THIS EMPLOYMENT AGREEMENT made as of the 1st day of October, 2001.
BETWEEN:
STORAGE @CCESS TECHNOLOGIES INC., a corporation
incorporated under the laws of the Yukon Territory
(hereinafter called the "Company")
OF THE FIRST PART;
- and -
XXX XXXXXXXXX, of the Town of Unionville,
in the Province of Ontario
(hereinafter called the "Employee")
OF THE SECOND PART.
WHEREAS the Company has agreed to employ the Employee and
the Employee has agreed to accept such employment, subject to the
terms, conditions and covenants herein contained;
AND WHEREAS the Company is in the business of providing
data storage, access and management services;
NOW THEREFORE in consideration of the mutual covenants
herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by both
parties, the Company and the Employee each agree with the other as
follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 As used in this agreement, the following words and phrases
shall have the following meanings, respectively:
(a) "Affiliate" has the same meaning as is ascribed thereto in
the Business Corporations Act (Ontario);
(b) "Board of Directors" means the board of directors of the
Company from time to time; and
(c) "Business Day" means any day other than a Saturday, Sunday
or any other day which is a statutory holiday in the
Province of Ontario or the State of Florida.
1.2 The division of this agreement into Articles, Sections and
Subsections and the insertion of headings is for convenience of
reference only and shall not affect the interpretation or construction
of this agreement.
1.3 In this agreement, the use of the singular number shall
include the plural and vice versa. The use of gender shall include
the masculine, feminine and neuter genders and the word "person" shall
include an individual, a trust, a partnership, a body corporate or
politic, an association or any other form of incorporated or
unincorporated organization or entity.
EXHIBIT 10.1
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1.4 When calculating the period of time within which or
following which any act is to be done or step taken pursuant to this
agreement, the date which is the reference date in calculating such
period shall be excluded. If the last day of such period is not a
Business Day, the period in question shall end on the next Business
Day.
1.5 Any references herein to any law, by-law, rule, regulation,
order or act of any government, governmental body or other regulatory
body shall be construed as a reference thereto as amended or re-
enacted from time to time or as a reference to any successor thereto.
ARTICLE 2
EMPLOYMENT RIGHTS, DUTIES AND RESPONSIBILITIES
2.1 The Company hereby agrees to employ the Employee and, by
his execution hereof, the Employee hereby agrees to be so employed and
to serve the Company on the terms and conditions herein contained.
2.2 Subject to the exclusive authority of the Board of
Directors over the management of all aspects of the business and
affairs of the Company, the Employee shall serve as the Chairman and
Chief Executive Officer of the Company with such duties and
responsibilities as are customarily undertaken by the Chairman and
Chief Executive Officer of a corporation engaged in a business of
comparable size and type to that engaged in by the Company. In
performing his duties hereunder, the Employee shall have all the power
and authority necessary to perform such duties. As senior management
of the Company, the Employee agrees to use his best efforts to operate
the Company within an annual operating and capital budget and, along
with other members of senior management, agrees to submit an annual
budget for the approval of the Board of Directors.
2.3 The Board of Directors of the Company in consultation with
the Employee may from time to time determine any changes to, additions
to, or deletions from the Employee's position, responsibilities,
duties and authority as reflected in this agreement.
2.4 Except as expressly permitted below, during the term of his
employment under this agreement, including any renewal thereof, the
Employee shall devote his entire working time and attention to the
business and affairs of the Company and shall faithfully and
diligently serve and endeavour to further the interests of the
Company. Throughout such term of employment, the Employee shall not
enter into the services of or be employed in any capacity or for any
purpose whatsoever by any person other than the Company and the
Employee agrees not to engage in any business, enterprise or
undertaking other than his employment hereunder without the prior
written consent of the Board of Directors. Notwithstanding the
foregoing, nothing herein shall be construed so as to prevent the
Employee from carrying out his duties as a member of the board of
directors of a not-for-profit Ontario sports club for approximately
several hours per month; provided further that nothing in this
agreement shall be construed so as to prevent the Employee from making
investments of a strictly passive nature so long as the undertaking
forming the subject matter of any such investment is not competitive
with the business or undertaking from time to time carried on by the
Company and provided further that such investments, when considered
together, are not of a type or in an amount such as would conflict
with the timely and efficient performance by the Employee of his
duties hereunder.
