EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the __22__ day of __March__, 2001.
BETWEEN:
Cormax Business Solutions Inc., ("Cormax Inc.") a body corporate
incorporated under the laws of the state Utah owning 100% of the
shares of Expanded Systems Solutions Inc., a Canadian Federal
Corporation, having offices in the City of Calgary, in the Province of
Alberta, (hereinafter collectively called the "Corporation")
OF THE FIRST PART
- and -
Xxxxx Xxxx, an individual residing in the City of Calgary, in the
Province of Alberta (hereinafter called the "Employee")
OF THE SECOND PART
WHEREAS the Corporation wishes to retain the services of the Employee
in the capacity of Manager of Operation for the Network Division of the
Corporation, to assist in the furtherance of its Business activities as
hereinafter defined;
AND WHEREAS Cormax Business Solutions Inc. and Expanded System Solutions
Inc., agreed in respect to the claims of the Employee hereunder referred to
herein as the Corporation;
AND WHEREAS the Corporation and the Employee have agreed that their
relationship will be governed by the terms and conditions of this Employment
Agreement (hereinafter the "Agreement");
AND WHEREAS as of the effective date of this Agreement the Business
activities will be performed by the Employee in respect to the subsidiary
Expanded Systems Solutions Inc. ("Expanded Systems ");
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
provision of services by the Employee to the Corporation, and the employment of
the Employee by the Corporation, and for other good and valuable consideration,
the Parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, the following terms shall have the following
meanings:
(a) "Act" means the Alberta Business Corporations Act, as amended;
(b) "Affiliated" has the meaning set out in the Act, and an
"Affiliate" means one of two or more Affiliated bodies corporate;
(c) "Agreement" means this Employment Agreement;
(d) "Associated Group" means two or more Persons who are associated
with respect to the exercise of rights attached to Voting Interests in
an Entity by contract, business arrangement, personal relationship,
common control in fact through the ownership of Voting Interests, or
otherwise, in such a manner that they would ordinarily be expected to
act together on a continuing basis with respect to the exercise of
those rights;
(e) "Base Salary" means the amount paid to the Employee annually by
the Corporation pursuant to Article 5.1;
(f) "Benefits" means those amounts or entitlements provided by or paid
for by the Corporation in respect of the Employee pursuant to Article
6;
(g) "Business" means the business of web design and hosting, wireless
communication and corporate development;
(h) "Cause" means the termination of the Employee's employment by the
Corporation for any reason which would entitle the Corporation to
terminate the Employee's employment without notice or payment in lieu
of notice at common law, or under the provisions of any other
applicable law or regulation and includes, without limiting the
generality of the foregoing:
(i) Fraud, misappropriation of the Corporation's property or
funds, embezzlement, malfeasance, misfeasance or nonfeasance in
office which is willfully or grossly negligent on the part of the
Employee;
(ii) The willful allowance by the Employee of his duty to the
Corporation and his personal interest to come in conflict in a
material way in breach of the obligations of the Employee set
forth in article 13.1 hereof, in relation to any transaction or
matter that is of a substantial nature; or
(iii) The material breach by the Employee of the following
enumerated covenants or obligations under this Agreement, namely,
any violation of the terms of the Employee Confidentiality,
Nondisclosure and Non-Competition Agreement attached hereto as
Schedule "F";
(i) "Change of Control" means:
For the purposes of this Agreement, a Change of Control shall be
deemed to have occurred at such time as:
(i) the sale, lease or transfer by the Corporation of all or
substantially all of the assets of the Corporation to any Person
other than a Related Corporation; or
(ii) approval by the shareholders of the Corporation of the
liquidation, dissolution or winding-up of the corporation; or
(a) a situation in which the majority of the Board of Directors
of the Corporation following a meeting of the shareholders of the
Corporation involving a contest for, or an item of business
relating to, the election of directors, are not management
nominees to the Board of Directors.
(j) "Company Property" includes any materials, tools, equipment,
devices, records, files, data, tapes, computer programs, computer
disks, software, communications, letters, proposals, memoranda, lists,
drawings, blueprints, correspondence, specifications or any other
documents or property belonging to the Corporation or any Related
Corporation;
(k) "Confidential Information" means any information of a confidential
nature which relates to the Business of the Corporation or any Related
Corporation, including, without limiting the generality of the
foregoing, trade secrets, technical information, marketing strategies,
sales and pricing policies, financial information, business, marketing
or technical plans, programs, methods, techniques, concepts, formulas,
documentation, intellectual property, software, industrial designs,
products, strategic studies, client and supplier lists, shareholder
data and personnel information of the Corporation and any Related
Corporation. Notwithstanding the foregoing, Confidential Information
shall not include any information which:
(i) was in the possession of or known to the Employee, without
any obligation to keep it confidential, before it was disclosed
to the Employee by the Corporation; or
(ii) is or becomes public knowledge through no fault of the
Employee; or
(iii) is independently developed by the Employee outside the
scope of his employment duties to the Corporation; or
(iv) is disclosed by the Corporation to another Person without
any restriction on its use or disclosure; or
(v) is or becomes lawfully available to the Employee from a
source other than the Corporation.
