EXHIBIT 10.27
EMPLOYMENT AGREEMENT
--------------------
THIS AGREEMENT Dated For Reference the 1st day of April, 2002
BETWEEN:
XXXXXXXXXXXX.XXX, INC., of 0000 - 000xx Xxxxxx Xxxxxx, Xxxxxxxxxx 00000-0000
("Ableauctions")
AND:
XXXXX XXXXX, of 0000 Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx,
X0X 0X0
(the "Executive")
WHEREAS:
A. The Executive desires to enter into employment with Ableauctions and
Ableauctions desires to employ the Executive.
IN CONSIDERATION of the mutual agreements in this Agreement and subject to the
terms and conditions specified in this Agreement, the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS
-----------
In this Agreement, including the recitals and the schedules, the following words
and expressions have the following meanings unless the context otherwise
requires:
"Affiliate of Ableauctions" means any person or entity controlled by,
controlling or under common control with Ableauctions. For the purposes of this
definition, the term "control" when used with respect to any person or entity
means the power to direct the management and policies of such person or entity,
directly or indirectly, whether as an officer or director, through the ownership
of voting securities, by contract or otherwise. The term Affiliate of
Ableauctions specifically includes (i) Able Auctions (1991) Ltd., (ii) any
corporate subsidiary or parent of Ableauctions or of Able Auctions (1991) Ltd.,
and (iii) any company or enterprise in which Ableauctions, Able Auctions (1991)
Ltd. or any corporate subsidiary or parent of either of them owns, directly or
indirectly, more than 10% of the voting securities or any similar indicia of
ownership.
"Business of Ableauctions" means the business carried on by Ableauctions,
consisting of (i) auctioning and liquidating office equipment, furniture and
industrial equipment, and (ii) developing and marketing computer software that
enables users to conduct or participate in live auctions over the internet.
"Competitive Business" means any business or enterprise that competes with the
Business of Ableauctions.
"Permanent Disability" means (i) the total inability of the Executive to perform
the duties of the Executive under this Agreement for a period of 60 consecutive
days as certified by a physician chosen by Ableauctions and reasonably
acceptable to the Executive, or (ii) the Executive becomes entitled to (A)
disability retirement benefits under the Canada Pension Plan (Canada) or the
Social Security Act (USA), or (B) recover benefits under any long term
disability plan or policy maintained by Ableauctions.
"Proprietary Information" means information related to Ableauctions or an
Affiliate of Ableauctions (i) that derives economic value, actual or potential,
from not being generally known to or readily ascertainable by other persons who
can obtain economic value from its disclosure or use; and (ii) that is the
subject of efforts that are reasonable under the circumstances to maintain its
secrecy; and all tangible reproductions or embodiments of such information.
Assuming the criteria in (i) and (ii) above are satisfied, Proprietary
Information includes technical and non-technical data related to technical and
business information, including, but not being limited to, trade secrets,
computer hardware and software, procedures, manuals, methods, compositions,
machines, computer programs, research projects, processes, formulae, data,
algorithms, source codes, object codes, documentation, flow-charts, drawings,
correspondence, know-how, improvements, inventions, techniques, personnel
records, pricing information, sales or marketing plans and strategies, supply
sources, production or merchandising plans, and information concerning the
clients, customers, accounts, employees, contractors or affiliates of
Ableauctions or any Affiliate of Ableauctions. Proprietary Information does not
include any information to the extent that it (i) is or becomes part of the
public domain through no act or omission attributable to the Executive, (ii) is
released after prior written authorization of Ableauctions, or (iii) is required
to be disclosed by applicable law, regulation or court order; provided that if
disclosure is so required, the Executive will, if permitted by law, provide
Ableauctions with prompt notice of such requirement so that Ableauctions may
seek an appropriate protective order.
"Proprietary Technology" means Proprietary Information relating specifically to
the hardware, software, services, products and other technology of Ableauctions
that may be developed, owned or licensed by Ableauctions or any Affiliate of
Ableauctions or otherwise relating to the Business of Ableauctions or any other
core line of business in which Ableauctions or any Affiliate of Ableauctions may
become engaged.
