EXECUTIVE EMPLOYMENT AGREEMENT THIS AGREEMENT made as of this 01 day of February, 2007.
Exhibit
10.1
THIS
AGREEMENT
made as
of this 01
day
of
February,
2007.
BETWEEN:
Phinder
Technologies Inc.,
a
Florida corporation (hereinafter
referred to as the "Corporation")
OF
THE FIRST PART
-
and -
Xxxx
Xxxxxxxxx xxx Xxxx,
of the
City of Toronto, in the Province of Ontario
(hereinafter
referred to as the "Executive")
OF
THE SECOND PART
WHEREAS
the
Corporation and the Executive have agreed to enter into this Employment
Agreement to formalize in writing the terms and conditions reached between
them
governing the Executive's employment;
NOW
THEREFORE
in
consideration of the covenants and agreements herein contained and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby
acknowledged by the parties, the parties hereto agree as follows:
ARTICLE
1 - COMMENCEMENT AND TERM
1.1 Term.
The
term
of this Agreement shall commence February 1, 2007 and shall continue
indefinitely until terminated in accordance with this Agreement.
ARTICLE
2 -EMPLOYMENT
2.1 Position.
Subject
to the terms and conditions hereof, the Executive shall be employed by the
Corporation in the office of Chief Executive Officer and shall perform such
duties and exercise such powers and responsibilities of such office as are
set
out in this Agreement, as are contained in the By-laws of the Corporation
and as
are otherwise prescribed or specified from time to time by the board of
directors of the Corporation.
2.2 Responsibilities.
The
Executive agrees to devote a sufficient portion of his time, attention and
ability to the business and affairs of the Corporation, to discharge the
responsibilities assigned to the Executive, and to use the Executive's best
efforts to perform faithfully and efficiently all such
responsibilities.
The
Corporation acknowledges as follows:
| a) |
that
the Executive has other business interests and obligations
and he shall be
entitled to devote time during office hours to look after these
interests;
|
|
b)
|
that
such business interests may be performed for entities that are
not related
to the Corporation and may involve providing interest services
other than
an Interest Yellow Pages Advertising Service
("Business");
|
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c)
|
that
so long as the Executive is in compliance with his obligations
respecting
paragraphs 5.2, 5.4 and 5.5 herein, he may be contracted by other
entities
to provide services to them;
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d)
|
that,
unless a business opportunity relates directly to the Business,
the
Executive shall not be obligated to share said opportunity with
the
Corporation and, furthermore, the Executive shall be permitted
to make
personal use of the said business
opportunity;
|
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e)
|
so
long as the Executive is discharging his responsibilities as set
out by
the Corporation hereunder, the pursuit by the Executive of other
business
interests shall not be a breach of the Executive's obligations
under the
Business
Corporations Act
(Ontario)
|
The
Executive shall ensure that his responsibilities to the corporation shall
be
carried out to the best of his abilities.
ARTICLE
3 - REMUNERATION
3.1 Salary.
The
Corporation shall pay the Executive a base salary (the "Base Salary") of
$14,000
per month in lawful currency of the United States of America (USD).
3.2 Benefits
and Perquisites.
|
(a)
|
The
Executive shall be entitled to participate in all of the Corporation's
group insurance benefit plans, currently including basic medical,
extended
health and dental, long-term disability and life. All plans are
governed
by their terms.
|
|
(b)
|
The
Executive shall be entitled to a car allowance of $850 USD per
month plus
a $200 USD parking allowance.
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(c)
|
The
executive shall also be reimbursed for all expenses incurred for
the
business, which shall include but not be limited to: cell phone,
all
travel, hotel, restaurant and other entertainment expenses which
the
executive shall incur.
|
|
(d)
|
The
Executive is not entitled to any other benefit or perquisite other
than as
specifically set out in this Agreement or agreed to in writing
by the
Corporation.
|
3.3 Vacation.
The
Executive shall be entitled to 6 weeks vacation with pay annually. Such vacation
shall be taken at a time or times acceptable to the Corporation having regard
to
its operations. Accumulated vacation can be carried or at the option of the
executive unused vacation days can be paid out.
