EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
AGREEMENT is entered into this 5th day of
February, 2009 (the “Effective
Date”)
BETWEEN:
LML PAYMENT SYSTEMS INC., a
company continued pursuant to the laws of the Yukon Territory of 1680 – 0000
Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, XX X0X 0X0
(the
“Company”)
AND:
XXXXX XXXXXXX, of Victoria,
BC
(the
“Executive”)
WHEREAS:
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A.
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The
Executive has been employed by Beanstream Internet Commerce Inc. (“Beanstream”) as the
President and Chief Executive Officer (“CEO”) of Beanstream
pursuant to an Employment Agreement made between the Executive and
Beanstream dated as of December 1, 2006 (the “Original Agreement”) and
amended by an Amending Agreement made between the Company, the Executive
and Beanstream dated June 29, 2007 (the “Amending Agreement”)
(the Original Agreement as amended by the Amending Agreement is referred
to in this Agreement as, the “Beanstream Employment
Agreement”);
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B.
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All
the shares in the capital of Beanstream were sold to the Company pursuant
to a Plan of Arrangement approved by an order of the Supreme Court of
British Columbia entered on June 28, 2008 so that Beanstream is now a
wholly-owned subsidiary of the Company (the “Beanstream
Acquisition”);
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C.
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The
Board of Directors of the Company has determined that it is in the best
interests of the Company and the corporations forming the LML corporate
group (the “LML
Group”), including Beanstream, that the Beanstream Employment
Agreement be terminated upon the Effective Date and that the Executive be
employed from the Effective Date under this Agreement in accordance with
the terms of this Agreement as the President of the
Company;
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D.
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The
Executive will continue to be the President and CEO of Beanstream and may
be appointed to be an officer of other corporations in the LML Group, from
time to time, hereafter;
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E.
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The
Executive is willing to terminate the Beanstream Employment Agreement and
to enter into this Agreement in order to be employed by the Company in
accordance with its terms; and
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F.
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The
Company recognizes that the Executive’s talents and abilities are unique
and have been integral to the success of Beanstream and, since the
Beanstream Acquisition, the success of the Company, and thus wishes to
secure the ongoing services of the Executive on the terms and conditions
set forth herein.
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NOW,
THEREFORE, in consideration of the premises and the mutual covenants set forth
below and other good and valuable consideration (the receipt and sufficiency of
which are hereby acknowledged), the parties agree as follows:
1. EMPLOYMENT
TERM
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1.1
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The
employment of the Executive shall commence on the Effective Date and shall
continue until terminated as hereinafter provided (the “Term”).
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1.2
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Despite
the provisions of section 1.1
hereof, either the Executive or the Company may terminate the Executive’s
employment at any time without notice for cause. Cause shall
mean any serious, culpable conduct, deemed cause under the common law of
the Province of British Columbia (“Cause”).
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2. SERVICES
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2.1
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The
Executive agrees to perform the duties and responsibilities of President
of the Company. The Executive’s duties will be as set out in
the Description of Services attached hereto as Appendix A and such other
incidental duties and responsibilities as may be reasonably required by
the Company and assigned to the Executive by the Chief Executive Officer
or the board of directors of the Company (the “Board”) from time to
time (hereinafter collectively referred to as the “Services”).
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2.2
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The
Executive shall devote substantially all of his working time, attention
and energies during normal business hours (other than absences due to
illness or vacation) to the performance of his duties for the
Company. Notwithstanding the above, the Executive shall be
permitted, to the extent that such activities do not substantially
interfere with the performance of his duties and responsibilities
hereunder or violate sections 12, 13 or 14 of this Agreement,
to
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(a)
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manage
his personal, financial and legal
affairs;
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(b)
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serve
on civic or charitable boards or committees (it being expressly understood
and agreed that the Executive’s continuing to serve on any such board
and/or committees on which he is serving, or with which he is otherwise
associated, as of the Effective Date, shall be deemed not to interfere
with the performance of his duties and responsibilities under this
Agreement);
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(c)
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serve
on boards of other companies; and
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(d)
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3. PLACE OF
PERFORMANCE
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3.1
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During
the Term, the Company shall maintain executive offices for the Executive
in Xxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx and the Executive shall not be
required to relocate to any other location. During the Term,
the Company shall provide the Executive with an office and staff in the
above offices consistent with the practices of the Company immediately
prior to the Effective Date.
