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EXHIBIT 10.8
Xxxxxxxxx Xxxxxx
EMPLOYMENT AGREEMENT
INDEX
SECTION PAGE
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Introduction.......................................................................... 1
Terms and Conditions.................................................................. 1
1.0 Retention of Xxxxxxxxx Xxxxxx................................................. 1
2.0 Performance of Duties......................................................... 1
3.0 Direct Compensation........................................................... 1
4.0 Additional Benefits........................................................... 2
5.0 Duration of Agreement......................................................... 3
6.0 Compensation upon Termination................................................. 4
7.0 Restrictive Covenants......................................................... 5
8.0 Ownership Of Future Intellectual Property..................................... 6
9.0 Delivery of Records........................................................... 7
10.0 Non-Competition, Solicitation of Customers, Solicitation of Executives........ 7
11.0 Other Provisions.............................................................. 8
12.0 Injunctive Relief............................................................. 9
13.0 Independent Legal Advice...................................................... 9
14.0 Counterparts.................................................................. 101
Exhibit A. Inventions................................................................ 12
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of January 1, 2000 (the
"Effective Date") by and BETWEEN: BLUE ZONE ENTERTAINMENT INC. a company
incorporated under the laws of Canada (the "Company") and Xxxxxxxxx Xxxxxx (the
"Executive").
INTRODUCTION
The Company has proposed an arrangement whereunder the Executive will
be retained by the Company as an executive employee. The Executive has acceded
to this proposal. This Agreement sets forth the terms and conditions of that
arrangement.
TERMS AND CONDITIONS
1.0 RETENTION OF XXXXXXXXX XXXXXX
1.1 The Company hereby employs the Executive to act on its behalf in an
executive and managerial capacity and to participate in the supervision and
direction of the operations of the Company as they are now or may hereafter be
constituted and as directed by the Company's Board of Directors (the "Board")
and the Chairman of the Board (the "Chairman"). The Executive shall initially
have the title of Chief Operating Officer. The Executive shall have the
responsibility for supervising the business affairs and operations of the
Company and its various subsidiaries throughout the world. As and when required,
the Executive shall share responsibility for stockholder relations and
fundraising. The Executive shall have all functional responsibilities necessary
to enable him or her to discharge his or her duties hereunder and to conduct the
Company's business throughout the world. The executive shall have such other
responsibilities as the Board and the Chairman shall from time to time assign to
him or her, but the duties which he or she shall be called upon to render
hereunder shall not be of a nature substantially inconsistent with those
customarily performed by individuals holding principal executive offices in
similar business organizations. The Executive shall report and be responsible to
the Board and the Chairman.
2.0 PERFORMANCE OF DUTIES
2.1 The Executive hereby accepts employment by the Company and agrees to
serve the Company faithfully and to the best of his or her ability and to devote
the time, attention and efforts necessary to advance the business and affairs of
the Company during the Term of this Agreement except for reasonable time spent
for service on the boards of directors of other corporations, vacations and
civic and charitable activities. It is understood and agreed that the Executive
may pursue personal investments requiring time commitments that do not conflict
with his obligations to the Company, including those in the preceding sentence.
The Executive hereby confirms that he is under no contractual commitments
inconsistent with his obligations set forth in this Agreement, and that during
the Term of this Agreement, he shall not render or perform services, or enter
into any contract to do so, for any other corporation, firm, entity or person
which are inconsistent with his or her duties to the Company.
2.2 All duties performed by the Executive under the terms of this Agreement
(other than incidental duties) shall be performed at such locations both inside
or outside Canada as the Board of the Directors of the Company may from time to
time direct.
3.0 DIRECT COMPENSATION
3.1 The Company shall pay to the Executive in each 365 day period within
the term of this Agreement a base salary of not less than US$100,000.00 ("Base
Salary"), which shall be payable in accordance with the Company's regularly
established pay schedule applicable to corporate officers of the Company. The
Executive's Base Salary shall be reviewed at the end of each 365 day period
within the term of this Agreement and may be increased by an amount to be
determined by the Compensation Committee on the basis of the Executive's
performance.
