EXHIBIT 10.6
EMPLOYMENT AGREEMENT
THIS AGREEMENT made the 20/th/ day of September 2000
BY AND AMONG:
YAK COMMUNICATIONS (USA), INC.,
a corporation incorporated and existing under
the laws of the State of Florida
- and -
YAK COMMUNICATIONS (CANADA) INC.,
a corporation incorporated and existing under
the laws of the Province of Ontario
(collectively, the "Employer")
- and -
XXXXXXX XXXXXXX,
an individual residing in Toronto, Canada
(the "Employee")
AND WHEREAS the Employee is currently employed by the Employer as the President
thereof;
AND WHEREAS the Employer and the Employee have agreed to enter this agreement
in respect of the employment of the Employee by the Employer, on the terms and
subject to the conditions set out herein;
AND WHEREAS the Employee hereby agrees to surrender and cancel all warrants or
options or promises, made either verbally or in writing between the Employee and
the Employer prior to the date and effect of this agreement;
NOW THEREFORE in consideration of the covenants and agreements herein contained
the parties hereto agree as follows:
ARTICLE 1 - EMPLOYMENT
1.01 Employment. Subject to the terms and conditions hereof, the Employee shall
be employed by the Employer as its President, and shall perform such duties and
exercise such powers related to such office as specified by the board of
directors of the Employer.
1.02 Term of Employment. This Agreement shall commence on the date hereof, and
shall continue in effect until December 31/st/, 2003, or until terminated in
accordance with the provisions of this Agreement.
ARTICLE 2 - REMUNERATION
2.01 Salary. The Employer shall pay the Employee a gross base salary in an
amount equivalent to $120,000.00 per year (the "Base Salary"), payable bi-
weekly. The Employer's board of directors shall review this Base Salary for the
fiscal year 2001 and each year thereafter.
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2.02 Bonus. The Employee shall be entitled to a bonus (payable by the Employer)
as determined by the board of directors of the Employer and/or any compensation
committee thereof; such bonus shall be contingent upon, (a) the growth in the
Employer's earnings, (b) progress made by the Employer in penetrating the
Canadian and other long distance telephone markets, and (c) the growth of
shareholder value in the Employer. It is agreed by the parties that the
Employee's bonus for the fiscal year ended June 30, 2000 shall be $50,000 to be
paid no later than September 30, 2000.
2.03 Health Plan. The Employee will be entitled to receive benefits from the
Employer in accordance with the Employer's standard benefits package, as amended
from time to time, including, but not limited to, extended health care, dental,
long term disability and life insurance benefits. Long term disability benefits
are intended to replace and substitute in accordance with their terms for all
compensation and remuneration provided herein and otherwise payable to the
Employee.
2.04 Vacation. The Employee shall be entitled to four weeks paid vacation per
calendar year for the term of this Agreement. The Employee's vacation shall be
taken at a time or times acceptable to the Employer having regard to its
operations.
2.05 Withholding. All taxable amounts set forth in this Agreement are subject
to applicable Canadian withholding or source deductions.
2.06 Expenses. The Employer shall reimburse the Employee for reasonable out of
pocket expenses incurred by the Employee in performing his duties under this
Agreement, upon submission of a record of such expenses in a form satisfactory
to the Employer. Such reimbursement shall include all reasonable automobile
expenses.
ARTICLE 3 - EMPLOYEE'S COVENANTS
3.01 Service. The Employee shall devote the majority of his work time hours,
attention and ability to the business of the Employer in an amount sufficient to
reasonably perform all of his duties under this Agreement, but in no event less
than 30 hours a week, and shall well and faithfully serve the Employer, and
shall use his best efforts to promote the interests of the Employer. It is
acknowledged and agreed that the Employee is also the principal shareholder and
operator of X-Xxxxxxxxxxx.xxx Corporation which is a development stage company
involved in developing and distributing electronic ATM based cash-cards for the
purposes of consumer money transferring services. The parties acknowledge that
this business in not in competition with the business of the Employer.
3.02 Duties and Responsibilities. The Employee shall duly and diligently
perform all the duties assigned to him while in the employ of the Employer, and
shall truly and faithfully account for and deliver to the Employer all money,
securities and things of value belonging to the Employer which the Employee may
from time to time receive for, from, or on account of the Employer.