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4. COMPENSATION
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4.1
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The
Company agrees to pay to the Executive a base salary of not less than
CDN $165,000 per year (“Base
Salary”). The Base Salary shall be paid in approximately
equal instalments in accordance with the Company’s customary payroll
practices. If the Company increases the Base Salary, such
increased Base Salary shall then constitute the Base Salary for all
purposes of this Agreement.
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4.2
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For
each full fiscal year of the Company that begins and ends during the
Term, the Executive shall be eligible to earn an annual bonus
payable in cash or other award (the “Annual Bonus”) of up to
thirty-five per cent (35%) of the Base Salary based on the achievement by
the Company of reasonable performance goals established by the
Compensation Committee for each such fiscal year (or portion) which may
include targets related to the revenues and the earnings before interest,
taxes, depreciation and amortization (“EBITDA”) of the Company
and personal objectives. The Compensation Committee shall
establish objective criteria to be used to determine the extent to which
performance goals have been
satisfied.
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5. BENEFITS
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5.1
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During
the Term, the Executive (and his eligible spouse and dependants) shall be
entitled to participate in all the welfare benefit plans and programs
maintained by the Company from time to time for the benefit of its senior
executives, including, without limitation, all medical, hospitalization,
dental, disability, accidental death and dismemberment and travel accident
insurance plans and programs. In addition, during the Term, the
Executive shall be eligible to participate in all pensions, retirement,
savings and other employee benefit plans and programs maintained from time
to time by the Company for the benefit of its senior executives, other
than any annual cash incentive plan. The policy documents of
such benefit plans shall determine benefit
entitlement.
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6. EXPENSES
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6.1
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In
accordance with the policies formulated by the Company from time to time,
the Executive shall be reimbursed for all reasonable traveling, business
and entertainment expenses actually and properly incurred by the Executive
in connection with the performance of his duties and functions, including,
without limitation, first class transportation. For all such
expenses the Executive shall keep proper accounts and shall furnish
statements and receipts to the Company in a timely
manner.
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7. AUTOMOBILES
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7.1
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The
Company shall provide the Executive with automobiles consistent with the
practices of the Company immediately prior to the commencement of the
Term.
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8. VACATION
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8.1
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The
Executive shall be entitled to fifteen (15) days’
vacation. Vacation not taken during the applicable fiscal year
may be carried over to the next following fiscal
year.
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9. STOCK
OPTIONS
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9.1
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The
Executive is eligible to be awarded options to purchase Common Share in
the capital stock of the Company by the Stock Option Committee of the
Company or the Compensation Committee of the Company, as the case may
be.
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10. ILLNESS,
DISABILITY, OR DEATH
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10.1
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The
Executive’s employment hereunder shall terminate upon his
death.
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10.2
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If
the Executive’s employment is terminated by his death, the Company shall
provide to the Executive’s beneficiary, legal representatives or estate,
as the case may be, a lump sum as set out in section 11.7(a)
hereof.
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11. TERMINATION
OF EMPLOYMENT
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11.1
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In
this section:
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(a)
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“Control
Change” means the occurrence of any of the following
events:
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(i)
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any
Person acquiring twenty percent (20%) or more of the issued and
outstanding shares of the Company;
or
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(ii)
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any
Person acquiring all or substantially all of the assets of the
Company;
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provided
that for the purpose of the foregoing definition, “Person” means a third party
that is operating at arm’s length from the Executive. For greater
certainty, “Person” shall not include any person, partnership, corporation or
other entity with which the Executive is involved directly or indirectly as
principal, agent, shareholder, officer, employee or in any other manner
whatsoever.
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11.2
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The
Executive may terminate his employment for good reason (“Good Reason”)
after giving the Company detailed written notice thereof, if the Company
shall have failed to cure the event or circumstance constituting Good
Reason within ten (10) business days after receiving such
notice. Good Reason shall mean the occurrence of any of the
following without the written consent of the Executive or his approval in
his capacity as the President:
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(a)
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a
Control Change;
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(b)
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the
assignment to the Executive of duties inconsistent with this Agreement or
a change in his titles or
authority;
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(d)
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a
material decrease in the Executive’s Base Salary, Annual Bonus, benefits
or incentives;
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(e)
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the
requirement of the Executive to relocate to a location other than that
provided in section 3
hereof;
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(f)
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the
failure of the Company to comply with and satisfy section 16 hereof;
or
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(g)
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any
material fundamental breach of this Agreement by the
Company.
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11.3
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The
Executive’s right to terminate his employment for Good Reason shall expire
if the Executive has not tendered his resignation from the Company for
Good Reason within thirty (30) business days of his providing written
notice thereof to the Company.
