EXHIBIT 4.4
COI SOLUTIONS INC. OFFICER AGREEMENT
THIS AGREEMENT made this first day of January 1999, among COI SOLUTIONS INC., a
corporation duly incorporated under the laws of Nevada, having its head office
at Las Vegas, (the "COMPANY ") and CREATIVE SPIN INC.. a corporation duly
incorporated under the laws of Ontario Canada, having its head office at Toronto
and XXXXXX X. XXXXX, (Co Name. and Xxxxxx X. Xxxxx are hereinafter referred to
collectively as the "OFFICER").
WHEREAS:
1. The Company is engaged in the design, sourcing, development, licensing,
marketing and distribution of various telecommunications products, concepts and
related consulting services to both business and consumer markets.
2. The Company and the Officer have agreed to enter into an employment
relationship for their mutual benefit;
NOW THEREFORE in consideration of the mutual covenants and agreements contained
in this Agreement and other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged by each of the parties), the
parties hereto agree as follows:
(1) DUTIES
The Company appoints the Officer to undertake the duties and exercise the powers
as Vice President of Marketing and Sales of the Company as may be requested of
the Officer by the Board of Directors of the Company, and in the other offices
to which he may be appointed by any subsidiary companies of the Company, and the
Officer accepts the office together with the initial mandate established by the
Board of Directors outlined in Schedule A hereto, on the terms and conditions
set forth in this Agreement.
(2) TERM
The appointment shall commence with effect from January 1 1999, for a minimum of
two years and shall continue thereafter until terminated in accordance with the
provisions of this Agreement.
(3) COMPENSATION
The fixed remuneration of the Officer for his services shall be at the rate of
US$120,000.00 for the first year of employment pursuant to this contract
commencing January 1, 1999. The fixed remuneration will be payable in equal
instalments semi-monthly in arrears in each month during the Term. The fixed
remuneration shall be reviewed 90 days prior to the anniversary of employment
pursuant to this contract. The review will be undertaken by assessing the
Officer's achievement of the over-all objectives established by the Company and
by having regard to the market rates of remuneration paid in the United States
for similar duties and responsibilities. In addition to the fixed remuneration,
the Officer shall be entitled to receive such bonus remuneration, and to
participate in officer incentive and stock option plans, if any, in respect of
each year of employment during the Term, as the Board of Directors of the
Company or any committee thereof, in its sole discretion may authorise.
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(4) BENEFITS
AUTOMOBILE ALLOWANCE. The Officer shall be provided with an automobile allowance
of US$650.00 per month plus reimbursement for fuel expenses generated by the use
of the automobile on behalf of the Company on the provision by the Officer or
receipts acceptable to the Company in connection with it.
EXPENSES. It is understood and agreed that the Officer will incur expenses in
connection with his duties under this Agreement. The Company will reimburse the
Officer for any expenses provided that the Officer provides to the Company an
itemised written account acceptable to the Company with thirty days after they
have been incurred. The Officer will not be reimbursed for any item in excess of
US$5,000.00 unless approved in advance by the Board of Directors.
BENEFIT PLANS. The Officer shall participate in all benefit plans which the
Company provides from time to time to employees of the Company generally in
accordance with and subject to the terms of the applicable fund, plan or
arrangement in effect to the Company from time to time.
(5) AUTHORITY
The Officer shall have, subject always to the general or specific instructions
and directions of the Board of Directors of the Company, full power and
authority to manage and direct the business and affairs of the Company (except
only the matters and duties as by law must be transacted or performed by the
Board of Directors or by the shareholders of the Company in general meeting),
including power and authority to enter into contracts, engagements or
commitments of every nature of kind in the name of and on behalf of the Company
and to engage and employ and to dismiss all managers and other employees and
agents of the Company other than officers of the Company, provided always that
no contract shall be made which might involve the Company in an Expenditure
exceeding US $50,000.00 and no person shall be engaged or appointed as an
employee of the Company at remuneration in excess of US$100,000.00 per annum
without, in each case, the prior approval of the Board of Directors.
The Officer shall conform to all lawful instructions and directions given to him
by the Board of Directors of the Company, and obey and carry out the by-laws of
the Company.
(6) SERVICE
o The Officer, throughout the term of his appointment, shall devote his full
time and attention to the business and affairs of the Company and its
subsidiaries.
o The Officer shall well and faithfully serve the Company and its
subsidiaries and use his best efforts to promote the interests thereof and
shall not disclose the private affairs or trade secrets of the Company and
its subsidiaries to any person other than the Directors of the Company or
for any purposes other than those of the Company any information he may
acquire in relation to the Company's business.
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o The Officer may, during the Term perform duties and provide services to
other entities, provided that all proposed arrangements are approved in
advance by the Company, such approval not to be unreasonably withheld and
that the proposed arrangements do not relate to a competitive business.
