EMPLOYMENT AGREEMENT
This employment agreement, dated as of May 1, 2000, by and
between Gemini Learning Systems, Inc., an Alberta corporation, ("Company")
and Xxx Xxxxxxx ("Executive"), to be effective May 1, 2000,
(the "Employment Agreement").
RECITALS:
A. Company is a wholly owned subsidiary of Salient Cybertech, Inc.,
and seeks to employ Executive.
B. The Executive is willing to be employed by the Company and has
made and is expected to continue to make major contributions to
the profitability, growth and financial strength of the Business
to be conducted by the Company.
C. The Executive is willing to accept such employment.
D. The Board of Directors of the Company, and of its parent,
Salient Cybertech, Inc., (the "Parent") a publicly traded
Delaware Corporation, has authorized this Agreement with the
Executive, and has approved all of the terms, conditions and
undertakings hereof, all of which the board of the Company has
found to be reasonable, proper and in the best interest of the
Company.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
herein contained, the parties agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ
the Executive and the Executive hereby agrees to
accept employment with the Company in accordance with
the terms and conditions set forth in this Employment
Agreement.
2. TERM. The term of this Employment Agreement shall
begin as of the date hereof and continue until
December 31, 2003. (The "Initial Term"). The
Company hereby employs the Executive, and the
Executive hereby accepts s such employment by the
Company, for the Initial Term, subject to earlier
termination pursuant to the provision of Section 7
hereof. The Executive's term of employment,
including Renewal Terms, shall hereinafter be
referred to as the "Employment Term".
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3. AUTOMATIC RENEWAL. If this Employment Agreement is
still in full force and effect at the end of the
Initial Term, it shall be automatically extended and
continued from year to year unless terminated by the
Executive at any time following the Initial Term
upon the giving of not less than 120 days notice of
termination (each such one (1) year period referred
to as a "Renewal Term"). Except as otherwise
provided herein, each Renewal Term shall be on the
same terms and conditions as the Initial Term under
this Employment Agreement. The Initial Term and any
Renewal Terms are herein collectively referred to as
the "Term". Company may only terminate this
agreement with the unanimous consent of the Board of
Directors of the Parent, or by a majority vote of
the Board of Directors of the Parent for just cause.
Just cause is defined as any act or
misrepresentation that causes material harm to the
Company, said act or misrepresentation being more
than simple negligence (continued and repeated acts
of simple negligence are deemed just cause for the
purposes of this paragraph).
4. COMPENSATION. For all services to be rendered by
the Executive in any capacity during the Employment
Term, including, without limitation, services as an
executive officer, director or member of any
committee of Company or any Related Entity, the
Executive shall receive the following compensation:
A. Base Salary. During the Employment Term, the
Company shall pay the Executive an annual salary of
One Hundred Fifty Thousand Dollars ($150,000),in Canadian
Funds, of base salary plus any Annual Increase
(defined below) (the "Base Salary"), payable in accordance
with the Company's practice, but not less than
monthly. The amount of Base Salary shall be
reviewed by the Board of Directors of the Company at
least once each year to insure that it is
commensurate with the value of the services
performed by the Executive and will be increased as
a result of such review by an amount of at least 5%
of the Base Salary (the "Annual Increase").
Increases in Base Salary in excess of 5% per annum
as a result of such review will be at the sole
discretion of the board of directors of the Company.
B. Annual Performance Bonus. The Executive shall be
considered for an annual performance bonus based
upon his performance during the applicable fiscal
year and shall participate with other employees of
Company in any executive compensation plan
established by the Board of Directors of the
Company.
C. Expenses. The Company will reimburse or advance
funds to Executive for all reasonable business,
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travel, entertainment and miscellaneous expenses
incurred in connection with the performance of his
duties under this Employment Agreement, in
accordance with and subject to the Company's
standard practices for reimbursement of employee
expenses.
D. Vacation. At such reasonable time as the Company
shall in its discretion permit, the Executive shall
be entitled, without loss of pay, to absent himself
voluntarily from the performance of his employment
under this Employment Agreement, all such voluntary
absences to count as vacation time, provided that it
complies with the Paid Day Off ("PDO") package
(which includes sick time) available to all
employees, but in no event less than three (3) weeks
per year (the ("Paid Vacation Time"). The
Executive, at the Executive's option, shall be
allowed to accrue and carry over from one year to
the next any unused Paid Vacation Time due under the
terms of the Employment Agreement (including Paid
Vacation Time accrued and unused since the date of
the Executive's employment through the date of the
Employment Agreement.)
E. Insurance.
(1) During the Employment Term, the
Executive shall be entitled to participate
in any and all group insurance, medical
benefit, disability insurance, retirement or
other employee benefit plans in effect from
time to time and made generally available to
employees of the Company of similar
position, rank and seniority as the
Executive, or any successor Company to which
this Employment Agreement may be assigned.