2.5 The Employee shall be required to provide his services at
the head office of the Company in the City of Boca Raton, Florida or
at such other place or places as the Company may designate from time
to time; provided, however, that the Employee shall spend, a majority
of each work week (being approximately 70%) at the head office of the
Company in Boca Raton, or in New York City, New York or Atlanta,
Georgia, as required to visit customers of the Company.
ARTICLE 3
TERM AND TERMINATION OF AGREEMENT
3.1 The initial term of the Employee's employment shall be
three months commencing on the date hereof (the "Initial Term"),
unless sooner terminated in accordance with the provisions of Section
3.2; provided, however, that upon the expiry of the Initial Term, this
EXHIBIT 10.1
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agreement shall be automatically renewed on a month-to-month basis
until written notice of termination is provided by either party
pursuant to Section 3.2.
3.2 Either party may terminate this agreement at any time
without cause by providing written notice to the other party, and the
Employee's employment shall terminate immediately upon receipt of such
notice. In such event, the Employee shall be entitled to receive any
accrued and unpaid amounts for services rendered up to and including
the date of termination; provided, however, that the Company shall
have no obligation to make any other payments to the Employee,
including without limitation, pay in lieu of notice or severance pay
of any kind.
ARTICLE 4
COMPENSATION AND BENEFITS
4.1 The Employee shall receive compensation from the Company at
the rate of US Ten Thousand Dollars (US $10,000) per month, payable
monthly in arrears no later than 30 days after the end of each month.
Such compensation shall be subject to review on an annual basis so as
to ensure that it is commensurate with the services then being
rendered by the Employee.
4.2 The Employee shall be solely responsible for all expenses
incurred by the Employee in connection with the Employee's travel to
and from Toronto and Boca Raton, including without limitation all
accommodation expenses while staying in either of such cities, and the
Company shall not be liable in any way for the aforementioned
expenses. Notwithstanding the foregoing, the Company shall pay all
reasonable expenses actually and properly incurred by the Employee in
connection with the proper and efficient discharge of his duties and
responsibilities while traveling to or from cities other than Toronto
and Boca Raton. Such expenses shall be paid by the Company in
accordance with the Company's guidelines in effect from time to time.
4.3 The Company shall have the right and shall deduct from all
payments required to be made by it to the Employee pursuant to this
agreement all amounts which are required to be withheld or deducted
from the amounts so payable pursuant to any and all applicable
federal, provincial or other governmental statutes, regulations,
rules, by-laws or other directives.
4.4 The Employee will be granted options to purchase
600,000 common shares in the capital of the Company substantially in
the form of the option agreement annexed hereto as Schedule "B".
ARTICLE 5
CONFIDENTIALITY AND NON-COMPETITION COVENANTS
5.1 The Employee acknowledges that in the course of carrying
out, performing and fulfilling his obligations to the Company
hereunder, the Employee will have access to and will be entrusted with
confidential information and trade secrets relating to the present and
contemplated services, marketing techniques, procedures, products,
suppliers, services, business, customers and clients of the Company,
the disclosure of any of which confidential information and trade
secrets to competitors of the Company or the general public would be
highly detrimental to the best interests of the Company. The Employee
further acknowledges that the right to keep secret such confidential
information and trade secrets constitutes a proprietary right of the
Company which the Company is entitled to protect. The Employee
covenants and agrees with the Company that he shall hold all such
confidential information and trade secrets in a fiduciary capacity and
solely for the benefit of the Company and that he shall not disclose,
divulge or otherwise communicate, in any manner whatsoever during the
term of this agreement or during the period of five consecutive years
immediately following its termination, any of such confidential
information or trade secrets to any person nor shall the Employee,
during the term of this agreement or during the period of five
consecutive years immediately following its termination, directly or
indirectly, use such confidential information and trade secrets for
any purpose other than in furtherance of the business of the Company
nor shall he, during the term of this agreement or during the period
of five consecutive years immediately following its termination,
directly or indirectly, disclose, divulge or otherwise communicate in
any manner whatsoever or use for any purpose, other than for the
purposes of the Company, information relating to the private affairs
of the Company or any other information of a confidential nature which
he may acquire during the term of this agreement with respect to the
business and affairs of the Company.
