92
EXHIBIT 99.3
COI Solutions, Inc. Officer Agreement Renewal
THIS AGREEMENT made this third day of January, 1999, among COI
Solutions, Inc., a corporation duly incorporated under the laws of
Nevada, having its head office at Las Vegas, (the "Company ") and CR&J
Management Inc. a corporation duly incorporated under the laws of
Delaware, having its head office at Wilmington and Xxxxxx X. Xxxxxx,
(Co Name and Xxxxxx X. Xxxxxx are hereinafter referred to collectively
as the "Officer").
WHEREAS:
1. The Company is engaged in the design, sourcing, development,
licensing, marketing and distribution of various telecommunications
products, concepts and related consulting services to both business and
consumer markets.
2. The Company and the Officer have agreed to enter into an
employment relationship for their mutual benefit;
NOW THEREFORE in consideration of the mutual covenants and
agreements contained in this Agreement and other good and valuable
consideration (the receipt and sufficiency of which are hereby
acknowledged by each of the parties), the parties hereto agree as
follows:
1. Duties
The Company appoints the Officer to undertake the duties and
exercise the powers as President and Chief Executive Officer, of the
Company as may be requested of the Officer by the Board of Directors of
the Company, and in the other offices to which he may be appointed by
any subsidiary companies of the Company, and the Officer accepts the
office together with the initial mandate established by the Board of
Directors outlined in Schedule A hereto, on the terms, and conditions
set forth in this Agreement.
2. Term
The appointment is a renewal of the agreement signed on July 1
1998, shall commence with effect from January 3, 1999, for a minimum of
three years and shall continue thereafter until terminated in
accordance with the provisions of this Agreement.
3. Compensation
(1) The fixed remuneration of the Officer for his services shall
be at the rate of US$120,000.00 for the first year of this renewal
agreement for employment pursuant to this contract commencing January
3, 1999. The fixed remuneration will be payable in equal installments
monthly in arrears in each month during the Term. The fixed
remuneration shall be reviewed 90 days prior to the anniversary of
employment pursuant to this contract. The review will be undertaken by
assessing the Officer's achievement of the over-all objectives
93
established by the Company and by having regard to the market rates of
remuneration paid in the United States for similar duties and
responsibilities.
(2) In addition to the fixed remuneration, the Officer shall be
entitled to receive such bonus remuneration, and to participate in
officer incentive and stock option plans, if any, in respect of each
year of employment during the Term, as the Board of Directors of the
Company or any committee thereof, in its sole discretion may authorize.
4. Benefits
(1) Automobile Allowance. The Officer shall be provided with an
automobile allowance of US$650.00 per month plus reimbursement for fuel
expenses generated by the use of the automobile on behalf of the
Company on the provision by the Officer or receipts acceptable to the
Company in connection with it.
(2) Expenses. It is understood and agreed that the Officer will
incur expenses in connection with his duties under this Agreement. The
Company will reimburse the Officer for any expenses provided that the
Officer provides to the Company an itemized written account acceptable
to the Company with thirty days after they have been incurred. The
Officer will not be reimbursed for any item in excess of US$5,000.00
unless approved in advance by the Board of Directors
(3) Benefit Plans. The Officer shall participate in all benefit
plans which the Company provides from time to time to employees of the
Company generally in accordance with and subject to the terms of the
applicable fund, plan or arrangement in effect to the Company from time
to time.
5. Pro-Rata Entitlement In the Event of Termination.
(1) If the Officer's employment is terminated for reasons
determined by the Officer whatsoever, the Officer shall receive the
appropriate pro rata portion of the Officer's Compensation, Benefits
and My earned bonus remuneration (if any) in respect of the year of
employment in which the effective date of the termination of employment
occur&
(2) Should the Officers employment be terminated by any other(s),
the Officer will receive all Compensation, Benefits and any
6. Authority
The Officer shall have, subject always to the general or specific
instructions and directions of the Board of Directors of the Company,
full power and authority to manage and direct the business and affairs
of the Company (except only the matters and duties as by law must be
transacted or performed by the Board of Directors or by the
shareholders of the Company in general meeting), including power and
authority to enter into contracts, engagements or commitments of every
nature of kind in the name of and on behalf of the Company and to
engage and employ and to dismiss all managers and other employees and
agents of the Company other than officers of the Company, provided
94
always that no contract shall be made which might involve the Company
in an Expenditure exceeding US$50,000.00 and no person shall be engaged
or appointed as an employee of the Company at remuneration in excess of
US$100,000.00 per annum without, in each case, the prior approval of
the Board of Directors
(2) The Officer shall conform to all lawful instructions and
directions given to him by the Board of Directors of the Company, and
obey and carry out the bylaws of the Company.