3.03 Non-Disclosure. The Employee shall not (either during the continuance of
his employment with the Employer or at any time thereafter) disclose any
information relating to the private or confidential affairs or secrets of the
Employer or any affiliate or client of the Employer, to any person other than
for the Employer's purposes and shall not (either during the continuance of his
employment with the Employer or at any time thereafter) use for his own purposes
or for any purposes other than those of the Employer any such information or
secrets he may acquire in relation to the business of the Employer.
3.04 Non-Competition. The Employee shall not:
(a) at any time, during which he has any working relationship with the
Employer, whether as an employee, consultant or otherwise including the
period of his employment hereunder; and
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(b) for a period of one year after he has ceased to have a working
relationship with the Employer (such period covered by (a) and (b) above,
the "Noncompetition Period").
either individually or in partnership or jointly or in conjunction with any
person or persons, firm, association, syndicate, company or corporation, as
principal, agent, trustee, shareholder, employee or consultant, or in any manner
whatsoever, whether directly or indirectly, carry on or be engaged in or
concerned with or interested in, or advise, lend money to guarantee the debts or
obligations of, or permit his name or any part thereof to be used or employed by
or associated with, any person or persons, firm, association, syndicate, company
or corporation engaged in or concerned with or interested in any business
substantially similar and competing to any part of:
(a) the business carried on by the Employer at the date hereof;
(b) any other business carried on by the Employer at the time of the
termination of the Employee's employment hereunder; or
(c) any other business which the Employer has formulated plans during the
Noncompetition Period to commence carrying on.
provided that nothing herein shall restrict or prevent the Employee from owning
as a passive investor of less than five percent (5%) of any class of securities
of any competitor of the Employer that are listed for trading on a recognized
stock exchange.
3.05 Non-Solicitation. The Employee shall not at any time during the period of
his employment hereunder or within the period of twelve (12) months (the "Non-
Solicitation Period") following the termination of his employment hereunder,
directly or indirectly, approach for the purpose of obtaining business or
solicit any "Customer" or any employee of the Employer. In the event that this
Agreement is terminated prior to December 31, 2002, then the Non-Solicitation
Period shall extend through December 31, 2003. As used in this section
"Customer" shall extend only to those persons, firms, corporation or other
entities:
(a) who are customers of the Corporation at the date hereof and have, after
the date hereof, continued to be customers of the Corporation at any time
within the twelve (12) months immediately preceding the time of such
solicitation; or
(b) who the Employee knew or ought reasonably to have known were customers of
the Corporation.
ARTICLE 4 - TERMINATION OF EMPLOYMENT
4.01 Termination by Employer for Cause. The Employer may terminate this
Agreement at any time for cause without payment of any compensation by way of
anticipated earnings, damages or other relief of any kind whatsoever. Cause
shall mean, for purposes of this Agreement, Employee's: (i) misappropriation of
tangible assets of the Employer for personal use; (ii) conviction of any
criminal act except for a minor traffic offense; (iii) commission of fraud,
embezzlement, or breach of trust relating to or arising out of his relationship
with the Employer; or (iv) continued failure to reasonably perform a substantial
portion of his duties as President for the Employer as required by this
Agreement. Prior to the Employer's termination of this Agreement for cause under
this Section, the Employer shall first have provided Employee with at least 30
days prior written notice and Employee shall have not, within that 30 days,
remedied the basis of that termination.
4.02 Termination by Employee. The Employee may terminate his employment
hereunder upon at least 30 days prior written notice given by the Employee to
the Employer. The Employer, at its sole discretion, may elect to accept the 30
days notice or to reduce or eliminate the notice period. The Employee's
employment shall terminate on the day elected by the Employer.
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4.03 Termination by Employee after a Change of Control. In the event that the
Employee terminates his employment with the Employer pursuant to Section 4.02
hereof within six (6) months after a date on which there has been either:
(a) a transfer or issue of any voting securities of the Employer which
resulted in a change in the effective control of the Employer, other than
an initial public offering; or
(b) a sale by the Employer of all or substantially all of the Employer's
assets;
then the Employer shall pay to the Employee an amount equal to three times the
Base Salary plus a pro rated bonus, based upon the portion of the fiscal year
that is passed, and based upon an annualization of the criteria set forth in
Section 2.02.
4.04 Termination by Employer. If the Employee is terminated by the Employer for
other than cause prior, the Employer shall pay to the Employee an amount equal
to three times the Base Salary plus a pro rated bonus, based upon the portion of
the fiscal year that is passed, and based upon an annualization of the criteria
set forth in Section 2.02.
