EXHIBIT 4.18
THIS MANAGEMENT AGREEMENT dated as of the 1st day of July, 2000.
AMONG:
XXXXXXXX.XXX INC., a Canadian corporation, having its head
office at 000 - 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx X0X 0X0;
(herein called "X.xxx")
OF THE FIRST PART
AND:
CHARLWOOD PACIFIC PROPERTIES LTD., a British
Columbia company, having its registered office at Suite 2300 -
0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0;
(herein called "Charlwood Pacific")
OF THE SECOND PART
AND:
R. XXXXXXXXXXX XXXXXXXXX ("RCC"), Executive, of
000 - 0000 Xxxxxxxxxx Xxxxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0; and
XXXXXX X. XXXXXXXXX ("MHC"), Executive, of 2003 - 0000
Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0,
(collectively, the "Charlwoods")
OF THE THIRD PART
WHEREAS:
A. X.xxx is in the business of offering travel information, retail and
wholesale products and merchandise to the online consumer by way of a World Wide
Web site on the Internet throughout Canada, the United States of America and
other countries throughout the world;
X. Xxxxxxxxx Pacific employs each of RCC, who is president and chief operating
officer of X.xxx, and MHC, who is vice-chairman of the board of directors of
X.xxx (the "Board") and a director of X.xxx, both of whom are possessed of the
management and business experience to effectively participate in the management
of X.xxx; and
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C. X.xxx wishes to retain Charlwood Pacific to provide executive and
management services to X.xxx for a period of ten months from July 1, 2000 and
the parties wish to enter into this Agreement to record their agreement in
writing.
IN CONSIDERATION of the covenants and agreements hereinafter set forth, the
parties agree as follows:
1. X.xxx hereby retains Charlwood Pacific to provide executive and management
services to X.xxx for a ten month period commencing July 1, 2000.
2. Charlwood Pacific agrees to provide executive and management services to
X.xxx as hereinafter provided.
3. During the term of this Agreement, Charlwood Pacific will employ RCC, and
will cause RCC to devote substantially all of his business time, energies and
efforts to the effective operation of the X.xxx business, and will cause RCC to
perform such services and duties and exercise such authority as may be assigned
to Charlwood Pacific from time to time by the board of directors of X.xxx (the
"Board"), which are consistent with his appointment as an officer of X.xxx. RCC
will accept or continue with his appointment as president and chief operating
officer of X.xxx, or any variation of such office as the Board considers
appropriate.
4. During the term of this Agreement, Charlwood Pacific will employ MHC and
will cause MHC to devote such of his business time, energies and efforts as is
reasonably required to carry out his duties as vice-chairman of the board of
directors and a director of X.xxx for the effective operation of the X.xxx
business, and will cause MHC to perform such services and duties and exercise
such authority as may be assigned to Charlwood Pacific from time to time by the
Board which are consistent with his appointment as a director or officer of
X.xxx. MHC will accept or continue with his appointment as vice-chairman of the
Board and a member of the Board, or any variation of such offices as the Board
considers appropriate.
5. During the term of this Agreement, each of Charlwood Pacific and the
Charlwoods agrees that it or he will not engage in any activity competitive with
or adverse to the welfare of X.xxx, and Charlwood Pacific will use its best
efforts to prevent the Charlwoods from engaging in any activity competitive with
or adverse to the welfare of X.xxx in any material way, whether alone, as a
partner, officer, director, employee or shareholder of another company or
otherwise.
6. Notwithstanding paragraph 5 hereof, nothing contained in this Agreement
shall be construed to prevent either of the Charlwoods from:
(a) acting as a member of the board of directors of any other corporation
and from receiving compensation therefrom;
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(b) making investments of any character in any business; or
(c) otherwise engaging in other business activities;
provided only that such investments or other business activities do not
interfere materially with the performance of the services to be rendered by such
Charlwood to Charlwood Pacific and by Charlwood Pacific to X.xxx under this
Agreement. Without limiting the generality of the foregoing, either of the
Charlwoods may participate in the ownership and management of Charlwood
International Corporation, Charlwood Pacific Holdings Corp., Charlwood Pacific,
Charlwood Pacific Group Ltd. and Cobalt Real Estate Corporation, and the
Charlwoods may also participate in the ownership and management of Uniglobe
Travel (International) Inc., Century 21 Real Estate Canada Inc., or any of their
present or future subsidiaries or associated companies (as defined in the Canada
Business Corporations Act).
7. All confidential or proprietary information or know-how of X.xxx disclosed
to or developed by or learned by Charlwood Pacific or either of the Charlwoods,
during the term of this Agreement, whether the subject matter of trade xxxx or
not, pertaining to the business and affairs of X.xxx, as well as all
information, data, inventions, discoveries, improvements, modifications or
developments relating to the business activities of X.xxx or acquired by
Charlwood Pacific or either of the Charlwoods during the term of this Agreement
shall be retained in confidence, unless required to be disclosed by law, and
Charlwood Pacific will use its best efforts to prevent the use, disclosure or
publication of the same by its agents and employees to others during or after
the term of this Agreement, without the prior written consent of X.xxx, unless
required to be disclosed by law. Charlwood Pacific agrees that upon the
termination of this Agreement for any reason, it will deliver to X.xxx all data,
reports, communications or the like and all other materials, visual or
conceptual presentations of any type and copies and duplicates thereof relating
to all matters contemplated by this paragraph.