7. Service
(1) The Officer, throughout the term of his appointment, shall
devote his full time and attention to the business and affairs of the
Company and its subsidiaries and shall not, without the consent in
writing of the board of Directors of the Company undertake any other
business or occupation or become a director, officer, employee or agent
of any other company, firm or individual.
(2) The Officer shall well and faithfully serve the Company and
its subsidiaries and use his best efforts to promote the interests
thereof and shall not disclose the private affairs or trade secrets of
the Company and its subsidiaries to any person other than the Directors
of the Company or for any purposes other than those of the Company any
information he may acquire in relation to the Company's business.
(3) The Officer may, during the Term perform duties and provide
services to other entities, provided that all proposed arrangements are
approved in advance by the Company, such approval not to be
unreasonably withheld and that the proposed arrangements do not relate
to a competitive business.
8. Non-competition
(1) The Officer agrees with and for the benefit of the Company
that for a period of six months from the date of termination of the
Officer's employment, however caused, he will not for any reason,
directly or indirectly, either as an individual or as a partner or
joint venturer or as an employee, principal, consultant, agent,
shareholder, officer, director, or salesperson for any person, firm
association, organization, syndicate, company or corporation, on in any
manner carry on, be engaged in, concerned with, interested in, advise,
lend money to, guarantee the debts or obligations of, permit his name
or any part of it to be used or employed by any person, business, firm,
association, syndicate, company, organization or corporation concerned
with or engaged or interested in a business which is the same as, or
competitive with, the business of the Company including, without
imitation, any business relating to Telecommunications within the
geographical area North America-, nor will, the Officer solicit or
accept business with respect to products competitive with those of the
Company from any of the Company's customers, wherever situate; provided
that the Officer shall be entitled, for investment purposes, to
purchase and trade shares of a public company which are listed and
posted for trading on a recognized stock exchange and the business of
95
which public company may be in competition with the business of the
Company, provided that the Officer shall not directly or indirectly,
own more than 10% of the issued share capital of the public company, or
participate in its management or operation or in any advisory capacity.
(2) The Officer further agrees that, during employment pursuant to
this Agreement and for a period of six months following termination of
employment however caused, he will not hire or take away or cause to be
hired or taken away any employee of the Company or, following
termination of the Officer's employment, any employee who was in the
employ of the Company during the six months preceding termination.
9 . Confidential information
(1) The Officer acknowledges that as the President and in any
other position as the Officer may hold, the Officer will acquire
information about certain matters and things which are confidential to
the Company ("Confidential Information"), and which information is the
exclusive property of the Company including but not limited to the
following:
a. product design and manufacturing information and computer
programs, codes, material% prototypes, products samples, analyses,
reports;
b. names and addresses, buying habits and preferences of
present customers of the Company, as well as prospective customers
and all other proprietary lists;
c. pricing and sales policies, techniques and concepts;
d. trade secrets; and
e. other Confidential Information concerning the business
operations or financing of the Company.
(2) The Officer acknowledges the information as referred to in
paragraph 9(1) could be used to the detriment of the Company.
Accordingly, the Officer undertakes not to disclose same to any third
party either during the term of his employment except as may be
necessary in the proper discharge of his employment under this
Agreement, or after the term of his employment, however caused, except
with the written permission of an officer of the Company.
(3) The Officer acknowledges and agrees that without prejudice to
any other rights of the Company, in the event of his violation or
attempted violation of any of the covenants contained in paragraphs 8
and 9 of this Agreement, an injunction or any other like remedy shall
be the only effective remedy or protect the Company's rights and
property as set out in paragraphs 8 and 9, and that an interim
injunction may be granted immediately on the commencement of any suit.