3.4
Bonuses
|
(a)
|
The
Executive shall be entitled to the following bonuses, in the form
of share
options, when the Corporation first attains the benchmarks set
out
below:
|
Bonus:
|
·
|
Xxxxx
0
-
When the corporation posts gross revenues in excess of $4,000,000
USD for
one fiscal quarter the Executive shall be entitled to an additional
500,000 options to purchase common shares In Phinder Technologies
Inc. at
$0.15 USD.
Additionally
when reaching level 1, the Executive shall receive an additional
increase
of $2,000 USD per month effectively raising the Base Salary to
$16,000 USD
per month.
|
|
·
|
Level
2
-
When the corporation posts gross revenues in excess of $6,000,000
USD for
one fiscal quarter the Executive shall be entitled to an additional
500,000 options to purchase common shares In Phinder Technologies
Inc. at
$0.15 USD.
Additionally
when reaching level 2, the Executive
shall receive an increase of $2,000 USD per month effectively raising
the
Base Salary to $18,000 USD per
month.
|
|
·
|
Level
3
-
When the corporation posts gross revenues in excess of $7,500,000
USD for
one fiscal quarter the Executive shall be entitled to an additional
750,000 options to purchase common shares In Phinder Technologies
Inc. at
$0.15 USD.
Additionally
when reaching level 3, the Executive shall receive an increase
of $2,000
USD per month effectively raising the Base Salary to $20,000 USD
per
month.
|
|
·
|
Level
4
-
When the corporation posts gross revenues in excess of $10,000,000
USD for
one fiscal quarter the Executive shall be entitled to an additional
750,000 options to purchase common shares In Phinder Technologies
Inc. at
$0.15 USD.
Additionally
when reaching level 4, the Executive shall receive an increase
of $2,000
USD per month effectively raising the Base Salary to $22,000
USD per
month.
|
|
·
|
Level
5
-
When the corporation posts gross revenues in excess of $15,000,000
USD for
one fiscal quarter the Executive shall be entitled to an additional
1,000,000 options to purchase common shares In Phinder Technologies
Inc.
at $0.15 USD.
Additionally
when reaching level 5, the Executive shall receive an increase
of $2,000
USD per month effectively raising the Base Salary to $24,000 USD
per
month.
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|
·
|
Level
6
-
When the corporation posts gross revenues in excess of $20,000,000
USD for
one fiscal quarter the Executive shall be entitled to an additional
1,000,000 options to purchase common shares In Phinder Technologies
Inc.
at $0.15 USD.
Additionally
when reaching level 6, the Executive shall receive an increase
of $2,000
USD per month effectively raising the Base Salary to $26,000 USD
per
month.
|
|
·
|
Level
7
-
When the corporation posts gross revenues in excess of $30,000,000
USD for
one fiscal quarter the Executive shall be entitled to an additional
1,500,000 options to purchase common shares In Phinder Technologies
Inc.
at $0.15 USD.
Additionally
when reaching level 7, the Executive shall receive an increase
of $4,000
USD per month effectively raising the Base Salary to $30,000 USD
per
month.
|
|
·
|
Level
8-
When the corporation posts gross revenues in excess of $50,000,000
USD for
one fiscal quarter the Executive shall be entitled to an additional
2,000,000 options to purchase common shares In Phinder Technologies
Inc.
at $0.15 USD.
Additionally
when reaching level 8, the Executive shall receive an increase
of $10,000
USD per month effectively raising the Base Salary to $40,000 USD
per
month.
|
| (b) |
The
share options in paragraph 3.4(a) shall be common shares. In the
event the
corporation consolidates its shares or does a forward split, said
bonus
shares shall be issued prorated, i.e. in the event of a consolidation
of
shares of the Corporation of 2 old shares in return for one new
one the
executive shall be entitled to earn 250,000 shares for each level
the
corporation reaches. In the event of a forward split the Executive
shall
receive the same multiple of options on the Levels 1 through 5
as the
shares of the corporation split.
|
| (c) |
These
bonus shares shall be considered fully earned and shall fall under
rule
144 of the securities and exchange act. The shares shall be entitled
to
piggy back registration rights. Should the corporation file a registration
statement these shares shall automatically be
included.
|
| (d) |
These
options shall be exercisable as cashless
options.