EXHIBIT 10.1
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5.2 Any discoveries, improvements and/or inventions of any
character pertaining to the industry in which the Company is engaged
in or coming within the scope of the business of the Company made or
developed by the Employee while in the employ of the Company, whether
or not conceived or made during his regular working hours, or whether
or not the Employee was specifically instructed to make or develop the
same, or whether made solely by him or jointly or in common with
others during the term of his employment hereunder, shall be for the
sole and exclusive benefit of the Company and shall be considered to
have been made under and by virtue of this agreement and shall
immediately become the sole and exclusive property of the Company.
The Employee shall assign, set over and transfer to the Company his
entire right, title and interest in and to any and all such
discoveries, ideas and suggestions, improvements and/or inventions
referred to herein and the Employee agrees to execute and deliver to
the Company any and all such instruments and documents as may be
necessary or desirable to accomplish such assignment and transfer and
to perfect the title in the matters so assigned or transferred to the
Company.
5.3 The Company acknowledges that the intellectual property
assets listed in Schedule A (the "Excluded Intellectual Property")
were made or developed prior to the Employee's employment with the
Company and are owned by Sutcliffe & Associates. Notwithstanding
anything contained in Section 5.2, the Excluded Intellectual Property
shall at all times be and remain the sole and exclusive property of
Sutcliffe & Associates.
5.4 The Employee covenants and agrees with the Company that he
shall not, at any time during a period of one year following the
termination of his employment with the Company for any reason
whatsoever either directly or indirectly in any manner or capacity
whatsoever:
(a) solicit any person with whom the Company has had
business relations as of the date of termination of
such employment or at any time during the period of
six consecutive months immediately preceding such date
of termination or endeavour to entice away from the
Company or any Affiliate thereof any such person or
otherwise interfere with the relationship between such
person and the Company or any Affiliate thereof; or
(b) offer employment to or endeavour to entice away from
the Company or any Affiliate thereof any person who is
employed by the Company or any Affiliate thereof at
the date of termination of the Employee's employment
hereunder or interfere in any way with the
employer/employee relations between such employee and
the Company or any Affiliate thereof.
5.5 The Employee agrees that during the term of his employment
by the Company, and for a period of two years thereafter, he shall
not, without the prior written consent of the Board of Directors,
directly or indirectly, whether for compensation or not, and whether
as principal, agent, officer, director, employee, consultant or in any
other capacity, alone or in association with any person:
(a) carry on or be engaged in any business within North
America which is competitive with the business now or
at any time during the term of his employment with the
Company being conducted by the Company or any
Affiliate of the Company (a "Competitive Business");
or
(b) be affiliated with, render services to, own, share in
the earnings of, or invest in the shares, bonds or
other securities of, any person engaged in a
Competitive Business;
provided, however, that nothing herein shall be construed so as to
prevent the Employee from working with IBM worldwide after termination
of this agreement; and provided that nothing in this agreement shall
preclude the Employee from making investments of a strictly passive
nature, so long as the undertaking forming the subject matter of any
such investment is not in a Competitive Business and provided further
that such investments, when considered together, are not of a type or
in an amount such as would conflict with the timely and efficient
performance by the Employee of his duties to the Company hereunder;
and provided that nothing in this agreement shall preclude the
Employee from purchasing or owning publicly traded stock of any
corporation engaged in a Competitive Business if such stock is traded
EXHIBIT 10.1
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on a recognized stock exchange, so long as the Employee's holdings
therein do not exceed five percent (5%) of the issued and outstanding
capital of the corporation in question.
5.6 The foregoing covenants of the Employee contained in this
Article 5 are made by the Employee acknowledging that he is a director
and officer of the Company, that he has specific knowledge of the
affairs of the Company and that he is in a fiduciary position to it.
The Employee further acknowledges that the Company carries on or
intends to carry on business throughout North America. In the event
any clause or portion of any such covenants should be unenforceable or
be declared invalid for any reason whatsoever, such unenforceability
or invalidity shall not affect the enforceability or validity of the
remaining portions of the covenants and such unenforceable or invalid
portions shall be severable from the remainder of this agreement. The
Employee hereby acknowledges and agrees that all restrictions
contained in this agreement are reasonable and valid and all defences
to the strict enforcement thereof by the Company are hereby waived by
him.