4.05 Full and Final Release. The Employee's acceptance of termination pay made
pursuant to Sections 4.03 or 4.04 shall constitute a full and final release of
all claims against the Employer and its affiliates for remuneration for his
employment, but shall not constitute a full and final release of claims for
compensation or value due to the Employee under his Stock Option Agreement,
dated as of the date hereof, by and between the Employee and Yak Communications
(USA), Inc. (the "Stock Option Agreement"). For any reason of termination
including for cause, the Employee shall retain the right to exercise a Buy Out
option (as defined in Section 3 the Stock Option Agreement).
4.06 Fair and Reasonable. The parties confirm that the provisions contained in
Sections 4.03 through 4.05 are fair and reasonable and that all such payments
shall be in full satisfaction of all claims of remuneration which the Employee
may otherwise have at law against the Employer or its affiliates including,
without limitation, under the Employment Standards Act (Ontario), or in equity
by virtue of such termination of employment.
ARTICLE 5 - GENERAL
5.01 Sections and Headings. The division of this Agreement into Articles and
Sections and the insertion of headings are for the convenience of reference only
and shall not affect the construction or interpretation of this Agreement.
5.02 Number. In this Agreement words importing the singular number only shall
include the plural and vice versa and words importing the masculine gender shall
include the feminine and neuter genders and vice versa and words importing
persons shall include individuals, partnerships, associations, trusts,
unincorporated organizations and corporations and vice versa.
5.03 Benefit of Agreement. This Agreement shall enure to the benefit of and be
binding upon the heirs, executors, administrators and legal personal
representatives of the Employee, and the successors and permitted assigns of the
Employer.
5.04 Entire Agreement. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and cancels and supersedes
any prior understandings and agreements between the parties hereto with respect
thereto. There are no representations, warranties, forms, conditions,
undertakings or collateral agreements, express, implied or statutory between the
parties other than as expressly set forth in this Agreement.
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5.05 Severability. If any provision of this Agreement is determined to be
invalid or unenforceable in whole or in part, such invalidity or
unenforceability shall attach only to such provision or part thereof and the
remaining part of such provision and all other provisions hereof shall continue
in full force and effect.
5.06 Notices. Any demand, notice or other communication (hereinafter in this
Section referred to as a "Communication") to be given in connection with this
Agreement shall be given in writing and may be given by personal delivery or by
registered mail addressed to the recipient as follows:
To the Employee: Xx. Xxxxxxx Xxxxxxx
000 Xxxxxxxx Xxxx.
Xxxxxxx, Xxxxxxx
X0X 0X0
To the Employer: 00 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
or such other address or individual as may be designated by notice by either
party to the other. Any Communication given by personal delivery shall be
conclusively deemed to have been given on the day of actual delivery thereof
and, if made or given by registered mail, on the third day, other than a
Saturday, Sunday or statutory holiday in Ontario, following the deposit thereof
in the mail.
5.07 Construction. The parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement. Any reference to any federal, state, local or foreign statute or
law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The specifications of any
dollar amount in the representations and warranties or otherwise in this
Agreement is not intended and shall not be deemed to be an admission or
acknowledgment of the materiality of such amounts or items, nor shall the same
be used in any dispute or controversy between the parties to determine whether
any obligation, item or matter (whether or not described herein or included in
any schedule) is or is not material for purposes of this Agreement.
5.08 Further Documetation. The parties shall execute and deliver any other
instruments or documents and take any further actions after the execution of
this Agreement, which may be reasonably required for the implementation of this
Agreement and the transactions contemplated hereby.
5.08 Currency. All references to currency made in this Agreement are to U.S.
Dollars
5.10 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
IN WITNESS WHEREOF the parties have executed this Agreement on the date first
set forth above.
SIGNED, SEALED AND DELIVERED )
in the presence of: )
)
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)
__________________________________ ) /s/ Xxxxxxx Xxxxxxx
Witness XXXXXXX XXXXXXX
YAK COMMUNICATIONS (CANADA) INC.
Per: /s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx, Director
I have authority to bind the Corporation
YAK COMMUNICATIONS (USA), INC.
Per: /s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx, Director
Per: /s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx, Director
Per: /s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx, Director
Per: /s/ Xxxxxx Xxxxx, Director
Per: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx, Director
We have authority to bind the Corporation
CONSENT
Talk Visual Corporation hereby consents to and agrees to be bound by the terms
and conditions of this Agreement.
TALK VISUAL CORPORATION
Per: ___________________________________
