Exhibit 99.4(ii)
Employment Agreement of Xxxx Xxxxxx
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT made this ______ day of July, 1999.
BETWEEN:
MICRA SOUNDCARDS INC.
(hereinafter called the "Corporation")
OF THE FIRST PART
- and -
XXXX XXXXXX
(hereinafter called the "Employee")
OF THE SECOND PART
WHEREAS the Employee is to be employed by the Corporation;
AND WHEREAS the Employee and the Corporation are mutually desirous in
commencing the Employee's employment upon the terms and conditions set forth
herein;
NOW THEREFORE in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties covenant and agree as
follows:
1. Appointment and Duties
----------------------
1.1 The Corporation shall employ the Employee in the capacity of Vice-
President, Sales. The Employee shall report to the Chief Executive Officer and
shall perform such duties and exercise such powers as are normally associated
with and incidental and ancillary to such position and shall perform such
additional duties and exercise such additional powers as may be accorded to him
from time to time.
1.2 The Employee shall well and faithfully serve the Corporation and use his
best efforts to promote the interests and goodwill of the Corporation during the
term of his employment hereunder. The Employee shall devote his full time and
energy to the Corporation and shall not, without the prior consent of the Board
of Directors, engage in any other business, occupation or professional activity
or become an employee, director, manager or agent of any other company, firm,
association, organization or individual.
2. Term of Employment
------------------
2.1 The initial term of this Agreement (the "Initial Term") shall be for a
period of two (2) years, commencing on or about July 1, 1999 and concluding June
30, 2001. Unless either party provides written notice to the contrary not less
than ninety (90) days prior to the end of the Initial Term or any renewal
thereof (as the case may be), this Agreement shall be automatically renewed for
successive terms (each, a "Renewal Term") of one (1) year each, on the same
terms and conditions as contained herein. In the case of any change in control
of the Corporation, at any time, this Agreement will be deemed to be renewed for
a term of one (1) year on the day immediately prior to the change in control.
The Initial Term and any Renewal Terms are hereinafter collectively referred to
as the "Term".
3. Compensation and Benefits
-------------------------
3.1 During the first three (3) months of the Initial Term, the Corporation
shall pay the Employee a salary of Cdn.$10,000 per month, less statutory
deductions. Immediately following the first three months of the Initial Term,
the
-2-
Employee's salary will be reviewed by the Compensation Committee and adjusted
accordingly based on the Employee's performance, competitive salaries in the
market place for similar positions, and the Corporation's financial condition,
but in no case will the salary be less than Cdn. $10,000 per month or greater
than Cdn. $15,000 per month.
3.2 The Corporation covenants and agrees to implement as soon as practicable an
employee benefit plan (the "Benefit Plan") that is comparable to employee
benefit plans established by companies that are similarly situated as the
Corporation having regard to the nature of its business, the number of employees
and other relevant considerations. Pursuant to the Benefit Plan, the
Corporation shall provide the Employee with employee benefits comparable to
those provided by the Corporation from time to time to other employees of the
Corporation, and shall permit the Employee to participate in any life insurance
plan, private medical expenses plan, share option plan, share purchase plan,
retirement plan or similar plan offered by the Corporation from time to time to
its employees in the manner and to the extent authorized by the Board of
Directors, subject to the rules of the Benefit Plan from time to time.
3.3 The Employee shall be entitled to participate in the annual bonus pool (the
"Bonus Pool") to be created from the profits earned by the Corporation. The
Bonus Pool shall be created annually at the discretion of the Board of Directors
on the recommendation of the Compensation Committee.
4. Expenses and Vacation
---------------------
4.1 The Employee shall be reimbursed for all reasonable and necessary
travelling (excluding the Employee's personal use of his own automobile),
entertainment and other expenses actually and properly incurred by the Employee
from time to time in connection with the carrying out of his duties hereunder
upon submission of proper receipts, vouchers and other reasonable confirming
documentation. The budget for such expenses shall be reviewed at the beginning
of each fiscal year during the Term.
4.2 The Employee shall be entitled to all statutory holidays and to a minimum
of three (3) weeks paid vacation per year at such time or times as the Employee
may reasonably request and the Chief Executive Officer approves, provided that
no vacation entitlement may be carried over from one calendar year to another
and the Employee will not be entitled to cash payment in lieu of vacation.
5. Non-Competition and Non-Solicitation
------------------------------------
5.1 The Employee, in his capacity as an employee of the Corporation, covenants
and agrees that, except with the prior written approval of the Corporation, the
Employee will not at any time within the period of one (1) year days following
the earlier of the expiration of the Term of this Agreement or any termination
of the Employee's employment hereunder:
(a) either individually or in partnership or jointly or in conjunction with any
person or persons as principal, agent, consultant, shareholder (except as a
shareholder holding not more that five (5) percent of the outstanding shares
from time to time from any class of shares of a publicly traded corporation) or
in any other manner whatsoever carry on or be engaged in or concerned with or
interested in, or advise, lend money to, guarantee the debts of or obligations
of, or permit his name or any part thereof to be used or employed by or
associated with, any person or persons engaged in or concerned with or
interested in, any business that is the same or similar to or competitive with
the business or any other business now or at any time during the course of
employment of the Employee hereunder carried on by the Corporation within any
territory where the Corporation is carrying on business at the time of the
termination of the Employee's employment hereunder;
(b) either directly or indirectly, by any means or in any capacity, approach,
solicit or contact in the course of being engaged in a business competitive with
the Corporation any person solicited, serviced, or contacted by the Employee on
behalf of the Corporation during the Employee's employment or any person known
by the Employee to have been a supplier, client or customer of the Corporation
during the term of the Employee's employment; and
(d) interfere with the employment arrangements between the Corporation or any
of its employees and will not in any way solicit, recruit, hire, assist others
in recruiting or hiring, or discuss employment or similar arrangements with any
employees of the Corporation.