(l) "Convertible Securities" means any securities convertible or
exchangeable into Shares or carrying the right or obligation to
acquire Shares;
(m) "Effective Date" means April 1, 2001 or such other date as the
parties may mutually agree to;
(n) "Employee" means Xxxxx Xxxx;
(o) "Employer" means Expanded Systems Solu tions Inc;
(p) "Entity" means a Person other than a natural person;
(q) "Holder" means any Person or group of Persons (other than a
Related Corporation) acting jointly or in concert, or associated or
Affiliated with any such Person, group of Persons or any of such
Persons acting jointly or in concert;
(r) "Monthly Base Salary" means the annual Base Salary paid to the
Employee, divided by 12;
(s) "Notice" means any Notice given by one Party to the other Party in
accordance with Article 14;
(t) "Party" means one or other of the Employee and the Corporation,
and "Parties" means both the Employee and the Corporation;
(u) "Permanent Disability" means a mental or physical disability
whereby the Employee:
(i) is unable, due to illness, disease, mental or physical
disability or similar cause, to fulfill his or her obligations as
an employee or officer of the Corporation for any consecutive 3
month period, or for any period of 4 or more months (whether
consecutive or not) in any consecutive 12 month period; or
(ii) is declared by a Court of competent jurisdiction to be
mentally incompetent or incapable of managing his or her affairs;
(v) "Person" means a natural person, firm, corporation, company, body
corporate, trust, partnership, joint venture, association,
unincorporated organization, government or any agency thereof;
(w) "Related Corporation" means any subsidiary, parent company,
division, Affiliate, predecessor or successor of the Corporation;
(x) "Remuneration" means the Base Salary and other amounts the
Employee is entitled to receive pursuant to Article 5, including the
bonus entitlement set out in Schedule "B", as well as the value of the
Employer paid portion of the benefits provided to the Employee
pursuant to the provisions of Schedule "C";
(y) "Term" means the period during which this Agreement remains in
force pursuant to Article 3;
(z) "Termination Date" means the last day actively worked by the
Employee for the Corporation;
(aa) "Triggering Events" means any one or more of the following:
(i) the written election of the employee within 180 days of the
effective date of the Change of Control to terminate his
employment in accordance with the provisions of article 10.2 (a)
of this Agreement ; or
(ii) failure by the Corporation to offer the Employee employment
on substantially the same terms and conditions as existed
immediately prior to the Change of Control, taking into
consideration the Employee's duties, responsibilities and status
within the Corporation, the titles and offices held by the
Employee within the Corporation and the salary, benefits and
other compensation received by the Employee pursuant to his
employment with the Corporation; or
(iii) the assignment by the Corporation to the Employee of any
duties which are inconsistent with the Employee's position,
duties, and responsibilities within the Corporation as in effect
immediately prior to the effective date of the Change of Control;
or
(iv) a reduction by the Corporation of the Employee's
Remuneration or Benefits, other than a reduction imposed on all
employees of the Corporation which would not constitute
constructive dismissal at common law, or any change in the basis
upon which such Remuneration or Benefits are determined and
calculated, other than a change which does not result in a
reduction in the overall economic benefit to the Employee, taking
into account all Remuneration and Benefits; or
(v) failure by the Corporation to continue in effect or otherwise
provide substantially similar benefits for the Employee including
any life, disability, medical and dental, health and accident
insurance, or any pay incentive, bonus or deferred compensation
plan or program to which the Employee was entitled immediately
prior to the Change of Control; or
(vi) termination of the Employee's employment by the Corporation
that is without Cause or is finally determined by a court of
competent jurisdiction to be without Cause.