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ARTICLE
4 - TERMINATION OF EMPLOYMENT
4.1 Termination
by the Corporation for Just Cause, Disability or Death
|
(a)
|
The
Corporation may not terminate this Agreement and the Executive's
employment hereunder without payment of any compensation unless
Just Cause
can be proven.
|
|
(b)
|
The
Corporation may terminate this Agreement and the Executive's employment
hereunder without payment of any compensation either by way of
anticipated
earnings or damages of any kind at any time for Just Cause.
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|
(c)
|
The
Corporation may terminate this Agreement and the Executive's employment
hereunder at any time for reason of Disability, upon payment of
a lump sum
of equal to six (6) months Base Salary to the Executive. Upon terminating
this Agreement for reasons of Disability, the Corporation shall
continue
to provide insurance benefits provided under paragraph 3.2(a) for
a period
of eighteen (18) months, save and except for long-term disability,
which
shall be provided until such time as the Executive no longer qualifies
to
receive benefits thereunder according to the term of the insurance
coverage.
|
|
(d)
|
The
Corporation may terminate this Agreement and the Executive's employment
hereunder for reason of Death of the Executive, but only after
payment of
the benefits of any life insurance policy provided to the Executive
pursuant to paragraph 3.2(a), such payment being made to the Executive's
designated beneficiary. Between the time of the Executive's death
and the
termination of this Agreement, the Executive's estate, and any
beneficiaries, heirs or successors of the Executive, shall not
be entitled
to any benefits, bonuses or payments under this Agreement save
and except
for death benefits pursuant to insurance
coverage.
|
|
(c)
|
"Just
Cause" shall mean just cause for termination at law and shall include,
without limitation,:
|
| (i) |
gross
misconduct or dishonesty in the discharge of his duties hereunder;
|
| (ii) |
theft
or misappropriation of the Corporation's property;
|
| (iii) |
wilful
and material breach of fiduciary duties;
|
| (iv) |
gross
incompetence or gross negligence in the performance of the Executive's
duties; or
|
| (v) |
the
Executive commits a material breach of this Agreement and fails
to remedy
same, after written notice from the Corporation with particulars,
within a
period which is reasonable in the circumstances.
|
| (d) |
For
the purposes of this Agreement, "Disability" shall have occurred
if the
Executive has been unable due to illness, disease, or mental or
physical
disability (in the opinion of a qualified medical practitioner
who is
satisfactory to the Executive and the Corporation acting reasonably),
to
fulfil his obligations hereunder either for any consecutive six
(6) month
period or for any period of 9 months (whether or not consecutive)
in any
consecutive 12 month period, or the Executive has been declared
by a court
of competent jurisdiction to be mentally incompetent or incapable
of
managing his affairs.
|
If
there
is a dispute between the Executive and the Corporation as to the existence
or
nature of the Disability, the parties agree to retain the services of one
or
more medical practitioners, properly licensed in Canada and Ontario in their
field in order to resolve the dispute. If the Executive and the Corporation
cannot agree on a qualified medical practitioner to confirm the nature or
existence of the Disability, each party shall select a medical practitioner,
and
the two practitioners shall select a third who shall be the approved medical
practitioner for this purpose.
| 4.2 |
Termination
by the Employer Without Cause.
|
If
the
Executive's employment is terminated after September 30, 2005 by the Corporation
for any reason other than for Just Cause, Disability or Death, then the
following provisions shall apply:
|
(a)
|
The
Corporation shall pay to the Executive his Base Salary for 1 months
plus
an additional 1 month per year of employment with the Corporation
up to a
maximum of 12 months following the date of termination and any
perquisites
to which such executive is entitled under sections 3.2(b) and 3.3
hereof.
Additionally all benefits that are unearned or unvested at the
time of
termination shall be deemed to be earned and vested and the Executive
shall be entitled to receive immediately upon termination all 5
bonus
levels set out in Section 3.4 hereof regardless of whether the
various
targets have been met or not. This shall also apply if the Employee
agrees
with the board that it is in the best interest of the corporation
to hire
a new CEO.