(4) The Officer understands and agrees that the Company has a
material interest in preserving the relationship it has developed with
its customers against impairment by competitive activities of a former
employee. Accordingly, the Officer agrees that the restrictions and
96
covenants contained in paragraph 9 and those contained in paragraph 8
of this Agreement and the Officer's Agreement to it by his execution of
this Agreement, are of the essence to this Agreement and constitute a
material inducement to the Officer to enter into this Agreement and to
employ the Officer, and that the Company would not enter into this
Agreement absent an inducement. Furthermore, the claim or cause of
action by the Officer against the Company whether predicated on this
Agreement or otherwise, shall not constitute a defence to the
enforcement by the Company of the covenants or restrictions provided,
however, that if any provision shall be held to be illegal, invalid or
unenforceable in any jurisdiction, the decision shall not affect any
other covenant or provision of this Agreement or the application of any
other covenant or provision.
10. Intellectual Property
(1) Intellectual Property means all legally recognized rights that
result or derive from the Officer's services provided to the Company or
with the knowledge, use or incorporation of Confidential Information,
and includes but is not limited to developments, inventions, designs,
works of authorship, topographies improvement and ideas, whether or not
patentable, copyrightable or registrable, conceived or made by the
Officer (individually or in collaboration with others) during the Term
or which result from or derive from the Company's resources or which am
reasonably related to the business of the Company.
(2) The Officer agrees to disclose to the Company all Intellectual
Property developed by the Officer during the Terra, either individually
or in collaboration with others, that relates directly or indirectly to
the business of the Company. The Officer acknowledges and agrees that
an right title and interest of any kind whatsoever in and to such
Intellectual Property and all other matters that the Officer now has or
may at any time in the future acquire in or relating to the subject
matter of Confidential Information and all copyrights, patents, rights
to apply for patents, licenses and all other intellectual property
rights that the Officer now has or may at any time in the future have
in any of the foregoing is and will be the exclusive property of the
Company and the Company will have absolute discretion to determine how
to use this intellectual property. All work done by the Officer or any
other member of the Company is a work for hire under which the Company
is the first author for copyright purposes. Copyright will vest in the
Company. On notice from the Company the Officer shall execute such
documents and do such things, without furhter consideration but at the
Company's expense as the Company will reasonably request in order to
confirm the Officer's assignment of the foregoing property and rights
to the Company.
(3) The Officer hereby waives all moral rights he has or will have
in the Intellectual Property. The Company may assign the benefit of
this waiver to any purchaser, assignee or licensee of the Intellectual
Property or of any portion of the Intellectual Property.
97
11. Vacation
The Officer shall be entitled during each year to four week's
vacation. The vacation shall be taken at the time or times as the Board
of Directors may determine. The Officer shall be allowed to carry
forward any unused vacation into the next calendar year but not
further.
12. Disability
If the Officer shall at any time by reason of illness or mental or
physical disability by incapacitated from performing his duties and at
the request of the Company, furnish to the Company satisfactory
evidence of the incapacity and the cause of it, he shall receive his
full remuneration for the first three months or any shorter period and
one-half of his full remuneration for the subsequent three consecutive
months during which the incapacity shall continue. If the Officer shall
continue to be incapacitated for a longer period than six consecutive
months or if he shall be incapacitated at different times for more than
six months in the aggregate in any period of one year, then in either
case his employment and appointment shall, at the option of the
Company, immediately terminate,
13. Termination of employment
(1) The parties understand and agree that this Agreement may be
terminated in the following manner in the specified circumstances:
a. By the Officer, at any time, for any reason, on the giving
of six months' written notice to the Company. The Company may
waive notice, in whole or in part.
b. By the Company, in its absolute discretion, without any
notice or pay in lieu thereof, for cause. For the purposes of this
Agreement, cause includes the following:
(i) any material breach of the provisions of this
Agreement;
(ii) the commission of any act of bankruptcy by the
Officer or compounding with his creditors generally;
(iii) conviction of the Officer of a criminal offence
punishable by indictment, where the cause is not prohibited
by law;
(iv) any mental or physical disability or illness which
results in the Officer being unable to substantially perform
his duties for a continuous period of 150 days or for periods
aggregating 180 days, in any period of 365 days. Failure by
the Company to rely on the provision of this paragraph in any
given instance or instances, shall not constitute a precedent
or be deemed a waiver.