(7) NON-COMPETITION
o The Officer agrees with and for the benefit of the Company that for a
period of three months from the date of termination of the Officer's
employment, however caused, he will not for any reason, directly or
indirectly, either as an individual or as a partner or joint venturer or as
an employee, principal, consultant, agent, shareholder, officer, director,
or salesperson for any person, firm association, organisation, syndicate,
company or corporation, on in any manner carry on, be engaged in, concerned
with, interested in, advise, lend money to, guarantee the debts or
obligations of, permit his name or any part of it to be used or employed by
any person, business, firm, association, syndicate, company, organisation
or corporation concerned with or engaged or interested in a business which
is the same as, or competitive with, the business of the Company including,
without limitation, any business relating to Telecommunications within the
geographical area North America; nor will the Officer solicit or accept
business with respect to products competitive with those of the Company
from any of the Company's customers, wherever situate; provided that the
Officer shall be entitled, for investment purposes, to purchase and trade
shares of a public company which are listed and posted for trading on a
recognised stock exchange and the business of which public company may be
in competition with the business of the Company, provided that the Officer
shall not directly or indirectly, own more than 10% of the issued share
capital of the public company, or participate in its management or
operation or in any advisory capacity.
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o The Officer further agrees that, during employment pursuant to this
Agreement and for a period of six months following termination of
employment, however caused, he will not hire or take away or cause to be
hired or taken away any employee of the Company or, following termination
of the Officer's employment, any employee who was in the employ of the
Company during the six months preceding termination.
(8) CONFIDENTIAL INFORMATION
o The Officer acknowledges that as the President and in any other position as
the Officer may hold, the Officer will acquire information about certain
matters and things which are confidential to the Company ("Confidential
Information"), and which information is the exclusive property of , the
Company including but not limited to the following:
o product design and manufacturing information and computer programs, codes,
materials prototypes, products samples, analyses, reports;
o names and addresses, buying habits and preferences of present customers of
the Company, as well as prospective customers and all other proprietary
lists;
o pricing and sales policies, techniques and concepts;
o trade secrets; and
o other Confidential Information concerning the business operations or
financing of the Company.
o The Officer acknowledges the information as referred to in paragraph 9(1)
could be used to the detriment of the Company. Accordingly, the Officer
undertakes not to disclose same to any third party either during the term
of his employment except as may be necessary in the proper discharge of his
employment under this Agreement, or after the term of his employment,
however caused, except with the written permission of an officer of the
Company.
o The Officer acknowledges and agrees that without prejudice to any other
rights of the Company, in the event of his violation or attempted violation
of any of the covenants contained in paragraphs 8 and 9 of this Agreement,
an injunction or any other like remedy shall be the only effective remedy
or protect the Company's rights and property as set out in paragraphs 8 and
9, and that an interim injunction may be granted immediately on the
commencement of any suit.
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o The Officer understands and agrees that the Company has a material interest
in preserving the relationship it has developed with its customers against
impairment by competitive activities of a former employee. Accordingly, the
Officer agrees that the restrictions and covenants contained in paragraph 9
and those contained in paragraph 8 of this Agreement and the Officer's
Agreement to it by his execution of this Agreement, are of the essence to
this Agreement and constitute a material inducement to the Officer to enter
into this Agreement and to employ the Officer, and that the Company would
not enter into this Agreement absent an inducement. Furthermore, the claim
or cause of action by the Officer against the Company whether predicated on
this Agreement or otherwise, shall not constitute a defence to the
enforcement by the Company of the covenants or restrictions provided,
however, that if any provision shall be held to be illegal, invalid or
unenforceable in any jurisdiction, the decision shall not affect any other
covenant or provision of this Agreement or the application of any other
covenant or provision.
(9) INTELLECTUAL PROPERTY
o Intellectual Property means all legally recognised rights that result or
derive from the Officer's services provided to the Company or with the
knowledge, use or incorporation of Confidential Information, and includes
but is not limited to developments, inventions, designs, works of
authorship, topographies, improvement and ideas, whether or not patentable,
copyrightable or registrable, conceived or made by the Officer
(individually or in collaboration with others) during the Term or which
result from or derive from the Company's resources or which are reasonably
related to the business of the Company.
o The Officer agrees to disclose to the Company all Intellectual Property
developed by the Officer during the Term, either individually or in
collaboration with others, that relates directly or indirectly to the
business of the Company. The Officer acknowledges and agrees that all right
title and interest of any kind whatsoever in and to such Intellectual
Property and all other matters that the Officer now has or may at any time
in the future acquire in or relating to the subject matter of Confidential
Information and all copyrights, patents, rights to apply for patents,
licenses and all other intellectual property rights that the Officer now
has or may at any time in the future have in any of the foregoing is and
will be the exclusive property of the Company and the Company will have
absolute discretion to determine how to use this intellectual property. All
work done by the Officer or any other member of the Company is a work for
hire under which the Company is the first author for copyright purposes.
Copyright will vest in the Company. On notice from the Company the Officer
shall execute such documents and do such things, without further
consideration but at the Company's expense as the Company will reasonably
request in order to confirm the Officer's assignment of the foregoing
property and rights to the Company.
o The Officer hereby waives all moral rights he has or will have in the
Intellectual Property. The Company may assign the benefit of this waiver to
any purchaser, assignee or licensee of the Intellectual Property or of any
portion of the Intellectual Property.
