EMPLOYMENT AGREEMENT
THIS AGREEMENT made and effective this 1st day of August, 1998.
B E T W E E N:
VOICE MOBILITY INC., ("VMI"),
Incorporated pursuant to the laws of British Columbia,
(herein called the "Corporation")
OF THE FIRST PART
and
XXXXXXX XXXXXXXX, of the City of Vancouver in the Province of British Columbia,
(herein called the "the Executive")
OF THE SECOND PART
WHEREAS the Corporation desires to employ the Executive and to enter into
this agreement (the "Employment Agreement") embodying the terms of such
employment;
AND WHEREAS the Executive has accepted such employment on the basis of the
terms and conditions set forth herein;
IN CONSIDERATION of the recitals and mutual covenants contained herein and
for other good and valuable consideration, the parties agree as follows:
1. EMPLOYMENT
The Corporation hereby employs the Executive and the Executive hereby
accepts employment with the Corporation for the term of this Employment
Agreement set forth in Section 2 below, in a position and with the duties,
responsibilities and authority as the Corporation may, from time to time, assign
to him, including, without limitation, those duties, responsibilities and
authority more particularly set forth in Section 3 below, and upon all other
terms and conditions set forth in this Employment Agreement.
2. TERM
The term (the "term") of the Executive's employment shall commence on
August 01, 1998 and shall continue until August 01, 2001, subject to those
provisions of this Employment Agreement providing for earlier termination of the
Executive's employment in certain circumstances. Thereafter, the term may be
extended for additional one year periods from and after August 01, 2001 upon the
agreement of the Executive and the Board of Directors of the Corporation,
subject always to the provisions of paragraph 9 hereof.
3. POSITION, RESPONSIBILITY
It is intended that the Executive shall serve as the Vice President of
Business Development for the corporation.
Throughout the term of this Employment Agreement, the Executive shall
devote his full business time and undivided attention during normal business
hours to the business and affairs of the Corporation, except for vacations and
except for illness or incapacity. Subject to Section 10, and subject to the
approval of the Board of Directors of the Corporation, which will not be
unreasonably withheld, nothing in this Employment Agreement shall preclude the
Executive from devoting reasonable periods required for serving, as appropriate,
on the Boards of Directors of other corporations, from engaging in charitable
and public service activities, and from managing his personal investments,
provided such activities do not materially interfere with the performance of his
duties and responsibilities under this Employment Agreement and do not
constitute a conflict of interest with respect to his employment herein.
4. REMUNERATION: CASH AND STOCK OPTIONS.
(a) Cash - For services rendered by the Executive during the term of this
Agreement, the Executive shall be entitled to receive annual
remuneration in cash in the amount of $60,000 payable semi-monthly.
(b) Stock Options - The Executive shall also be eligible to receive Stock
Options for a total of 100,000 Common Shares in the capital stock of
Acrex Ventures Inc. The granting of these options is expressly subject
to completion of a purchase of all the outstanding stock of the
Corporation by Acrex Ventures Inc. as well as all terms and conditions
(including price) as may be imposed by lawful regulatory authority and
otherwise as may be set by the Board of Directors of Acrex Ventures
Inc; provided however, that unless otherwise determined by lawful
regulatory authority, the granting of such options together with the
vesting thereof, shall occur immediately upon the approval of such
lawful regulatory authority and provided further that in the event the
Executive voluntarily terminates his position of employment with the
Corporation, dies, or is disabled within the meaning of subparagraph
9(b) , or is terminated for cause pursuant to subparagraph 9(c)
hereof, all options which have not yet vested and all right thereto
shall be forfeited by the Executive, effective the date of notice of
such termination.
(c) Renumeration Reviews- The Executive will have compensation reviews
every January 01. This compensation review will result in an immediate
increase of no less than 15% of base pay at that time. The review can
occur before or after that date but the compensation must be effective
that date.
5. PERQUISITES AND BUSINESS EXPENSES
The Executive will be reimbursed for all reasonable expenses incurred by
him in connection with the conduct of the Corporation's business upon
presentation of sufficient evidence of such expenditures and provided the same
are authorized expenditures pursuant to policies adopted by the Board of
Directors of the Corporation from time to time.
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6. BENEFIT PROGRAMS
The Executive will be entitled to participate in all Executive benefit
programs of of the Corporation from time to time in effect under the terms and
conditions of such programs, including, but not limited to, pension and other
retirement plans, group life insurance, hospitalization and surgical and major
medical coverages, dental insurance, sick leave, including salary continuation
arrangements, vacations and holidays, long-term disability, and such other
fringe benefits as are or may be available from time to time to other executives
of the Corporation.
7. VACATION
The Executive shall be entitled to all usual public holidays and, in
addition, such paid vacation time as he is entitled to from time to time under
the Employment Standards Act of British Columbia. Such vacation time shall be
utilized by the Executive at such time or times as do not materially interfere
with the ongoing conduct of the Corporation's business and operations.
8. TERMINATION OF EMPLOYMENT
For the full length of this agreement the Executive cannot be terminated by
the company without cause.