8. In consideration of the services to be performed by Charlwood Pacific
hereunder, X.xxx will pay to Charlwood Pacific an aggregate management fee of
Cdn. $307,500 (the "Management Fee") , payable in equal monthly instalments on
the last day of each month during the term of this Agreement, with a pro rata
payment to be made for any portion of the month for which services are provided
prior to termination. In addition, Charlwood Pacific or the Charlwoods may
participate in any stock option, bonus or profit sharing programs adopted by
X.xxx for its executives. The criteria which the Board shall take into
consideration in providing for participation in any stock option, bonus or
profit sharing programs are the performance of the management and operating
personnel of Charlwood Pacific, any increase in the difficulties involved in the
services rendered and responsibility assumed by Charlwood Pacific, the success
achieved by X.xxx as a result of the services rendered by Charlwood Pacific, the
matters and amounts under the jurisdiction of Charlwood Pacific, the earnings
and profits of X.xxx, the increase in volume and quality of business of X.xxx
and such other criteria as the Board may deem relevant.
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9. X.xxx shall also pay or reimburse Charlwood Pacific for all reasonable
travelling, entertainment and other expenses incurred or paid by Charlwood
Pacific or either of the Charlwoods in connection with the performance of its or
their duties under this Agreement and in accordance with policies established by
the Board from time to time, upon presentation of expense statements or vouchers
and such other supporting information as the Board may from time to time
request.
10. During the term of this Agreement, each of the Charlwoods shall be entitled
to a vacation or vacations totalling to that fraction of four weeks duration,
the numerator of which is 10 (being the number of months in the term of this
Agreement) and the denominator of which is 12, to be taken at such times as
shall be most convenient in relation to the demands of the business of X.xxx and
Charlwood Pacific and the personal plans of the Charlwoods and shall not affect
the right of Charlwood Pacific to the Management Fee.
11. X.xxx may terminate this Agreement at any time, as it shall apply to either
of the Charlwoods individually, without any payment in lieu of notice in respect
of such individual Charlwood, by and effective upon the giving of written notice
to Charlwood Pacific of such termination, upon the occurrence of any of the
following events, namely:
(a) should either of the Charlwoods:
(i) become mentally incompetent as determined by a duly licensed
doctor in the Province of British Columbia acceptable to X.xxx
and to Charlwood Pacific;
(ii) be petitioned into bankruptcy;
(iii)neglect to give adequate time and personal attention to the
business of X.xxx (except in case of illness or accident);
(iv) be guilty of negligence in the performance of his duties; or
(v) disobey or neglect any lawful orders or directions of the Board
or infringe any of the provisions of this Agreement; or
(b) in the event of any material breach by Charlwood Pacific and/or either
of the Charlwoods of any of the material provisions of this Agreement,
provided, however, that in the case of clause (a) or (b):
(y) termination shall only be effective upon Charlwood Pacific's receipt
of notice from X.xxx which specifies all grounds for such termination,
and
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(z) a notice of termination shall not be given unless, at least 30 days
prior thereto, Charlwood Pacific shall have received notice from X.xxx
specifying all alleged grounds upon which X.xxx intends to terminate
this Agreement in respect of either of the Charlwoods and those
grounds shall be continuing when such notice of termination is given.
12. Except as herein provided, Charlwood Pacific shall be responsible for all
expenses relating to its own administration and management.
13. Charlwood Pacific agrees to diligently and properly carry out the
management services to be rendered hereunder and to cause the Charlwoods to
serve X.xxx to the best of their abilities.
14. X.xxx shall have the right from time to time to apply for and take out in
its name and at its own expense, life, health or other insurance upon either of
the Charlwoods and in any amount or amounts which may be deemed necessary by
X.xxx to protect its interest under this Agreement, and Charlwood Pacific shall
do all such things as may be necessary to assist in the procuring of such
insurance by causing such Charlwood to make a proper application therefor as may
be required by the insurance company and to submit to the usual and customary
medical examinations. Neither Charlwood Pacific nor either of the Charlwoods
shall have any right, title or interest in or to such insurance but the same
shall be solely for the benefit of X.xxx and any amount payable thereunder shall
be solely payable to X.xxx. X.xxx shall pay all premiums on the said policies
during the continuance in force of this Agreement as they come due. If any
premium is not paid within 20 days after its due date, either Charlwood Pacific
or either of the Charlwoods, in respect of the policy on his life only, may pay
such premium and be reimbursed therefor by X.xxx. The insurer is hereby
authorized and directed to give to each Charlwood, upon his written request, any
information with respect to the status of the policy on his life only. In the
event of the expiry or termination of this Agreement prior to the death of
either of the Charlwoods, Charlwood Pacific may purchase from X.xxx the policies
on the lives of the Charlwoods by payment of the cash value thereof at the date
of purchase, or, if there is not any cash value, for the sum of $1.00. If
Charlwood Pacific does not purchase from X.xxx the policies on the lives of the
Charlwoods, then the surviving Charlwood, should he so desire, may purchase from
X.xxx the policy on his specific life by payment of the cash value thereof at
the date of purchase, or, if there is not any cash value, for the sum of $1.00.