(bb) "Voting Interest," with respect to:
(i) a corporation, company or other body corporate with share
capital, means a Voting Share or any right which upon exercise,
conversion or otherwise is capable of becoming, directly or
indirectly, a Voting Share or giving to the holder thereof rights
similar to those enjoyed by the owner of a Voting Share;
(ii) a corporation, company or other body corporate without share
capital, means an ownership interest in the assets thereof that
entitles the owner to rights similar to those enjoyed by the
owner of a Voting Share; and
(iii) a partnership, trust, joint venture, association,
unincorporated organization, government or an agency thereof,
means an ownership interest in the assets thereof that entitles
the owner to participate in the direction of the policy thereof;
(cc) "Voting Share" means:
(i) a share in the capital of a corporation, company or other
body corporate to which is attached a voting right ordinarily
exercisable at meetings of shareholders of the corporation,
company or other body corporate; and
(ii) any other right granted by or in respect of a corporation,
company or other body corporate currently exercisable to elect or
appoint:
(A) individuals to the board of directors of the
corporation, company or other body corporate; or
(B) individuals forming such other group of individuals
comprising the directing mind or will of the corporation,
company or other body corporate.
1.2 The headings in this Agreement are inserted for convenience and ease of
reference only, and shall not affect the construction or interpretation of this
Agreement.
1.3 All words in this Agreement importing the singular number include the
plural, and vice versa. All words importing gender include the masculine,
feminine and neuter genders.
1.4 All monetary amounts are in Canadian dollars.
ARTICLE II
EMPLOYMENT OF EMPLOYEE
2.1 The Corporation agrees to employ the Employee as the Manager of Operation
for the Wireless Division of the Corporation, and the Employee agrees to accept
such employment, all in accordance with the terms and conditions of this
Agreement.
2.2 The parties hereto agree that the relationship between the Corporation and
the Employee is that of employer and employee.
ARTICLE III
TERM OF AGREEMENT
3.1 The Term of this Agreement shall be for an indefinite period from the
Effective Date, unless earlier terminated by the Corporation or the Employee
pursuant to the terms and conditions of this Agreement.
ARTICLE IV
DUTIES OF EMPLOYEE
4.1 The Employee shall, during the Term of this Agreement:
(a) perform the duties and responsibilities of the Manager of
Operations of the Wireless Division of the Corporation, as set forth
under the heading "Duties of Position" in Schedule A attached hereto;
(b) devote the whole of his or her working time, attention, efforts
and skill to the performance of his or her employment duties and
responsibilities as set out herein, and truly and faithfully serve the
best interests of the Corporation at all times. In particular, and
without limiting the generality of the foregoing, the Employee shall
not engage in any personal activities or any employment, consulting
work, trade or other business activity on his or her own account or on
behalf of any other Person which may compete, conflict or interfere
with the performance of the Employee's duties hereunder in any way. It
shall not be a violation of this Article 4.1(b) for the Employee to
engage in a voluntary activity or other public service which does not
interfere with the Employee's duties under this Agreement; and
ARTICLE V
REMUNERATION
5.1 During the term of this Agreement, subject to being amended up words as
hereinafter provided, the Corporation shall pay to the Employee a salary of
$86,400 per annum (the "Base Salary") being in the Base Salary of Employee
stipulated in Schedule "A" under the heading "Base Salary" as of the effective
date of this Agreement, less required statutory deductions, payable in equal
semi-monthly installments in such a manner as the parties may mutually agree.
The Employee's Base Salary will be reviewed annually by the Board of Directors
of the Corporation, and may be increased at the sole discretion of the Board of
Directors, based upon such factors as the Board of Directors in its sole
discretion determines are relevant, which factors may include the performance of
the Corporation and the Employee compensation arrangements of other corporations
of a similar size engaged in a similar Business to that of the Corporation in
Canada.
5.2 The Employee may also be granted a performance bonus from time to time on
terms and conditions, and in an amount to be determined by the Board of
Directors of the Corporation, in its sole discretion, based upon such factors
set forth in the bonus plan set out and heading "Performance Incentive Bonus
Plan" in Schedule "B" attached hereto (the "Bonus Plan"), which factors may
include the Employee's performance under the terms of this Agreement and the
performance of the Corporation. Subject to the foregoing terms, the Board of
Directors shall exercise its discretion reasonably.
5.3 The Corporation shall reimburse the Employee for all reasonable
out-of-pocket expenses incurred in the performance of his or her employment
duties under this Agreement, including, without limiting the generality of the
foregoing, all travel and promotional expenses payable or incurred by the
Employee in connection with the performance of his or her employment duties. All
payments or reimbursements of expenses shall be subject to the submission by the
Employee of appropriate vouchers, bills and receipts.
5.4 Upon termination of this Agreement for any reason, the Employee shall be
entitled to receive any Remuneration earned up to the Termination Date, in
addition to any other severance or termination payment which is payable under
the terms of this Agreement. Employee shall also be entitled to receive, at the
time of his termination of employment, any bonus to which Employee may be
entitled under Article 5.3 of this Agreement, which bonus shall be pro-rated to
the Termination Date. Said prorated bonus shall be payable at the time
stipulated in the Bonus Plan referred to in Article 5.3 of this Agreement.