(a) Death - In the event of the death of the Executive during the term of
this Employment Agreement, the Executive's salary will be paid to the
Executive's designated beneficiary, and in the absence of such
designation, to the estate or other legal representatives of the
Executive, through the end of the month in which death occurs. Rights
and benefits of the Executive under the Executive benefit plans and
programs of the Corporation, including life insurance, will be
determined in accordance with the terms and conditions of such plans
and programs.
(b) Disability - The Executive's employment shall terminate automatically
upon written notice from the Corporation in the event of the
Executive's absence or inability to render the services required
hereunder due to disability, illness, incapacity or otherwise for an
aggregate of one hundred and eighty days during any 12 month period
during the term. In the event of any such absence or inability, the
Executive shall be entitled to receive the compensation provided for
herein for such period, and thereafter the Executive shall be entitled
to receive compensation in accordance with the Corporation's long-term
disability plan, if any, together with such compensation, if any, as
may be determined by the Board of Directors of the Corporation.
(c) Termination by the Corporation for Cause - In the event of a
termination for cause, there will be no continued salary payments by
the Corporation to the Executive and any rights and benefits of the
Executive under the Executive benefit plans and programs of the
Corporation will be determined in accordance with the terms of such
plans and programs. For the purposes of this Sub-Section and of the
Executive's employment with the Corporation, "cause" shall mean that:
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i) The Executive has committed a felony or indictable offence or has
improperly enriched himself at the expense of the Corporation or
has committed an act evidencing dishonesty or moral turpitude,
including without limitation an act of theft;
ii) The Executive, in carrying out his duties hereunder, (A) has been
wilfully or grossly negligent, or (B) has committed wilful and
gross misconduct or, (C) has failed to comply with a clear
instructions or directives from the Board of Directors of the
Corporation after having been informed of a failure to so comply;
iii) The Executive has breached a material term of this Employment
Agreement;
iv) The Executive becomes bankrupt or in the event a receiving order
(or any analogous order under any applicable law) is made against
the Executive or in the event the Executive makes any general
disposition or assignment for the benefit of his creditors; or
v) The Executive commits any other act giving the Corporation cause
to terminate the Executive's employment, including, but not
limited to chronic alcoholism or drug addiction, material
malfeasance or non-feasance with respect to the Executive's
duties hereunder.
Priorto any termination of the Executive for cause due to the
first only of any occurrence described in subparagraphs ii),
(iii), and (v) above, the Corporation shall notify the Executive
in writing of the particulars of the occurrence upon which
termination would be based and shall in such notice advise the
Executive as to whether, in that Corporation's sole discretion,
the default of the Executive occasioned by such occurrence is
capable of being cured or rectified in full without loss or
damage to the Corporation, in which case the Corporation shall
afford the Executive a reasonable period of not less than five
business days in which to cure or rectify such default. In such
event and provided the Executive cures or rectifies such default
in full without loss or damage to the Corporation, the
Executive's employment shall not be terminated on the basis of
such occurrence.
(d) Termination by the Executive - The Executive shall be entitled to
terminate this agreement at any time upon giving the Corporation three
(3) months written notice.
9. NON-COMPETITION
The Executive agrees that during the period of the Executive's employment
with the Corporation and for a period of twelve months from the last payment of
compensation to the Executive by the Corporation, the Executive shall not engage
in or participate in any business activity that competes, directly or indirectly
in the North American market, with the business of the Corporation, or that of
its parent, subsidiary or affiliate companies, organizations or entities.
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For the purposes of this Section, the Executive shall be deemed to
"compete, directly or indirectly, with the business of the Corporation or its
parent, subsidiariy, or affiliate companies, organizations or entities" if the
Executive is or becomes engaged, otherwise than at the request of the
Corporation, as an officer, director or the Executive of, or is or becomes
associated in a management, ownership, consultantancy or agency capacity with
any corporation, partnership or other enterprise or venture whose business
includes the distribution of competing services or products.
It is the desire and intent of the parties that the provisions of this
Section shall be enforceable to the fullest extent permissible under the laws
and public policies applied in each jurisdiction in which enforcement is sought.
Accordingly, if any particular portion of this Section is adjudicated
unenforceable in any jurisdiction such adjudication shall apply only in that
particular jurisdiction in which such adjudication is made.
10. NON-SOLICITATION
The Executive agrees that for a period of one year following the
termination of the Executive's employment with the Corporation, for any reason
whatsoever, the Executive will not, whether as principal, agent, executive,
employer, director, officer, shareholder or in any other individual or
representative capacity, solicit or attempt to retain in any way whatsoever, any
of the Executives or employees of either of the Corporation or its parent,
subsidiary or affiliate companies, organizations or entities.
11. CONFIDENTIAL INFORMATION
All confidential records, material and information and copies thereof and
any and all trade secrets concerning the business or affairs of the Corporation
or any of its parent, subsidiary, or affiliate companies, organizations or
entities, obtained by the Executive in the course and by the reason of his
employment shall remain the exclusive property of that Corporation. During the
Executive's employment or at any time thereafter, the Executive shall not
divulge the contents of such confidential records or any of such confidential
information or trade secrets to any person other than to the Corporation, or to
the Corporation's qualified Officers or Executives, and the Executive shall not,
following the termination of his employment hereunder, for any reason use the
contents of such confidential records or other confidential information or trade
secrets for any purpose whatsoever.
