EMPLOYMENT AGREEMENT
Exhibit
99.5
This
EMPLOYMENT AGREEMENT (the “Agreement”) is entered into as of this 12th day of
February, 2009, by and between Koan-It Corp., a company incorporated under the
laws of Canada (the “Company”) and
Xxxxxxxxx Xxxxxxx (“Executive”); subject
to the condition that this Agreement shall become effective only upon the
closing of the transactions contemplated by that certain Share Purchase
Agreement (the “Purchase Agreement”)
by and among Emtec Infrastructure Services Corporation, a Delaware corporation
(“Parent”),
7119747 Canada Inc. a company incorporated under the laws of Canada (“Buyer”), the Company
and the shareholders of the Company listed on the signature pages thereto, dated
as of the date hereof (the “Effective
Date”).
WITNESSETH
:
WHEREAS,
Executive is a valued employee of the Company;
WHEREAS,
the parties desire to enter into this Agreement pertaining to the employment of
Executive by the Company;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
below and intending to be legally bound, it is hereby covenanted and agreed by
Executive and the Company as follows:
1.
Agreement to Employ;
No Conflicts. Upon the terms and subject to the conditions of
this Agreement, the Company hereby agrees to continue to employ Executive, and
Executive hereby accepts continued employment with the
Company. Executive represents that (a) Executive is entering into
this Agreement voluntarily and that Executive’s employment hereunder and
compliance with the terms and conditions hereof will not conflict with or result
in the breach by Executive of any agreement to which Executive is a party or by
which Executive may be bound, (b) in connection with Executive’s employment with
the Company, Executive has and will not violate any non-competition,
nonsolicitation or other similar covenants or agreements by which Executive is
or may be bound, and (c) in connection with Executive’s employment with the
Company, Executive has and will not use any confidential or proprietary
information Executive may have obtained in connection with Executive’s
employment with any prior employer.
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2.
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Term; Position and
Responsibilities.
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(a) Term of
Employment. Unless Executive’s employment shall terminate
earlier pursuant to Section 4, the term of employment under this Agreement shall
commence on the Effective Date and shall end on the third anniversary of the
Effective Date (the “Term”). The
Company may, in its sole discretion, extend the Term for an additional one-year
period by providing Executive with written notice of its election to extend the
Term at least 30 days prior to the expiration of the
Term. Notwithstanding anything contained in this Agreement to the
contrary, in the event that Executive’s employment is terminated upon the
expiration of the Term, Executive shall be entitled to receive only those
payments and benefits set forth in Sections 5(a) and 5(b)(ii)
below.
(b) Position and
Responsibilities. During the Term, Executive agrees to serve
as the Vice President – Sales of the Company and in such other positions with
the Company or its affiliates as shall from time to time be determined by the
Chief Executive Officer of Buyer or the Buyer’s Board of Directors (the “Board”), and shall
have such duties and responsibilities as are customarily assigned to individuals
serving in such positions. During the Term, Executive shall report to
the Chief Executive Officer of Buyer or his designee. Executive shall
devote all of his skill, knowledge and working time to the conscientious
performance of the duties and responsibilities of such positions.
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3.
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Compensation.
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(a) Base
Salary. As compensation for the services to be performed by
Executive during the Term, Executive shall be entitled to receive a base salary
at an annualized rate of $170,000 (less applicable statutory deductions),
payable in installments on the Company’s regular payroll dates, but no less
frequently than monthly (the “Base
Salary”). The Base Salary shall be reviewed annually by the
Chief Executive Officer of Buyer and may be increased in the sole discretion of
the Chief Executive Officer of Buyer.
(b) Bonus. During
the Term, Executive shall be eligible to earn a discretionary performance-based
bonus (the “Bonus”). Whether
a Bonus is awarded with respect to any fiscal year, and the amount of any such
Bonus, shall each be determined by the Chief Executive Officer of
Buyer.
(c) Employee
Benefits. During the Term, Executive shall be entitled to
participate in such pension, retirement, savings, medical, disability and other
welfare benefit plans as are generally made available by the Company for its
employees in accordance with the terms thereof, as the same may be amended and
in effect from time to time.