ARTICLE VI
BENEFITS
6.1 The Employee shall be entitled to receive the Benefits set out in Schedule
"C" hereto, subject to the terms and conditions of any applicable benefit plan,
as may be amended by the Corporation at its sole discretion from time to time.
ARTICLE VII
STOCK OPTIONS
7.1 The Employee may be granted stock options in the Shares of the Corporation
from time to time, at the sole discretion of the Board of Directors of the
Corporation. Any stock options granted to the Employee shall be subject to the
terms and conditions of the Corporation's stock option plan, as may be amended
by the Corporation at its sole discretion from time to time, and the terms and
conditions of any applicable stock option agreement. Any stock option grant
awarded to the Employee, together with the terms and conditions of the
Corporation's Stock Option Plan shall be attached to this Agreement when
granted, as Schedule "D".
7.2 The stock options that the Employee has been granted as set forth in the
Option Agreements attached hereto as Schedule "D" which have not vested on the
date the notice of the termination of employment of the Employee is given under
article 9.1 (a) or article 10.2 of this Agreement, shall forthwith be
accelerated. These accelerated options which will then be vested, as well as any
then vested options which have not yet been exercised, will be exercisable up
until the end of the time for exercising options as set out under the original
Option Agreement under which they were granted as if the Employee's employment
and/or office continued for the 30 days notice required under article 10.1 and
the severance period applicable under the provisions of article 9 (a) (i) for
the calculation of the retiring allowance. In the event the stock option plan
under which the option agreements were granted needs to be amended, to put into
effect the provisions of this article 7.2, then the Corporation agrees that on a
best efforts basis it will make applications to the necessary regulatory
authorities and stock exchanges to obtain the amendment of said stock option
plan. In the event that for any reason the Corporation is not able to obtain the
consent of the regulatory authorities and stock exchange to the amendment of the
stock option plan as may be required by this article 7.2 , then Corporation
agrees to compensate the Employee on the basis that the stock options shall
notionally continue to exist for exercise under the provisions of this article
7.2 and Employee will still be notionally entitled to exercise his stock options
as provided for in this article 7.2 , but instead of the Corporation issuing
shares in the name of the Employee on the exercise of the option, it shall pay
cash compensation to the Employee equivalent to the difference between the
option price of the share option notionally exercised and the value of the
shares of the Corporation as traded on the market at the close of trading on the
day the notice of notional exercise of the option is given to the Corporation.
All future share options agreements that shall be granted to the Employee by the
Corporation shall be deemed to have been attached and form part of Schedule "D"
and will be deemed to be subject to the terms of this article 7.2.
ARTICLE VIII
VACATION
8.1 The Employee shall be entitled to an annual vacation of 3 weeks. Vacation
may be taken in such a manner and at such times as the Employee and the
Corporation mutually agree. Effective January 1, 2003, the Employee shall be
entitled to an annual vacation of 4 weeks. Effective January 1, 2005, the
Employee shall be entitled to an annual vacation of 5 weeks.
ARTICLE IX
TERMINATION BY CORPORATION
9.1 The Corporation shall be entitled to terminate this Agreement and the
Employee's employment with the Corporation:
(a) at any time, for any reason, upon written Notice to the Employee, in
which case:
(i) the Corporation shall pay to the Employee a lump sum retiring
allowance ("Retiring Allowance") equal to the Monthly Remuneration
immediately prior to the Termination Date, multiplied by 6, in full
and final settlement of any claims by the Employee against the
Corporation or any Related Corporation, arising out of or in any way
connected with the Employee's employment with the Corporation or the
termination of the Employee's employment with the Corporation, whether
at common law or under the provision of any statute or regulation, or
pursuant to any agreement between the Parties;
(ii) the number of months set forth in Article 9.1(a)(i) shall be
increased by one month per year of service commencing on January 1,
2003, increasing to 7 months, and then each and every year thereafter,
and the number of months shall be capped at a total of 18 months,
effective January 1, 2013;
(iii) the Employee's right to receive the payment under this Article
9.1(a) shall not be subject to any duty to mitigate, nor affected by
any actual mitigation by the the obligation of the Corporation to make
payments under this Article 9.1(a) shall be subject to any and all
withholdings and deductions required to be made by the Corporation by
law, subject to the Corporation that the Employee shall have the
right, at the option of the Employee, (A) to receive such Retiring
Allowance in a lump sum within 30 days following the Termination Date,