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11.4
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The
Company may terminate the Executive’s employment at any time for Cause
without notice or payment in lieu of notice, save and except that Cause
shall not exist unless and until the Company has delivered to the
Executive a copy of a resolution duly adopted by the Board at a
meeting of the Board called and held for such purpose after reasonable
notice to the Executive and an opportunity for the Executive, together
with his counsel, to be heard before the Board, finding that in the good
faith opinion of the Board that Cause exists, and specifying the
particulars thereof in detail. This section 11.4 shall not prevent the Executive
from challenging in any court of competent jurisdiction the Board’s
determination that Cause exists or that the Executive has failed to cure
any act (or failure to act) that purportedly formed the basis for the
Board’s determination.
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11.5
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The
Company shall have the right to terminate the Executive’s employment
hereunder without Cause by providing to the Executive notice of
termination as set out in section 11.7
hereof.
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11.6
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Any
termination of the Executive’s employment by the Company shall be
communicated by written notice of termination to the Executive; provided
that such notice complies with the then existent statutory employment
termination notice requirements in British
Columbia.
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11.7
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In
the event that the Executive’s employment is terminated by the Company
without Cause or by the Executive for Good Reason during the Term, the
Company shall provide the Executive with the following
payments:
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(a)
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if
there is no Control Change, the Company shall pay to the Executive on or
before the date of termination (the “Date of Termination”) a
lump sum equal to six (6) months of Base Salary and accrued vacation pay
through to the Date of Termination;
or
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(b)
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in
the event of a Control Change, the Company shall pay to the Executive on
or before the Date of Termination a lump sum equal to one (1) year of Base
Salary and accrued vacation pay through to the Date of
Termination.
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The
Executive acknowledges and agrees that the payments set forth in this
section 11.7 constitute liquidated
damages for termination of his employment during the Term. The
Executive agrees that any amount due and payable to the Executive pursuant to
section 11.7(a) or (b) shall be included and not in addition
to the amount payable pursuant to the statutory notice requirements in British
Columbia referred to in section 11.6.
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11.8
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If
the Executive’s employment is terminated by the Company for Cause or by
the Executive other than for Good Reason, then the Company shall provide
the Executive with any compensation earned by the Executive to the Date of
Termination including any accrued obligations owing to the Executive
pursuant to the provisions of sections 4, 5, 6, 8 and 9 hereof and shall have no further
obligation to the Executive
hereunder.
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12. CONFIDENTIAL
INFORMATION AND COMPANY PROPERTY
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12.1
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For
purposes of this Agreement, the term “Confidential Information” means all
of the following materials and information (whether or not reduced to
writing and whether or not patentable or protectable by copyright) which
the Executive receives, received access to, conceived or developed, in
whole or part, directly or indirectly, in connection with his employment
with the Company or in the course of his employment with the Company (in
any capacity, whether executive, managerial, planning, technical, sales,
research, development, manufacturing, engineering or otherwise) or through
the use of any of the Company’s facilities or
resources:
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(a)
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business
plans, strategies, tactics, policies, resolutions, patent applications,
trademark applications, trade name applications and industrial design
applications;
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(b)
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litigation,
negotiations or contractual
arrangements;
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(c)
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financial
information, including, but not limited to, cost, pricing, performance
data, debt arrangements, equity structure, interests and
holdings;
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(d)
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operational
and scientific information, including, but not limited to, marketing
research techniques, trade secrets, product specifications, data, data
base information, know-how, methodologies, formulae, models, compositions,
processes, improvements, devices, inventions, discoveries, concepts,
ideas, designs, sketches, photographs, graphs, drawings, notes, samples,
past, current and planned research and development, systems, structures
and architectures and related processes (collectively the “Works”);
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(e)
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marketing
information, including, but not limited to, current and planned marketing
activities, methods and processes, marketing strategies, advertising
strategies, customer or client lists, current and anticipated customer or
client requirements, price lists and methodologies, marketing research
methodologies, market studies, sales and marketing plans and information
concerning customers, clients or suppliers, and strategies for attracting
and dealing with customers or clients, including information relevant to
the design and implementation of marketing plans and advertising
campaigns;
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(f)
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personnel
information, including, but not limited to, the names and backgrounds of
key personnel, personnel lists, résumés, personnel data, including
information about compensation and benefits, organization structure,
performance evaluations of personnel of the Company and personnel training
techniques and materials;
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(g)
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any
and all information concerning the business and affairs of the Company
which the Company treats as proprietary and confidential and which is not
in the public domain;
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(h)
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any
other information, however documented, of the Employer that is a trade
secret under any applicable legislation or at common law;
and
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(i)
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all
ideas which are derived from or related to the Executive’s access to or
knowledge of any of the above enumerated materials and
information.