(d) Expenses. During
the Term, the Company shall reimburse Executive for reasonable travel, lodging,
meal and other reasonable expenses incurred by Executive in connection with
Executive’s performance of services hereunder, upon submission of evidence,
satisfactory to the Company, of the incurrence and purpose of each such expense
and otherwise in accordance with the Company’s business travel and expense
reimbursement policy applicable to its employees as in effect from time to
time.
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(e) Paid Time
Off. During the Term, Executive shall be entitled to receive
20 days of paid time off per fiscal year (pro-rated for any partial fiscal year
worked) in accordance with Company policy, which is inclusive of any statutory
vacation time off and vacation pay that Executive is entitled to receive (but
exclusive of any other statutory time off). With respect to any
fiscal year, Executive shall be entitled to carry over up to 5 unused days of
paid time off (which is inclusive of statutory vacation time off) to the
immediately following fiscal year, and all other unused days of paid time off
shall be forfeited at the close of the fiscal year to which they
relate. For purposes of determining the paid time off taken by
Executive with respect to any fiscal year, Executive shall be deemed to first
use any statutory vacation days with respect to such fiscal year (including any
statutory vacation days that carried over) until none remain, and then shall be
deemed to use non-statutory vacation days.
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4.
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Termination of
Employment.
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(a) Termination Due to Death or
Disability. Executive’s employment hereunder may be terminated
by the Company in the event of Executive’s Disability (as defined below) by
written Notice of Termination (as defined below) to Executive, and shall
terminate upon Executive’s death. For purposes of this Agreement,
“Disability”
shall mean that Executive is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
that can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, or Executive is, by reason of any
medically determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period of not less
than 12 months, receiving income replacement benefits for a period of not less
than three months under an accident and health plan covering employees of the
Company. The determination of Executive’s Disability shall (i) be made by an
independent physician selected by the Company and reasonably acceptable to
Executive (or his representative), (ii) be final and binding on the parties
hereto and (iii) be made taking into account such competent medical evidence as
shall be presented to such independent physician by Executive and/or the Company
or by any physician or group of physicians or other competent medical experts
employed by Executive and/or the Company to advise such independent
physician.
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(b) Termination by the Company
for Cause. The Company may terminate Executive’s employment
hereunder for Cause (as defined below) at any time by written Notice of
Termination to Executive. For purposes of this Agreement, “Cause” shall mean (i)
the failure of Executive to perform his duties hereunder or his negligent
performance of such duties (other than any such failure due to Executive’s
physical or mental illness), (ii) Executive having engaged in misconduct that
has caused or is reasonably expected to result in injury to the Company or any
of its affiliates, (iii) a material violation by Executive of a Company policy,
(iv) the breach by Executive of any of his obligations hereunder or under any
other written agreement or covenant with the Company or any of its affiliates,
(v) failure by Executive to timely comply with a lawful direction or instruction
given to him by the Chief Executive Officer of Buyer or the Board and (vi)
Executive having been convicted of, or entering a plea of guilty or no contest
to, a crime that constitutes an indictable offense involving moral turpitude (or
comparable crime in any jurisdiction that uses a different nomenclature),
including any offense involving dishonesty as such dishonesty relates to the
assets or business of the Company or any of its affiliates, or theft of the
property of the Company or any of its affiliates. In the event that
the Company proposes to terminate Executive’s employment hereunder for any of
the reasons set forth in clauses (i), (iii) or (iv) above, Executive shall have
a period of ten (10) days following the date on which Executive receives a
Notice of Termination from the Company to cure such actions or inactions (if
capable of cure) giving rise to such Notice of Termination to the satisfaction
of Buyer’s Chief Executive Officer. If Executive fails to cure such actions or
inactions during such ten (10) day period, the Company may immediately terminate
Executive’s employment for Cause.
(c) Termination by Company
Without Cause. The Company may terminate Executive’s
employment hereunder Without Cause (as defined below) at any time by written
Notice of Termination to Executive, which notice shall be effective immediately,
or at such later time as specified in such notice. For purposes of
this Agreement, a termination “Without Cause” shall
mean a termination of Executive’s employment by the Company other than as a
result of his Disability or for Cause. Notwithstanding the foregoing
provisions of this Section 4(c), if Executive’s employment is terminated by the
Company in accordance with this Section 4(c) and, within a reasonable time
period thereafter, it is determined by the Board that circumstances existed
which would have constituted a basis for the termination of Executive’s
employment for Cause in accordance with Section 4(b), Executive’s employment
will be deemed to have been terminated for Cause in accordance with Section
4(b).