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(b)
|
The
Corporation shall, to the extent it may do so legally and in compliance
with the Corporation's benefit plans in existence from time to
time,
continue all group insurance benefits at a level equivalent to
those
provided to the Executive immediately prior to the termination
for a
period of 6 months plus 1 month per year of employment with the
Corporation up to a maximum of 18 months following the date of
termination
provided that, (a) the benefits contemplated by this sub-paragraph
shall
terminate on the date the Executive obtains alternate employment
providing
comparable benefits; and (b) if the Corporation cannot continue
any
particular group insurance benefit, the Corporation shall reimburse
the
Executive for any expenses incurred by the Executive to replace
such group
insurance benefit.
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(c)
|
In
the event the Executive's employment is terminated in accordance
with this
Section 4.2, the Term of this Agreement will end and the Executive
will
not be required to perform any services hereunder following the
date of
termination.
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| 4.3 |
Early
Termination by the Employer Without
Cause.
|
If
the
Executive's employment is terminated before September 30, 2005 by the
Corporation
for any reason other than for Just Cause, Disability or Death, then the
Corporation shall pay to the Executive compensation equal to three (3) months
Base Salary.
| 4.4 |
Termination
by the Executive.
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|
(a)
|
The
Executive may terminate this Agreement, at any time, upon the occurrence,
of any of the following without prior written notice to the Corporation:
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| (i) |
a
reduction in the Executive's then current Base Salary
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|
(ii)
|
a
material diminution in the Executive's duties or the assignment
to the
Executive of duties which are materially inconsistent with his
duties or
which materially impair the Executive's ability to function as
the Chief
Executive Officer;
|
(each
defined as a "Good Reason")
|
(b)
|
In
the event Executive terminates this Agreement for Good Reason,
he shall be
entitled to the same payments as provided in Section 4.2 above
excluding
any unearned bonuses.
|
|
(c)
|
The
Executive may terminate this Agreement, at any time, for other
than a Good
Reason upon giving the Corporation sixty (60) days notice of said
termination.
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(d)
|
If
the Executive terminates this Agreement under paragraph 4.4(c),
the
Executive shall be entitled to receive all unpaid Base Salary and
all
unpaid amounts under paragraphs 3.2, 3.3 and 3.4 as at the date
of the
notice as well as all Base Salary, benefits under paragraphs 3.2
and 3.3
and bonuses under paragraph 3.4 that become due and payable between
the
time notice is given and the time that this Agreement
terminates.
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| 4.5 |
Termination
upon a Change of Control.
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(a)
|
If,
following a Change in Control, the Executive's employment is terminated
without Just Cause or the Executive terminates his employment for
Good
Reason, the Executive shall be entitled to the payments provided
in this
Section 4.5 in addition to those set out in paragraphs 4.2 and
4.4. Also,
immediately following a Change in Control, all amounts, entitlements
of
benefits in which Executive is not vested shall become fully vested
and
for the purposes of paragraph 4.4(b) shall be deemed to have been
earned.
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(b)
|
The
Executive may terminate his employment upon the occurrence of a
Change of
Control by providing written notice to the Corporation within six
months
of the occurrence of such Change of Control and the effective date
of such
termination and the termination of the Executive's employment shall
be 30
days from the date of such written notice.
|
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(c)
|
For
the purposes of this Agreement, a "Change of Control" shall mean
the
occurrence, at any time during the term of this Agreement, of any
third
party person or group of persons acting jointly or in concert acquiring,
directly or indirectly, a controlling interest in the outstanding
voting
shares in the Corporation, whether by way of takeover bid, merger,
amalgamation or otherwise.
|
|
(c)
|
In
the event of termination of the Executive's employment pursuant
to this
Section 4.5, then the following provisions shall apply:
|
| (i) |
The
Corporation shall pay forthwith to the Executive or as he may direct,
a
lump sum amount equal 6 months Basic Salary plus any perquisites
to which
he is entitled under sections 3.2 and 3.3 hereof and any bonus
to which
the Executive would otherwise be entitled based on the formula
set out in
Section 3.4 hereof, as amended by paragraph 4.5(a).; and
|
|
(ii)
|
The
Corporation shall continue, to the extent it may do so legally
and in
compliance with the Corporation's benefit plans in existence from
time to
time, all group and insurance benefits at a level equivalent to
those
provided to the Executive immediately prior to the termination
for a
period of 6 months following the date of termination, provided
that, if
the Corporation cannot continue any particular group insurance
benefit,
the Corporation shall reimburse the Executive for any expenses
incurred by
the Executive to replace such group insurance
benefit.
|
|
(iii)
|
With
respect to a termination pursuant to paragraph 4.5(a), the provisions
of
this paragraph 4.5(c) are in addition to payments owing under paragraphs
4.2 and 4.4 (as applicable). Where benefits and payment are extended
over
a period of time, these periods shall extend the time periods otherwise
applicable under paragraphs 4.2 and 4.4.
|
| (iv) |
Nature
of Payment .