(2) At the end of the Employment Term, the
Executive shall have the option to purchase
any life insurance policy obtained by the
Company and covering his life for the case
surrender value of such policy, if such
purchase is permitted under the terms of the
policy obtained by the Company.
F. Professional Memberships. During the Employment
Term, the Executive shall be entitled to
professional and other membership dues and fees.
G. Continuing Education. During the Employment Term,
the Executive shall be entitled to payment for all
costs, including reasonable travel, meals and hotel
accommodations, for attending seminars for
continuing education credit hours required to
maintain any license. If Executive determines to
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seek other certification, such education credits
necessary to meet such requirements shall be paid.
All continuing education courses to be selected by
Executive.
H. Option Plan. Executive shall be deemed a Key
Management Employee and be entitled to all employee
and executive stock option plans.
I. Incentive Compensation. Executive will be an
eligible employee for Incentive Compensation and
shall be a member of any Incentive Compensation
Committee established to determine the distribution
of any Performance Distribution payable.
J. In the event that this Agreement is terminated by
the Company for any reason other than material
misrepresentations, any matter pursuant to paragraph
7 hereinbelow, or acts which are criminal in nature,
Executive shall be entitled to a cash severance
equal to $1,000,000 in Canadian funds payable
in equal installments over 10 years.
5. DUTIES OF EXECUTIVE
A. The Executive hereby agrees to serve as President of
the Company and in such other additional executive
positions as shall be assigned to the Executive.
The Executive agrees to perform such services
customary to such offices as shall from time to time
be assigned to the Executive by the Company, and, in
the absence of such assignment, such services
customary to such office as are necessary to the
operations of the Company, (the "Executive's
Services"). The Executive shall devote all of his
business time and effort to advance the business
objectives of the Company. During the Employment
Term, the Executive shall use his best efforts to
discharge his duties under this Employment Agreement
in compliance with applicable federal, state and
local laws.
B. The Executive understands and agrees that the
Company may from time to time require Executive to
perform services for the related entities, in which
event, the Executive shall perform his obligations
under this Employment Agreement as if such related
entities were a party to this Employment Agreement.
Specifically, but without limitation of the
foregoing, the provisions of Section 7 shall apply
not only with respect to the Company but also with
respect to the Related Entities for whom the
Executive renders services.
6. WORKING FACILITIES. The Company, at its own
cost, shall furnish the Executive with office
facilities, technical and secretarial personnel,
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supplies, equipment and other facilities and services
appropriate to his position and adequate for the
performance of his duties hereunder.
7. TERMINATION. Notwithstanding anything to the
contrary herein, this Employment agreement may be
terminated at any time during the Term hereof upon the
earlier occurrence of any of the following events:
A. Mutual written agreement between the Company and
the Executive.
B. At the Company's option on thirty (30) days'
written notice in the event of the Executive's
Disability, as defined under any disability
insurance policy on the Executive, if the Company
carries such insurance, or otherwise meaning the
Executive's inability to continuously perform the
Executive's Services for the Company for a
continuous period of ninety (90) days as a result
of adverse health or physical condition as
reported by a physician acceptable to the
Executive and the Company, the acceptability of
whom shall not be unreasonably withheld by either
party.
C. Upon the death of the Executive.
D. By the Board of Directors for "cause", which shall
mean:
(1) the Executive has been indicted,
criminally charged or deemed guilty by the
Board of Directors of:
(a) fraud, stealing, embezzlement or
misappropriation of funds;
(b) a material violation of the
provisions hereof;
(c) continuing failure to perform
the Executive's duties; or
(d) excessive unexcused absenteeism
from work other than for the Executive's
Disability covered in Paragraph 7.B
above; or
(2) the conviction of
the Executive of any criminal felony.
E. The Company shall give Executive reasonable
written notice and opportunity to cure any
termination for cause based on Paragraph
7.D(1)(b), 7.D(1)(c) or 7.D(1)(d) above.
F. Upon termination of the Executive's employment for
cause under Paragraph 7.D(1)(a) or 7.D(2) above,
the Executive shall be entitled to receive only
the compensation accrued, unpaid and payable as of
the date of termination, and shall not be entitled
to additional compensation, bonuses or benefits,
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except as otherwise expressly provided herein or
required by law. Upon termination of the
Executive's employment for cause for any reason
other than stated in Paragraph 7.D(1)(a) or
7.D(2) above, the Executive shall be entitled to
receive his Base Salary, exclusive of any bonus
compensation which could be earned for such
period, for the Term as if the Employment
agreement were not terminated.
8. EXECUTIVE'S TERMINATION. If the Executive
terminated his employment with the Company, the
Executive shall be entitled to receive only such Base
Salary and Paid Vacation Time as has accrued and is
payable to the Executive as of the date of such
termination, but no other amounts otherwise payable to
the Executive.