(d) Termination by Executive For
Good Reason. Executive may terminate his employment hereunder upon the
occurrence of a Good Reason Event (as defined below) by providing a written
Notice of Termination to the Company within 15 days after the occurrence of such
Good Reason Event; provided, however, that before Executive may terminate his
employment due to a Good Reason Event, the Company shall be given a period of 30
days following the date on which such Notice of Termination is received by the
Company to cure the circumstances giving rise to such Good Reason Event. For
purposes of this Agreement, a “Good Reason Event” shall mean any of the
following events without the consent of Executive: (i) a material diminution of
Executive’s position or responsibilities as set forth in this Agreement; (ii) a
material decrease in Executive’s Base Salary in effect immediately prior to such
decrease or in other material employee benefits set forth in this Agreement,
other than, in either such case, in connection with a reduction occasioned by
the Company’s business conditions or prospects and proportionately applicable to
all similarly situated Company employees; or (iii) the relocation of Executive's
principal place of employment with the Company to a location in excess of 50
miles from the principal place of Executive's employment with the Company as of
the Effective Date.
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(e) Voluntary
Termination. Executive may terminate his employment hereunder
at any time by giving the Company a written Notice of Termination at least 60
days prior to such termination; provided that the Board may, in its sole
discretion, terminate Executive’s employment hereunder prior to the expiration
of the 60-day notice period. In such event and upon the expiration of
such 60-day period (or such shorter time as the Board in its sole discretion may
determine), Executive’s employment hereunder shall immediately and automatically
terminate.
(f)
Notice of
Termination. Any termination of Executive’s employment
hereunder shall be communicated by a written Notice of Termination addressed to
the appropriate party. A “Notice of
Termination” shall mean a notice that indicates the Date of Termination
(as defined below), which shall not be earlier than the date on which the notice
is provided, which indicates the specific termination provision in this
Agreement relied upon for such termination.
(g) Date of
Termination. For purposes of this Agreement, the “Date of Termination”
is the last day that Executive is employed by the Company.
(h) Resignation upon
Termination. As of the Date of Termination, Executive shall be
deemed to have resigned from all positions then held by him with the Company and
its affiliates.
(i)
Duties on
Termination. Subject to the terms and conditions of this
Agreement, to the extent that there is a period of time elapsing between the
date of delivery of a Notice of Termination and the Date of Termination,
Executive shall continue to perform his duties as set forth in this Agreement
during such period, and shall also perform such services for the Company as are
necessary and appropriate for a smooth transition to Executive’s successor, if
any. Notwithstanding the foregoing provisions of this Section 4, the
Company may suspend Executive from performing his duties under this Agreement
following the delivery of a Notice of Termination by either party hereto; provided, however, that during
the period of suspension (which shall end on the Date of Termination), Executive
shall continue to be treated as employed by the Company for other purposes, and
his rights to compensation or benefits shall not be reduced by reason of the
suspension.
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5.
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Entitlements Upon
Termination.
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(a) General. If,
during the Term, Executive’s employment terminates for any reason, Executive (or
his estate, beneficiary or legal representative, as applicable) shall be
entitled to receive the following:
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(i) any
earned or accrued but unpaid Base Salary through the Date of Termination
(including paid time off that is accrued and unused with respect to the fiscal
year in which such termination occurs); and
(ii) all
amounts payable and vested benefits accrued under any otherwise applicable plan,
policy, program or practice of the Company (other than relating to severance) in
which Executive was a participant during his employment with the Company in
accordance with the terms thereof; provided, that, the foregoing shall not be
construed as requiring Executive to be treated as employed by the Company for
purposes of any employee benefit plan or arrangement following the date of
Executive’s Date of Termination except as otherwise expressly provided in this
Agreement or required by law.