5.7 Without limiting the remedies available to the Company at
law or in equity, the Employee acknowledges that damages at law will
be an insufficient remedy to the Company in view of the irreparable
harm which will be suffered if the Employee violates any of the terms
contained in this Article 5 and agrees that the Company may apply for
and have injunctive relief in any court of competent jurisdiction
specifically to enforce any such covenants upon any breach or
threatened breach thereof or otherwise specifically to enforce any
such covenants and the Employee hereby irrevocably waives all defences
to the strict enforcement thereof by the Company.
5.8 The Employee hereby agrees that his obligations pursuant to
the provisions of this Article 5 shall survive the termination of this
agreement for the periods specified herein.
ARTICLE 6
GENERAL CONTRACT PROVISIONS
6.1 In the event that any provision herein or part thereof
shall be deemed void or invalid by a court of competent jurisdiction,
the remaining provisions or parts thereof shall be and remain in full
force and effect. If in any judicial proceeding, any provision of
this agreement is found to be so broad as to be unenforceable, it is
hereby agreed that such provision shall be interpreted to be only so
broad as to be enforceable.
6.2 Any and all previous agreements between the parties hereto
relating to the employment of the Employee by the Company are hereby
terminated and cancelled. This agreement constitutes the entire
agreement between the parties hereto with respect to all of the
matters herein set out and its execution has not been induced by nor
do any of the parties hereto rely upon or regard as material any
representation or writing not incorporated herein and made a part
hereof. This agreement shall not be amended, altered or qualified
except by an agreement in writing signed by both of the parties
hereto.
6.3 All notices, requests, demands or other communications by
the terms hereof required or permitted to be given by one party to the
other shall be given in writing by personal delivery, by telefax or by
mail, postage prepaid, addressed to such other party or delivered to
such other party as follows:
(a) to the Company at:
Storage @ccess Technologies Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxxxxx X-000
Xxxx Xxxxx, Xxxxxxx
X.X.X. 33431
Attention: Xxxx Xxxxxxx
Facsimile: _____________
EXHIBIT 10.1
-6-
(b) to the Employee at:
Xxx Xxxxxxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx
X0X 0X0
Facsimile: 905-415-8800
or at such other address as may be given by either of them to the
other in writing from time to time, and such notices, requests,
demands, acceptances or other communications shall be deemed to have
been received when delivered, or, if telecopied, on the Business Day
following the date of telecoping thereof, or, if mailed, five Business
Days following the date of mailing thereof; provided that if any such
notice, request, demand or other communication shall have been mailed
and if regular mail service shall be interrupted by strikes or other
irregularities, such notices, requests, demands or other
communications shall be deemed to have been received five Business
Days following the resumption of normal mail service.
6.4 This agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida and the federal laws
of the United States applicable therein without regard to the laws
related to choice or conflicts of law.
6.5 All dollar amounts referred to in this agreement are
expressed in U.S. currency.
6.6 This agreement is not assignable by either of the parties
hereto without the prior written consent of the other and, subject to
the foregoing, shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns, including,
in the case of the Employee, his heirs, executors and administrators.
6.7 Time shall be of the essence of this agreement and of every
part hereof.
IN WITNESS WHEREOF the parties hereto have executed this
agreement as of the date first above written.
SIGNED SEALED AND DELIVERED ))
In the Presence of )) STORAGE @CCESS TECHNOLIGIES, INC.
))
)) By:______________________________
)) Name:
)) Title:
))
_________________________________
XXX XXXXXXXXX
_____________________________
Witness
EXHIBIT 10.1
SCHEDULE A
EXCLUDED INTELLECTUAL PROPERTY
* Go-To-Market Roadmap Methodology - A methodology for developing
channel strategies based on product development stage, sales
cycle costs and customer buying behavior
* Relationship Selling Methodology - A methodology for building a
relationship with targeted customers that is designed to put the
company in control of the sale and provide the best value for the
customer and for the company
* Blueprint Sales Process Methodology - A consultative sale process
designed to develop value added solutions to solve customer
problems and sell products and services to support the
recommended solution
* Internet Marketing Methodology - A 6 step methodology for
developing effective marketing plans for deployment through the
Internet while integrating with traditional marketing plans and
budgets
EXHIBIT 10.1