"Third Party Information" means Proprietary Information that has been disclosed
to Ableauctions or an Affiliate of Ableauctions by a third party and that
Ableauctions or such Affiliate of Ableauctions is obligated to treat as
confidential.
"Works" means copyrightable works of authorship including, without limitation,
any technical descriptions for products, user guides, illustrations, advertising
materials, computer programs (including the contents of read only memories) and
any contribution to such materials and "Work" means any of them.
ARTICLE 2
DUTIES OF THE EXECUTIVE
2.1 ENGAGEMENT
----------
Ableauctions hereby offers to employ the Executive, and the Executive hereby
accepts such employment with Ableauctions, on and subject to the terms and
conditions of this Agreement.
2.2 DUTIES AND RESPONSIBILITIES OF THE EXECUTIVE
-------------------------------------------------
The Executive will be employed as the President of Ableauctions, will do and
perform all services and acts necessary or advisable to fulfil the duties of
that position. During the term of this Agreement, the Executive agrees to
devote such of his time, energy and skill to the Business of Ableauctions and to
the promotion of Ableauctions's interests as may be necessary to fulfil his
duties. The Executive agrees that the Executive has a duty of loyalty to
Ableauctions and will not engage in, or otherwise be interested in, directly or
indirectly, any other business or activity that would materially and adversely
affect the Business of Ableauctions or the Executive's ability to perform the
Executive's duties under this Agreement. Except as may be disclosed to and
specifically approved by the Board of Directors of Ableauctions, the Executive
will not receive or accept for his own benefit, directly or indirectly, any
commission, rebate, discount, gratuity, fee or profit from any person having or
proposing to have one or more business transactions with Ableauctions or any
Affiliate of Ableauctions.
2.3 WORKING FACILITIES
-------------------
Ableauctions, at its expense, will furnish the Executive with such office space,
office equipment, secretarial help and such other facilities, equipment and
services as are needed or would be reasonably beneficial for the performance by
the Executive of the duties contemplated under this Agreement. The Executive
will provide services to Ableauctions in the greater Vancouver area of British
Columbia, and shall not be required to involuntarily relocate.
ARTICLE 3
COMPENSATION
3.1 CASH COMPENSATION
------------------
For all services to be rendered by the Executive under this Agreement,
Ableauctions will pay to the Executive the following amounts, which payments
will be subject to withholdings for federal, provincial, state and local taxes,
CPP, UIC, social security and other deductions required by law from time to time
in effect:
(a) Base Salary: Ableauctions will pay the Executive an annual gross salary
-----------
equal to $156,000 US, payable on a semi-monthly basis, consisting of
one payment of $6,500 on the last business day preceding the sixteenth
day of each month, and $6,500 on the last business day of each month.
Such salary will be reviewed by Ableauctions annually. The Board of
Directors of Ableauctions shall have the right to increase the salary
of the Executive at any time and any such increase shall not operate
as a cancellation of this Agreement but merely as an amendment of this
clause and all of the other terms, provisions and conditions of this
Agreement shall continue in force and effect.
(b) Automobile Allowance: Ableauctions will pay the Executive not more than
--------------------
$500 per month, payable at the beginning of each month, as an
allowance applicable by the Executive to the operation and maintenance
of an automobile to be used by the Executive from time to time at the
request and direction and for the benefit of Ableauctions.
3.2 STOCK OPTIONS
--------------
Upon execution of this Agreement, Ableauctions will grant to the Executive an
option to purchase up to 1,000,000 common shares of Ableauctions, at the times
and on the terms and conditions described in the form of the Stock Option
Agreement attached hereto as Schedule A.
3.3 BUSINESS EXPENSES
------------------
The Executive will be reimbursed by Ableauctions for all reasonable and
necessary expenses incurred by the Executive in connection with the performance
of the Executive's duties of employment under this Agreement in accordance with
the policies of Ableauctions. The Executive will, as a condition of any such
reimbursement, submit verification of the nature and amount of such expenses in
accordance with the reimbursement policies from time to time adopted by
Ableauctions.
3.4 FRINGE BENEFITS
----------------
The Executive will have the same rights as all other executive level employees
of Ableauctions to participate in all pension and other retirement plans,
medical insurance, life insurance and other fringe benefit programs as are now
or may hereafter be established by Ableauctions for executive level employees.