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12.2
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Failure
to make any of the Confidential Information as confidential, proprietary
or protected information does not affect its status as part of the
Confidential Information under the terms of this
Agreement.
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12.3
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For
purposes of this Agreement, the information that would otherwise be
Confidential Information which is or becomes publicly available without
breach of:
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(a)
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this
Agreement;
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(b)
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any
other agreement or instrument to which the Company is a part or a
beneficiary; or
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(c)
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any
duty owed to the Company by the Executive or any third
party;
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(“Available
Information”)
is not
Confidential Information, provided, however, that the Executive acknowledges and
agrees that if the Executive seeks to disclose, divulge, reveal, report,
publish, transfer or use, for any purpose, any Available Information, the
Executive bears the burden of proving that such information is Available
Information.
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12.4
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For
purposes of this Agreement, the term “Intellectual Property” means all
works, trademarks, trademark applications, patents, patent applications,
copyright materials, trade names, trade name applications, industrial
designs, and applications to register
designs.
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12.5
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The
Executive acknowledges that as a result of his employment by the Company,
the Executive may use, acquire or add to Confidential Information or
Intellectual Property.
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12.6
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The
Executive shall not at any time during or following the Term of the
Executive’s employment by the Company, directly or indirectly, disclose,
divulge, reveal, report, publish, transfer or use for any purpose any of
the Confidential Information, except with the prior written consent of the
Company, or except if the Executive is acting as an employee of the
Company solely for the benefit of the Company in connection with the
Company’s business and in accordance with the Company’s business practices
and employment policies.
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12.7
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Disclosure
of any Confidential Information is not prohibited if the disclosure is
directly pursuant to a valid and existing order of a court or other
governmental body or agency within Canada; provided, however,
that:
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(a)
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the
Executive shall first have given prompt notice to the Company of any
possible or prospective order (or proceedings pursuant to which any order
may result); and
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(b)
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the
Company shall have been afforded a reasonable opportunity to prevent or
limit any disclosure.
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12.8
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The
Executive acknowledges and agrees that all rights, title and interest in
any Confidential Information or Intellectual Property remains the
exclusive property of the Company. Accordingly, the Executive
specifically agrees and acknowledges that he has no interest in the
Confidential Information or Intellectual Property, notwithstanding the
fact that the Executive may have created or contributed to the creation of
or his name is used in association with such Confidential Information or
Intellectual Property.
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13. NON-COMPETITION
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13.1
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During
the Term and until the six (6) month anniversary of the Date of
Termination, if the Executive’s employment is terminated by the Company
for Cause or the Executive terminates employment without Good Reason, the
Executive shall not engage in or become associated with any business or
other endeavour that engages in any country in which the Company has
significant business operations as of the Date of Termination to a
significant degree in a business that directly competes with all or any
substantial part of the Company’s business
of:
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(a)
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electronic
payment processing solutions
including:
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(i)
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credit
card, debit card, EFT, ACH, authentication,
payroll;
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(ii)
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merchant
acquiring and payment gateway;
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(iii)
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electronic
check re-presentment (whereby returned paper checks are re-presented for
payment electronically); and
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(iv)
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check
collection;
(collectively “Competitive
Activity”).
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13.2
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A
Competitive Activity shall not
include:
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(a)
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any
speaking engagement to the extent that such speaking engagement does not
promote or endorse a product or service of the
Business;
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(b)
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the
writing of any book or articles relating to subjects other than Business;
or
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(c)
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the
television, video or movie business so long as such business does not
relate to the Business.
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13.3
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The
Executive shall be considered to have become “associated with a
Competitive Activity” if he becomes involved as an owner, employee,
officer, director, independent contractor, agent, partner, advisor or in
any other capacity calling for the rendition of the Executive’s personal
services, with any individual, partnership, corporation or other
organization that is engaged in a Competitive Activity and his involvement
relates to a significant extent to the Competitive Activity of such
entity; provided, however, that the Executive shall not be prohibited
from:
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(a)
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owning
less than five percent (5%) of any publicly traded corporation, whether or
not such corporation is in competition with the Company;
or
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(b)
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serving
as a director of a corporation or other entity the primary business of
which is not a Competitive
Activity.