(2) The parties understand and agree that the giving of notice or
the payment of pay in lieu of notice by the Company to the Officer on
termination of the Officer's employment shall not prevent the Company
from alleging cause for the termination.
98
(3) On termination of employment the Officer shall immediately
resign all offices held (including directorships) in the company and
save as provided in this Agreement and save as the Officer may be
entitled to by virtue of his shareholdings in the Company, the Officer
shall not be entitled to receive any severance payment or compensation
for loss of office or otherwise by reason of the resignation.
(4) Company Property: The Officer acknowledges that all items of
any and every nature or kind created or used by the Officer pursuant to
the Officer's employment under this Agreement, or furnished by the
Company to the Officer, and all equipment, authomobiles, credit cards,
books, records, reports, files, manuals, literature, Confidential
Information or other materials shall remain and be considered the
exclusive property or the Company at all times and shall be surrendered
to the Company, in good condition, promptly on the termination of the
Officer's employment irrespective of the time, manner or cause of the
termination.
14. Assignment of rights
The rights which accrue to the Company under this Agreement shall
pass to its successors or assign& The rights of the Officer under this
Agreement are not assignable or transferable in any manner.
15. Notices
(1) Any notice required or permitted to be given to the Officer
shall be sufficiently given if delivered to the Officer personally or
if mailed by registered mail to the Officer's address last known to the
Company.
(2) Any notice required or permitted to be given to the Company
shall be sufficiently given if mailed by registered mail to the
Company's Head Office at its address last known to the Officer.
16. Severability
In the event that any provision or part of this Agreement shall be
deemed void or invalid by a court of competent jurisdiction, the
remaining provisions or parts shall be and remain in full force and
effect.
17. Entire Agreement
The contract constitutes the entire Agreement between the parties
with respect to the employment and appointment of the Officer and no
representations, promises, agreements or understandings, written or
oral, express or implied, not contained in this Agreement, shall be
valid or binding unless it is in writing and signed by the party
intended to be bound. No waiver of any provision of this Agreement
shall be valid unless the same is in writing and signed by the party
against whom the waiver is sought to be enforced; moreover, no valid
waiver of any provision of this Agreement at any time shall be deemed
a waiver of any other provision of this Agreement at the time or shall
be deemed a valid waiver of the provision at any other time.
99
18. Modification of Agreement
Any modification to this Agreement must be in writing and signed
by the parties or it shall have no effect and shall be void.
19. Headings
The headings used in this Agreement are for convenience only and
are not to be construed in any way as additions to or limitations of
the covenants and agreements contained in it.
20. Governing law
This Agreement shall. be construed in accordance with the laws of
the State of Nevada.
IN WITNESS WHEREOF this Agreement has been executed by the parties
to it, the day, month and year first written above.
SIGNED, SEALED AND DELIVERED in the presence oft
COI SOLUTIONS, INC.
per: /s/ Xxxx X. Xxxxx
I have authority to bind the
company"
CR&J Management Inc.
Per: /s/ Xxxxxx X. Xxxxxx
I have authority to bind the
company"
WITNESS /s/ Xxxxxx X. Xxxxx
Schedule A
The Company agrees to retain the professional services of CR&J
Management Inc. and Xxxxxx Xxxxxx (collectively the "Officer"). The key
responsibilities of the Officer pursuant to this engagement shall be to
initiate, implement and manage certain strategic business relationships
of the Company including the following:
* Brokerage/Securities
* Media Relations
* Financial Institutions
* Legal and Compliance
* Corporate Direction in accordance with the plan approved by
the Board of Directors
* Industry relationships, negotiations and agreements
* Mergers and Acquisitions negotiations and agreements
