EMPLOYMENT AGREEMENT
Exhibit 4.3
THIS AGREEMENT made the 10th day of May, 2004.
BETWEEN:
BULLDOG TECHNOLOGIES, INC., a body corporate with offices at 128 – 00000 Xxxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0
(the “Company)
AND:
XXXXX XXXX, an individual currently residing at 6759 – 000X Xxxxxx, Xxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the “Executive”)
WHEREAS:
A. In July, 2003, the Company engaged the Executive to serve in the role of Chief Technical Officer of the Company; and
B. 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 July 1, 2003 and shall continue until June 30, 2006
(the “Term”). |
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| 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 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 Chief Executive Officer
of the Company, the Executive shall serve the Company as the Chief Technical
Officer or in such other capacity as may be assigned during the Term;
|
|
| (b) |
the Executive shall be responsible for the research,
development and production of all of the Company’s current and future
products with specific emphasis on delivering products to customers on
time and within budget estimates as well as developing future cost savings
and product improvements; |
|
| (c) |
the Executive shall be responsible for establishing
all production facilities (internal or external) and ensuring such facilities
satisfy GMP and/or ISO certification as required by the Company; |
|
| (d) |
the Executive shall be responsible for drafting
all technical documentation for the Company’s products including
all patent applications and product user documents; |
|
| (e) |
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; |
|
| (f) |
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 |
|
| (g) |
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 a monthly rate of Cdn$7,250, 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 |
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| 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 compensation for
the services rendered by the Executive pursuant to this Agreement, the
Company agrees to issue an aggregate of 150,000 shares of the Company’s
common stock (the “Compensation Shares”). The Company will
issue the Compensation Shares as fully paid and non-assessable. The Executive
agrees that he will have to execute all necessary documents before the
Company will issue the Compensation Shares. The Company agrees that it
will, if permitted by applicable securities laws, register for resale
with the Securities and Exchange Commission (the “SEC”) on
a registration statement on Form S-8 75,000 of the Compensation Shares
on or before November 30, 2004 and 75,000 of the Compensation Shares on
or before January 30, 2005. |
| 2.3 | Benefits. The Executive will receive a vehicle
allowance of $500 per month during the term of this Agreement. 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. |
| 2.4 | 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. |
| 2.5 | 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. |
| 2.6 | 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. |
| 2.7 | 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). |
| 2.8 | Executive’s Acknowledgements. The Executive
acknowledges that the Compensation Shares to be issued pursuant to the
terms of this Agreement will not be registered under the United States
Securities Act of 1933 (the “1933 Act”), or under any
state securities or “blue sky” laws of any state of the United
States, and, unless so registered, may not be offered or sold in the United
States or to U.S. persons, except pursuant to an effective registration
statement under the 1933 Act, pursuant to an exemption from, or in a |
| Initials __________ ___________ | 3 |
transaction not subject to, the registration requirements
of the 1933 Act. The Executive further acknowledges that the Compensation
Shares will be subject in the United States to a one (1) year hold period
from the date of issuance of the Compensation Shares unless such Compensation
Shares are registered with the SEC. |
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 “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.
|
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| 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 |
|
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| 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 Agreement, including, without limitation, the
right to effect any registration in the world to protect the foregoing
rights. The Company shall have the sole, absolute and unlimited right
throughout the world, therefore, to protect the Developments by patent,
copyright, industrial design, trademark or otherwise and to make, have
made, use, reconstruct, repair, modify, reproduce, publish, distribute
and sell the Developments, in whole or in part, or combine the Developments
with any other matter, or not use the Developments at all, as the Company
sees fit. |
|
| 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. |
| 3.5 | Non-Competition. The Executive covenants
and agrees that while employed by the Company and for a period of twelve
(12) months thereafter, the Executive will not, without the express written
consent of the Company in each instance, either individually or in partnership
or jointly or in conjunction with any person as principal, agent, investor,
shareholder, director, officer, employee, consultant or in any other manner
whatsoever, carry on or be engaged in, lend money to, guarantee the debts
or obligations of or permit the Executive’s name or any part thereof
to be used or employed by any person or persons (including, without limitation,
any individual, firm, association, syndication, company, corporation or
other business enterprise) engaged in or concerned with or interested
in any business or any part thereof which is the same as or competitive
with that of the Company anywhere in Canada. For the purposes of this
Section 3.5, |
| Initials __________ ___________ | 5 |
| businesses the same as or competitive
with the Company are those businesses that supply security systems for
the cargo transit industry. |
||
| 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. |
|
| 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; |
|
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| (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. |
|
| 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 one (1) month 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 one
(1) month notice, or payment of one (1) month base salary in lieu of notice,
plus an additional two (2) weeks notice or two (2) weeks base salary for
each year of employment the Executive has completed with the Company.
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|
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| 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. 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. |
ARTICLE 5
NOTICES
| 5.1 | 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: |
| Initials __________ ___________ | 8 |
| (a) | in the case of the Company, to: | ||
| Bulldog Technologies, Inc. | |||
| 128 – 00000 Xxxxxxxxxxx Xxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx Xxxxxx X0X 0X0 |
|||
| Attention: Xxxx Cochburn, President | |||
| Facsimile: 000-000-0000 | |||
| (b) | and in the case of the Executive, to the Executive’s last residence address known to the Company. | ||
| 5.2 | 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. |
||
ARTICLE 6
GENERAL
| 6.1 | 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. |
| 6.2 | 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.
|
| 6.3 | 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.
|
| 6.4 | 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. |
| 6.5 | Assignment. Except as herein expressly provided,
the respective rights and obligations of the Executive and the Company
under this Agreement shall not be assignable by either party without the
written consent of the other party and shall, subject to the foregoing,
enure to the benefit of and be binding upon the Executive and the Company
and their permitted successors or assigns. Nothing herein expressed or
implied is intended to |
| Initials __________ ___________ | 9 |
| confer on any person other than the parties hereto
any rights, remedies, obligations or liabilities under or by reason of
this Agreement. |
|
| 6.6 | 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. |
| 6.7 | Headings. The headings in this Agreement
are inserted for convenience of reference only and shall not affect the
construction or interpretation of this Agreement. |
| 6.8 | 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. |
| 6.9 | Time. Time shall be of the essence of this
Agreement. |
| 6.10 | 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. |
| 6.11 | 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.
| BULLDOG TECHNOLOGIES, INC. | XXXXX XXXX |
| /s/ Xxxx Xxxxxxxx | /s/ Xxxxx Xxxx |
| Name: Xxxx Xxxxxxxx | Name: Xxxxx Xxxx |
| Title: President and CEO | Title: Chief Technical Officer |
| Date: May 25, 2004 | Date: May 25, 2004 |
| Initials __________ ___________ | 10 |