or (B) to receive such Retiring Allowance in 12 equal consecutive
monthly installments commencing the month immediately following the
Termination Date, together with interest on the unpaid balance at the
interest rate that the Corporation could obtain on 90 day Canada
Treasury Bills at the close of market on the first business day of
each month, or (C) to receive such Retirement Allowance in 24 equal
consecutive monthly payments commencing the Termination Date together
with interest on the unpaid balanced at the interest rate that the
Corporation could obtain on 90 day Canada Treasury Bills at the close
of market on the first business day of each month, or (D) to transfer
such portion of the Retirement Allowance to a qualified deferred
income tax shelter plan proposed by the Employee, or other plan by the
employee to receive the Retiring Allowance in a tax effective manner,
providing such proposals be in compliance with the provisions of the
Income Tax Act (Canada) and the regulations thereunder, and then
receive the balance as allowed per his election under A, B, or C of
this Article 9.1(a)(iv);
(iv) payment under this Article 9.1(a) shall be subject to the prior
execution by the Employee of a release and indemnity in favour of the
Corporation and any Related Corporations, in the form of the release
that is attached hereto as Schedule "E";
(v) for the purpose of calculating the Bonus Plan element of
Remuneration in calculating the Retiring Allowance of Employee, should
the employee be entitled to a Retiring Allowance during the period up
to December 31st 2001 than the amount of the bonus to be included in
the calculation of the Retiring Allowance will be that earned during
the calendar year ending December 31st, 2001, and should the Employee
be entitled to a Retiring Allowance during the period between January
1st, 2002 to December 31st 2002 then the amount of the bonus to be
included in the calculation of the Retiring Allowance will be the
average bonus earned during the calendar years ending December 31st,
2001 and December 31st, 2002, and should the employee be entitled to a
Retiring Allowance in any year during the term of this agreement after
December 31st 2002 then the amount of the bonus to be included in the
calculation of the Retiring Allowance will be the average of the bonus
earned during the two previous calendar years; and
(vi) the Corporation shall have the right to set-off against any
payments to the Employee under this Article 9.1(a) any amount which
the Employee owes to the Corporation; or
(b) at any time, without notice or payment in lieu of notice, for Cause.
ARTICLE X
TERMINATION BY EMPLOYEE
10.1 The Employee may terminate this Agreement and his employment with the
Corporation by providing 30 days' prior written Notice to the Corporation. Upon
receipt of such Notice of termination by the Employee, the Corporation shall
only be required to pay the Employee any Remuneration, and provide the Employee
with any Benefits, earned up to the Termination Date, and may either require the
Employee to continue to perform his duties until the completion of the Notice
period, or dismiss the Employee at any time after receipt of the written Notice.
10.2 Subject to the conditions set out in Article 10.4, the Employee may
terminate his employment with the Corporation immediately and receive 2 x the
Retiring Allowance then stipulated under Article 9.1 (a), and the Employee shall
also be entitled to the other payments then stipulated in Article 9.1(a), upon
the occurrence of one of the following:
(a) on written notice by the Employee, within 180 days of the
Effective Date of the Change of Control of the Corporation,
that the Employee has elected to terminate his employment
pursuant to this Article 10.2(a) ; or
(b) one or more of the Triggering Events [not including the
Triggering Event set forth in Article 10.2 (a)], at any time
within one year from the effective date of the Change of
Control referred to in Article 10.2(a),
in which case the Employee shall provide written Notice to the Corporation
setting out the basis upon which he or she believes that a Change of Control and
one of the Triggering Events have occurred. In the event that the Corporation
disagrees that a Change of Control and/or one of the Triggering Events have
occurred, then such dispute shall be resolved pursuant to the provisions of
Article 16.11 of this Agreement.
10.3 In the event that the Employee's employment is terminated with the
Corporation in strict accordance with Article 10.2, and only in that event:
(a) the Corporation shall pay to the Employee the Retiring
Allowance and other amounts stipulated in Article 9.1(a) of
this Agreement, in full and final settlement of any claims by
the Employee against the Corporation or any Related
Corporation, arising out of or in any way connected with the
Employee's employment with the Corporation or the termination
of the Employee's employment with the Corporation, whether at
common law or under the provision of any statute or
regulation, or pursuant to the terms of any agreement between
the Parties;
(b) the Employee's right to receive the payment under this Article
10.3 shall not be subject to any duty to mitigate, nor
affected by any actual mitigation by the Employee.