Any amounts due under this Article 4 are in the nature of severance
payments considered to be reasonable by the Corporation and are
not in the
nature of a penalty.
|
| 4.6 |
Payment
to Date of Termination.
|
Regardless
of the reasons for the termination, the Corporation shall make payment to
the
Executive to the effective date of termination for all Base Salary, any accrued
but unpaid vacation entitlements, any earned but unpaid Bonuses and any other
amounts earned, accrued or owing to the Executive but not yet paid as well
as
other or additional benefits in accordance with applicable plans or programs
of
the Corporation.
| 4.7 |
Return
of Property.
|
Upon
any
termination of this Agreement, the Executive shall forthwith deliver or caused
to be delivered to the Corporation all books, documents, computer disks and
diskettes and other electronic data, effects, money, securities or other
property belonging to the Corporation or for which the Corporation is liable
to
others, which are in the possession, charge, control or custody of the
Executive.
| 4.8 |
Release.
|
The
Executive and the Corporation acknowledge and agree that the payments pursuant
to this Article 4 shall be in full satisfaction of all terms of termination
of
the Executive's employment, including termination pay and severance pay pursuant
to the Employment
Standards Act (Ontario)
as amended from time to time. Except as otherwise provided in this Article,
the
Executive shall not be entitled to any further termination payments, damages
or
compensation whatsoever. As a condition precedent to any payment pursuant
to
this Article 4, the Executive agrees to deliver to the Corporation prior
to any
such payment, a full and final release from all actions or claims in connection
therewith in favour of the Corporation, its affiliates, subsidiaries, directors,
officers, employees and agents, in a form reasonably satisfactory to the
Corporation and the Corporation agrees to deliver to the Executive prior
to any
such payment, a full and final release from all actions or claims in connection
therewith in favour of the Executive in a form reasonably satisfactory to
the
Executive.
| 4.9 |
Set-Off.
|
Upon
termination, howsoever caused, the Executive authorizes the Corporation to
deduct from any payment due to him pursuant to this Agreement, any amounts
owed
to the Corporation howsoever caused, including by reason of purchases, advances,
loans, or in recompense for damages to or lawful property and equipment.
This
provision shall be applied so as not to conflict with any applicable
legislation.
| 4.10 |
Provincial
Legislation.
|
All
payments made and notice given pursuant to this Article 4 shall include notice
of termination and severance pay as defined in the Employment
Standards Act (Ontario)
as it may from time to time be amended, the provisions of which are deemed
to be
incorporated into this Agreement and shall prevail to the extent greater.
ARTICLE
5 - COVENANTS OF THE PARTIES
| 5.1 |
Corporate
Opportunities.
|
So
long
he is an Executive of the Corporation, the Executive shall share with the
Corporation any corporate opportunities directly related to the Business
that he
or she has knowledge of and such Executive shall not make any personal use
of
such corporate opportunity directly or indirectly. The Executive shall not
be
required to share business or corporate opportunities with the Corporation
that
do not directly relate to the Business.
| 5.2 |
Confidentiality.