(b) Qualifying
Termination. In the event of a termination of Executive’s employment by
the Company Without Cause or by Executive for a Good Reason Event, in either
case, during the Term (such termination, a “Qualifying
Termination”), Executive (or his estate, beneficiary or legal
representative, as applicable) shall be entitled to receive, in addition to the
payments and benefits set forth in Section 5(a) above, and contingent on
Executive’s execution and non-revocation of a general release of all claims in
form and substance satisfactory to the Chief Executive Officer of Buyer, the
greater of:
(i) his
Base Salary, at the rate in effect hereunder immediately prior to the Date of
Termination, which shall be payable in installments on the Company’s regular
payroll dates, for a twelve (12) month period after the Date of Termination;
and
(ii) the
notice of termination, or pay in lieu thereof, and severance pay if applicable,
all in accordance with the Employment Standards Act, 2000.
(c) Termination due to
Disability. In the event of a termination of Executive’s
employment by the Company during the Term due to Executive’s Disability,
Executive (or his estate, beneficiary or legal representative, as applicable)
shall be entitled to receive, in addition to the payments and benefits set forth
in Section 5(a) above, the notice of termination, or pay in lieu thereof, and
severance pay if applicable, all in accordance with the Employment Standards
Act, 2000.
(d) No Duplication of
Benefits. In the event of Executive’s termination of
employment during the Term for any reason, the sole payments or obligations of
the Company and its affiliates are provided for in this Section 5. In
the event that Executive is entitled to payment under any plan, policy, program
or practice of the Company relating to severance, any such payment shall reduce
the amounts otherwise payable hereunder.
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6.
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Restrictive
Covenants.
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(a) Non-Competition.
(i)
During the period commencing on the Effective Date and ending on the second
anniversary of Executive’s termination of employment with the Company (the
“Restrictive
Period”), Executive shall not, directly or indirectly through his
affiliates, engage, directly or indirectly, in any “Competitive
Activities.” For purposes of this Agreement, “Competitive
Activities” shall mean any business within any state of the United States
or any province in Canada that directly or indirectly competes with the
“Business.” For purposes of this Agreement, the “Business” means the
delivery of information technology management consulting services through an
information technology transformation or performance management method or
framework; provided, however, the
provision of any technical delivery role shall not be considered as a
Competitive Activity. Executive and the Company agree that the
foregoing covenant is intended to prohibit Executive from engaging in the
Competitive Activities, as principal, manager, agent, consultant, officer,
stockholder, partner, investor, lender or employee or in any other capacity
(except as a holder of equity or debt securities of a corporation which has a
class of securities that are publicly traded on a stock exchange or the
recognized over-the-counter market, and then only to the extent of owning not
more than one percent (1%) of the issued and outstanding debt or equity
securities of such corporation) for any person, firm or
corporation.
(b) Non-solicitation.
(i)
During the Restrictive Period, Executive shall not, directly or indirectly
through his affiliates, (A) solicit, employ, retain as a consultant, interfere
with or attempt to entice away from Buyer, the Company, any of their respective
affiliates or any successor to any of the foregoing, any individual who is, has
agreed to be or within one year of such solicitation, employment, retention,
interference or enticement has been, employed or retained by Buyer, the Company,
any of their respective affiliates, or any successor to any of the foregoing, or
(B) engage or participate in any effort or act to induce any customers,
suppliers, associates, or independent contractors of Buyer, the Company, any of
their respective affiliates or any successor to any of the foregoing to cease
doing business or to terminate their association or employment, with Buyer, the
Company, any of their respective affiliates or any successor to any of the
foregoing.
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(c) Non-Disparagement. During
the Term and at all times thereafter Executive agrees that Executive will not
make any false, defamatory or disparaging statements about the Company or any of
its affiliates, their respective businesses, activities, operations, affairs,
reputations or prospects or any of their respective, officers, employees,
directors, partners, agents, members or shareholders that are reasonably likely
to cause damage to any such entity or individual. During the Term and
at all times thereafter, the Company agrees that it will not, directly or
indirectly through its affiliates, make any false, defamatory or disparaging
statements about Executive that are reasonably likely to cause damage to
Executive.
(d) Confidential
Information. Executive agrees that, during the Term, and at
all times thereafter:
(i)
Executive will keep secret all Confidential Information (as defined below) and
Intellectual Property (as defined below) which may be obtained during the period
of employment by the Company and that Executive shall not reveal or disclose it,
directly or indirectly, except with the Company’s prior written
consent. Executive shall not make use of the Confidential Information
or Intellectual Property for Executive’s own purposes or for the benefit of
anyone other than the Company and shall protect it against disclosure, misuse,
espionage, loss and theft.
