Exhibit 10.17
THIS EMPLOYMENT AGREEMENT made as of the __30th____ day of August_______, 2001,
BETWEEN:
INTERNATIONAL TECHNOLOGY MARKETING INC., a corporation incorporated under
the laws of the State of Nevada
(hereinafter called the "CORPORATION")
OF THE FIRST PART
- and -
XXXXX XXXXX, of the City of Mississauga, in the Province of Ontario
(hereinafter called the "EMPLOYEE")
OF THE SECOND PART
WHEREAS the Corporation has agreed to employ the Employee and the Employee
has agreed to be employed by the Corporation, upon and subject to the terms of
this Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSETH that for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
ARTICLE ONE
INTERPRETATION
1.01 DEFINED TERMS
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In the Agreement, the following words or expressions shall have the
following meanings:
"AGREEMENT" means this agreement and any instrument supplemental or
ancillary hereto, including all schedules attached hereto;
"BUSINESS DAY" means a day other than a Saturday, Sunday or any other day
on which the principal commercial banks located in the City of Toronto, or
in the case of an employee not normally resident in Toronto, are not open
for business during normal banking hours;
"PARTIES" means the Corporation, and the Employee collectively, and
"party" means any on them;
"PARTY" means any of them;
"PERSONS" means any individual, corporation, partnership, trustee or
trust, unincorporated association or a recognized government and any
agency thereof and pronouns have a similarly extended meaning.
ARTICLE TWO
EMPLOYMENT
2.01 EMPLOYMENT
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The Employee shall serve the Corporation as its Vice President,
Development and Systems Integration and shall perform such duties and exercise
such powers commensurate with such position together with such other managerial
and administrative duties as may from time to time reasonably assigned to him by
the directors of the Corporation.
2.02 TIME AND ATTENTION
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Unless prevented by ill health or other sufficient cause, the Employee
shall devote, during the term of the Agreement, the necessary time, attention,
skill and efforts to providing the duties to the Corporation as required herein
and shall do all in his power to advance the interest of the Corporation while
in its employment. The Employee shall not, without the consent of the directors
of the Corporation, engage in other activities competitive with the business of
the Corporation, from time to time.
2.03 TERM
----
Unless sooner terminated as provided for herein, the Agreement shall
commence as of the date of the Agreement for an initial term of three (3) years.
Unless, at least ninety (90) days prior to the end of the initial term, one of
the parties hereto gives the other party written notice of their intention not
to renew the Agreement after the expiry of the initial term then this Agreement
shall be automatically renewed on an annual bases after the initial term unless
terminated as herein provided.
2.04 TERMINATION
-----------
This Agreement shall terminate upon the death of the Employee or
declaration by a court of competent jurisdiction that the Employee is a mentally
incompetent person or incapable of handling his affairs through mental in
competency and may be terminated:
(a) at any time by mutual agreement of the parties in writing; or
(b) by the Corporation for just cause at any time by giving written
notice thereof to the Employee. Without limiting the generality of
the foregoing, "just cause" shall include:
(i) any cause which would entitle the Corporation at law to terminate
the services of the Employee without either notice or pay in lieu
of notice;
(ii) a material breach of trust or duty;
(iii) dishonesty;
(iv) gross negligence or incompetence;
(v) a material breach of any provision of the Agreement;
(vi) inability as a result of bona fide illness, physical or mental, of
the Employee to attend on a full-time basis, to his duties to the
Corporation for a period of six (6) months, which period shall be
deemed to commence on the first working day that the Employee does
not attend to the services under this Agreement on a full-time
basis, statutory holidays and vacations excepted, and to continue
until the Employee has resumed attendance to his duties hereunder
on a full-time basis for thirty (30) consecutive normal working
days;
(vii) disobedience or neglect by the Employee of any of the reasonable
orders or directions of the board of directors of the Corporation
or
(viii) any action by the Employee done knowingly or intentionally which is
materially detrimental to the welfare or interest of the
Corporation, its reputation or its business.
In the event of termination with cause, the Employee shall receive:
(a) Three months remuneration at the rate of pay as established
in schedule A attached; and,
(b) Any benefits, including earned equity or bonuses or other
variable compensation, owing hereunder until the termination
date.
In the event of termination without cause, the Employee shall receive:
(a) All remuneration owing hereunder that would accrue if this
agreement would have run its full course until its next
renewal date; and
(b) Any benefits, including earned equity or bonuses or other
variable compensation, owing hereunder until the termination
date.
The Employee acknowledges that the amounts received under this section
constitute settlement in full of any claims against the Corporation or in
respect of termination of the Employee by the Corporation for just cause or
otherwise.