3.2 The Executive shall be entitled to an annual bonus based upon
performance ("Incentive Compensation") which shall be determined under a plan to
be prepared by the Compensation Committee in consultation with the Executive and
approved by the Compensation Committee (the "Statement of Objectives"), and
which shall be paid to the Executive in accordance with the following
procedures:
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3.2.1 The Statement of Objectives shall consist of an outline of the
Executive's performance goals for the fiscal year under consideration. Each
performance goal set forth in the Statement of Objectives shall be measurable
and the Statement of Objectives shall set forth the basis for measurement of the
achievement as well as the over-achievement of each goal. A dollar value shall
be assigned to each performance goal set forth in the Statement of Objectives.
Wherever there can be variations in the degree of the achievement or
over-achievement of a goal, the range of percentage participation in the dollar
value of the goal relating to the varying levels of achievement shall be clearly
stated.
3.2.2 The aggregate dollar value assigned to the achievement (but not the
over-achievement) of the performance goals set forth in the Statement of
Objectives shall equal 50 percent of the Executive's Base Salary for the year
with respect to which the bonus shall be paid. Additional dollar values which
equal in the aggregate an additional 100 percent of the Executive's Base Salary
for the year with respect to which the Incentive Compensation will be paid shall
be assigned to the over-achievement of the performance goals set forth in the
Statement of Objectives, so that the maximum potential Incentive Compensation to
be awarded to the Executive for any year may equal 150 percent of his or her
Base Salary for that year.
3.2.3 Immediately upon receipt of the Statement of Objectives from the
Executive, the Compensation Committee shall review it and shall either approve
it as submitted or shall modify any or all of the performance goals, and/or the
dollar values assigned to the achievement and to the over-achievement of the
goal or goals in question, and/or the range of percentage participation in the
dollar value of any or all of the goals relating to varying levels of
achievement; provided, that any such modification by the Compensation Committee
shall in no event reduce the aggregate dollar values assigned to the achievement
and over-achievement of the performance goals below the levels specified in
Section 3.2.3.
3.2.4 Payment of the Incentive Compensation shall be based upon the
achievement of the performance goals at the end of the fiscal year in question.
The Incentive Compensation payable to the Executive for each fiscal year shall
equal the aggregate of the dollar values assigned to the relevant levels of
achievement or over-achievement attained by the Executive with respect to each
performance goal set forth in the Statement of Objectives for that year. If the
relevant level of achievement or over-achievement of any goal falls within a
range of participation assigned to that goal, the dollar amount of the bonus
award for the achievement or over-achievement of that goal shall be
proportionate to the level of achievement or over-achievement reached within
that designated range.
3.2.5 The Incentive Compensation shall be paid to the Executive no later than
120 days following the end of the fiscal year with respect to which it is being
paid. In the event that the Executive dies or his or her employment hereunder
terminates for any other reason after the end of any fiscal year but before the
payment of the Incentive Compensation due with respect to that year, the
Incentive Compensation shall be paid to the Executive's estate.
4.0 ADDITIONAL BENEFITS
4.1 During the term of this Agreement, the Executive shall be entitled to
participate in all present and future employee benefit plans, maternity benefit
plans, deferred compensation plans and all other compensation and benefit plans,
programs and structures as may from time to time be made available by the
Company to all other key corporate executives of the Company, and on terms and
conditions no less favorable than those generally available to other such
employees. The Executive shall also be entitled to the highest number of
vacation days with full pay during each twelve months in which this Agreement is
in effect as are available to any other key Canadian corporate executive of the
Company, without any reduction based upon length of service to the Company. In
addition, during the term of this Agreement the Executive shall be entitled to
the club and professional society membership dues and monthly charges,
reimbursement for the costs of financial, tax and estate planning and an
automobile allowance. In the event that the Company elects to obtain key person
life insurance insuring the Executive, the Executive shall make him/herself
available for the necessary physical examinations and shall cooperate in all
other respects with the Company's efforts to obtain such insurance. The
Executive hereby represents that he does not know of any condition, which would
cause him to be uninsurable.
4.2 In addition to the compensation provided in the previous paragraphs the
Company will reimburse the Executive for reasonable expenses which he may incur
in the course of the performance of his duties for the Company, and he will
furnish documentation thereof in accordance with the Company's practices
regarding the same. This obligation of the Company shall include but not be
limited to travel, meals and lodging expenses incurred by the Executive's spouse
in accompanying the Executive on any business trip on behalf of the Company,
which exceeds fifteen (15) days in duration. This obligation of the Company
shall also include but not be limited to travel, meals and lodging expenses
incurred by the
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Executive's nanny/babysitter in accompanying the Executive on any business trip
on behalf of the Company, for business trips of any duration, whenever the
Executive travels with pre-school child(ren) without his or her spouse. The
Company will similarly reimburse the Executive for home-based nanny/babysitter
expenses for pre-school child(ren) incurred while the Executive is on Company
business.