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(10) VACATION
o The Officer shall be entitled during each year to four week's vacation. The
vacation shall be taken at the time or times as the Board of Directors may
determine. The Officer shall be allowed to carry forward any unused
vacation into the next calendar year but not further.
(11) DISABILITY
o If the Officer shall at any time by reason of illness or mental or physical
disability by incapacitated from performing his duties and at the request
of the Company, furnish to the Company satisfactory evidence of the
incapacity and the cause of it, he shall receive his full remuneration for
the first three months or any shorter period and one-half of his full
remuneration for the subsequent three consecutive months during which the
incapacity shall continue. If the Officer shall continue to be
incapacitated for a longer period than six consecutive months or if he
shall be incapacitated at different times for more than six months in the
aggregate in any period of one year, then in either case his employment and
appointment shall, at the option of the Company, immediately terminate.
(12) TERMINATION OF EMPLOYMENT
o If the Officer's employment is terminated for any reason whatsoever except
as defined below the Officer shall receive the appropriate portion of the
Officer's Compensation, Benefits and fully earned bonus remuneration (if
any) in respect to the balance of the full two year term of this contract
which commenced January 1 1999.
The parties understand and agree that this Agreement may be terminated in
the following manner in the specified circumstances:
By the Officer, at any time, for any reason, on the giving of six months'
written notice to the Company. The Company may waive notice, in whole or in
part.
o By the Company, in its absolute discretion, without any notice for cause.
For the purposes of this Agreement, cause includes the following:
o any material breach of the provisions of this Agreement;
o the commission of any act of bankruptcy by the Officer or compounding with
his creditors generally;
o conviction of the Officer of a criminal offence punishable by indictment,
where the cause is not prohibited by law;
o any mental or physical disability or illness which results in the Officer
being unable to substantially perform his duties for a continuous period of
150 days or for periods aggregating 180 days, in any period of 365 days.
Failure by the Company to rely on the provision of this paragraph in any
given instance or instances, shall not constitute a precedent or be deemed
a waiver.
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o The parties understand and agree that the giving of notice by the Company
to the Officer on termination of the Officer's employment shall not prevent
the Company from alleging cause for the termination.
o On termination of employment the Officer shall immediately resign all
offices held (including directorships) in the company.
(13) COMPANY PROPERTY
o The Officer acknowledges that all items of any and every nature or kind
created or used by the Officer pursuant to the Officer's employment under
this Agreement, or furnished by the Company to the Officer, and all
equipment, automobiles, credit cards, books, records, reports, files,
manuals, literature, Confidential Information or other materials shall
remain and be considered the exclusive property or the Company at all times
and shall be surrendered to the Company, in good condition, promptly on the
termination of the Officer's employment irrespective of the time, manner or
cause of the termination.
(14) ASSIGNMENT OF RIGHTS
o The rights which accrue to the Company under this Agreement shall pass to
its successors or assigns. The rights of the Officer under this Agreement
are not assignable or transferable in any manner.
(15) NOTICES
o Any notice required or permitted to be given to the Officer shall be
sufficiently given if delivered to the Officer personally or if mailed by
registered mail to the Officer's address last known to the Company.
o Any notice required or permitted to be given to the Company shall be
sufficiently given if mailed by registered mail to the Company's Head
Office at its address last known to the Officer.
(16) SEVERABILITY
o In the event that any provision or part of this Agreement shall be deemed
void or invalid by a court of competent jurisdiction, the remaining
provisions or parts shall be and remain in full force and effect.
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(17) ENTIRE AGREEMENT
o The contract constitutes the entire Agreement between the parties with
respect to the employment and appointment of the Officer and no
representations, promises, agreements or understandings, written or oral,
express or implied, not contained in this Agreement, shall be valid or
binding unless it is in writing and signed by the party intended to be
bound. No waiver of any provision of this Agreement shall be valid unless
the same is in writing and signed by the party against whom the waiver is
sought to be enforced; moreover, no valid waiver of any provision of this
Agreement at any time shall be deemed a waiver of any other provision of
this Agreement at the time or shall be deemed a valid waiver of the
provision at any other time.
(18) MODIFICATION OF AGREEMENT
o Any modification to this Agreement must be in writing and signed by the
parties or it shall have no effect and shall be void.
(19) HEADINGS
o The headings used in this Agreement are for convenience only and are not to
be construed in any way as additions to or limitations of the covenants and
agreements contained in it.
(20) GOVERNING LAW
o This Agreement shall be construed in accordance with the laws of the State
of Nevada.
IN WITNESS WHEREOF this Agreement has been executed by the parties to it, the
day, month and year first written above.
SIGNED, SEALED AND DELIVERED in the presence of:
COI SOLUTIONS INC.
per:__________________________________
"I have authority to bind the company"
CREATIVE SPIN INC..
per:__________________________________
"I have authority to bind the company"
_________________________ ______________________________________
WITNESS X.X. XXXXX
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