10.4 Payment under Article 10.3 shall be subject to the following conditions:
(a) the prior execution by the Employee of a release and indemnity in
favour of the Corporation and any Related Corporations, stipulated by
Article 9.1(a)(v) of this Agreement;
(b) the Employee's full cooperation and assistance in connection with any
Change of Control or proposed Change of Control, to transfer the Employee's
duties and responsibilities to a replacement, and the tendering by the
Employee of his or her resignation from any position he or she may hold as
an officer or a director of the Corporation and any Related Corporations,
at such time as the Corporation may request, provided that this obligation
shall not extend for more than 30 days after the Termination Date, and in
the event that the Employee expends more than 10 hours of his time
complying with this obligation, then the Corporation shall pay to the
Employee a consulting fee in the amount of $150.00 per hour, plus G.S.T.,
for all hours expended by employees of the aforementioned 10 hour maximum.
Consulting fees billed pursuant to this provision shall be rendered by
issuance of an account to the Corporation stipulating the number of hours,
the date on which they occurred, and providing the Corporation the G.S.T.
registration number of the Employee, should such registration be required
by law;
(c) payment under Article 10.3 shall be made within ten (10) days after
receipt by the Corporation of the written Notice referred to in Article
10.2;
(d) the obligation of the Corporation to make payments under Article 10.3
shall be subject to the provisions stipulated in Article 9.l(a)(iv) of this
Agreement;
(e) the Corporation shall have the right to set-off against any payments to
the Employee under Article 10.3 any amount which the Employee owes to the
Corporation; and
(f) payment under Article 10.3 shall be in place of, and not in addition
to, any other severance or termination payment in lieu of reasonable notice
which may be made to the Employee pursuant to any other term or provision
of this Agreement.
10.5 In the event that the Employee terminates his employment with the
Corporation otherwise than in strict accordance with the requirements set out in
Article 10.2, the Corporation shall have no obligation to pay the Employee the
sum of money set out in Article 10.3.
ARTICLE XI
TERMINATION UPON DEATH OR PERMANENT DISABILITY
11.1 This Agreement shall automatically terminate upon the death of the
Employee.
11.2 In the event that the Employee shall suffer a Permanent Disability, the
Corporation may terminate this Agreement and the Employee's employment by
providing at least 30 days prior written Notice to the Employee. Upon
termination of the Employee's employment pursuant to this Article 11.2, the
Corporation shall have no further obligation to the Employee, with the exception
that the Employee shall continue to be entitled to such insurance benefits as
may be provided pursuant to any long term disability plan and to any benefit or
entitlement under any pension plan of the Corporation in which the Employee
participates.
ARTICLE XII
CONFIDENTIAL INFORMATION AND COMPANY PROPERTY
12.1 The Employee acknowledges and agrees that in performing the duties and
responsibilities of his or her employment pursuant to this Agreement, he or she
will occupy a position of high fiduciary trust and confidence with the
Corporation, pursuant to which he or she will develop and acquire wide
experience and knowledge with respect to Confidential Information and the
Business carried on by the Corporation and its Related Corporations, and the
manner in which such Business is conducted. Accordingly, the Employee
acknowledges and agrees that the execution by the Employee of the
Confidentiality, Non-Disclosure and Non-Competition Agreement attached hereto as
Schedule "F" shall be a condition precedent to this Agreement coming into force,
and the strict observance of the requirements of the said Confidentiality
Agreement shall be a condition of employment hereunder.
ARTICLE XIII
CONFLICT OF INTEREST
13.1 The Employee shall not during the continuance of this Employment Agreement,
either as a principal or agent, partner, or shareholder, or as a Director,
Officer or Manager or Employee of a corporation or otherwise, carry on or be
engaged or concerned or interested in any business which is in competition to
the Business conducted by the Corporation or any Related Corporation.
Notwithstanding the provisions of this Article 13.1, nothing set out in this
Article 13.1 shall prevent the Employee from being a shareholder only, holding
not more than 2% of the outstanding shares of any company or corporation
carrying on such a business and whose shares are listed on a recognized stock
exchange in the United States of America or Canada.
13.2 In the event that the Employee determines that he has an interest as
described above in sub- paragraph 13.1 or any other interest which might be in
conflict with his obligations to Corporation, whether that conflict be apparent
or real, Employee shall in writing disclose that interest to the the Board who
shall then be requested to obtain and provide a legal opinion to the Employee
and Corporation as to whether or not the interest declared constitutes a
conflict of interest. During the period of time prior to the provision of said
legal opinion, Employee shall be entitled to continue to fully participate in
his duties as described hereunder with the proviso that in the event that any
matter relating to the declared conflict of interest arises, the Employee shall
recuse himself from any discussion in respect to that matter. The Employee shall
provide a report in writing on a weekly basis until the legal opinion is
received, of situations in which a recusal has taken place as required
hereunder. Once the legal opinion has been received together with any
recommendations in respect to the declared or apparent conflict of interest,
Employee and the Board of Directors of the Corporation will conclude forthwith a
mutually acceptable arrangement to ensure that any concerns that are raised by
the legal opinion in respect to this matter are dealt with on a mutually
satisfactory basis. Effective as of the effective date of this Employment
Agreement, namely April 1, 2001, Employee declares that he knows of no conflict
of interest or apparent conflict of interest that would be in violation of the
provisions of Article 13.1, save those listed in Schedule "G" which is attached
hereto, which declared conflicts of interest are waived by the Corporation,
subject to the requirement of the Employee to comply with the requirements of
Article 13.2 of this Agreement in the event that such declared conflicts of
interest in the course of the duties performed by the employees under this
Agreement create an actual or potential conflict of interest, then in which case
the requirements of Article 13.2 shall apply.