4.3 The Executive shall be entitled to participate in a stock option plan
or share purchase plan or any similar plan as may be offered by the Company at
its sole discretion from time to time. The introduction and administration of
any such plan is entirely at the Company's sole discretion, and the
introduction, deletion or amendment of such plan shall not constitute a breach
of this Agreement.
4.4 If for any reason any amounts paid to the Executive pursuant to
Sections 4.1 through 4.3 above are required to be included in the Executive's
income for purposes of determining federal or provincial income taxes payable by
him/her, the Company shall pay to the Executive an amount which after taking
into account all taxes required to be paid by the Executive as a result of the
Executive's receipt of such payment from the Company, shall cause the
Executive's after-tax return on the payments made pursuant to Sections 4.1
through 4.3 above to equal the amount which would have been available to the
Executive had no federal or provincial income taxes been due thereon. The amount
required to be paid by the Company pursuant to this Section 4.4 shall be
determined by the Executive's tax return preparer, shall take into account all
applicable deductions or credits, and shall be paid to the Executive no later
than 15 days following the date on which the Executive files the income tax
return in which any payments made pursuant to Sections 4.1 through 4.3 are
included in the Executive's income or within fifteen days following the date on
which the relevant taxing authority makes a determination that any payments made
pursuant to Sections 4.1 through 4.3 are required to be included in the
Executive's income, as the case may be.
5.0 DURATION OF AGREEMENT
5.1 The term of this Agreement shall be from the date hereof until such
time as it is terminated pursuant to Section 5.2 of this Agreement, or up to and
including the first to occur of the following:
5.1.1 the date upon which the Executive commits a "prohibited act" (as
hereinafter defined);
5.1.2 the date upon which the Executive has been determined to have a
"permanent disability" (in the manner set forth in Section 5.1.5 hereof); or
5.1.3 the date of the Executive's death. No event other than those specified
in this Section 5.1 shall constitute grounds for the termination of this
Agreement or discharge of the Executive from employment with the Company. Upon
the termination of this Agreement pursuant to this Section 5, if the Executive
is then serving as a Board member and the term of his or her service as a Board
member does not expire prior to or concurrently with the termination of this
Agreement, the Executive shall submit his or her resignation as a member of the
Board.
5.1.4 For purposes of this Section 5, the term "prohibited act" shall mean
the Executive's commission of any of the following: (a) conviction of a felony
or any other criminal offense which has a material adverse effect on the Company
or the ability of the Executive to carry out his or her duties of employment;
(b) willful commission of acts materially detrimental to the Company's business
or reputation; (c) material breach of any of the Executive's covenants or
fiduciary duties as specified in this Agreement which is not capable of being
cured by the Executive or, if capable of being cured, which is not cured by the
Executive within fifteen days following written notice thereof by the Company;
or (d) the knowing failure of the Executive to follow specific directives of the
Board of Directors of the Company consistent with his or her duties. If the
Board of Directors terminate this Agreement pursuant to Section 5, the Executive
will be provided seven (7) days written notice. No other acts or omissions by
the Executive shall constitute prohibited acts sufficient to give rise to the
Executive's discharge from employment hereunder. A termination of this Agreement
by reason of the Executive's commission of a prohibited act shall not be
effective unless the Executive has been given a notice of termination for cause
by the Company which sets forth in detail the basis of the findings by the Board
that cause for termination exists under Section 5.1.1 of this Agreement.
Notwithstanding the foregoing, no such notice of termination shall be given to
the Executive unless the Executive has been provided with an opportunity to
appear with counsel and to be heard by the Board on the issue of whether such
cause for termination exists hereunder; provided, that the Executive's counsel
shall not be entitled to be present during any vote by the board on the question
of whether cause for termination of the Executive's employment exists.
5.1.5 For purposes of this Agreement, the term "permanent disability" shall
be limited to a physical or mental condition, other than pregnancy, which
results in the Executive's absence from his employment
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duties for a period of ninety (90) or more consecutive days, in which event the
Executive shall be determined to have a "permanent disability" for purposes of
this Agreement upon the expiration of such 90-day period. Anything in this
Section 5.1.5 to the contrary notwithstanding, the provisions of this Agreement
respecting permanent disability shall be without prejudice to any rights which
the Executive may have under any applicable disability insurance policy or other
plan maintained by the Company for the benefit of its employees.