|
It
is
essential to the success of the Corporation that the business and affairs
of the
Corporation and its subsidiaries be kept in the strictest confidence. In
the
event of termination of this Agreement, each party, and in the event the
Executive ceases to be an employee of the Corporation, shall, until the expiry
of one (1) years from such event, keep all information pertaining to or
concerning the Corporation and its subsidiaries (other than as hereinafter
provided) in the strictest confidence and not disclose any such information
to a
third person other than:
|
(a)
|
an
Affiliated Body Corporation or Associate of the party where it
is
necessary for the purposes of the Corporation that such Affiliated
Body
Corporate or Associate enters into an agreement with the Corporation
under
which such Affiliated Body Corporation or Associate agrees not
to use such
information for any purpose other than those of the Corporation
and be
bound by the provisions of this Section 5.2;
|
|
(b)
|
a
governmental or other authority to which the disclosure is required
by law
and where there is no reasonable means to avoid such disclosure;
|
| (c) |
a
court determining the rights of the parties under this Agreement;
|
|
(d)
|
professional
advisors in connection with the performance of their professional
services; and
|
|
(e)
|
information
regarding the Corporation where disclosure is necessary for legitimate
business reasons.
|
For
the
purposes of this Agreement, "Affiliated Body Corporate" shall be defined
as a
corporate entity that for the purposes of the Income
Tax Act
(Canada)
would be defined as a Related Person of the Corporation. For the purposes
of
this Agreement, "Associate" shall be defined as any non-corporate entity
that
for the purposes of the Income
Tax Act
(Canada)
would be defined as a Related Person of the Corporation.
| 5.3 |
Standard
of Care.
|
The standard of care for protecting information under Section 5.2 will be that degree of care which the parties would use to prevent disclosure, publication or dissemination of their own proprietary or confidential information and no liability will be incurred by the parties for disclosure of such information for whatever reason, including inadvertence, accident or mistake, if they have exercised such standard of care in protecting such information.
| 5.4 |
Exceptions
Regarding Confidentiality.
|
No
party
shall be obligated to keep in confidence or shall incur any liability for
disclosure of information to a third party (the "Recipient") of the nature
aforesaid which:
|
(a)
|
was
already known to the Recipient at the time of receipt, other than
as a
result of the activities of the Corporation;
|
| (b) |
was
permitted to be disclosed by the party from whom it was obtained;
|
|
(c)
|
has
been published or is otherwise within the public domain at the
time of its
disclosure to the Recipient;
|
| (d) |
come
into the public domain without any breach of this Agreement; or
|
|
(e)
|
becomes
known or available to the Recipient other than as a result of the
activities of the Corporation but without any breach of this Agreement
by
a party.
|
|
(f)
|
was
introduced to the corporation by the Executive through one of the
Executive’s other business
interests.
|
| 5.5 |
Restrictive
Covenants.
|
|
(a)
|
The
Executive will not at any time, without the prior written consent
of the
Corporation, during the term of this Agreement or for a period
of three
months, or, if the Executive's employment is terminated without
Just
Cause, for a period equal to the number of days prior notice of
termination that the Executive would otherwise entitled to under
the
Employment
Standards Act (Ontario),
after the termination of this Agreement or the Executive's employment
(regardless of the reason for such termination), either individually
or in
partnership, jointly or in conjunction with any other person or
persons,
firm, association, syndicate, company or corporation, whether as
agent,
shareholder, employee, consultant, Client, or in any manner whatsoever,
directly or indirectly:
|
|
(i)
|
anywhere
in the Territory, engage in, carry on or other-wise have any interest
in,
advise, lend money to, guarantee the debts or obligations of, permit
the
Executive's name to be used in connection with any business which
is
competitive to the Business or which provides the same or substantially
similar services as the Business;
|
|
(ii)
|
for
the purpose of competing with any business of the Corporation,
solicit,
interfere with, accept any business from or render any services
to anyone
who is a Client or a prospective client of the Corporation at the
time
Executive ceased to be employed by the Corporation or who was a
Client
during the 12 months immediately preceding such time;
|
| (iii) |
solicit
or offer employment to any person employed or engaged by the Corporation
at the time the Executive ceased to be employed by the Corporation
or who
was an employee or during the 12 month period immediately preceding
such
time.
|
| (b) |
For
the purposes of this Agreement:
|
| (i) |
"Territory"
shall mean the world
|
| (ii) |
"Business"
shall mean the Internet Yellow Pages Advertising Program, and related
business operations, operated by the
Corporation.
|
| (iii) |
"Client"
shall mean all existing clients of the Corporation as well as any
entity
with whom the Corporation has within the previous six (6) months
or is, in
negotiation with a view to the Corporation being instructed to
provide
goods or services to such entity.