ARTICLE THREE
EMPLOYEE REMUNERATION
3.01 REMUNERATION AND BENEFITS
-------------------------
In consideration of the performance by the Employee of his duties
hereunder, the Corporation shall pay to the Employee and the Employee shall be
entitled to receive during the term of this Agreement, the aggregate of the
following:
(a) an annual salary, if any, as may be mutually agreed upon between
the parties hereto, which shall be paid in semi monthly instalments
payable at the 15th and end of each month, not in advance, or such
other times as may be mutually agreed upon by the parties hereto;
(b) payment, within thirty (30) days after the date on which annual
financial statements for the Corporation for each fiscal year
completed during the term of this Agreement first become available,
of an incentive bonus, if any, determined by the Corporation; and
(c) reimbursements of all reasonable expenses and costs incurred in
connection with performance of the Employee's services upon
production of such supporting vouchers and statements as the
Corporation may reasonably require
(d) schedule A attached to this agreement and signed by both parties
shall indicate the rate of remuneration and bonus applicable.
3.02 VACATION
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During the employment of the Employee hereunder, the Employee shall from
time to time be entitled to vacations as agreed upon between the parties hereto
and included in schedule A attached hereto. Such vacation shall be taken at such
time as the Corporation and the Employee shall mutually agree, acting
reasonably, having regard to the performance of the Employee's essential duties
to the Corporation pursuant to the terms of the Agreement; and provided further
that such vacation may be taken only within the year of entitlement thereof and
may not be accumulated from year to year.
ARTICLE FOUR
EMPLOYEE COVENANTS
4.01 CONFIDENTIALITY, ETC.
---------------------
The Employee acknowledges that in the course of carrying out, performing
and fulfilling his responsibilities to the Corporation hereunder he will have
access to and will be entrusted with detailed confidential information and trade
secrets relating to the present and contemplated services, techniques and modes
of merchandising, marketing techniques, inventions and routines of the Business
and concerning the customers of the Corporation, their names, addresses, tastes,
preferences and particular requirements, the disclosure of any of which
confidential information and trade secrets to competitors of the Corporation or
to the general public would be highly detrimental to the best interests of the
Corporation. The Employee further acknowledges that in the course of providing
his duties to the Corporation hereunder he may be the principal representative
of the Corporation to many of the customers of the Corporation and as such will
be significantly responsible for maintaining or enhancing the goodwill of the
Corporation with such customers. The Employee acknowledges and agrees that the
right to maintain the confidentiality of such confidential information and trade
secrets, and the right to preserve its goodwill, constitute proprietary rights
which the Corporation is entitled to protect. Accordingly, the Employee
covenants and agrees with the Corporation that:
(a) he will not, either during the term of this Agreement or at any
time thereafter, disclose any of such detailed confidential
information and trade secrets to any person nor shall he use the
same for any purpose other than the purpose of the Corporation nor
will he disclose or use for any purpose other than those of the
Corporation the private affairs of the Corporation or any other
information which he may acquire during the course of the Agreement
with relation to the business and affairs of the Corporation;
(b) he will not, at any time after the termination of the Agreement,
call on, solicit or take away, directly or indirectly, any of the
customers of the Corporation or persons in the habit of dealing
with the Corporation, either for himself or for any other person,
firm or corporation; and
(c) Provided that he receives at the commencement of a one (1) year
period following the termination of the Agreement, an amount equal
to the amount described in paragraph 3.01 (a) hereof, the Employee
will not at any time within the period of one (1) year following
the termination of the Agreement, either individually or in
partnership or jointly or in conjunction with any partnership or
jointly or in conjunction with any person or persons, firm
association, syndicate, company or corporation as principal, agent,
shareholder or in any other manner whatsoever carry on or be
engaged in or concerned with or interested in or advise, lend money
to, guarantee the debts or obligations of or permit his name or any
part thereof to be used or employed by or associated with any
person or persons, firm, associations, syndicate, company or
corporation engaged in or concerned with or interested in, any
business selling survey software now or at any time during the
course of the Agreement carried on by the Corporation:
(i) within the Countries of Canada, United States or the United
Kingdom.
The Employee agrees that all restrictions contained herein are reasonable
and valid and all defences to the strict enforcement thereof by the Corporation
are hereby waived by the Employee. If any covenant or provision of the clause is
determined to be void or unenforceable in whole or in part, it shall not be
deemed to affect or impair the validity of any other covenant or provision and
subparagraphs 4.01 (c)(i) and (ii) hereof are herby declared to be separate and
distinct covenants. The Employee acknowledges that damages at law will be an
insufficient remedy to the Corporation in view of the irrevocable harm which
will be suffered if the Employee violates thereof terms of this section and
agrees that the Corporation may apply for an have injunctive relief in any court
of competent jurisdiction specifically to enforce any such covenants upon the
breach or threatened breach thereof and hereby waives all defences to the strict
enforcement thereof by the Corporation.
ARTICLE FIVE
GENERAL CONTRACT PROVISIONS
5.01 NON-TRANSFERABILITY
-------------------
Neither the Employee, his estate, nor a person claiming through the
Employee, shall have any right to commute, anticipate, encumber or dispose of
any payment hereunder, which payments and rights thereto are expressly declared
non-assignable and non-transferrable, except as otherwise specifically provided
herein.