(ii)
Executive acknowledges and agrees that all Intellectual Property is and shall be
owned by the Company. Executive hereby assigns, and shall assign, to
the Company all ownership rights possessed in any Intellectual Property
contributed, conceived or made by Executive (whether alone or jointly with
others) while employed by the Company, whether or not during work
hours. Executive shall promptly and fully disclose to the Company in
writing all such Intellectual Property after such contribution, conception or
other development. Executive agrees to fully cooperate with the
Company, at the Company’s expense, in securing, enforcing and otherwise
protecting throughout the world the Company’s interests in such Intellectual
Property, including, without limitation, by signing all documents requested by
the Company.
(iii)
Immediately following his termination of employment, Executive agrees to
promptly deliver to the Company all memoranda, notes, manuals, lab notebooks,
computer diskettes, passwords, encryption keys, electronic mail and other
written or electronic records (and all copies thereof) constituting or relating
to Confidential Information or Intellectual Property that Executive may then
possess or have control over. Executive shall provide written
certification that all such materials have been returned.
(iv) For
purposes of this Agreement, the following terms shall be defined as set forth
below:
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(A) “Confidential
Information” shall mean all information, in any form or medium, that
relates to the business, suppliers and prospective suppliers, existing and
potential creditors and financial backers, marketing, costs, prices, products,
processes, services, methods, computer programs and systems, personnel,
customers, research or development of the Company and all other information
related to the Company which is not readily available to the
public. Confidential Information shall include any of the foregoing
information that is created or developed by Executive during his employment with
the Company.
(B) “Intellectual
Property” shall mean, with respect to the following which are created or
existing during the period of Executive’s employment by the Company, any: (1)
idea, know-how, invention, discovery, design, development, software, device,
technique, method or process (whether or not patentable or reduced to practice
or including Confidential Information) and related patents and patent
applications and reissues, re-examinations, renewals, continuations-in-part,
continuations, and divisions thereof; (2) copyrightable and mask work (whether
or not including Confidential Information) and related registrations and
applications for registration; (3) trademarks, trade secrets and other
proprietary rights; and (4) improvements, updates and modifications of the
foregoing made from time to time. Intellectual Property shall include
any of the foregoing that is created or developed by Executive during his
employment with the Company.
(e) Duty of Loyalty to
Company. Nothing in this Section 6 shall be construed as
limiting Executive’s duty of loyalty to the Company, or any other duty otherwise
owed to the Company, while Executive is employed by the Company.
(f) Injunctive
Relief. Executive acknowledges and agrees that the covenants,
obligations and agreements of Executive contained in this Section 6 relate to
special, unique and extraordinary matters and that a violation of any of the
terms of such covenants, obligations or agreements will cause the Company
irreparable injury for which adequate remedies are not available at
law. Therefore, Executive agrees that the Company shall be entitled
to an injunction, restraining order or such other equitable relief (without the
requirement to post bond unless required by applicable law) as a court of
competent jurisdiction may deem necessary or appropriate to restrain Executive
from committing any violation of such covenants, obligations or
agreements. These injunctive remedies are cumulative and in addition
to any other rights and remedies the Company may have. The Company
shall be entitled to collect from Executive any costs of obtaining injunctive
relief, including, without limitation, attorneys’ fees.
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(g) Certain
Acknowledgements. Executive acknowledges and agrees that
Executive will have a prominent role in the management of the business and the
development of the goodwill of the Company and will establish and develop
relations and contacts with the principal customers, suppliers, clients and
service providers of the Company in Canada, the United States of America and the
rest of the world, all of which constitute valuable goodwill of, and could be
used by Executive to compete unfairly against, the Company and that (i) in the
course of his employment with the Company, Executive will obtain confidential
and proprietary information and trade secrets concerning the business and
operations of the Company in Canada, the United States of America and the rest
of the world that could be used to compete unfairly with the Company; (ii) the
covenants and restrictions contained in this Section 6 are intended to protect
the legitimate interests of the Company in its respective goodwill, trade
secrets and other confidential and proprietary information; (iii) Executive
desires and agrees to be bound by such covenants and restrictions; and (iv) the
compensation to be provided to Executive is adequate consideration for the
restrictive covenants provided in this Section 6. Executive further
acknowledges that the restrictive covenants contained in this Section 6 are
covenants independent of any other provision of this Agreement or any other
agreement between the parties hereunder (including the Purchase Agreement) and
the existence of any claim which Executive may allege against the Company under
any other provision of the Agreement or any other agreement will not prevent the
enforcement of these covenants.