5.2 The Board of Directors of the Company shall determine, in its sole
discretion, that the termination of this Agreement is in the best interest of
the Company, and in which event Executive shall have no duty to mitigate his or
her damages. If the Board of Directors terminate this Agreement pursuant to this
Section 5.1.5, the Executive will be provided thirty (30) days written notice.
5.3 Notwithstanding any termination of this Agreement, the Executive, in
consideration of his employment hereunder to the date of such termination, shall
remain bound by the provisions of this Agreement which specifically relate to
periods, activities or obligations upon or subsequent to the termination of the
Executive's employment.
6.0 COMPENSATION UPON TERMINATION
6.1 Upon termination of the Executive's employment hereunder for any
reason, in addition to any benefits to which the Executive may then or following
the termination of his or her employment be entitled under any other applicable
policy or plan of the Company then in effect, the Company shall pay to the
Executive (or to his or her estate, as the case may be) his or her Base Salary,
Incentive Compensation and benefits due through the effective date of
termination. In the event that such termination occurs on any date other than
the last day of the fiscal year, the Incentive Compensation shall be based upon
the performance goals achieved at the end of the fiscal year, but shall be
prorated based upon the number of days which have elapsed in the fiscal year
through the date of termination. Payment of the Incentive Compensation due under
this Section 6.1 shall be made no later one hundred twenty (120) days following
the end of the fiscal year with respect to which it is being paid. Payment of
all other amounts due under this Section 6.1 shall be made not later than the
10th day following the effective date of termination.
6.2 In the event the Executive's employment terminates by reason of a
"permanent disability", as defined in Section 5.1.5, the Company shall pay to
the Executive an amount equal to the Base Salary, benefits and Incentive
Compensation that would have been payable to the Executive for the 180 day
period following the date on which the Executive is determined to have a
permanent disability in the manner set forth in Section 5.1.5, less the amount
of disability pay (if any) which the Executive receives for that 180-day period
under any applicable disability insurance policy.
6.3 The parties acknowledge that if the Executive's employment is
terminated by the Company in any manner not permitted by Section 5 of this
Agreement, or in the event of a material breach by the Company of any of its
covenants under this Agreement (any such termination of the Executive's
employment or material breach by the Company shall hereinafter be referred to as
a "Wrongful Termination"), the damages suffered by the Executive by reason
thereof would be extremely difficult to ascertain. In recognition thereof, the
parties agree that in the event of a Wrongful Termination, the Company shall pay
to the Executive an amount equal to (i) the Base Salary and benefits that would
have been payable to the Executive for a period of 24 (twenty-four) full
calendar months from and after the month in which the Wrongful Termination
occurred and (ii) the Incentive Compensation that would have been payable to the
Executive for a period of 12 (twelve) full calendar months from and after the
month in which the Wrongful Termination occurred. Notwithstanding the foregoing,
the Executive shall use reasonable efforts following a Wrongful Termination to
obtain employment comparable in nature and compensation to the Executive's
employment hereunder and, in the event that he or she obtains such employment
prior to the expiration of the aforementioned 24 (twenty-four) month period, the
amount due to the Executive pursuant to this Section 6.3 shall be reduced by the
amount of the compensation (if any) which he or she receives during the 24
(twenty-four) month period from the new position of employment.
6.4 The Base Salary and benefits payable hereunder for any period following
a termination by reason of the Executive's permanent disability or a Wrongful
Termination shall be determined on the basis of the Base Salary and benefits in
effect on the date of the Executive's permanent disability or on the date of the
Wrongful Termination, as the case may be. The Incentive Compensation payable
hereunder for the 180-day period following a termination by reason of the
Executive's permanent disability shall equal one-half of the Incentive
Compensation payable to the Executive with respect to the entire fiscal year in
which the permanent disability occurred, and the Incentive Compensation payable
hereunder for the 12-month period following a Wrongful Termination shall equal
the Incentive Compensation payable to the
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Executive with respect to the entire fiscal year in which the Wrongful
Termination occurred, in each case based upon the performance goals achieved at
the end of that fiscal year. Also in the event of a termination by reason of the
Executive's permanent disability or a Wrongful Termination, the Company shall
make such other and further payments to the Executive, his designated
beneficiaries and dependents or his estate as may be provided pursuant to any
employee benefit plan and other compensation plan or program in which the
Executive is a participant at the time of the termination of his or her
employment, and the Company shall use its best efforts to cause all insurance
policies under which coverage was then being afforded to the Executive pursuant
to this Agreement to be maintained in effect with coverage for the Executive
through the end of the period for which he or she is entitled to his Base Salary
and benefits; provided, that if continued coverage following termination is not
available under the terms of any of those policies, the Company shall either use
its best efforts to procure the same coverage from another insurer reasonably
deemed acceptable by the Executive, or shall pay to the Executive an amount
equal to the cost to the Company of such coverage as it was being provided to
the Executive under such policy or policies in effect on the date of
termination.
