EMPLOYMENT AGREEMENT
Exhibit 10.13
THIS AGREEMENT made the 24th day of December, 2003.
BETWEEN:
BULLDOG, a body corporate with offices at 128 - 00000 Xxxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0
(the "Company)
AND:
XXXX XXXXXXXX, an individual currently residing at 0000 Xxxxxx Xxxxxxxx, Xxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Executive")
WHEREAS:
- On September 1, 2003, the Company engaged the Executive to serve in the role of Chief Executive Officer of the Company and as Chairman of the Company's Board of Directors;
- The Executive and the Company wish to formally record the terms and conditions upon which the Executive will be employed by the Company and that each of the Company and the Executive have agreed to the terms and conditions set forth in this Agreement, as evidenced by their execution hereof.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE 1
CONTRACT FOR SERVICES
1.1 Engagement of Executive. Subject to earlier termination of the Agreement as hereinafter provided, the Company hereby agrees to employ the Executive in accordance with the terms and provisions hereof.
1.2 Term. Unless terminated earlier in accordance with the provisions hereof, the term of employment under this Agreement shall commence as at September 1, 2003 and shall continue until September 1, 2006 (the "Term").
1.3 Exclusive Service. The Executive agrees to faithfully, honestly and diligently serve the Company and to devote the Executive's time, attention and best efforts to further the
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business and interests of the Company during the period of this Agreement to the exclusion of all other employment unless specifically authorized by the Company.
1.4 Duties. The Executive's services hereunder shall be provided on the basis of the following terms and conditions:
(a) reporting directly to the Board of Directors of the Company, the Executive shall serve the Company as the Chief Executive Officer or in such other capacity as may be assigned during the Term and as the Chairman of the Company's Board of Directors;
(b) the Executive shall be responsible for setting the overall corporate direction for the Company, including establishing and maintaining budgets for the Company and ensuring the Company has adequate capital for its production, marketing and general corporate activities;
(c) the Executive shall be responsible for preparing the agenda for all meetings of the Company's Board of Directors;
(d) the Executive shall faithfully, honestly and diligently serve the Company and cooperate with the Company and utilize maximum professional skill and care to ensure that all services rendered hereunder are to the satisfaction of the Company, acting reasonably, and the Executive shall provide any other services not specifically mentioned herein, but which by reason of the Executive's capability the Executive knows or ought to know to be necessary to ensure that the best interests of the Company are maintained;
(e) the Executive shall assume, obey, implement and execute such duties, directions, responsibilities, procedures, policies and lawful orders as may be determined or given from time to time by the Company; and
(f) the Company shall report the results of the Executive's duties hereunder as may from time to time.
ARTICLE 2
COMPENSATION
2.1 Salary. For services rendered by the Executive during the Term, the Executive shall be paid a salary, payable in equal monthly instalments at the end of the month or as otherwise agreed to by the Company, at an annual rate of US$6,000, together with any annual bonuses (payable in cash and/or common shares in the capital of the Company) as may be determined and awarded by the Company's Board of Directors. Such salary shall be reviewed every six (6) months and may be increased at the sole discretion of the Company's Board of Directors taking into account, among other things, individual performance and general business conditions.
2.2 Compensation Shares. As additional compensation for the services rendered by the Executive pursuant to this Agreement, the Company agrees to issue an aggregate of
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1,100,000 shares of the Company's common stock (the "Compensation Shares") as follows: 500,000 shares of the Company's common stock on October 2003 and 300,000 shares of the Company's common stock on each of October 1, 2004 and October 1, 2005 released quarterly. The Company agrees that it will, if permitted by applicable securities laws, issue the Compensation Shares in connection with the filing, with the Securities and Exchange Commission (the "SEC"), of a registration statement on Form S-8 or register the resale of the Compensation Shares, by filing with the SEC, a registration statement on Form S-8.
2.3 Commission. For sales of the Company's products generated by the Executive or generated from contacts introduced to the Company by the Executive, the Company will pay to the Executive a commission of three percent (3%) of the monies actually received by the Company from such sales. The Company will pay to the Executive the commission on a quarterly basis but only after the Company has received payment for such sales.
2.4 Benefits. The Executive shall be entitled to participate in all employee benefit plans offered by the Company to its employees, subject to the terms and conditions of such employee benefit plans. These benefit plans may be altered, amended, or discontinued by the Company from time to time. The policy documents of such benefit plans shall determine benefit entitlement.
2.5 Expenses. The Executive will be reimbursed by the Company for all reasonable business expenses incurred by the Executive in connection with his duties within previously approved budgets upon submission of a monthly statement of expenses.
2.6 Options. The Executive shall be entitled to participate in any of the Company's stock option plan on such terms as may be determined by the Company's Board of Directors in its sole discretion.