3.5 VACATION
--------
The Executive will receive five weeks paid vacation per year, taken in
accordance with Ableauctions' vacation policy in effect from time to time.
ARTICLE 4
TERM AND TERMINATION
4.1 TERM
----
The term of the Executive's employment under this Agreement commences on the
date of this Agreement and continues until terminated as provided in Section
4.2.
4.2 TERMINATION
-----------
The Executive's employment under this Agreement may be terminated only upon the
occurrence of any of the following events:
(a) the death or Permanent Disability of the Executive;
(b) Ableauctions' election to terminate the Executive for cause, as defined by
applicable caselaw;
(c) the mutual agreement by the Executive and Ableauctions to terminate the
Executive's employment under this Agreement;
(d) the Executive's election to terminate the Executive's employment under this
Agreement, provided that the Executive gives Ableauctions at least 90 days
prior written notice of the Executive's intent to terminate; or
(e) Ableauctions' election to terminate the Executive's employment under this
Agreement without cause, provided that Ableauctions gives the Executive
prior written notice, equal to the greater of one year or two months per
year of completed service, of Ableauctions's intent to terminate, or a
corresponding payment of compensation in lieu of notice.
A decision by Ableauctions to terminate the Executive's employment under clause
(b) or clause (e) may only be taken by Ableauctions with the approval of the
Board of Directors of Ableauctions.
4.3 EFFECT OF TERMINATION
-----------------------
Upon the termination of the Executive's employment under this Agreement,
Ableauctions will have no further obligation to the Executive or any personal
representative of the Executive with respect to this Agreement or the
Executive's employment by Ableauctions, except for the payment of compensation,
if any, accrued pursuant to Article 3 up to the date of termination of this
Agreement and unpaid at the date of such termination and the payment of any
severance payments that may be due under Section 4.2(c) or 4.2(e) of this
Agreement.
4.4 RETURN OF PROPERTY
--------------------
On termination of this Agreement for any reason or cause, the Executive shall
return to Ableauctions all property used by the Executive in the performance of
the Executive's duties and all other property belonging to Ableauctions in the
Executive's possession or control.
4.5 SURVIVAL
--------
The obligations of the Executive pursuant to Articles 5, 6 and 7 survive any
expiration or termination of this Agreement.
ARTICLE 5
RESTRICTIONS
5.1 RESTRICTIONS
------------
The Executive agrees to comply with all of the restrictions set forth below at
all times during the term of this Agreement and for a period of one year after
the expiration or termination of this Agreement:
(a) The Executive will not (except with the prior written consent of
Ableauctions, which consent may be withheld in Ableauctions' sole
discretion) either individually or in partnership or in conjunction with
any person or persons, firm, association, syndicate, company or
corporation, as principal, agent, director, officer, employee, investor or
in any other manner whatsoever, directly or indirectly, carry on, be
engaged in, be interested in, or be concerned with, or permit his name to
be used or employed by any such person or persons, firm, association,
syndicate, company or corporation, carrying on, engaged in, interested in
or concerned with, a business which competes with the Business of
Ableauctions within Canada or the United States of America.
(b) The Executive will not (except with the prior written consent of
Ableauctions, which consent may be withheld in Ableauctions' sole
discretion) either directly or indirectly, on the Executive's own behalf or
on behalf of others, solicit, divert or appropriate or attempt to solicit,
divert or appropriate to any Competitive Business, any business of
Ableauctions or any Affiliate of Ableauctions from any customer or actively
sought prospective customer of Ableauctions or any Affiliate of
Ableauctions with whom Ableauctions or any Affiliate of Ableauctions has
current agreements relating to the Business of Ableauctions, or with whom
the Executive has dealt, or with whom the Executive has supervised
negotiations or business relations, or about whom the Executive has
acquired Proprietary Information in the course of the Executive's
employment.
Ableauctions and the Executive agree that these covenants are fair and
reasonably required to protect the interests of Ableauctions. The Executive
acknowledges that, since the Business of Ableauctions is relatively unique, the
Executive's livelihood has not been and will not be dependent on employment in
the Business of Ableauctions, and that these covenants do not materially affect
the Executive's ability to obtain other employment.
