EXHIBIT 10.26
Employment & Participation Agreement
THIS AGREEMENT made effective as of the 10 day of December, 2002.
-- --------
BETWEEN: CANONLINE MEDIA CORPORATION, a company duly incorporated under the
----------------------------
laws of the Province of British Columbia having an office at #▇▇▇-▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (herein called the
"Company")
OF THE FIRST PART
AND: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇
(▇▇▇) ▇▇▇.▇▇▇▇ SIN:___________________________
______________________________________________
(full legal name and address - include social security/insurance number)
(herein called the "Employee")
OF THE SECOND PART
WHEREAS:
A. The Company carries on the business of conducting scientific research and
development in the areas of computer software and internet communications and
marketing and distributing its various online products and services. In this
Agreement where the context requires, the term "Company" will refer to and
include CanOnline Media Corporation, its parent corporation CanOnline Global
Media Inc. (USA), affiliates and subsidiaries.
B. It is deemed to be in the best interest of the Company to obtain the
benefit of the services of the Employee as described in Schedule "A" relating to
the Company's business and the Company wishes to engage the services of the
Employee pursuant to the terms and conditions of this Agreement.
NOW THEREFORE, THIS AGREEMENT WITNESSETH that in consideration of the respective
covenants and agreements hereinafter contained, the parties hereto agree as
follows:
1. Recitals Incorporated in Agreement
-------------------------------------
The above mentioned recitals are hereby incorporated into this Agreement by
reference and are deemed to be true representations of the relevant party hereto
as the context implies.
2. Engagement
----------
The Company hereby contracts the Employee to provide the Employee's services as
set forth in Schedule "A" for the Term (as hereinafter defined). The Employee
hereby accepts such engagement on the following terms and conditions. Without
limiting the foregoing it is mutually agreed that during the Term of this
Agreement, the Employee will be responsible to the management of the Company,
and that the services agreed to be provided by the Employee will be consistent
with those of the Employee's Job Description or as such Job Description may be
amended by the Company from time to time. The Employee will perform all assigned
functions to the satisfaction of the management of the Company.
3. Time and Effort - Compliance with Policies
------------------------------------------------
The Employee must apply his full time attention and ability to the business and
affairs of the Company and shall well and conscientiously service the Company
during the Term. It is mutually agreed that the Employee will diligently abide
by the regulations, instructions, directions and project policies of the Company
and its management.
4. Non-Disclosure
--------------
Except as required in the performance of the Employee's duties pursuant to this
Agreement, the Employee must not during the Term or for a period of two (2)
years after termination of this Agreement divulge, publish or disclose in any
manner or medium electronic or otherwise, confidential information of the
Company or its affiliates or any trade secrets thereof to any person or entity
without the prior written consent of the Company. In addition, the Employee
agrees to execute and be absolutely bound by the terms and conditions of the
Employee's Confidentiality and Non-Circumvention Agreement (the "NDA Agreement")
in the form attached hereto as Schedule "B". Without limiting the generality of
the foregoing, the Employee further agrees that during the Term of this
Agreement and any extensions thereof, and for a period of two (2) years after
the Termination Date the Employee agrees that the Employee will not directly or
indirectly approach the Company's customers, clients, or suppliers of services
of a proprietary nature in any manner whatsoever for any purpose. In addition,
without limiting the generality of the foregoing, the Employee further agrees
that the Employee is prohibited from discussing, commenting, making remarks of
E-56
any kind, any matters that might directly or indirectly be related to the
projects, products, methods, strategies, services and operations of the Company
to individuals or parties outside of the facilities or place of business of the
Company without prior written consent.
5. Permitted Investments and Activities
---------------------------------------
Nothing in this Agreement shall restrict or impede the Employee from holding,
re-investing or liquidating investments held by him at the date hereof or from
participation in any other investment, activity or business so long as such
participation
(a) is not contrary to the interests of the Company; or
(b) does not make it impossible for the Employee to properly fulfil his
duties hereunder.
6. Term
----
Subject to the provisions hereof the term of the Employee's rights and
obligations (the "Term") will commence on the Commencement Date set forth in
Schedule "A" (the "Commencement Date") and will terminate, without severance,
fees or other payments due from the Company to the Employee on the first
occurring of the following:
(a) upon the Termination Date, if any, set forth in Schedule "A" or any
extensions thereof that might be mutually agreed to by the parties (the
"Termination Date"); or
(b) upon the Employee providing the Company with two (2) clear calendar
weeks's written notice of its intent to terminate; or
(c) upon the Company providing the Employee written notice which
includes full particulars of the cause relied upon advising the Employee that
the Employee has committed an act which, if he or she were employed by the
Company, would constitute just cause for dismissal at common law and the
Employee being unable or unwilling to correct the wrong within seven (7) days of
the notice being received.