2.7 Vacation. The Executive shall be entitled to periods of vacation during the term of this Agreement upon terms and conditions as established by the Company and consistently applied for its other salaried executives.
2.8 Deductions. The Executive acknowledges that all payments by the Company in respect of the services provided by the Executive shall be net of all amounts which the Company as employer is required to deduct or withhold from salary or other payments to an executive in accordance with statutory requirements (including, without limitation, income tax, Canada Pension Plan, employee contributions and unemployment insurance contributions).
ARTICLE 3
CONFIDENTIALITY AND NON-COMPETITION
3.1 Maintenance of Confidential Information. The Executive acknowledges that in the course of employment hereunder the Executive will, either directly or indirectly, have access to and be entrusted with information (whether oral, written or by inspection) relating to the Company or its respective affiliates, associates or customers (the
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"Confidential Information"). For the purposes of this Agreement, "Confidential Information" includes, without limitation, any and all Developments (as defined herein), trade secrets, inventions, innovations, techniques, processes, formulas, drawings, designs, products, systems, creations, improvements, documentation, data, specifications, technical reports, customer lists, supplier lists, distributor lists, distribution channels and methods, retailer lists, reseller lists, employee information, financial information, sales or marketing plans, competitive analysis reports and any other thing or information whatsoever, whether copyrightable or uncopyrightable or patentable or unpatentable. The Executive acknowledges that the Confidential Information constitutes a proprietary right, which the Company is entitled to protect. Accordingly the Executive covenants and agrees that during the Term and thereafter until such time as all the Confidential Information becomes publicly known and made generally available through no action or inaction of the Executive, the Executive will keep in strict confidence the Confidential Information and shall not, without prior written consent of the Company in each instance, disclose, use or otherwise disseminate the Confidential Information, directly or indirectly, to any third party.
3.2 Exceptions. The general prohibition contained in Section 3.1 against the unauthorized disclosure, use or dissemination of the Confidential Information shall not apply in respect of any Confidential Information that:
(a) is available to the public generally in the form disclosed;
(b) becomes part of the public domain through no fault of the Executive;
(c) is already in the lawful possession of the Executive at the time of receipt of the Confidential Information; or
(d) is compelled by applicable law to be disclosed, provided that the Executive gives the Company prompt written notice of such requirement prior to such disclosure and provides assistance in obtaining an order protecting the Confidential Information from public disclosure.
3.3 Developments. Any information, technology, technical data or any other thing or documentation whatsoever which the Executive, either by himself or in conjunction with any third party, has conceived, made, developed, acquired or acquired knowledge of during the Executive's employment with the Company or which the Executive, either by himself or in conjunction with any third party, shall conceive, make, develop, acquire or acquire knowledge of (collectively the "Developments") during the Term or at any time thereafter during which the Executive is employed by the Company that is related to the business of designing and supplying security systems for the cargo transit industry shall automatically form part of the Confidential Information and shall become and remain the sole and exclusive property of the Company. Accordingly, the Executive does hereby irrevocably, exclusively and absolutely assign, transfer and convey to the Company in perpetuity all worldwide right, title and interest in and to any and all Developments and other rights of whatsoever nature and kind in or arising from or pertaining to all such Developments created or produced by the Executive during the course of performing this
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3.4 Protection of Developments. The Executive does hereby agree that, both before and after the termination of this Agreement, the Executive shall perform such further acts and execute and deliver such further instruments, writings, documents and assurances (including, without limitation, specific assignments and other documentation which may be required anywhere in the world to register evidence of ownership of the rights assigned pursuant hereto) as the Company shall reasonably require in order to give full effect to the true intent and purpose of the assignment made under Section 3.3 hereof. If the Company is for any reason unable, after reasonable effort, to secure execution by the Executive on documents needed to effect any registration or to apply for or prosecute any right or protection relating to the Developments, the Executive hereby designates and appoints the Company and its duly authorized officers and agents as the Executive's agent and attorney to act for and in the Executive's behalf and stead to execute and file any such document and do all other lawfully permitted acts necessary or advisable in the opinion of the Company to effect such registration or to apply for or prosecute such right or protection, with the same legal force and effect as if executed by the Executive.
3.6 Non-Solicitation. The Executive covenants and agrees with the Company that during the term hereof and for a period of twelve (12) months thereafter, the Executive will not:
(a) contact, for the purpose of soliciting any business that is competitive with that carried on by the Company, any person who is a customer or client of the Company; or
(b) initiate contact with any employee of the Company for the purpose of offering him or her employment with any person other than the Company.
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3.7 Fiduciary Obligation. The Executive declares that the Executive's relationship to the Company is that of fiduciary, and the Executive agrees to act towards the Company and otherwise behave as a fiduciary of the Company.