5.2 ACKNOWLEDGEMENT BY THE EXECUTIVE
-----------------------------------
The Executive represents and warrants to Ableauctions that the Executive is not
subject to any agreement with any other entity that would prevent the Executive
from competing with or in any way participating in a business that competes with
that other entity's business or from soliciting any personnel or customers of
that other entity on behalf of another business.
ARTICLE 6
PROPRIETARY INFORMATION
6.1 NON-DISCLOSURE
--------------
The Executive agrees that, during the term of the Executive's employment by
Ableauctions and for the applicable time periods specified below, the Executive
will receive all Proprietary Information in strictest confidence and will not
disclose or make available, directly or indirectly, any Proprietary Information
to any person, concern or entity, except in the proper performance of the
Executive's duties and responsibilities under this Agreement or with the prior
written consent of Ableauctions. The Executive will abide by Ableauctions'
policies and regulations, as established from time to time, for the protection
of its Proprietary Information for the time period specified in this Section.
The Executive agrees that the nondisclosure prohibitions described in this
Section survive the expiration or termination of this Agreement (i) with respect
to Proprietary Information other than Proprietary Technology for a period of
five years; (ii) with respect to Third Party Information for the later of five
years or so long as Ableauctions or an Affiliate of Ableauctions is required to
maintain confidentiality of such information; and (iii) with respect to
Proprietary Technology for the later of five years or so long as the Proprietary
Technology retains its status as such and remains confidential.
6.2 OWNERSHIP OF PROPRIETARY INFORMATION
---------------------------------------
The Executive acknowledges and agrees that all Proprietary Information, and all
physical embodiments of Proprietary Information, are confidential to and will be
and remain the sole and exclusive property of Ableauctions. Upon request by
Ableauctions, and in any event upon termination of the Executive's employment
with Ableauctions for any reason, the Executive will promptly deliver to
Ableauctions all property belonging to Ableauctions including, without
limitation, all Proprietary Information (and all embodiments of Proprietary
Information) then in the custody, control or possession of the Executive.
6.3 WORKS FOR HIRE
----------------
The Executive agrees that any Works created by the Executive in the course of
the Executive's duties as an employee of Ableauctions are subject to Section
13(3) of the Copyright Act (Canada) and to the "work for hire" provisions of
sections 101 and 201 of the United States Copyright Law, Title 17 of the United
States Code. All right, title and interest to copyrights in all Works that have
been or will be prepared by the Executive within the scope of the Executive's
employment with Ableauctions will be the property of Ableauctions. The
Executive acknowledges and agrees that, to the extent the provisions of the
Copyright Act (Canada) or the copyright laws of the United States do not vest in
Ableauctions the copyrights to any Works, the Executive hereby irrevocably
assigns to Ableauctions all right, title and interest to copyrights which the
Executive may have in any Works. The Executive will disclose to Ableauctions
all Works, will execute and deliver all applications, registrations and
documents relating to the copyrights in the Works and will provide assistance to
secure Ableauctions' title to the copyrights in the Works. Ableauctions will be
responsible for all expenses incurred in connection with the registration of all
copyrights. The Executive hereby waives any moral rights that the Executive may
have under the Copyright Act (Canada) or similar legislation anywhere in the
world or otherwise with respect to the Works.
6.4 ACKNOWLEDGEMENTS BY THE EXECUTIVE
------------------------------------
The Executive represents to Ableauctions that the Executive has not executed any
agreement with any other party that purports to require the Executive to assign
any Work or any Invention created, conceived or first practiced by the Executive
during a period of time that includes the date of the Executive's commencement
of employment with Ableauctions.
ARTICLE 7
DISPUTE RESOLUTION
7.1 RESOLUTION OF DISPUTES ON DETERMINATION OF CAUSE AND BREACH OF
-----------------------------------------------------------------------
RESTRICTIVE COVENANTS
----------------------
The parties agree that any controversy or dispute regarding whether or not
"cause" exists for termination of the Executive's employment under this
Agreement or any determination that the restrictive covenants and nondisclosure
covenants of Articles 5 and 6 have been breached (each, a "Dispute") that is not
resolved by the parties within ten days shall be referred to and finally
resolved by arbitration under the Rules of the British Columbia International
Commercial Arbitration Centre. The appointing authorities shall be the British
Columbia International Commercial Arbitration Centre. The case shall be
administered by the British Columbia International Commercial Arbitration Centre
in accordance with its "Procedures for Cases Under the BCICAC Rules". The place
of arbitration shall be Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx.