Notwithstanding the foregoing, the continued employment of the Employee by the
Company pursuant to this Agreement is subject to a review and evaluation of the
performance of the Employee by the management of the Company six (6) months
following the Commencement Date or a soon thereafter as is reasonably possible
(the "Review"). If the Company, in its sole absolute discretion, determines that
the Review indicates that the performance of the Employee is not satisfactory
then the employment of the Employee and the Term of this Agreement may be
immediately terminated by the Company upon the Company providing the Employee
written notice of its decision and the effective date of the termination of
employment. In that event, the Employee will only be entitled to receive payment
of the Employee's wages up to the effective date of termination. This Agreement
will also be terminated as of such date except for Paragraphs 4, 14, 15, 16, 17,
18 and 25 hereof, which Paragraphs shall continue in force.
7. Remuneration
------------
The Company will pay and the Employee agrees to accept as compensation for all
the services to be rendered hereunder for the Term, the remuneration as set
forth in Schedule "A" hereto. The Employee agrees that all deductions from
source required to be made by the Company in respect of the employment of the
Employee including, without limitation, federal income tax deductions, Workers
Compensation, Unemployment Insurance, Canada Pension or like payments will be
made by the Company and the Employee agrees to hold the Company harmless from
any claim made by any competent government authority for taxes or other
deductions which might have been made by the Company.
8. Benefits
--------
The Employee shall be entitled to participate in all benefits available in the
benefit plans that the Company might establish, from time to time, for its
employees (the "Benefits") at the Company's actual cost. The available Benefits
as of the Commencement Date of this Agreement are described in Schedule "A"
hereto.
E-57
9. Holidays
--------
The Employee will be entitled to the number of weeks in each year as set forth
in Schedule "A", the time of which will be agreed by Company and the Employee,
during which no services are required to be rendered hereunder.
10. Expenses and Automobile
-------------------------
The Company agrees to reimburse the Employee for all necessary and authorized
expenses reasonably incurred in connection with the provision and performance of
services hereunder and for which statements and receipts are submitted to the
Company, including authorized travel and other expenses incidental to the duties
undertaken hereunder. The Company agrees to pay the Employee for his use of the
Employee's vehicle for Company business as set forth in Schedule "A".
11. Offices and Staff
-------------------
The Company, at its own cost, will provide the Employee with appropriate offices
and staff assistance if necessary or required, which offices and staff will be
located at the Company's operations in Greater Vancouver Metropolitan Area,
British Columbia, which will be the Company's place of business during the Term
unless the business of the Company requires a relocation of its operations.
12. Termination
-----------
If the Company terminates this Agreement because of the neglect, incompetence or
breach of fiduciary duty of the Employee, or otherwise for just cause, the
Employee will not be entitled to receive any severance payment or remuneration
except the fees payable up to and including the effective date of termination
and the amount due from the Company to settle any pre-existing debt or service
obligation.
13. Illness or Disability
-----------------------
If the Employee shall, by reason of illness or mental or physical disability or
incapacity, fail for any two (2) consecutive calendar months in any calendar
year or for three (3) months in the aggregate in any successive calendar years
to perform the Employee's duties hereunder, the Company may by two (2) months'
notice in writing to the employee terminate the employment of the Employee
hereunder, in which event this Agreement, except for Paragraphs 4, 14, 15, 16,
17, 18 and 25 hereof, which Paragraphs shall continue in force, and the
employment of the Employee pursuant to this Agreement will be wholly determined
upon the two (2) months' notice contained in the written notice given by the
Company to the Employee, and the Employee shall have no claim against the
Company for damages or otherwise for such termination except in respect for
remuneration as provided for in Paragraph 7 above to the date of such
termination.
14. Intellectual Property Rights
------------------------------
The Employee acknowledges and agrees that the Company is engaging the services
of the Employee to benefit the Company and its various businesses and projects
and that the Employee is being fully compensated for his services by virtue of
the remuneration that the Employee agrees to accept as provided for in this
Agreement. Accordingly, the Employee acknowledges and agrees that the Company
is and at all times will be the sole and absolute owner of all right, title and
interest in and to all copyright, patents, trademarks and all other proprietary
and intellectual property rights relating to the business and operations of the
Company and the services performed by the Employee for the Company, its
affiliates and subsidiaries (collectively called the "Intellectual Property
Rights"). The Employee agrees to waive all so called "moral rights" under any
applicable copyright legislation. The Employee further agrees that at the
request of the Company, the Employee will duly and promptly execute and deliver
to the Company assignments or transfers of any of the Intellectual Property
Rights in the prescribed manner together with all necessary related prescribed
documentation (the "Transfers"). The Transfers shall be in favour of and name
the Company, or any third party designated by the Company, as the transferee or
assignee, at no cost to the Employee. The Employee hereby irrevocably and
absolutely designates and appoints the Company as his Attorney-in-Fact with full
power and authority to duly execute and deliver any Transfers on behalf of and
in the name of the Employee if the Employee is unable or unwilling to duly
execute and deliver any Transfers to the Company. The provisions of the NDA
Agreement attached hereto as Schedule "B" shall also govern matters pertaining
to the Intellectual Property Rights.