ARTICLE XIV
INDEMNIFICATION AND INSURANCE
14.1 Subject to the requirements of the Act, the Corporation shall indemnify and
save harmless the Employee from and against any personal liability which he
incurs as a direct result of performing his or her employment duties on behalf
of the Corporation, with the exception of the following:
(a) any liability arising from the Employee's gross negligence or fraud or
other acts of willful misfeasance; and
(b) any liability which the Corporation is prohibited by law from assuming.
14.2 The provisions of this Article 14 shall remain in full force and effect
notwithstanding the termination of this Agreement for any reason.
ARTICLE XV
NOTICES
15.1 Any Notice required to be given hereunder may be provided by personal
delivery, by registered mail or by facsimile to the Parties hereto at the
following addresses:
To the Corporation:
Cormax Business Solutions Ltd.
000, 000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxx Xxxxxxxx
Fax: (000) 000-0000
To the Employee:
Xxxxx Xxxx
000, 000 00xx Xxx XX
Xxxxxxx, Xxxxxxx X0X 0X0
Fax 000-000-0000
Any Notice, direction or other instrument shall, if delivered, be deemed to have
been given and received on the business day on which it was so delivered, and if
not a business day, then on the business day next following the day of delivery,
and, if mailed, shall be deemed to have been given and received on the fifth day
following the day on which it was so mailed, and, if sent by facsimile
transmission, shall be deemed to have been given and received on the next
business day following the day it was sent.
15.2 Either Party may change its address for Notice in the aforesaid manner.
ARTICLE XVI
GENERAL
16.1 Time shall be of the essence in this Agreement.
16.2 This Agreement shall be construed and enforced in accordance with the laws
of the Province of Alberta, and subject to the provisions of Article 16.11 of
this Agreement, the Parties hereby attorn to the jurisdiction of the Alberta
Courts. Should any provision in this Agreement fail to comply with the
requirements of the Alberta Employment Standards Code or the Alberta Human
Rights, Citizenship and Multiculturalism Act, as amended, or other applicable
legislation, the Agreement shall be interpreted and construed in accordance with
those statutory requirements.
16.3 This Agreement and any other agreements expressly incorporated by reference
herein, constitute the entire agreement between the Parties with respect to the
subject matter hereof, and supercede and replace any and all prior agreements,
undertakings, representations or negotiations pertaining to the subject matter
of this Agreement. The Parties agree that they have not relied upon any verbal
statements, representations, warranties or undertakings in order to enter into
this Agreement. In the event of a conflict between this Agreement and any other
agreement expressly incorporated by reference herein, the terms of this
Agreement shall prevail.
16.4 This Agreement may not be amended or modified in any way except by written
instrument signed by the Parties hereto. In the event that the Parties hereto
wish to amend the terms of any of the Schedules annexed hereto, this shall be
done by way of a written amending agreement (the "Amending Agreement") setting
forth that the particular schedule or schedules being amended are amended per
the terms of the schedule (s) attached to the Amending Agreement, but otherwise
the terms of the Agreement will continue in full force and effect, mutatis
mutandis, and both parties will then sign the Amending Agreement, and the
Amending Agreement will then be attached to this Agreement and then each page of
the Agreement and the Amending Agreement shall then be dated and initialed by
the Parties hereto.
16.5 This Agreement shall enure to the benefit of and be binding upon the
Parties hereto, together with their personal representatives, successors and
permitted assigns.
16.6 This Agreement is a personal services agreement and may not be assigned by
either Party without the prior written consent of the other Party.
16.7 The waiver by either Party of any breach of the provisions of this
Agreement shall not operate or be construed as a waiver by that Party of any
other breach of the same or any other provision of this Agreement.
16.8 The Parties agree to execute and deliver such further and other documents,
and perform or cause to be performed such further and other acts and things as
may be necessary or desirable in order to give full force and effect to this
Agreement.
16.9 The Employee agrees that following the termination of the Employee's
employment with the Corporation for any reason, the Employee shall tender his or
her resignation from any position he or she may hold as an officer or director
of the Corporation or any Related Corporation.