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14. NON-SOLICITATION
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14.1
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During
the Term, and for twelve (12) months after the Date of Termination, if the
Executive’s employment is terminated by the Company for Cause or the
Executive terminates employment without Good Reason, the Executive will
not, directly or indirectly, solicit for employment by other than the
Company any person (other than any personal secretary or assistant hired
to work directly for the Executive) employed by the Company or its
affiliated companies, nor will the Executive, directly or indirectly,
solicit for employment by other than the Company any person known by the
Executive (after reasonable inquiry) to be employed at the time by the
Company or its affiliated
companies.
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14.2
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If,
at any time, the provisions of sections 13 or 14 hereof shall be determined to be
invalid or unenforceable by reason of being vague or unreasonable as to
area, duration or scope of activity, sections 13 or 14 hereof shall be considered
divisible and shall become and be immediately amended to only such area,
duration and scope of activity as shall be determined to be reasonable and
enforceable by the court or other body having jurisdiction over the
matter; and the Executive agrees that sections 13 and 14 hereof as so amended shall be
valid and binding as though any invalid or unenforceable provision had not
been included herein.
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15. INJUNCTIVE
RELIEF
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15.1
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In
the event of a breach or threatened breach of sections 13 or 14 hereof, the Executive agrees that
the Company shall be entitled to injunctive relief in a court of
appropriate jurisdiction to remedy any such breach or threatened breach,
the Executive acknowledging that damages would be inadequate and
insufficient.
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16. INDEMNIFICATION
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(a)
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The
Company 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 the Executive is or was a trustee, director or officer of
the Company or any predecessor of the Company or any of its affiliates or
is or was serving at the request of the Company, any predecessor of the
Company, or any of its affiliates as a trustee, director, officer, member,
employee or agent including, without limitation, service with respect to
employee benefit plans, whether or not the basis of such proceeding is
alleged action in an official capacity as a trustee, director, officer,
member, employee or agent while serving as a trustee, director, officer,
member, employee or agent, the Executive shall be indemnified and held
harmless by the Company to the fullest extent authorized by law as the
same exists or may hereafter be amended against all expenses incurred or
suffered by the Executive in connection therewith, and such
indemnification shall continue as to the Executive even if the Executive
has ceased to be an officer, director, trustee or agent or is no longer
employed by the Company and shall enure to the benefit of his heirs,
executors and administrators.
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(b)
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If
a claim or request under this section 16 is not paid by the Company or on
its behalf, within thirty (30) days after a written claim or request has
been received by the Company, the Executive may at any time thereafter
bring suit against the Company to recover the unpaid amount of the claim
or request and if successful in whole or in part, the Executive shall be
entitled to be paid also the expenses of prosecuting such
suit. All obligations for indemnification hereunder shall be
subject to and paid in accordance with the law of British
Columbia.
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(c)
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If
the Executive is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of any claim in this
section 16 but not, however,
for the total amount thereof, the Company shall nevertheless indemnify the
Executive for the portion of such claim to which the Executive is
entitled.
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(d)
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Expenses
incurred by the Executive in connection with any Proceeding shall be paid
by the Company in advance upon request of the Executive that the Company
pay such expenses, but only in the event that the Executive shall have
delivered in writing to the
Company,
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(i)
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an
undertaking to reimburse the Company for expenses with respect to which
the Executive is not entitled to indemnification;
and
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(ii)
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a
statement of his good faith belief that the standard of conduct necessary
for indemnification by the Company has been
met.
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(e)
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The
Executive shall give to the Company notice of any claim made against him
for which indemnification will or could be sought under this
Agreement. In addition, the Executive shall give the Company
such information and cooperation as it may reasonably require and as shall
be within the Executive’s power and at such time and places as are
convenient for the Executive.
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(f)
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With
respect to any Proceeding as to which the Executive notifies the Company
of the commencement thereof:
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(i)
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The
Company will be entitled to participate therein at its own
expense;
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(ii)
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Except
as otherwise provided below, to the extent that it may wish, the Company
will be entitled to assume the defence thereof, with counsel, reasonably
satisfactory to the Executive, which in the Company’s sole discretion may
be regular counsel to the Company and may be counsel to other officers and
directors of the Company or any subsidiary. The Executive also
shall have the right to employ his own counsel in such action, suit or
proceedings if he reasonably concludes that failure to do so would involve
a conflict of interest between the Company and the Executive, and under
such circumstances the fees and expenses of such counsel shall be at the
expense of the Company;
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(iii)
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The
Company shall not be liable to indemnify the Executive under this
Agreement for any amounts paid in settlement of any action or claim
affected without its written consent. The Company shall not
settle any action or claim in any manner which would impose any penalty
that would not be paid directly or indirectly by the Company or limitation
on the Executive without the Executive’s written
consent. Neither the Company nor the Executive will
unreasonably withhold or delay their consent to any proposed
settlement.