7.
Assistance with
Claims. Executive agrees that, during the Term, and continuing
for a reasonable period after Executive’s Date of Termination, Executive will
assist the Company or its affiliates (collectively, for purposes of this Section
7, the “Company”) in defense of any claims that may be made against the Company,
and will assist the Company in the prosecution of any claims that may be made by
the Company, to the extent that such claims may relate to services performed by
Executive for the Company. Executive agrees to promptly inform the
Company upon becoming aware of any lawsuits involving such claims that may be
filed against the Company. For periods after Executive’s employment
with the Company terminates, the Company agrees to provide reasonable
compensation to Executive for such assistance. Executive also agrees
to promptly inform the Company upon being asked to assist in any investigation
of the Company (or its actions) that may relate to services performed by
Executive for the Company, regardless of whether a lawsuit has then been filed
against the Company with respect to such investigation.
8.
Disclosure of
Agreement. Executive shall provide each of his subsequent
employers during the two-year period following the Date of Termination with a
copy of the restrictive covenants set forth in Section 6 of this Agreement in
order to allow such subsequent employers to avoid inadvertently causing the
violation of such covenants. Executive shall advise the Company of
the identity of each of his subsequent employers during the two-year period
following the Date of Termination.
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9.
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Miscellaneous.
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(a) Binding Effect;
Assignment. This Agreement shall be binding on and inure to
the benefit of the Company, and its respective successors and permitted
assigns. This Agreement shall also be binding on and inure to the
benefit of Executive and his heirs, executors, administrators and legal
representatives. This Agreement shall not be assignable by any party
hereto without the prior written consent of the other parties hereto, except as
provided pursuant to this Section 9(a). The Company may effect such
an assignment without prior written approval of Executive (i) to any subsidiary
of the Company and (ii) upon the transfer of all or substantially all of its
business and/or assets (by whatever means); provided that, in the case of clause
(ii), the successor to the Company shall expressly assume and agree to perform
this Agreement.
(b) Entire
Agreement. This Agreement constitutes the entire agreement
among the parties hereto concerning the subject matter hereof and supersedes all
prior and contemporaneous correspondences and proposals (including but not
limited to summaries of proposed terms) and all prior and contemporaneous
promises, representations, understandings, arrangements and agreements, if any,
concerning such subject matter (including but not limited to those made to or
with Executive by any other person); provided, however, that nothing
in this Agreement shall be construed to limit any policy or agreement that is
otherwise applicable relating to confidentiality, rights to inventions,
copyrightable material, business and/or technical information, trade secrets,
solicitation of employees, interference with relationships with other
businesses, competition, and other similar policies, restrictive covenants or
agreements for the protection of the business and operations of the Company and
its affiliates.
(c) Applicable
Law. This Agreement shall be deemed a contract under, and
shall be governed by, construed, interpreted and enforced in accordance with the
laws of the Province of Ontario and the federal laws of Canada applicable
therein (excluding any conflict of law rule or principle of such laws that might
refer such interpretation or enforcement to the laws of another jurisdiction)
and each party irrevocably submits to the non-exclusive jurisdiction of the
courts of Ontario with respect to any matter arising hereunder or relating
hereto.
(d) Taxes. The
Company may withhold from any payments made under this Agreement all applicable
taxes.
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(e) Waiver of
Jury Trial. Each party
acknowledges and agrees that any controversy which may arise under this
agreement is likely to involve complicated and difficult issues, and therefore
each party hereby irrevocably and unconditionally waives any right such party
may have to a trial by jury in respect of, or any litigation directly or
indirectly arising out of or relating to, this agreement, or the breach,
termination or validity of this agreement, or the transactions contemplated by
this agreement. Each party certifies and
acknowledges that (A) no representative, agent or attorney of any other party
has represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver, (B) each such party
understands and has considered the implications of this waiver, (C) each such
party makes this waiver voluntarily, and (D) each such party has been induced to
enter into this Agreement by, among other things, the mutual waivers and
certifications in this Section 9(e).