E-58
15. Restrictive Covenant
---------------------
The Employee hereby agrees that if the employment of the Employee with the
Company is terminated for any reason whatsoever, that the Employee will be
restricted in his/her business activities for a period of two (2) years from the
date of such termination from directly or indirectly at any time carrying on or
engaging in or being concerned in any trade, operations or business similar to
that carried on by the Company, or from giving any advice to or guaranteeing the
debts of or obligations of, either directly or indirectly, anyone involved in
any such trade, operation or business anywhere within Canada and the United
States of America.
16. Indemnification
---------------
The Employee agrees that the Employee will indemnify the Company and hold it
harmless against any claim or action for infringement of copyright or any other
intellectual property or other proprietary right arising from or in connection
with the use of material contributed by the Employee under the terms of this
Agreement, provided that this indemnity shall not extend to such claims of
infringement of copyright or other intellectual property rights based upon
material supplied by the Employee and in respect of which the Employee had
previously advised the Company in writing that the Employee does not hold the
appropriate intellectual property rights.
17. Return of Records
-------------------
On termination of this Agreement for any reason, the Employee agrees to return
to the Company, as it may direct and at the Employee's cost, all business
records, correspondence, files, technical data, equipment samples and other
material or records in his possession at the time of such termination and
belonging to or supplied by the Company, its customers, suppliers or
shareholders.
18. Equipment
---------
It is mutually agreed that the Employee will be responsible for the custody and
care of any equipment or supplies of the Company or other person or entity that
the Employee might use in the performance of the Employee's services herein. It
is further agreed that no equipment purchased and provided for the Employee by
the Company may leave the premises of the Company without authorization or
consent from two additional principals or supervisors. The Employee hereby
understands and agrees that breach of this section may cause for his or her
immediate termination under the terms and conditions of this Agreement.
19. Monitoring of Employee
------------------------
The Employee acknowledges, understands and agrees that the Company is developing
and possesses certain confidential proprietary information, materials, systems
and trade secrets including, without limitation, technical, business and
financial information that if disclosed could result in substantial loss and
damage to the Company. Accordingly, the Employee acknowledges, understands and
agrees that the Company must protect its confidential and proprietary
information by utilizing a variety of monitoring and surveillance systems and
equipment that will monitor and observe the Employee and the activities of the
Employee as well as other employees including, without limitation, video and
audio surveillance recording systems, interception of communications made by and
to the Employee, monitoring of Employee's telephone conversations, and
monitoring of Employee's computer activities. The Employee hereby agrees and
consents to being subject to all such monitoring and surveillance systems and
activities whether performed directly by the Company or by any third party
acting on the Company's behalf.
20. Non-Waiver of Contractual Rights
-----------------------------------
The failure of either party to enforce any provision of this Agreement will not
be construed as a waiver or limitation of that party's right to subsequently
enforce and compel strict compliance with each and every provision of this
Agreement.
21. Insurance
---------
The Company reserves the right to retain life insurance on the life of the
Employee in an amount that the Company determines. The costs of such insurance
will be borne entirely by the Company and the benefits of such insurance will be
entirely the property of the Company.
E-59
22. Assignment
----------
This Agreement is not assignable by the Employee. The Company may assign this
Agreement without the consent of the Employee.
23. Modification
------------
No modification of this Agreement will be valid unless made in writing and
signed by the parties hereto and the execution by the Company of such
modifications will be in accordance with its Articles.
24. Governing Law
--------------
This Agreement shall be construed and enforced pursuant to the laws in force in
the Province of British Columbia and Canada each of the parties' attorneys to
the jurisdiction of the Courts of the Province of British Columbia.
25. Arbitration
-----------
All disputes arising out of or in connection with this Agreement that cannot be
settled from discussion and mutual agreement of the parties, shall be referred
to and finally resolved by arbitration under the "Rules For Domestic Commercial
Arbitration Proceedings" of the British Columbia International Commercial
Arbitration Centre ("BCICAC"). The appointing authority will be the BCICAC and
the case will be administered by BCICAC in accordance with its "Procedures for
Cases under the BCICAC Rules". The place of arbitration will be Vancouver,
British Columbia. If any of the foregoing rules or facilities for arbitration
are not in force or available at the time that any arbitration is to be held
then the parties must mutually agree to alternative arbitration rules of
procedure or facilities, as the case may be.