16.10 Should any provision in this Agreement be found to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remaining
provisions of the Agreement shall not be affected or impaired thereby in any
way.
16.11 Any dispute concerning the rights or obligations of the Parties to this
Agreement, or concerning the interpretation, validity or enforcement of the
Agreement, shall be submitted to binding arbitration in Calgary, Alberta before
a single arbitrator pursuant to the Arbitration Act (Alberta). The decision of
the arbitrator shall be final and binding on the Parties, and the successful
Party shall be entitled to receive its solicitor and client legal costs and
disbursements incurred in the arbitration.
IN WITNESS WHEREOF the Parties hereto acknowledge and agree that they
have read and understand the terms of this Agreement, and that they have had an
opportunity to seek independent legal advice prior to entering into this
Agreement, and that they have executed this Agreement with full force and effect
from the date first written above.
Cormax Business Solutions Inc.
Per: /s/ Xxxx Xxxxxxxx
---------------------------------
Director
Per:
---------------------------------
Director
SIGNED, SEALED & DELIVERED
in the presence of:
/s/ Xxxx Shykora /s/ Xxxxx Xxxx
------------------------------------ ---------------------------------
Witness [EMPLOYEE]
SCHEDULE A
Job Description
Business Development
Job Description:
Business Development will play a critical role in the company's growth. The
Business Development will be responsible for designing, implementing, and
managing the company's evolving partnership strategy, sales force, partnership
with telecom carriers, cable companies, interconnect companies and telecom
equipment suppliers. General responsibilities include identifying strategic
partners, negotiating business partnerships, and managing relationships.
Specific responsibilities include the following:
a. Establish partnerships to broaden the Corporation's channels to
market.
b. Develop and train Expanded's sales force in opening up new accounts
and growing existing ones.
c. Handle all aspects of customers' development and to support their
longer-term requirements and assist in
planning offerings for the future.
d. Actively drive marketing campaigns.
e. Work with operations on planning,
f. Develop strategic business opportunities,
g. Co-ordinate marketing activities, to work closely with companies
affiliated with the corporation in marketing and product review.
The Business Development will meet regularly with the company's Senior
management term to determine whether the corporation should develop, buy, or
partner to expand its offering, and to ensure that the corporation product
continues to develop in response to changing customer and partner needs.
Base Salary
Base salary shall be $86,400 per annum. The employee shall be eligible to for an
annual review by the board of director, which at its own discretion will
determine any percent increase to the employee base salary. In the event the
board determine the employee shall receive an increase in the base salary they
shall use the guideline of 1-6 percent as the basis for any increase. The Base
salary shall be paid on a bi-monthly basis on the 15th and 30th of each month,
and on the last day in February.
SCHEDULE C
Benefits
Great West Life
Xxxxx currently participates in a Health Plan made available to all Expanded
Systems employees. The plan provides for comprehensive life, medical, dental,
vision, and out of country coverage. The premiums are paid for by Expanded
Systems with the exception of the Long Term Disability premium to be deducted
from the employee's pay.
Benefit Summary
Employee Life Insurance : 300% of annual earnings to a max = $300,000
Dependant Life Insurance : Spouse : $10,000, Child : $5000
Accidental Death : amount equal to Life Insurance
Long Term Disability : 66.7% of the first $3,000 of monthly earn-
ings plus 45% of the remainder to a max =
$6,000 or 95% of your pre-disability take-
home pay. To age 65 - Non taxable
Healthcare : No deductible : Details in attached
"Selectpac" booklet
Visioncare : $150 / 2 years max
Dentalcare : Details included in "Selectpac" booklet.
Parking
Parking is provided for Xxxxxxx Xxxxxxxxx under the Joffre building located at
#000 00xx Xxx. X.X. this fee is paid for by Expanded Systems currently at a rate
of $140 per month.
Alberta Health Care Premiums
Employer paid Alberta HealthCare premiums
Business of Expanded Systems
Expanded Systems (ESS) designs and installs wide area network solutions to
mid-sized organizations. ESS resells networking and communications hardware
along with its own expertise to construct carrier service, internet, and private
facility based networks. Expanded Systems also specializes in voice over IP,
video conferencing and internet security technologies.
Addresses :
Xxxxx Xxxx
00 Xxxxxxxx Xxxxx X.X.
Xxxxxxx, Xxxxxxx, Xxxxxx
X0X 0X0
Xxxxxxx Xxxxxxxxx
00 Xxxxxxxxx Xxxx. X.X.
Xxxxxxx, Xxxxxxx, Xxxxxx
X0X 0X0