12. WITHHOLDING
Anything to the contrary notwithstanding, all payments required to be made
by the Corporation hereunder to the Executive or his estate or beneficiaries,
shall be subject to the withholding of such amounts relating to taxes as the
Corporation may reasonably determine, after consultation with the Executive, it
should withhold pursuant to any applicable law or regulation. In lieu of
withholding such amounts, in whole or in part, the Corporation may, in its sole
discretion, accept other provisions for payment of taxes and withholdings as
required by law, provided that the Corporation is satisfied that all
requirements of law affecting the Corporation's responsibilities to withhold
have been complied with.
13. ENTIRE AGREEMENT
This Employment Agreement contains the entire agreement between the parties
hereto with respect to matters herein and supersedes all prior agreements and
understandings, oral or written, between the parties hereto relating to such
matters.
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14. ASSIGNMENT
Except as herein expressly provided, the respective rights and obligations
of the Executive and the Corporation under this Employment Agreement shall not
be assignable by either party without the written consent of the other party and
shall enure to the benefit of and be binding upon the Executive and the
Corporation and their permitted successors or assigns, including, in the case of
the Corporation, any other corporation or entity with which such Corporation may
be merged or otherwise combined or which may acquire that Corporation or its
assets in whole or in substantial part, and, in the case of the Executive, his
estate or other legal representatives. Nothing herein expressed or implied is
intended to confer on any person other than the parties hereto any rights,
remedies, obligations or liabilities under or by reason of this Employment
Agreement.
15. APPLICABLE LAW
This Employment Agreement shall be deemed a contract under, and for all
purposes shall be governed by and construed in accordance with, the laws of the
Province of British Columbia without regard to the conflict of laws rules
thereof. The Corporation and the Executive hereby irrevocably consent and attorn
to othe jurisdiction of the courts of the Province of British Columbia with
respect to any dispute or proceeding arising in connection with this Employment
Agreement.
16. AMENDMENT OR MODIFICATION: WAIVER
No provision of this Employment Agreement may be amended or waived unless
such amendment or waiver is authorized by the Corporation (including any
authorized officer or committee of the Board of Directors) and is in writing
signed by the Executive and by a duly authorized officer of the Corporation.
Except as otherwise specifically provided in this Employment Agreement, no
waiver by any party hereto of any breach by the other parties of any condition
or provision of this Employment Agreement to be performed by such other party or
parties shall be deemed a waiver of a similar or dissimilar breach, condition or
provision at the same time or at any prior or subsequent time.
17. RESIGNATIONS
The Executive hereby agrees that, upon termination of this employment for
any reason whatsoever, the Executive shall thereupon be deemed, upon the request
of the Corporation, to have immediately resigned any position the Executive may
have as an officer and/or director of the Corporation, together with any other
office, position or directorship which the Executive may hold with any of the
Corporation's parent, subsidiary or related entities in connection with or
arising from the performance of the Executive duties of employment under this
Employment Agreement. In such event, the Executive shall, at the reasonable
request of the Corporation, forthwith execute any and all documents appropriate
to evidence such resignations which are consistent with the terms of this
Employment Agreement.
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18. PROVISIONS SURVIVING TERMINATION
It is expressly agreed that notwithstanding termination of the Executive's
employment with and by the Corporation for any reason or cause or in any
circumstances whatsoever, such termination shall be without prejudice to the
rights and obligations of the Executive and the Corporation, in relation or
arising up to the time up to and including the date of termination; and the
provisions of Sections 9(c) and (d), 10 to 13 inclusive, 16, and 18 to 23
inclusive of this Employment Agreement, shall all remain and continue in full
force and effect unless and until the Board of Directors of the Corporation at
their absolute discretion resolves otherwise and so notifies the Executive in
writing.
19. SEVERABILITY
In the event that any provision or portion of this Employment Agreement
shall be determined to be invalid or unenforceable for any reason, the remaining
provisions and portions of this Employment Agreement shall be unaffected thereby
and shall remain in full force and effect to the fullest extent permitted by
law.
20. COUNTERPARTS
This Employment Agreement may be executed in counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
21. REFERENCES
In the event of the Executive's death or a judicial determination of his
incompetency, reference in this Employment Agreement to the Executive shall be
deemed, where appropriate, to refer to his beneficiary or beneficiaries.
22. CAPTIONS
Captions to the Sections of this Employment Agreement are solely for
convenience and no provision of this Agreement is to be construed by reference
to the captions of that Section.
IN WITNESS WHEREOF this Employment Agreement has been executed by a duly
authorized officer of the Corporation and the Executive as of the day first
above written.
VOICE MOBILITY INC.
By: /s/ XXXXX XXXXXX
----------------
XXXXX XXXXXX
SIGNED, SEALED and )
DELIVERED in the presence of: )
)
)
/S/ XXXXXXXX XXXXXXXX ) /S/ XXXXXXX XXXXXXXX
XXXXXXXX XXXXXXXX XXXXXXX XXXXXXXX
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