9. CONFIDENTIALITY. The Executive shall execute the
Company's standard employee confidentiality and non-
compete agreements required of all employees of the
Company (the "Non-Compete Agreement"). Upon
termination of the Executive's employment for cause
for any reason other than stated in Paragraph 7.A,
7.D(1)(a) or 7.D(2) above, the Executive shall be
released from the provisions of the Non-Compete
Agreement.
10. FEDERAL INCOME TAX WITHHOLDING. The Company
shall withhold from any benefits payable under this
Employment Agreement, or arrange for the payment of,
any federal, state, local or other taxes, as shall be
required pursuant to any law or governmental
regulation or ruling, either American or Canadian.
11. WAIVER. No term or condition of this Employment
Agreement shall be deemed to have been waived, nor
shall there be any estoppel against the enforcement of
any provision of this Employment Agreement, except by
written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated
therein, and each such waiver shall operate only as to
the specific term or condition waived and shall not
constitute a waiver of such term or condition for the
future or as to any act other than that specifically
waived.
12. GOVERNING LAW. This Employment Agreement shall
be governed by and construed in accordance with the
laws of the Province of Alberta, without reference to
the conflicts or laws or principals thereof.
13. RELATIONSHIP OF PARTIES. The relationship
between the Company and the Executive shall be that of
employer and employee.
14. NOTICES. Any notice required or permitted to be
given under this Agreement shall be effective upon
delivery in person or mailing by certified mail,
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return receipt requested, to the parties at the
addresses below:
TO COMPANY: Salient Cybertech, Inc.
0000 Xxxxxxx Xx., Xxxxx 000
Xxxxxxxx, XX 00000
TO EXECUTIVE: Xxx Xxxxxxx
c/o Gemini Learning Systems, Inc.
000-0xx Xxxxxx XX
Xxxxx 000
Xxxxxxx Xxxxxxx
Xxxxxx X0X0X0
or to such other address as either party shall direct by notice to the
other party.
15. ASSIGNMENT. This Employment Agreement and all of
Executive's rights, duties and obligations hereunder
are personal in nature and shall not be assignable by
Executive. Any purported assignment thereof shall not
be valid or binding on the Company. This Employment
Agreement shall be assignable by the Company without
the prior written consent of Executive. This
Employment Agreement shall inure to the benefit of and
shall be legally binding upon all permitted successors
or assigns of the Company.
16. COUNTERPARTS. This Employment Agreement may be
executed in any number of counterparts, all of which
taken together shall constitute one and the same
instrument, and any of the parties hereto may execute
this Employment Agreement by signing any such
counterpart.
17. ENTIRE AGREEMENT. This Employment Agreement,
along with any documents executed contemporaneously
with the execution of this Employment Agreement,
constitutes the entire understanding of the parties
and supersedes any and all prior discussions,
negotiations, employment agreements and
understandings, whether oral or written, with respect
to the subject matter hereof. This Employment
Agreement can be modified only by a written instrument
properly executed by the Executive and the Company.
18. SEVERABILITY. In the event any one or more
provisions of this Employment Agreement shall, for any
reasons, be held invalid, illegal or unenforceable,
the remaining provisions of this Employment shall be
unimpaired, and the invalid, illegal or unenforceable
provision shall be replaced by a mutually acceptable
valid, legal and enforceable provision which comes
closest to the intent of the parties.
19. PREVAILING PARTY'S ATTORNEYS' FEES. If any legal
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action or other proceeding is brought for the
enforcement of this Employment Agreement, or because
of an alleged dispute, breach, default or
misrepresentation in connection with any provision of
this Employment Agreement, the successful or
prevailing party shall be entitled to recover
reasonable attorneys' fees, sales and use taxes, court
costs and all reasonable expenses, even if not taxable
as court costs (including, without limitation, all
such fees, taxes, costs and expenses incident to
arbitration, appellate, bankruptcy, and post-judgment
proceedings) incurred in that action or proceeding, in
addition to any other relief to which such party may
be entitled. Attorneys' fees shall include, without
limitation, paralegal fees, investigative fees,
administrative costs, sales and use taxes, and all
other charges billed by the attorney to the prevailing
party.
20. GOOD FAITH DEALINGS. The parties acknowledge and
accept their duties to deal with each other in good
faith in applying the provisions of this Employment
Agreement, including but not limited to those dealing
with termination.
21. IN WITNESS WHEREOF, and intending to be legally
bound hereby, Company and Executive have executed and
delivered this Employment Agreement as of the date and
year first above written.
By: /s/Xxxx Xxxxx
President, Salient Cybertech, Inc.
for Gemini Learning Systems, Inc.
By: /s/Xxx Xxxxxxx
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