|
| 5.6 |
General
Provisions
|
|
(a)
|
The
Executive acknowledges and agrees that in the event of a breach
of the
covenants, provisions and restrictions in Section 5.5, the Corporation's
remedy in the form of monetary damages will be inadequate and that
the
Corporation shall be and is hereby authorized and entitled, in
addition to
all other rights and remedies available to it, to apply for and
obtain
from a court of competent jurisdiction interim and permanent injunctive
relief and an accounting of all profits and benefits arising out
of such
breach.
|
|
(b)
|
The
parties acknowledge that the restrictions in Section 5.5 are reasonable
in
all of the circumstances and the Executive acknowledges that the
operation
of restrictions contained in Section 5.5 may seriously constrain
his
freedom to seek other remunerative employment. If any of the restrictions
are determined to be unenforceable as going beyond what is reasonable
in
the circumstances for the protection of the interests of the Corporation
but would be valid, for example, if the scope of their time periods
or
geographic areas were limited, the parties consent to the court
making
such modifications as may be required and such restrictions shall
apply
with such modifications as may be necessary to make them valid
and
effective.
|
| 5.7 |
Scope
of Application.
|
The
foregoing restrictions shall apply to any action taken by the Executive,
directly or indirectly, alone or in concert or in partnership with others,
whether as agent, representative, principal, employee, consultant, director
or
in any other capacity.
| 5.8 |
Limitation
of Time Periods and Geographic Area.
|
While these restrictions are considered by the parties to be reasonable, they may fail for unforeseen technical reasons. Accordingly the parties have agreed that if any of these restrictions are determined to be unenforceable as going beyond what is reasonable in the circumstances for the protection of the interests of the Corporation and its Shareholders but would be valid if, for example, the scope of their time periods or geographic areas were limited, the restrictions shall apply with such modifications as may be necessary to make them valid and effective.
ARTICLE
6 - DIRECTORS AND OFFICERS
| 6.1 |
Insurance.
|
The
Corporation shall maintain such directors' and officers' liability insurance
for
the benefit of the Executive in accordance with corporate policies and as
generally provided to the directors of the Corporation.
| 6.2 |
Indemnification.
|
The
Corporation agrees that. if the Executive is made a party, or is threatened
to
be made a party, to any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding"), by reason of the fact that
he
is or was a director, officer or employee of the Corporation or is or was
serving at the request of the Corporation as a director, officer, member,
employee or agent of another corporation, partnership, joint venture, trust
or
other enterprise, including service with respect to employee benefit plans,
whether or not the basis of such Proceeding is the Executive's alleged action
in
an official capacity while serving as a director, officer, member, employee
or
agent, the Executive shall be indemnified and held harmless by the Corporation
to the fullest extent legally permitted or authorized by the Corporation's
certificate of incorporation or by-laws or resolutions of the Corporation's
board of directors or, if greater, by the laws of the Province of Ontario,
and
the federal laws of Canada applicable to the Corporation, against all cost,
expense, liability, and loss (including, without limitation, attorney's fees,
judgments, fines, or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by the Executive in connection therewith,
and
such indemnification shall continue as to the Executive even if he has ceased
to
be a director, member, employee or agent of the Corporation or other entity
and
shall inure to the benefit of the Executive's heirs, executors and
administrators. The Corporation shall advance to the Executive all reasonable
costs and expenses incurred by him in connection with a Proceeding within
20
days after receipt by the Corporation of a written request for such advance.
Such request shall include an undertaking by the Executive to repay the amount
of such advance if it shall ultimately be determined that he is not entitled
to
be indemnified against such costs and expenses.
ARTICLE
7 - ARBITRATION
| 7.1 |
Arbitration.
|
If
any
dispute or controversy shall occur between the parties hereto relating to
the
interpretation or implementation of any of the provisions of this Agreement,
such dispute shall be resolved by arbitration. Such arbitration shall be
conducted by a single arbitrator to be appointed in accordance with the Rules
for the Conduct of Arbitrators of the Arbitrators Institution of Canada Inc.
(the "Rules"). The procedure to be followed shall be those set out in the
Rules
or, if there are no Rules in effect at the commencement of the arbitration,
the
arbitration shall proceed in accordance with the provisions of the Arbitrations
Act (Ontario).