7.0 RESTRICTIVE COVENANTS
7.1 In the course of carrying out and performing his or her duties and
responsibilities to the Company, the Executive shall obtain access to and be
entrusted with Confidential Information (as hereinafter defined) relating to the
business and affairs of the Company or its Affiliates.
7.2 The term "Confidential Information" as used in this Agreement means all
trade secrets, proprietary information and other data or information (and any
tangible evidence, record or representation thereof), whether prepared,
conceived or developed by an Executive of the Company or its Affiliates or
received by the Company or its Affiliates from an outside source which is
maintained in confidence by the Company or its Affiliates or any of its
customers to obtain a competitive advantage over competitors who do not have
access to such trade secrets, proprietary information, or other data or
information. Without limiting the generality of the foregoing, Confidential
Proprietary Information includes:
7.2.1 any ideas, improvements, know-how, research, inventions, innovations,
products, services, sales, scientific or other formulae, patterns, processes,
methods, machines, manufactures, compositions, processes, procedures, tests,
treatments, developments, technical data, designs, devices, patterns, concepts,
computer programs, computer code, creative development, training or service
manuals, plans for new or revised services or products or other plans, items or
strategy methods on compilation of information, or works in process, or any
Invention (as defined in this Agreement), or parts thereof, and any and all
revisions and improvements relating to any of the foregoing (in each case
whether or not reduced to tangible form) that relate to the business or affairs
of the Company or Affiliates, or that result from its marketing, research and/or
development activities;
7.2.2 any information relating to the relationship of the Company or its
Affiliates with any clients, customers, suppliers, principals, contacts or
prospects of the Company or its Affiliates and any information relating to the
requirements, specifications, proposals, orders, contracts or transactions of or
with any such clients, customers, suppliers, principals, contacts or prospects
of the Company or its Affiliates, including but not limited to client lists;
7.2.3 any sales plan, marketing material, plan or survey, business plan or
opportunity, product or service development plan or specification, business
proposal or business agreement; and
7.2.4 any information relating to the present or proposed business of the
Company or its Affiliates.
7.3 The Executive agrees that the Confidential Information is and will
remain the exclusive property of the Company or its Affiliates. The Executive
also agrees that the Confidential Information:
7.3.1 constitutes a proprietary right which the Company or its Affiliates is
entitled to protect; and
7.3.2 constitutes information and knowledge not generally known to the trade.
7.4 The Executive understands that the Company has from time to time in its
possession information belonging to others or which is claimed by others to be
confidential or proprietary and which the Company has agreed to keep
confidential. The Executive agrees that all such information shall be
Confidential Information for the purposes of this Agreement.
7.5 For purposes of the copyright laws of Canada and the USA, to the
extent, if any, that such laws are applicable to any Confidential Information,
it shall be considered a work made for hire and the Company shall be considered
the author thereof.
7.6 The Executive acknowledges and agrees that any Confidential Information
disclosed to the Executive is in the strictest confidence and the Executive
agrees to maintain and hold in strict confidence all Confidential Information
disclosed to him or her. The disclosure of any such Confidential
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Information by the Executive in any form whatsoever except as authorized by the
Company or permitted under this Agreement is and shall be considered a breach of
the Executive's employment arrangement and shall constitute immediate cause for
dismissal.
7.7 Except as authorized by the Company, the Executive shall not:
7.7.1 duplicate, transfer, disclose or use nor allow any other person to
duplicate, transfer or disclose any of the Confidential Information; or
7.7.2 incorporate, in whole or in part, within any domestic or foreign patent
application, any proprietary or Confidential Information disclosed to the
Executive by the Company or its Affiliates.