5.02 GENDER AND NUMBER
-----------------
In this agreement, words importing the singular shall include the plural
and vice versa, and words importing gender shall include all genders.
5.03 HEADINGS
--------
The division of this Agreement into sections and the section headings are
for convenience of reference only and shall not affect the interpretation or
construction of this Agreement.
5.04 CALCULATION OF TIME PERIODS
---------------------------
In this Agreement and any note or other document delivered hereunder,
except where expressly provided otherwise, time periods within or following
which any act is to be done shall be calculated by excluding the day of the
event which commences the period, and by extending the period to the next
business day if the last day of the period is not a business day.
5.05 APPLICABLE LAW
--------------
This Agreement shall be governed by the laws of the Province of Ontario
and of Canada applicable therein, and the parties hereby irrevocably attorn to
the jurisdiction of the courts of the Province of Ontario.
5.06 SERVERABLE
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If any provision of the Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby.
5.07 CURRENCY
--------
Unless otherwise indicated, all dollar amounts referred to in this
Agreement are in Canadian funds.
5.08 ASSIGNMENT
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This Agreement may not be assigned, in whole or in part, by any party
without the prior written consent of all other parties.
5.09 NOTICES
-------
Any notice, demand, approval, consent, waiver or other communication
("notice") to be given by one party to another under this Agreement shall be in
writing, shall not be delivered by ordinary, certified or registered mail and
shall be sufficiently given only if either deliver personally, to such party as
follows:
(a) to the Corporation, at: Xxxxx 000, 0000 Xxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
(b) to the Employee, at: 00-0000 Xxxxxxxxxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx, X0X 0X0
or to such other address as may be designated by notice given as aforesaid to
all other parties by the party to whom notice is given as aforesaid to all other
parties by the party to whom notice is to be given. Any notice delivered and
received as aforesaid shall be deemed to have been given and received as
aforesaid shall be deemed to have been given and received on the first business
day following the date of personal delivery.
5.10 FURTHER ASSURANCE
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Each of the parties shall execute and deliver such further documents and
perform or cause to be performed such further acts as may be required to give
full effect to the provisions of the Agreement.
5.11 ENTIRE AGREEMENT AND WAIVER
---------------------------
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written, between
the parties with respect thereto. No supplements, modification, waiver or
terminations of this Agreement shall be binding unless executed in writing by
the persons to be bound thereby. No waiver of any of the provisions of this
Agreement shall constitute or be deemed a waiver of any other provision (whether
or not similar) or a continuing waiver unless otherwise expressly provided.
5.12 TIME OF ESSENCE
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Time shall be of the essence of this Agreement.
5.13 BINDING AGREEMENT
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This Agreement shall be binding upon and ensure to the benefit of the
parties and their respective heirs, legal personal representative, successors
and permitted assigns.
5.14 COUNTERPARTS
------------
This Agreement may be executed in several counter parts, each of which
shall be deemed to be an original, but this Agreement shall be constituted only
by all such counterparts together.
IN WITNESS WHEREOF the parties have executed this memorandum of the Agreement
under seal.
SIGNED, SEALED AND DELIVERED
In the presence of: )
)
)
____________________________ ) ______________________________
Witness: ) International Technology Marketing Inc..
) Per:
)
)
)
)
____________________________ ) ______________________________
Witness Signature of Employee
SCHEDULE A: ATTACHMENT TO EMPLOYEE AGREEMENT FOR:
__________________________KEVIN A. BIRCH_____________________
POSITION:
VICE PRESIDENT - DEVELOPMENT AND SYSTEMS INTEGRATION
DUTIES:
DESIGN AND BUILD, IN CONJUNCTION WITH ORCHESTRAL CORPORATION, OR OTHERS
NEW VERTICAL APPLICATIONS FOR THE POWER AUDIT SOFTWARE PROGRAM, DEVELOP CD ROM
SALES MATERIALS, DEVELOP INTERFACING TECHNOLOGY FOR RESELLERS AS APPLICABLE,
COORDINATE WITH THE VICE PRESIDENT NETWORK SERVICES DEMO VERSIONS FOR SALES
PRESENTATIONS. SERVICE PRESALES CONSULTANTS WITH EXPERT ASSISTANCE IN RESPONDING
TO RESELLER INQUIRIES. MANAGE SECOND LEVEL SUPPORT AS REQUIRED IN HELP LINE
SITUATIONS. INTERFACE WITH ORCHESTRAL CORPORATION AS REQUIRED TO SOLVE THIRD
LEVEL SUPPORT SITUATIONS. PROVIDE TECHNICAL CONSULTATION AS REQUIRED TO RESELLER
END CUSTOMERS.
SALARY:
CAD 5,000 PER MONTH
VARIABLE COMPENSATION:
TO BE DETERMINED