Any such offer to purchase shall be made within 60 days of the date of expiry or
termination of this Agreement and no such offer shall be refused.
15. Each of the Charlwoods covenants and agrees with X.xxx and Charlwood
Pacific to observe all of the covenants, terms and conditions of this Agreement,
which Charlwood Pacific has agreed with X.xxx that such Charlwood shall perform
and observe or that Charlwood Pacific will cause such Charlwood to perform and
observe.
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16. Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be given by facsimile, other means of
electronic communication or by hand- delivery. Any such notice or other
communication, if sent by facsimile or other means of electronic communication,
shall be deemed to have been received on the business day next following the
sending, or if delivered by hand shall be deemed to have been received at the
time it is delivered to the applicable address noted below either to the
individual designated below or to an individual at such address having apparent
authority to accept deliveries on behalf of the addressee. Notice of change of
address shall also be governed by this section. Notice and other communications
shall be addressed as follows:
XXXXXXXX.XXX INC.
000 - 0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Attention: Chairman, Compensation Committee
Telecopier No. 718-2678
CHARLWOOD PACIFIC PROPERTIES LTD.
000 - 0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Attention: R. Xxxxxxxxxxx Xxxxxxxxx
Telecopier No. 718-2678
R. XXXXXXXXXXX XXXXXXXXX
000 - 0000 Xxxxxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Telecopier No. 718-2678
XXXXXX X. XXXXXXXXX
2003 - 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Telecopier No. 718-2678
17. Neither the waiver or indulgence by X.xxx or Charlwood Pacific of any of
its rights under this Agreement, nor the invalidity of any provision herein
contained shall prevent either party from enforcing any other provision or right
created by this Agreement.
18. No modification of this Agreement shall be valid unless made in writing and
signed by the parties hereto.
19. Any provision of this Agreement which is, or becomes illegal, invalid or
unenforceable shall be severed from this Agreement and be ineffective to the
extent of such
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illegality, invalidity or unenforceability and shall not affect or impair the
remaining provisions hereof, which provisions shall remain in full force and
effect.
20. This Agreement shall be governed by the laws of the Province of British
Columbia and the laws of Canada applicable therein.
21. Any suit, action or proceeding arising out of or relating to this Agreement
against any party shall only be brought in the courts of the Province of British
Columbia and each party hereby irrevocably and unconditionally attorns and
submits to the jurisdiction of such courts over the subject matter of any such
suit, action or proceeding. Each party irrevocably waives and agrees not to
raise any objection it might now or hereafter have to any such suit, action or
proceeding in any such court including, without limitation, any objection that
the place where such court is located is an inconvenient forum or that there is
any other suit, action or proceeding in any other place relating in whole or in
part to the same subject matter. Any judgment or order in any such suit, action
or proceeding brought in such a court shall be conclusive and binding upon all
parties hereto, and each party consents to any such judgment or order being
recognized and enforced in the courts of its jurisdiction of incorporation or
other courts, by registration or homologation of such judgment or order, by a
suit, action or proceeding upon such judgment or order, or any other means
available for enforcement of judgments or orders, provided that service of any
required process is effected upon it in the manner provided by the laws of the
Province of British Columbia.
22. This Agreement, and the services of Charlwood Pacific hereunder, is
personal and said Agreement may not be assigned or otherwise transferred by
Charlwood Pacific without the prior written consent of X.xxx.
23. The parties acknowledge that any breach by them of the terms of this
Agreement will result in harm to the other parties that cannot be calculated or
fully or adequately compensated by recovery of damages alone. Accordingly, in
addition to any other relief to which the other parties may be entitled, any
party shall be entitled to interim and permanent injunctive relief, specific
performance and other equitable remedies.
IN WITNESS WHEREOF this Agreement has been executed by the parties hereto
as of the date first above written.
XXXXXXXX.XXX INC. CHARLWOOD PACIFIC PROPERTIES
LTD.
Per: /s/ Illegible Per: /s/ R. Xxxxxxxxxxx Xxxxxxxxx
------------------------------- --------------------------------
Authorized Signatory Authorized Signatory
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SIGNED, SEALED AND DELIVERED in )
the presence of: )
)
)
/s/ Xxxxx Xxxxxx ) /s/ R. Xxxxxxxxxxx Xxxxxxxxx
--------------------------------------) -------------------------------
Witness ) R. XXXXXXXXXXX XXXXXXXXX
)
)
SIGNED, SEALED AND DELIVERED in )
the presence of: )
)
/s/ X. Xxxxxxx ) /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------) -------------------------------
Witness ) XXXXXX X. XXXXXXXXX