3.8 Remedies. The parties to this Agreement recognize that any violation or threatened violation by the Executive of any of the provisions contained in this Article 3 will result in immediate and irreparable damage to the Company and that the Company could not adequately be compensated for such damage by monetary award alone. Accordingly, the Executive agrees that in the event of any such violation or threatened violation, the Company shall, in addition to any other remedies available to the Company at law or in equity, be entitled as a matter of right to apply to such relief by way of restraining order, temporary or permanent injunction and to such other relief as any court of competent jurisdiction may deem just and proper.
3.9 Reasonable Restrictions. The Executive agrees that all restrictions in this Article 3 are reasonable and valid, and all defenses to the strict enforcement thereof by the Company are hereby waived by the Executive.
ARTICLE 4
TERMINATION
4.1 Termination For Cause. This Agreement may be terminated at any time by either party, without notice, for cause. In addition to any common law definition of "cause", "just cause" or other similar term, and in no way limiting such common law definition, for the purposes of this Agreement, "cause" also means that the Executive shall have:
(a) committed an intentional act of fraud, embezzlement or theft in connection with the Executive's duties or in the course of the Executive's employment with the Company;
(b) intentionally and wrongfully damaged property of the Company, or any of its respective affiliates, associates or customers;
(c) intentionally or wrongfully disclosed any of the Confidential Information;
(d) made material personal benefit at the expense of the Company without the prior written consent of the management of the Company;
(e) accepted shares or options or any other gifts or benefits from a vendor without the prior written consent of the management of the Company;
(f) fundamentally breached any of the Executive's material covenants contained in this Agreement; or
(g) willfully and persistently, without reasonable justification, failed or refused to follow the lawful and proper directives of the Company specifying in reasonable detail the alleged failure or refusal and after a reasonable opportunity for the Executive to cure the alleged failure or refusal.
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For the purposes of this Agreement, an act or omission on the part of the Executive shall not be deemed "intentional," if it was due to an error in judgment or negligence, but shall be deemed " intentional" if done by the Executive not in good faith and without reasonable belief that the act or omission was in the best interests of the Company, or its respective affiliates, associates or customers.
4.2 Severance for Termination With Cause. If the Company terminates the Executive's employment for cause, then the Company will not be obligated to pay the Executive any severance payments or provide any notice whatsoever to the Executive. The Company will not be required to issue any Compensation Shares after the date of the termination of the Executive's employment for cause.
4.3 Termination Without Cause. Either the Executive or the Company may terminate the Executive's employment without cause, upon the notice set out below:
(a) the Executive may resign upon giving to the Company one (1) month prior written notice, plus an additional two (2) weeks notice for each year of employment the Executive has completed with the Company. On receipt of this notice of resignation, the Company may elect to pay the Executive three (3) months base salary (plus two (2) weeks for each year of employment the Executive has completed with the Company) in respect of the notice period, in which case the resignation shall be effective immediately upon such payment being made, regardless of whether the resignation was for a date beyond one (1) month (plus two (2) weeks for each year of employment the Executive has completed with the Company) from the date the notice was received; and
(b) the Company may terminate the Executive's employment at any time without cause upon providing to the Executive three (3) months' notice, or payment of three (3) months base salary in lieu of notice, plus an additional three (3) months' notice or three (3) months base salary for each year of employment the Executive has completed with the Company.
4.4 Limitation of Damages. It is agreed that in the event of termination of employment, neither the Company, nor the Executive shall be entitled to any notice, or payment in excess of that specified in this Article 4.
4.5 Applicable Legislation. If the Employment Standards Act (British Columbia) or other applicable legislation should provide for a period of notice that is greater than that set out in this Article 4, the Company shall comply with that legislation and the Executive shall be entitled to receive the notice of termination as prescribed therein.
4.6 Return of Materials. Within three (3) days of any termination of employment hereunder, or upon any request by the Company at any time, the Executive will return or cause to be returned any and all Confidential Information and other assets of the Company (including all originals and copies thereof), which "assets" include, without limitation, hardware, software, keys, security cards and backup tapes that were provided to the Executive either for the purpose of performing the employment services hereunder or for any other reason.
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The Executive acknowledges that the Confidential Information and the assets are proprietary to the Company, and the Executive agrees to return them to the Company in the same condition as the Executive received such Confidential Information and assets.
4.7 Email Account. The Executive acknowledges and agrees that the email address and email account given by the Company is to be used for work related correspondence. The Executive further acknowledges and agrees that all information or messages that are created, sent, received or stored on the Company's email system, including any such information or messages created, sent, received or stored under the Executive's email account, are at all times the sole property of the Company. Upon any termination of the Executive's employment hereunder and at all times thereafter, the Company will not be obligated to forward any of the emails to the Executive.