7.8 The Executive will safeguard all Confidential Information to which the
Executive has access at all times so that it is not exposed to or used by
unauthorized persons, and will exercise at least the same degree of care that he
would use to protect his or her own confidential information.
7.9 The restrictive obligations set forth above shall not apply to the
disclosure or use of any information which:
7.9.1 is or later becomes publicly known under circumstances involving no
breach of this Agreement by the Executive;
7.9.2 is already known to the Executive outside his or her employment at the
time of receipt of the Confidential Information;
7.9.3 is disclosed to a third party under an appropriate confidentiality
agreement;
7.9.4 is lawfully made available to the Executive by a third party;
7.9.5 is independently developed by the Executive who has not been privy to
the Confidential Information provided by the Company; or
7.9.6 is required by law to be disclosed but only to the extent of such
requirement and the Executive shall immediately notify in writing the Chairman
of the Company upon receipt of any request for such disclosure.
7.10 The Executive acknowledges that a breach by the Executive of any of the
covenants contained in Section 7 herein shall result in damages to the Company
and that the Company could not be adequately compensated for such damages by a
monetary award. Accordingly, in the event of any such breach, in addition to all
other remedies available to the Company at law or in equity, the Company shall
be entitled as a matter of right to apply to a court of competent jurisdiction
for such relief by way of restraining order, temporary or permanent injunction,
decree or otherwise, as may be appropriate to ensure compliance with the
provisions of this Agreement.
7.11 The Executive acknowledges that the restrictions contained in this
Section 7 are reasonable and valid and all defences to the strict enforcement
thereof by the Company are hereby waived by the Executive.
7.12 The provisions of this Section 7 shall survive the termination of this
Agreement.
8.0 OWNERSHIP OF FUTURE INTELLECTUAL PROPERTY
8.1 Any new technology, knowledge or information developed by the Executive
related to the business of the Company or any of its Affiliates during the term
of this Agreement shall be the exclusive property of the Company and its
Affiliates.
8.2 The Executive acknowledges that all Confidential Information and all
other discoveries, know-how, inventions, ideas, concepts, processes, products,
protocols, treatments, methods, tests and improvements, computer programs, or
parts thereof, conceived, developed, reduced to practice or otherwise made by
him or her either alone or with others, and that in any way relates to the
present programs, services, product or business of the Company or its
Affiliates, during the course of his or her employment with the Company pursuant
to this Agreement or any previous employment agreements or arrangements between
the Executive and the Company or its Affiliates, whether or not conceived,
developed, reduced to practice or made during the Executive's regular working
hours or on the premises of the Company (collectively "Inventions"), and any and
all services and products which embody, emulate or employ any such Inventions
will be the sole property of the Company or its nominee and all copyrights,
patents, patent rights, trademarks, service marks and reproduction rights to,
and other proprietary rights in, each such Invention, whether or not patentable
or copyrightable, will belong exclusively to the Company or its nominee. For
purposes of the copyright laws of the United States of America, to the extent,
if any, that such laws are applicable to any such Invention or any such service
or product, it will be considered a work made for hire and the Company will be
considered the author thereof;
8.3 The Executive hereby assigns to the Company or its nominee, their
successors or assigns, all his or her rights, title and interest in and to the
Inventions;
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8.4 The Executive hereby waives for the benefit of the Company and its
successors and assigns all his or her moral rights in respect of the Inventions;
8.5 The Executive will assist the Company or its nominee in every proper
way (but at the Company's expense) to obtain and, from time to time to enforce,
patents or copyrights in respect of the Inventions in any and all countries, and
to that end the Executive will execute all documents for use in applying for,
obtaining and enforcing patents and copyrights on such Inventions as the Company
may desire, together with any assignments of such Inventions to the Company or
Persons designated by it; and
8.6 The Executive represents and warrants that he or she is subject to no
contractual or other restriction or obligation, which will in any way limit his
or her activities on behalf of the Company. The Executive hereby represents and
warrants to the Company that he or she has no continuing obligations to any
previous employer with respect to any previous invention, discovery or other
item of intellectual property or which requires the Executive not to disclose
any information or data to the Company. The Executive further represents and
warrants that he or she does not claim rights in, or otherwise excludes from
this Agreement, any Invention except as listed on Exhibit A hereto.