26. Notice
------
Any notice required or permitted to be given in respect of this Agreement shall
be validly given if in writing and either hand delivered, communicated by
facsimile transmission or sent by prepaid mail to the other party to their
respective addresses or fax numbers appearing on the first page of this
Agreement, or to such other address or fax number as a party hereto may notify
the other party in writing. Any notice which is hand delivered to a party or
sent by facsimile transmission shall be deemed to be delivered on the date of
such hand delivery or facsimile transmission and notices mailed by prepaid post
shall be deemed delivered on the second business day following such posting.
27. Severability
------------
If any provision of this Agreement is unenforceable or invalid for any reason
whatever, such unenforceability or invalidity shall not affect the
enforceability or validity of the remaining provisions of this Agreement and
such provisions shall be severable from the remainder of this Agreement.
28. Entire Agreement
-----------------
The provisions herein and in the Schedule hereto constitute and contain the
entire employment agreement between the parties and supersedes all previous
understandings, communications, representations and agreements, whether verbal
or written, between the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF this Agreement was duly executed by the parties hereto as of
the day and year first above written.
CANONLINE MEDIA CORPORATION )
)
)
)
Per: ________________________) [Corporate Seal]
)
)
)
Per: ________________________)
)
E-60
SIGNED, SEALED & DELIVERED )
BY THE EMPLOYEE in the presence )
of: )
)
)
________________________________) _____________________________
Signature of Witness ) THE EMPLOYEE
)
)
________________________________)
Address of Witness )
)
________________________________)
Occupation of Witness )
E-61
SCHEDULE "A"
------------
Section numbers listed below correspond to Paragraph numbers in the Agreement.
Recital B. and Paragraph 2. Engagement
------- ----------------------------------
Description of the Employee's skills and services:
- Administration, Operations and Human Resource Manager (see: attached
Resume of Record)
Employee's Position & Title:
- Operations & Human Resource Administration Manager
Employee's Duties & Responsibilities:
- Organize & Implement Operational & Administrative Management of Company
- Organize & Implement Corporate Protocols and Tasking
- Manage Human Resource Related Duties and Tasks
- Duties as assigned by Management
Paragraph 6. Term
-------------------
Commencement Date: December 12, 2002
-------------------
Termination Date:
-------------------
Paragraph 7. Remuneration
---------------------------
Description of the Employee's Remuneration and terms of payment, etc.:
(a) Wages: $3,000 CAD per Month (review pending 3 and 6 months)
--------------------
(b) Employee Stock Options, if any: If the Employee remains an employee of
the Company one year following the Commencement Date of the Term, then the
Employee will be entitled to participate in the Company's Employee Stock Option
Plan.
(c) Bonus to be determined on performance on an annual basis.
Paragraph 8. Benefits
-----------------------
Description of the Benefits available:
- Full Extended Medical after 3 months of Service
- Full Dental after 6 months of Service
Paragraph 9. Holidays
-----------------------
Number of weeks of holiday available to the Employee:
- 2 weeks after first year
- Statutory Holidays
E-62
Paragraph 10. Expenses and Automobile
-----------------------------------------
The Company agrees to pay Employee mileage at the rate of $_____ per
kilometre for his use of the Employee's vehicle for Company business or $______
per month whichever is greater.
- To be determined by Management
- Reasonable Parking Disbursement or facilitation of parking space
Special Particulars (If any)
-------------------------------
- Employee under review and probationary period for no less than 3 months
and no greater than 6 months. Employee can be terminated prior to 3 months for
cause pursuant to the terms and conditions of this Agreement without severance
or additional compensation.
- Employee under temporary status pending delivery and satisfaction of
necessary reference checks and additional background information. Employee has
limited security access pending review of grind period.
- Security Level 3. - Employee has supervised and accompanied access to
sensitive level networking, design and project operations. Employee does not
have access to operation and development networking facilities, HUB-Central,
BKOPS-Central, SERV-Com or to any security sensitive equipment and hardware.
Employee does not have clearance to conduct electronic transmissions of company
related data or material of any kind outside the premises of the Company without
prior authorization. Employee cannot conduct or carry out project tasks specific
to the Company outside of office facilities or acquire copies of project
materials or data in any medium for the purposes of offsite operations,
distribution, presentation or general possession without authorization. Employee
is introduced to projects or assignments on a project by project basis only.
- Employee cannot conduct third party consultation work or contract
assignments similar to that of the projects of the Company as described within
this Agreement. Employee must disclose such intentions for the purposes of
authorization, assessment or termination of employment as mutually agreed as
part of the special particulars of this Employee Agreement.
E-63