ARTICLE 8
GENERAL
8.1 GOVERNING LAW AND ATTORNMENT
-------------------------------
This Agreement will be governed by and construed in accordance with the laws of
British Columbia and the federal laws of Canada applicable in British Columbia.
Subject to section 7.1 the parties irrevocably submit to and accept generally
and unconditionally the exclusive jurisdiction of the courts and appellate
courts of British Columbia with respect to any legal action or proceeding which
may be brought at any time relating in any way to this Agreement. Each of the
parties irrevocably waives any objection it may now or in the future have to the
venue of any such action or proceeding, and any claim it may now or in the
future have that any such action or proceeding has been brought in an
inconvenient forum.
8.2 REMEDIES NOT EXCLUSIVE
------------------------
The remedies provided to the parties under this Agreement are cumulative and not
exclusive to each other, and any such remedy will not be deemed or construed to
affect any right which any of the parties is entitled to seek at law, in equity
or by statute.
8.3 NOTICES
-------
Any notice, direction, request or other communication required or contemplated
by any provision of this Agreement will be given in writing and will be given by
delivery to the appropriate party at the address first set out for that party
above. Any such notice, direction, request or other communication will be
deemed to have been given or made on the date on which it was delivered or, in
the case of delivery by fax, on the next business day after receipt of
transmission. Any party may change its fax number or address for service from
time to time by written notice to the other in accordance with this Section.
8.4 ENTIRE AGREEMENT
-----------------
This Agreement and any documents and agreements to be delivered pursuant to this
Agreement supersede all previous invitations, proposals, letters,
correspondence, negotiations, promises, agreements, covenants, conditions,
representations and warranties with respect to the subject matter of this
Agreement. There is no representation, warranty, collateral term or condition
or collateral agreement affecting this Agreement, other than as expressed in
writing in this Agreement. No trade terms or trade usages are to be
incorporated by reference implicitly or otherwise into this Agreement, unless
expressly referred to in this Agreement.
8.5 AMENDMENTS
----------
No change or modification of this Agreement will be valid unless it is in
writing and signed by each party to this Agreement.
8.6 INVALIDITY OF PARTICULAR PROVISION
-------------------------------------
If any provision of this Agreement or any part of any provision (in this section
called the "Offending Provision") is declared or becomes unenforceable, invalid
or illegal for any reason whatsoever including, without limiting the generality
of the foregoing, a decision by any competent courts, legislation, statutes,
bylaws or regulations or any other requirements having the force of law, then
the Offending Provision shall be severed from this Agreement and the remainder
of this Agreement will remain in full force and effect as if this Agreement had
been executed without the Offending Provision.
8.7 CURRENCY
--------
Unless otherwise specified all sums of money expressed in this Agreement are in
the lawful money of Canada.
8.8 NUMBER AND GENDER
-------------------
Unless the context of this Agreement otherwise requires, to the extent necessary
so that each clause will be given the most reasonable interpretation, the
singular number will include the plural and vice versa, the verb will be
construed as agreeing with the word so substituted, words importing the
masculine gender will include the feminine and neuter genders, words importing
persons will include firms and corporations and words importing firms and
corporations will include individuals.
8.9 HEADINGS AND CAPTIONS
-----------------------
The headings and captions of sections and paragraphs contained in this Agreement
are all inserted for convenience of reference only and are not to be considered
when interpreting this Agreement.
8.10 ASSIGNMENT
----------
This Agreement is not assignable by the Executive in whole or in part without
the prior written consent of Ableauctions. Any attempt by the Executive to
assign any of the rights or to delegate any of the duties or obligations of the
Executive under this Agreement without such prior written consent is void.