-3-
5.2 If any covenant or provision 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 covenant or provision and subsections 5.1(a), (b) and
(c) are each declared to be separate and distinct covenants.
5.3 The Employee agrees that all restrictions contained in Section 5.1 are
reasonable and valid and all defences to the strict enforcement thereof by the
Corporation are hereby waived by the Employee. The Employee agrees that the
covenants in Section 5.1 shall not terminate upon the termination of the
Employee's employment hereunder. The Employee acknowledges that a violation of
any of the provisions of Section 5.1 will result in immediate and irreparable
damage to the Corporation and agrees that in the event of such violation the
Corporation, in addition to any other right of relief, shall be entitled to
equitable relief by way of a temporary or permanent injunction and to such other
relief that any court of competent jurisdiction may deem just and proper. If
the Employee is in breach of any such restrictions, the running of the period of
such restrictions shall be stayed and shall recommence upon the date the
Employee ceases to be in breach thereof, whether voluntarily or by injunction.
6. Termination
-----------
6.1 The employment of the Employee hereunder may be terminated in the following
manner and in the following circumstances:
(a) at any time by notice in writing from the Corporation to the Employee for
cause;
(b) automatically without notice upon the death of the Employee;
(c) if the Employee shall become permanently disabled, then at any time by
notice in writing from the Corporation to the Employee. For purposes of this
subsection, the Employee shall be deemed to be permanently disabled immediately
following any period of 365 consecutive days during which the Employee is
prevented from performing his essential duties as an Employee of the Corporation
for more than 250 days in the aggregate by reason of illness or mental or
physical disability; or
(d) after the date that is 18 months following the Initial Term, by 180 days'
notice given by the Corporation in writing, or equivalent severance in lieu
thereof, provided that severance in lieu of notice may, in the discretion of the
Corporation, be paid on the same basis as set forth in Section 3.1.
6.3 Any payment to the Employee under Section 6.1 shall be deemed to include
all required payments pursuant to the provisions of the Employment Standards Act
(Ontario).
6.3 The Employee may, by providing ninety (90) days' notice in writing to the
Corporation (the "Notice Period"), terminate this Agreement and his employment
with the Corporation. In the event the Employee provides such notice to the
Corporation, the Corporation may request that the Employee cease duties prior to
the expiry of the Notice Period. The Corporation shall in such event pay to the
Employee an amount equal to the difference between what the Employee would have
received had the employment of the Employee been continued for the Notice Period
and the amount actually paid by the Corporation to the Employee during the
Notice Period.
7. Legal Advice
------------
7.1 The Employee hereby represents and warrants to the Corporation and
acknowledges and agrees that he had the opportunity to seek and was not
prevented nor discouraged by the Corporation from seeking independent legal
advice ("XXX") prior to the execution and delivery of this Agreement and that,
in the event that he did not avail himself with the opportunity prior to signing
this Agreement, he did so voluntarily without any undue pressure and agrees that
his failure to obtain XXX shall not be used by him as a defence to the
enforcement of his obligations under this Agreement.
-4-
8. General
-------
8.1 Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be delivered in person, transmitted by
telecopy or similar means of recorded electronic communication or sent by
registered mail, charges prepaid, addressed as follows or to such other address
as the relevant party may specify from time to time:
(a) if to the Corporation:
Micra Soundcards Inc.
000 Xxxx Xxxxxx Xxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxx
X0X 0X0
Attention: Board of Directors
Telecopier: (000) 000-0000
(b) if to the Employee:
Xxxx Xxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxx
X0X 0X0
Any such notice or other communication shall be deemed to have been given and
received on the day on which it was delivered or transmitted (or, if such day
is not a business day, on the next following business day) or, if mailed, on
the third business day following the date of mailing; provided, however, that if
at the time of mailing or within three (3) business days thereafter there is or
occurs a labour dispute or other event which might reasonably be expected to
disrupt the delivery of documents by mail, any notice or other communication
hereunder shall be delivered or transmitted by means of recorded electronic
communication as aforesaid.
8.2 This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether written or oral. There
are no covenants, conditions, agreements, representations, warranties or any
other terms or provisions, express or implied, collateral, statutory or
otherwise, relating to the subject matter hereof, except as herein provided.
8.3 No amendment or waiver of any provision of this Agreement shall be binding
on any party unless consented to in writing by such party. No waiver of any
provision of this Agreement shall constitute a waiver of any other provision nor
shall any waiver constitute a continuing waiver unless otherwise provided.
8.4 This Agreement shall enure to the benefit of and shall be binding upon and
enforceable by the parties hereto, and the heirs, executors, administrators and
legal personal representatives of the Employee and the successors and assigns of
the Corporation. This Agreement is personal to the Employee and may not be
assigned by the Employee.
-5-
8.5 This Agreement shall be construed, interpreted and enforced in accordance
with, and the respective rights and obligations of the parties shall be governed
by, the laws of the Province of Ontario and the federal laws of Canada
applicable therein.
IN WITNESS WHEREOF this Agreement has been executed by the parties hereto as of
the date first above written.
Signed, sealed and delivered in
the presence of: )
)
)
)(signed) "Xxxx Xxxxxx"
-------------------------- ---------------------------------------
Witness: Xxxx Xxxxxx
MICRA SOUNDCARDS INC.
Per:(signed) "Xxxxxx Xxxxxxxxxx
-----------------------------------
Xxxxxx Xxxxxxxxxx
President and Chief Executive Officer