8.7 The Executive acknowledges that a breach by the Executive of any of the
covenants contained in Section 8 herein shall result in damages to the Company
and that the Company could not be adequately compensated for such damages by a
monetary award. Accordingly, in the event of any such breach, in addition to all
other remedies available to the Company at law or in equity, the Company shall
be entitled as a matter of right to apply to a court of competent jurisdiction
for such relief by way of restraining order, temporary or permanent injunction,
decree or otherwise, as may be appropriate to ensure compliance with the
provisions of this Agreement.
8.8 The provisions of this Section 8 shall survive the termination of this
Agreement.
9.0 DELIVERY OF RECORDS
9.1 Any and all computer code, data, notes, diagrams, reports, notebook
pages, memoranda, and like materials, including Confidential Information and
Inventions (as such terms are herein defined) received from or developed for the
Company or its Affiliates and any copies or excerpts thereof shall remain the
property of the Company or its Affiliates. Upon the termination of the
Executive's relationship with the Company as established under this Agreement,
or at anytime during the term hereof at the request of the Company, the
Executive shall deliver to the Company all such materials and other property
belonging to the Company or developed in connection with the business of the
Company.
10.0 NON-COMPETITION, SOLICITATION OF CUSTOMERS, SOLICITATION OF EXECUTIVES
10.1 The Executive agrees that, during the period of his employment
hereunder and for a period of twelve (12) months following the termination of
such employment, he or she shall not directly engage in competition with the
Company within the "Territory" (as hereinafter defined) in any management
capacity in any phase of the Company's business of developing, manufacturing,
distributing, marketing, leasing or selling any of the products or services
which the Company is in the business of developing, manufacturing, distributing,
marketing, licensing to others or selling (the "Competitive Areas") during the
Term of this Agreement or which the Company has definitive plans to develop,
manufacture or market.
10.2 The "Territory" shall be that area throughout the world in which the
Company presently markets its products and services. This agreement shall be
deemed automatically amended without the need of further action by any party to
add any new countries or parts thereof where after date hereof and prior to the
termination of the Executive's employment the Company begins to market its
products and services and to delete any countries after no Company products or
services have been sold there for a period of six months.
10.3 The restrictions in this Section 10 shall not apply with respect to (i)
a passive investment by the Executive of less than 5% of the outstanding shares
of capital stock of any corporation, or (ii) employment by the Executive with an
entity in a management capacity in an area of business which is not, directly or
indirectly, a Competitive Area.
10.4 The Executive agrees that during his employment by the Company
hereunder and for the two (2) year period following the termination of such
employment, he or she shall not, without the prior written consent of the
Company, in the Territory, either directly or indirectly, on his own behalf or
in the service or on behalf of others, solicit, divert or appropriate, or
attempt to solicit, divert or appropriate, to any competing business any person
or entity whose account with the Company was sold or serviced by or under the
supervision of the Executive during the year preceding the termination of such
employment.
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10.5 The Executive agrees that during his employment by the Company
hereunder and for the two (2) year period following the termination of such
employment, he or she shall not, either directly or indirectly, on his own
behalf or in the service or on behalf of others, solicit, divert, or attempt to
solicit or divert any person then employed by the Company.
11.0 OTHER PROVISIONS
11.1 Any notice or other communication required or permitted hereunder shall
be in writing and shall be sufficiently given (i) when sent by registered mail,
with postage and registration fees prepaid, or by overnight courier service to
the party to be notified at his or its last known address as determined by due
diligence by the party sending such notice or other communication; or (ii) when
delivered into the hands of the party to be notified.
11.2 This Agreement shall be binding upon and shall inure to the benefit of
the Company and the Executive and their respective heirs, personal
representatives, transferees, successors (as a result of a merger, consolidation
or other form of corporate reorganization, a sale or other disposition through
liquidation or otherwise of all or substantially all of the assets of the
Company, or otherwise arising by operation of law) and assigns (including any
entity with which the Company may merge or consolidate or to which it may
transfer substantially all of its assets); provided, that this Agreement shall
not be assignable by the Executive, and it shall not be assignable by the
Company except to an entity with which it may merge, consolidate or to which it
may transfer substantially all of its assets. 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 assume expressly and to 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 mean the Company as herinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this Agreement
either expressly or by operation of law.
11.3 This Agreement and the rights and obligations of the parties hereto
shall be governed by and construed in every respect (including but not limited
to validity and performance) in accordance with the internal laws of the
province of British Columbia, without giving affect to the conflict of law
principles thereof, notwithstanding that one or more of the parties to this
Agreement may now be or hereafter become domiciled in or a resident of another
province or a foreign country.
