, any deductions
or withholdings required by law.
(b) The Corporation shall provide the Executive with employee benefits
comparable to those provided by the Corporation from time to time to
other senior executives of the Corporation through its existing group
life or group insurance plans.
5. NO FURTHER SALARY OR BONUS ADJUSTMENTS
Other than as herein provided, there shall be no further salary, bonus,
cost-of-living or merit increase in the annual base salary unless agreed to in
writing by the Corporation.
6. EXPENSES
The Executive shall be entitled to a car allowance of U.S. $500 per month.
The Executive shall be reimbursed for all reasonable travel and other
out-of-pocket expenses, including reasonable operating, maintenance and
insurance costs of the Executive's vehicle, actually and properly incurred by
the Executive from time to time in connection with carrying out his duties
hereunder. For all such expenses the Executive shall furnish to the Corporation
originals of all invoices or statements in respect of which the Executive seeks
reimbursement.
7. TERMINATION
(a) The Corporation may terminate the employment of the Executive by the
Corporation and any employment or offices held by the Executive with an
affiliate of the Corporation without notice or any payment in lieu of
notice for cause which, without limiting the generality of the foregoing,
shall include:
(i) if there is a repeated and demonstrated failure on the part of the
Executive to perform the material duties of the Executive's position
in a competent manner and where the Executive
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fails to substantially remedy the failure within a reasonable period
of time after receiving written notice of such failure from the
Corporation;
(ii) if the Executive is convicted of a criminal offence involving fraud
or dishonesty;
(iii) if the Executive or any member of his family makes any personal
profit arising out of or in connection with a transaction to which
the Corporation or any affiliate of the Corporation is a party or
with which it is associated without obtaining the prior written
consent of the Corporation;
(iv) if the Executive fails to honour his fiduciary duties to the
Corporation, including the duty to act in the best interests of the
Corporation; or
(v) if the Executive disobeys reasonable instructions given in the course
of employment by the Board of Directors of the Corporation that are
not inconsistent with the Executive's management position and not
remedied by the Executive within a reasonable period of time after
receiving written notice of such disobedience.
(b) This agreement may be immediately terminated by the Corporation by
notice to the Executive if the Executive becomes permanently disabled.
The Executive shall be deemed to have become permanently disabled if in
any year during the employment period, because of ill health, physical or
mental disability, or for other causes beyond the control of the
Executive, the Executive has been continuously unable or unwilling or has
failed to perform the Executive's duties for 120 consecutive days, or if,
during any year during the employment period, the Executive has failed to
perform his duties for a total of 180 days, consecutive or not. The term
"any year during the employment period" means any period of 12
consecutive months during which the Executive is employed by the
Corporation.
(c) This agreement shall terminate without notice upon the death of the
Executive.
(d) This agreement shall terminate upon the effective date of the
Executive's voluntary termination of employment.
8. SEVERANCE PAYMENTS
(a) Upon termination of the Executive's employment:
(i) for cause; or
(ii) by the Executive's voluntary termination of employment;
the Executive shall not be entitled to any severance payment other than
compensation earned by the Executive before the date of termination
calculated pro rata up to and including the date of termination, together
with any amount to which the Executive is entitled under the Employment
Standards Act (Ontario), as amended.
(b) If the Executive's employment is terminated within one (1) year of a
Change of Control the Executive shall be entitled to receive:
(i) seventy-two (72) month's salary at the then applicable annual base
salary rate. The term "annual base salary rate" means the annual
salary rate then in effect; and
(ii) the continuation of the benefits provided for in Section 6 hereof
for six (6) months after the employment is terminated.
9. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario.
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10. NO ASSIGNMENT
The Executive may not assign, pledge or encumber the Executive's interest in
this agreement nor assign any of the rights or duties of the Executive under
this agreement without the prior written consent of the Corporation.
11. SEVERABILITY
If any provision in this Agreement including the breadth or scope of such
provision, is determined to be invalid or unenforceable in whole or in part by
any court of competent jurisdiction, 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.
12. ENFORCEABILITY
The Executive hereby confirms and agrees that the covenants and restrictions
pertaining to the Executive contained in this agreement are reasonable and valid
and hereby further acknowledges and agrees that the Corporation would suffer
irreparable injury in the event of any breach by the Executive of his
obligations under any such covenant or restriction. Accordingly, the Executive
hereby acknowledges and agrees that damages would be an inadequate remedy at law
in connection with any such breach and that the Corporation shall therefore be
entitled in lieu of any action for damages, temporary and permanent injunctive
relief enjoining and restraining the Executive from any such breach.
13. SUCCESSORS
This agreement shall be binding on and enure to the benefit of the
successors and assigns of the Corporation and the heirs, executors, personal
legal representatives and permitted assigns of the Executive.
14. NOTICES
Any notice or other communication required or permitted to be given
hereunder shall be in writing and either delivered by hand or telecommunications
facility or mailed by prepaid registered mail. At any time other than during a
general discontinuance of postal service due to strike, lock-out or otherwise, a
notice so mailed shall be deemed to have been received three business days after
the post-marked date thereof or, if delivered by hand or telecommunications
facility, shall be deemed to have been received at the time it is delivered. If
there is general discontinuance of postal service due to strike, lock-out or
otherwise, a notice sent by prepaid registered mail shall be deemed to have been
received three business days after the resumption of postal service. Notices
shall be addressed as follows:
(a) if to the Corporation:
International Verifact Inc.
00 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
(b) if to the Executive:
00000 Xxxxx 00xx Xxxxxx
Xxxx Xxxxx, Xxxxxxx
X.X.X. 00000
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15. LEGAL ADVICE
The Executive hereby represents and warrants to the Corporation and
acknowledges and agrees that he had the opportunity to seek and was not
prevented nor discouraged by the Corporation from seeking independent legal
advice prior to the execution and delivery of this agreement and that, in the
event that he did not avail himself with 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.
16. WAIVER OF BREACH
The waiver by either party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
thereof.
IN WITNESS THEREOF the parties have executed this Agreement.
INTERNATIONAL VERIFACT INC.
By: /s/
-----------------------------------------
Name:
Title:
EXECUTIVE
/S/ XXXXXX XXXXXXX
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Witness XXXXXX XXXXXXX
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