(f)
Key Man
Insurance. Executive acknowledges that the Company may
purchase “key man” insurance on his life and hereby agrees to cooperate with the
Company in obtaining such insurance, including without limitation, submitting to
such medical examinations as may be required promptly upon request by the
Company.
(g) Amendments. This
Agreement may be amended only by mutual agreement of the parties in
writing. So long as Executive lives, no person, other than the
parties hereto, shall have any rights under or interest in this Agreement or the
subject matter hereof.
(h) Severability. The
invalidity or unenforceability of any provision of this Agreement will not
affect the validity or enforceability of any other provision of this Agreement,
and this Agreement will be construed as if such invalid or unenforceable
provision were omitted (but only to the extent that such provision cannot be
appropriately reformed or modified).
(i)
Waiver of
Breach. The waiver of any provision of this Agreement shall be
set forth in a writing specifically referring to the provision being waived and
signed by the waiving party. No waiver by any party hereto of a
breach of any provision of this Agreement by any other party, or of compliance
with any condition or provision of this Agreement to be performed by such other
party, will operate or be construed as a waiver of any subsequent breach by such
other party of any similar or dissimilar provisions and conditions at the same
or any prior or subsequent time. The failure of any party hereto to
take any action by reason of such breach will not deprive such party of the
right to take action at any time while such breach continues.
(j)
Survival of
Agreement. Except as otherwise expressly provided in this
Agreement, the rights and obligations of the parties to this Agreement shall not
survive the termination of Executive’s employment with the Company.
(k) Notices. Notices
and all other communications provided for in this Agreement shall be in writing
and shall be delivered personally or sent by registered or certified mail,
return receipt requested, postage prepaid, or sent by facsimile or prepaid
overnight courier to the parties at the addresses set forth below (or such other
addresses as shall be specified by the parties by like notice). Such
notices, demands, claims and other communications shall be deemed
given:
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(i)
in the case of delivery by overnight service with guaranteed next day delivery,
the next day or the day designated for delivery;
(ii) in
the case of certified or registered mail, five days after deposit in the mail;
or
(iii) in
the case of facsimile, the date upon which the transmitting party received
confirmation of receipt by facsimile, telephone or otherwise;
provided, however, that in no
event shall any such communications be deemed to be given later than the date
they are actually received. Communications that are to be delivered
by mail or by overnight service or two-day delivery service are to be delivered
to the addresses set forth below:
to the
Company:
Koan-It Corp.
c/o Emtec
Inc.
00
Xxxxxxx Xxxx
Xxxxxxxxxxx,
Xxx Xxxxxx 00000
Fax: 000-000-0000
Attention: Xxxxxxx
X. Xxxxxxxx
or to
Executive:
at
Executive’s address in the Company’s records.
All
notices to the Company shall be directed to the attention of the Chief Financial
Officer of the Company, with a copy to the Board. Each party, by
written notice furnished to the other party, may modify the applicable delivery
address, except that notice of change of address shall be effective only upon
receipt.
(l)
Headings. The
section and other headings contained in this Agreement are for the convenience
of the parties only and are not intended to be a part hereof or to affect the
meaning or interpretation hereof.
(m) Construction. Words
used herein, regardless of the number and gender specifically used, shall be
deemed and construed to include any other number, singular or plural, and any
other gender, masculine, feminine or neuter, as the context indicates is
appropriate.
13
(n) Currency. Unless
otherwise specified in this Agreement, all dollar amounts in this Agreement,
including the symbol “$,” refer to Canadian currency.
(o) Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same
instrument.
[signature
page follows]
14
IN
WITNESS WHEREOF, the Company has duly executed this Agreement by its authorized
representative, and Executive has hereunto set his hand, in each case effective
as of the date first above written.
|
KOAN-IT
CORP.
|
|
| By: |
/s/ Xxxxxxx X. Xxxxxxxx
|
|
Name: Xxxxxxx
X. Xxxxxxxx
|
|
|
Title:
Treasurer
|
|
|
XXXXXXXXX
XXXXXXX
|
|
|
/s/ Xxxxxxxxx
Xxxxxxx
|
|
15