The arbitrator shall have the power to proceed with the arbitration and to
deliver his award notwithstanding the default by any party in respect of
any
procedural order made by the arbitrator. The decision arrived at pursuant
to the
arbitration, howsoever constituted, shall be final and binding and no appeal
shall lie therefrom. Judgment upon the award rendered pursuant to the
arbitration may be entered in any court having jurisdiction.
ARTICLE
8 - CONTRACT PROVISIONS
| 8.1 |
Headings
|
The
headings of the Articles and paragraphs herein are inserted for convenience
of
reference only and shall not affect the meaning or construction hereof.
| 8.2 |
Independent
Advice.
|
The
Corporation and the Executive acknowledge and agree that they have each obtained
independent legal advice in connection with this Agreement and they further
acknowledge and agree that they have read, understand and agree with all
of the
terms hereof and that they are executing this Agreement voluntarily and in
good
faith.
| 8.3 |
Gender.
|
Words
denoting any gender include both genders
| 8.4 |
Governing
Law.
|
This
Agreement shall be construed and interpreted in accordance with the laws
of the
Province of Ontario and the federal laws of Canada applicable therein. Each
of
the parties hereby irrevocably attorns to the jurisdiction of the courts
of the
Province of Ontario with respect to any matters arising out of this Agreement.
| 8.5 |
Entire
Agreement.
|
This
Agreement, together with the plans and documents referred to herein, constitute
and express the whole agreement of the parties hereto with reference to any
of
the matters or things herein provided for or herein before discussed or
mentioned with reference to such employment of the Executive. All promises,
representations, collateral agreements and understandings not expressly
incorporated in this Agreement are hereby superseded by this Agreement.
| 8.6 |
Severability.
|
If
any
provision contained herein is determined to be void or unenforceable in whole
or
in part, it shall not be deemed to affect or impair the validity of any other
provision herein and each such provision is deemed to be separate and distinct.
| 8.7 |
Notice.
|
Any
notice required or permitted to be given under this Agreement shall be in
writing and shall be properly given if personally delivered, delivered by
facsimile transmission (with confirmation of receipt) or mailed by prepaid
registered mail addressed as follows:
| (a) | in the case of the Corporation: Phinder Technologies Inc. |
000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx, X0X 0X0.
Attention:
Chief Executive Officer
|
|
|
|
|||
| (b) |
in
the case of the Executive:
|
to the last address of the Executive
in the records of the
Corporation
|
or
to
such other address as the parties may from time to time specify by notice
given
in accordance herewith. Any notice so given shall be conclusively deemed
to have
been given or made on the day of delivery, if personally delivered, or if
delivered by facsimile transmission or mailed as aforesaid, upon the date
shown
on the facsimile confirmation of receipt or on the postal return receipt
as the
date upon which the envelope containing such notice was actually received
by the
addressee.
| 8.8 |
Successors.
|
This
Agreement shall enure to the benefit of and be binding upon the parties hereto
and their respective personal or legal representatives, heirs, executors,
administrators, successors and assigns.
| 8.9 |
Taxes.
|
All
payments under this Agreement shall be subject to withholding of such amounts,
if any, relating to tax or other payroll deductions as the Corporation may
reasonably determine and should withhold pursuant to any applicable law or
regulation.
| 8.10 |
Currency.
|
All
dollar amounts set forth or referred to in this Agreement refer to United
States
currency unless specified otherwise.
| 8.11 |
Counterparts.
|
This
Agreement may be executed in counterparts, each of which shall be deemed
to be
an original but all of which together shall constitute one and the same
instrument.
The
rest of this page left intentionally blank.
IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the day and year first above
written.
PHINDER
TECHNOLOGIES INC.
By:_____________________
Name:
Xxxxx Xxxx
I
am a
director of the corporation and I am authorised to bind the
corporation.
By:_____________________
Name:
Xxxxx Xxxxxxx
I
am a
director of the corporation and I am authorised to bind the
corporation.
By:_____________________
Name:
Xxxx X. xxx Xxxx
Title:
Chief Executive Officer
| SIGNED SEALED & DELIVERED | } | |
| } | ||
| } | ||
| } | ||
| } | ||
| } | ______________________________ |