11.4 No amendment or modification of this Agreement shall be valid or
binding on the Company unless made in writing and signed by a duly authorized
officer of the Company or upon the Executive unless made in writing and signed
by him. The waiver of a breach of any provision of this Agreement by any party
or the failure of any party otherwise to insist upon strict performance of any
provision hereof shall not constitute a waiver of any subsequent breach or of
any subsequent failure to perform.
11.5 Section headings and numbers have been inserted herein for convenience
of reference only, and if there shall be any conflict between such numbers or
headings and the text of this Agreement, the text shall control.
11.6 In the event that any provision of this Agreement is held illegal or
invalid for any reason, such illegality or invalidity shall at the option of the
party against whom the same is asserted not affect the remaining parts of this
Agreement, but this Agreement shall be construed and enforced as if that illegal
and invalid provision had never been inserted herein.
11.7 This Agreement and the attached Exhibit A constitutes the entire
agreement of the parties with respect to the subject matter hereof and supersede
all prior agreements, arrangements and communications of the parties dealing
with such subject matter, whether oral or written. No other promise, agreement,
understanding or representation will be binding unless made in writing and
signed by the parties hereto.
11.8 If the Executive dies prior to the payment of all amounts due and owing
to him under the terms of this Agreement, such amounts shall be paid to such
beneficiary or beneficiaries as the Executive may have last designated in
writing filed with the Company or as provided under applicable benefit plans and
programs or, if the Executive has made no beneficiary designation, to the
Executive's estate. Such designated beneficiary or the executor of his estate,
as the case may be, may exercise all of the Executive's rights hereunder,
including without limitation those relating to the exercise of stock options or
otherwise to the extent permitted in any plan or other instrument relating
thereto. If any beneficiary designated by the Executive shall predecease the
Executive, the designation of such beneficiary shall be deemed revoked, and any
amounts which would have been payable to such beneficiary shall be paid to the
Executive's estate. If
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any designated beneficiary survives the Executive, but dies before payment of
all amounts due hereunder, such payments shall, unless the Executive has
designated otherwise, be made to such beneficiary's estate.
11.9 To the best of his or her knowledge, the Executive is not a party to
any agreement, which will be enforced in a manner, which would prevent him from
assuming and fulfilling his responsibilities under this Agreement.
12.0 INJUNCTIVE RELIEF
12.1 Executive agrees that it would be difficult to compensate the Company
fully for damages for any violation of the provisions of this Agreement,
including without limitation the provisions of Sections 7, 8, 9 and 10.
Accordingly, the Executive specifically agrees that the Company shall be
entitled to temporary and permanent injunctive relief to enforce the provisions
of this Agreement. This provision with respect to injunctive relief shall not,
however, diminish the right of the Company to claim and recover damages in
addition to injunctive relief.
13.0 INDEPENDENT LEGAL ADVICE
13.1 The Executive acknowledges that this Agreement has been prepared by the
Company and acknowledges that the Executive has had sufficient time to review
this Agreement thoroughly, that he or she has read and understood the terms of
this Agreement and that the Executive has been given the opportunity to obtain
independent legal advice concerning the interpretation and effect of this
Agreement prior to its execution.
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14.0 COUNTERPARTS
14.1 This Agreement may be executed in one or more counterparts, including
by facsimile, each of which shall be considered an original, and all of which
taken together shall be considered one and the same instrument and
notwithstanding the date of execution shall be deemed to bear the date as set
out on the first page of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year set forth on the first page of this Agreement.
Signed by )
)
For and on behalf of )
BLUE ZONE ENTERTAINMENT INC. ) /s/ Xxxxx Xxxxxx
-----------------------------
) Authorized Signatory
/s/ Xxxxx Xxxxxxxx
-----------------------------
) Authorized Signatory
SIGNED, SEALED AND DELIVERED by )
XXXXX XXXXXXXX in the presence of: )
)
/s/ Xxxx Xxxxxx )
-----------------------------
Witness )
)
Xxxx Xxxxxx ) /s/ Xxxxxxxxx Xxxxxx
----------------------------- -----------------------------
Name ) XXXXXXXXX XXXXXX
)
000 X. Xx. Xxxxx Xx. )
-----------------------------
Address )
)
North Vancouver, BC )
-----------------------------
)
)
COO Liason )
-----------------------------
Occupation
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List of Exhibits
Exhibit A: Inventions
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