5.1 As used in this Article 5, a "Change of Control" shall have occurred when:
(a) any person, corporation, company or other entity or combination of any such persons, corporations, companies or other entities acquires or becomes the beneficial owner of, directly or indirectly, whether through the acquisition of previously issued and outstanding voting securities or of voting securities which have not been previously issued, or any combination thereof or any other transaction having a similar effect, a sufficient number of securities of the Company to affect materially the control of the Company or 50% or more of the voting securities of the Company;
(b) any resolution is passed or any action or proceeding is taken with respect to the liquidation, dissolution or winding-up of the Company;
(c) 50% or more of the issued and outstanding voting securities of the Company become subject to a voting trust;
(d) the Company consolidates or merges with or into, amalgamates or enters into a statutory arrangement with any other corporation, company or other entity (other than a wholly-owned or majority controlled subsidiary of the Company);
(e) the Company sells, leases or otherwise disposes of property or assets aggregating more than 50% of the consolidated assets of the Company measured by book or fair market value, whether pursuant to one or more transactions;
(f) any person, corporation, company or other entity not part of existing management of the Company or any person, corporation, company or other entity not controlled by the Company or any affiliate of the Company, enters into any arrangement to provide all or substantially all the management services to the Company;
(g) there shall be a change in a majority of the board of directors of the Company
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whether as a result of a shareholders meeting or as a result of appointments made in filling vacancies caused by resignations of members of the board of directors; or
(h) the Company enters into any transaction or arrangement which would have the same or similar effect as the transactions referred to in Sections 5.1(b), 5.1(c), 5.1(d), 5.1(e), 5.1(f) or 5.1(g) above.
ARTICLE 6
NOTICES
6.1 Notices. All notices required or allowed to be given under this Agreement shall be made either personally by delivery to or by facsimile transmission to the address as hereinafter set forth or to such other address as may be designated from time to time by such party in writing:
(a) in the case of the Company, to:
Bulldog Technologies Inc.
000 - 00000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Attention: Xxxx Xxxxxxxx
Facsimile: 000-000-0000
(b) and in the case of the Executive, to the Executive's last residence address known to the Company.
6.2 Change of Address. Any party may, from time to time, change its address for service hereunder by written notice to the other party in the manner aforesaid.
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ARTICLE 7
GENERAL
7.1 Entire Agreement. As of from the date hereof, any and all previous agreements, written or oral between the parties hereto or on their behalf relating to the employment of the Executive by the Company are null and void. The parties hereto agree that they have expressed herein their entire understanding and agreement concerning the subject matter of this Agreement and it is expressly agreed that no implied covenant, condition, term or reservation or prior representation or warranty shall be read into this Agreement relating to or concerning the subject matter hereof or any matter or operation provided for herein.
7.2 Further Assurances. Each party hereto will promptly and duly execute and deliver to the other party such further documents and assurances and take such further action as such other party may from time to time reasonably request in order to more effectively carry out the intent and purpose of this Agreement and to establish and protect the rights and remedies created or intended to be created hereby.
7.3 Waiver. No provision hereof shall be deemed waived and no breach excused, unless such waiver or consent excusing the breach is made in writing and signed by the party to be charged with such waiver or consent. A waiver by a party of any provision of this Agreement shall not be construed as a waiver of a further breach of the same provision.
7.4 Amendments in Writing. No amendment, modification or rescission of this Agreement shall be effective unless set forth in writing and signed by the parties hereto.
7.6 Severability. In the event that any provision contained in this Agreement shall be declared invalid, illegal or unenforceable by a court or other lawful authority of competent jurisdiction, such provision shall be deemed not to affect or impair the validity or enforceability of any other provision of this Agreement, which shall continue to have full force and effect.
7.8 Headings. The headings in this Agreement are inserted for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
7.9 Number and Gender. Wherever the singular or masculine or neuter is used in this Agreement, the same shall be construed as meaning the plural or feminine or a body politic or corporate and vice versa where the context so requires.
7.10 Time. Time shall be of the essence of this Agreement.
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7.11 Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, and each of the parties hereto expressly attorns to the jurisdiction of the courts of the Province of British Columbia.
7.12 Enurement. This Agreement is intended to bind and enure to the benefit of the Company, its successors and assigns, and the Executive and the personal legal representatives of the Executive.
IN WITNESS WHEREOF the parties hereto have executed this Agreement effective as of the date and year first above written.
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BULLDOG |
XXXX XXXXXXXX |
|
/s/ Xxxx Xxxxxxxx |
/s/ Xxxx Xxxxxxxx |
|
Name: Xxxx Xxxxxxxx |
Name: Xxxx Xxxxxxxx |
|
Title: President & CEO |
Title: President and CEO |
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Date: December 24, 2003 |
Date: December 24, 2003 |