8.11 COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts with the same
effect as if all parties had signed the same document. All of these
counterparts will for all purposes constitute one agreement, binding on the
parties, notwithstanding that all parties are not signatories to the same
counterpart. A fax transcribed copy or photocopy of this Agreement executed by
a party in counterpart or otherwise will constitute a properly executed,
delivered and binding agreement or counterpart of the executing party.
8.12 WAIVER
------
No failure or delay on the part of any party in exercising any power or right
under this Agreement will operate as a waiver of such power or right. No single
or partial exercise of any right or power under this Agreement will preclude any
further or other exercise of such right or power. No modification or waiver of
any provision of this Agreement and no consent to any departure by any party
from any provision of this Agreement will be effective until the same is in
writing. Any such waiver or consent will be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on any party in any circumstances will entitle such party to any other or
further notice or demand in similar or other circumstances.
8.13 FURTHER ASSURANCES
-------------------
Each of the parties will promptly execute and deliver to the other at the cost
of the other such further documents and assurances and take such further actions
as the other may from time to time request in order to more effectively carry
out the intent and purpose of this Agreement and to establish and protect the
rights, interests and remedies intended to be created in favour of the other.
8.14 ACKNOWLEDGEMENT OF RECEIPT
----------------------------
Each of the parties acknowledges receiving an executed copy of this Agreement.
8.15 ENUREMENT
---------
Subject to the restrictions on transfer contained in this Agreement, this
Agreement will enure to the benefit of and be binding on the parties and their
respective heirs, executors, administrators, successors and assigns.
IN WITNESS WHEREOF the parties have executed this Agreement on the dates stated
below.
XXXXXXXXXXXX.XXX, INC.
Per:
____________________________________________ __________________________
Name: _____________________________________ XXXXX XXXXX
Title: ____________________________________
____________________________________________ __________________________
Date of Execution Date of Execution
EMPLOYEE OPTION AGREEMENT
-------------------------
THIS AGREEMENT Dated For Reference the __ Day of ___ , ___ .
BETWEEN:
XXXXXXXXXXXX.XXX, INC., of 0000 Xxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 0X0
("Ableauctions")
AND:
XXXXX XXXXX, of 0000 Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Executive")
WHEREAS:
Ableauctions would like to grant to the Executive an option to purchase common
shares of Ableauctions on the terms and conditions hereinafter set forth.
IN CONSIDERATION of the premises and of the covenants and agreements herein
contained the parties hereto covenant and agree as follows:
1. From and including the Agreement Date through to and including the day
which is specified in Section 7 (the "Termination Date"), the Executive shall
have and be entitled to and Ableauctions hereby grants to the Executive an
option (the "Option") to purchase all or any portion of 1,000,000 common shares
without par value in the capital stock of Ableauctions (the "Shares") from
treasury on the following terms:
(a) except as provided in clause (b) and paragraph 3, the Option shall be
exercisable by the Executive at a price per share equal to __; and
(b) if:
(i) there is a merger or amalgamation of Ableauctions with another corporation;
(ii) there is any transaction whereby all of Ableauctions's issued and
outstanding shares are acquired by or become subject to a takeover bid by
another corporation; or
(iii) there is a sale or conveyance by Ableauctions or one or more of its
shareholders, or both, to a party that is dealing with Ableauctions or such
shareholder at arms-length as defined in the Income Tax Act of Canada in a
single transaction or series of related transactions, of shares of
Ableauctions's capital stock representing a majority of the votes that may
then be cast by all of the shareholders of Ableauctions,
then the entire Option will become exercisable by the Executive immediately
prior to (and conditional upon the completion of) such merger, amalgamation,
transaction, sale or conveyance and the exercise price for the Option will be a
price per share equal to the cash price for common shares of Ableauctions
offered on such merger, amalgamation or other transaction if a cash price per
share is so offered or the fair market value of the consideration offered on
such merger, amalgamation or other transaction as determined by the board of
directors of Ableauctions.
2. Subject to paragraph 3 hereof, the right to take up shares pursuant to
this Option shall vest with the Executive as follows:
(a) the right to take up 1/8 of the Shares shall vest on the last day of the
third month after the date of this Agreement, and
(b) the right to take up 1/24 of the Shares shall vest on the last day of each
month thereafter until all of the Shares are so vested.