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(g)
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The
right to indemnification and the payment of expenses incurred in defending
a Proceeding in advance of its final disposition conferred in this
section 16 shall not be
exclusive of any other right which the Executive may have or hereafter may
acquire under any statute or certificate of incorporation or by-laws of
the Company or any subsidiary, agreement, vote of shareholders or
disinterested directors or trustees or
otherwise.
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17. COMPANY’S
SUCCESSORS
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17.1
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No
rights or obligations of the Company under this Agreement may be assigned
or transferred, except that the Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of
the Company to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. As used in
this Agreement, “Company” shall include any successor to its business
and/or assets (by merger, purchase or otherwise) which executes and
delivers the agreement provided for in this section 17, or which otherwise becomes bound
by all the terms and provisions of this Agreement by operation of
law.
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18. EXECUTIVE’S
SUCCESSORS
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18.1
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No
rights or obligations of the Executive under this Agreement may be
assigned or transferred by the Executive other than his rights to payments
or benefits hereunder, which may be transferred by the Executive other
than his rights to payments or benefits hereunder, which may be
transferred only by will or the laws of descent and
distribution. Upon the Executive’s death, this Agreement and
all rights of the Executive hereunder shall inure to the benefit of and be
enforceable by the Executive’s beneficiary or beneficiaries, personal or
legal representatives, or estate, to the extent any such person succeeds
to the Executive’s interests under this Agreement. If the
Executive should die following his Date of Termination while any amounts
would still be payable to him hereunder if he had continued to live, all
such amounts unless otherwise provided herein shall be paid in accordance
with the terms of this Agreement to such person or persons so appointed in
writing by the Executive, or otherwise to his legal representatives or
estate.
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19. NOTICE
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19.1
|
For
the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered either personally
or by certified or registered mail, return receipt requested, postage
prepaid, addressed as follows:
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If to the
Executive:
At his
address most recently filed with the Company.
If to the
Company:
Suite
1680 — 0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx
XX Xxxxxx X0X 0X0
or to
such other address as any party may have furnished to the others in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
20. MISCELLANEOUS
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20.1
|
No
provisions of this Agreement may be amended, modified, or waived unless
such amendment or modification is agreed to in writing signed by the
Executive and by a duly authorized officer of the Company, and such waiver
is set forth in writing and signed by the party to be
charged. No waiver by either party hereto at any time of any
breach by the other party hereto of any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior
or subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof
have been made by either party that are not set forth expressly in this
agreement. The respective rights and obligations of the parties
hereunder of this Agreement shall survive the Executive’s termination of
employment and the termination of this Agreement to the extent necessary
for the intended preservation of such rights and
obligations. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the
Province of British Columbia.
|
|
20.2
|
The
invalidity or unenforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and
effect.
|
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20.3
|
This
Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original but all of which together will constitute one
and the same instrument.
|
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20.4
|
This
Agreement sets forth the entire agreement of the parties hereto in respect
of the subject matter contained herein and supersedes all prior
agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer,
employee or representative of any party hereto in respect of such subject
matter including, without limitation. Any prior agreement of
the parties hereto in respect of the subject matter contained herein is
hereby terminated and cancelled.
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20.5
|
All
payments hereunder shall be subject to any required withholding of taxes
pursuant to any applicable law or
regulation.
|
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20.6
|
The
section headings in this Agreement are for convenience of reference only,
and they form no part of this Agreement and shall not affect its
interpretation.
|
|
20.7
|
The
Executive acknowledges that the
Executive:
|
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(a)
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has
had time to review this Agreement;
|
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(b)
|
fully
understands the contents of this Agreement;
and
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(c)
|
has
had the opportunity of obtaining legal advice concerning the Agreement’s
interpretation and effect on the Executive and has obtained or waived such
legal advice.
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IN
WITNESS WHEREOF the parties hereunto have executed this Agreement as of the
5th
day of February, 2009.
Per: /s/ Xxxx
XxxXxx
Authorized
Signatory
/s/ Xxxxx
Xxxxxxx
XXXXX
XXXXXXX