3. The Option shall immediately vest such that the entire Option will be
immediately exercisable by the Executive if:
(a) there is a merger or amalgamation of Ableauctions with another corporation;
(b) there is any transaction whereby all of Ableauctions's issued and
outstanding shares are acquired by or become subject to a takeover bid by
another corporation; or
(c) there is a sale or conveyance by Ableauctions or one or more of its
shareholders, or both, to a party that is dealing with Ableauctions or such
shareholder at arms-length as defined in the Income Tax Act of Canada in a
single transaction or series of related transactions, of shares of
Ableauctions's capital stock representing a majority of the votes that may
then be cast by all of the shareholders of Ableauctions.
4. Subject to the terms of this Agreement, the right to take up shares
pursuant to the Option is exercisable by the Executive giving notice in writing
to Ableauctions accompanied by a cheque, certified if so required by
Ableauctions, in favour of Ableauctions for the full amount of the purchase
price of the shares then being purchased. Provided such written notice and
payment are received by Ableauctions prior to 5:00 p.m. local time on the
Termination Date at its address first above written, Ableauctions covenants and
agrees to issue and deliver to the Executive, forthwith thereafter, a share
certificate for the number of shares so purchased registered in the Executive's
name.
5. This is an Option only and does not impose upon the Executive any
obligation to take up and pay for any of the shares under Option.
6. The Option shall not be assignable or transferable by the Executive
otherwise than by Will or the law of intestacy and the Option may be exercised
during the lifetime of the Executive only by the Executive himself.
7. This Option shall terminate on the earlier of:
(a) five years from the date of this Agreement; or
(b) 30 days after the Executive ceases to be an employee of Ableauctions
save and except where the Executive ceases to be an employee of Ableauctions as
a result of:
(i) termination for cause; or
(ii) by order of any securities regulatory body having jurisdiction to so order,
in which case the Option shall terminate on the date the Executive ceases to be
an employee of Ableauctions.
8. If the Executive should die while still an employee of Ableauctions, the
Option may then be exercised by the Executive's legal heirs or personal
representatives to the same extent as if the Executive were alive and an
employee of Ableauctions for a period of one year after the Executive's death
but only for such shares as the Executive was entitled to purchase pursuant to
the Option at the date of the Executive's death.
9. This Agreement shall be subject to the approval of the securities
regulatory authorities having jurisdiction (the "Regulatory Authorities") and,
if required by applicable laws, by the members of Ableauctions. All amendments
hereto will also be subject to the approval of the Regulatory Authorities and,
if required by applicable laws, the members of Ableauctions. The Executive and
Ableauctions agree to amend this Agreement in order to comply with the
requirements of the Regulatory Authorities having jurisdiction to approve this
Agreement and, if the terms of the amendments can not be agreed to, to submit
the proposed amendments to arbitration under the Commercial Arbitration Act
(British Columbia).
10. In the event of any subdivision, consolidation or other change in the
share capital of Ableauctions while any portion of the Option is outstanding,
then the number of shares under option to the Executive and the exercise price
thereof shall be correspondingly adjusted in accordance with such subdivision,
consolidation or other change in the share capital of Ableauctions.
11. If Ableauctions undertakes an amalgamation, merger, reorganization or
other arrangement while any portion of the Option is outstanding, then the
number of shares under option to the Executive and the exercise price thereof
shall be correspondingly adjusted in accordance with such amalgamation, merger,
reorganization or other arrangement.
12. Ableauctions hereby covenants and agrees to and with the Executive that
it will reserve in its treasury sufficient shares to permit the issuance and
allotment of shares to the Executive in the event the Executive exercises the
Option.
13. Ableauctions hereby represents that as of the Agreement Date the
Executive is a bona fide employee of Ableauctions.
IN WITNESS WHEREOF the parties have hereunto caused these presents to be
executed effective as of the day and year first above written.
XXXXXXXXXXXX.XXX, INC.
Per:
___________________ ________________
XXXXX XXXX XXXXX XXXXX
___________________ ________________
XXXXXXX XXXXXXX
___________________ ________________
XXXXXXX XXXXXXX
___________________ ________________
Date of Execution Date of Execution
