EMPLOYMENT AGREEMENT
Exhibit
4.17
THIS
AGREEMENT MADE
at the
City of Montreal, Province of Quebec, this day of June, 2005.
| AMONG: | 0000-0000 XXXXXX INC., a corporation incorporated under the laws of the Province of Quebec, herein acting and represented by Xxx Xxxxxxxxxxx duly authorized as he so declares, |
| (hereinafter called the “Corporation”) | |
|
OF
THE FIRST PART
|
|
| AND: | XXX XXXXXXXXXXX, residing in the City of Montreal, Province of Quebec, |
| (hereinafter called the “Executive”) | |
|
OF
THE SECOND PART
|
WHEREAS
the
Corporation is in the business of software development, in particular, gaming
software;
WHEREAS
the
Executive is now engaged by the Corporation as a consultant and as its
President;
WHEREAS
the
Executive has agreed to continue providing services as a Consultant until
October 31, 2005;
WHEREAS
the
Corporation wishes thereafter to employ the Executive as its President and
Chief
Operating Officer and the Executive is willing to so serve as of November 1,
2005 (the “Effective Date”);
AND
WHEREAS
on or
before the Effective Date, all of the shares of the Corporation shall have
been
acquired by Events International Holding Corporation (“EIH”) and it is a
condition of such acquisition that Sherrington execute an employment agreement
with the Corporation.
NOW
THEREFORE THIS AGREEMENT WITNESSES
that in
consideration of the mutual covenants herein contained and for other good and
valuable consideration, the parties hereby agree as follows:
ARTICLE
1 -APPOINTMENT
|
1.1
|
Any
and all previous employment agreements, arrangements and/or consulting
arrangements between the Corporation and the Executive will be cancelled
as of October 31, 2005 and will be of no further force or effect
as of
that date.
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|
1.2
|
The
Corporation hereby agrees to employ the Executive as its President
and
Chief Operating Officer and the Executive hereby agrees to serve
in such
capacity upon the terms and conditions hereinafter set forth commencing
on
the lst day of November, 2005.
|
ARTICLE
2 - POSITION AND DUTIES
|
2.1
|
During
the term of this Agreement and subject to the terms hereof, the Executive
agrees to serve as President of the Corporation and to be responsible
for
operations of the Corporation, including overseeing software development
and maintenance, to perform such employment on a full-time basis,
to
diligently and in a faithful, honest manner devote his best efforts
and
attention to the Corporation’s business and affairs and to perform the
full-time duties, responsibilities and authorities as are appropriate
of a
person holding Executive’s position and such other duties,
responsibilities and authorities as may be reasonably designated
from time
to time by the Corporation’s board of directors (the
“Board”).
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|
2.2
|
The
Executive shall report directly to the Board of the Corporation and
to
Xxxxxx Xxxxxxxx, President of EIH, with reporting lines to be reviewed
and
determined by the board of directors of EIH from time to time during
the
term of this Agreement.
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ARTICLE
3 - REMUNERATION AND BENEFITS
|
3.1
|
The
Executive shall be paid a base salary by the Corporation during the
term
of this Agreement at a rate of One Hundred Twenty Thousand Canadian
Dollars (CDN $120,000) per annum (“Base Salary”). The Base Salary shall be
payable monthly during the term of this Agreement all in accordance
with
the Corporation’s payroll policies and subject to such payroll and
withholding deductions as may be required by
law.
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|
3.2
|
The
Executive shall also be entitled to receive a performance bonus (the
“Performance Bonus”) equal to 2% of the pre-tax profit for the combined
consolidated results (excluding intercorporate transactions and charges)
of the Corporation and its sister company Mahjong Systems Limited
(“MSL”)
for each fiscal period during the term of the
Agreement.
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|
3.3
|
The
Corporation will, subject to the rules that it may issue from time
to
time, upon receipt of acceptable receipts and vouchers, pay or promptly
reimburse all pre-approved expenses actually and reasonably incurred
by
the Executive in the performance of his duties under this
Agreement.
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|
3.4
|
All
costs associated with the Executive’s employment, including but not
limited to, the cost of obtaining work permits and reasonable immigration
legal fees associated therewith during the term of this Agreement,
shall
be defrayed by the Corporation.
|
ARTICLE
4 - STOCK OPTIONS
|
4.1
|
Subject
to the terms and conditions hereinafter provided, the Executive shall
be
granted options (the “Options”) to acquire from the treasury of EIH up to
one million (1,000,000) common shares of EIH (the “Optioned Shares”),
subject to the following.
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|
4.2
|
One-third
of the Options shall be granted on the Effective Date, one-third
shall be
granted on the one year anniversary date thereof and one-third shall
be
granted on the two year anniversary date thereof, provided that,
at such
times, the Executive is and has been an employee of the Corporation
continuously since the commencement of the term of this Agreement.
All
Options shall be subject to the terms and conditions of the EIH employee
stock option plan, including the plan’s normal vesting period of 18 months
and any applicable regulatory approval or conditions. The exercise
price
under the Options shall be equal to the trading price of the EIH
shares at
the close of business on the day immediately preceding the grant
of the
Options in each of the three years.
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ARTICLE
5 - TERM
|
5.1
|
The
term of this Agreement shall be from November 1, 2005 until October 31,
2010 unless terminated earlier in accordance with Article 6
hereinbelow.
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ARTICLE
6 - TERMINATION
|
6.1
|
The
Executive may terminate this Agreement upon thirty (30) days prior
notice
in the event of material breach of the terms hereof by the Corporation.
In
the event that the Executive purports to terminate his employment
hereunder, other than due to material breach by the Corporation (i)
the
Corporation shall thereafter have no further obligation to the Executive
hereunder, whether in the nature of salary, bonus, incentive or benefits,
except to pay any amount due and unpaid hereunder, as of the date
of such
termination, and (ii) the Corporation shall be entitled to exercise
all
other rights and remedies it may have in respect of this Agreement,
and
(iii) EIH shall be entitled to exercise all rights and remedies it
may
have under the agreement for the purchase and sale of the shares
of the
Corporation.
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|
6.2
|
Termination
by Corporation
|
|
6.2.1
|
In
the event the Executive is in breach of the non-competition provisions
referred to in Article 9 hereof, and following written notice from
the
Corporation of such breach the Executive fails to remedy such breach,
or
fails to take active steps satisfactory to the Corporation (as determined
in its discretion) to cure such breach, within fifteen (15) business
days
of delivery of such notice, the Corporation shall be entitled, in
its sole
discretion, to forthwith terminate the employment of the Executive
hereunder without further notice or payment in lieu of notice, and
the
Corporation shall thereafter have no further obligation to the Executive
hereunder for salary, bonus, incentive or benefit, except to pay
any
amount due and unpaid hereunder as of the date of such
termination.
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|
6.2.2
|
If
the Executive refuses or fails to execute any reasonable, lawful
direction
relating to the business and affairs of the Corporation as requested
or
demanded by the Board of Directors of the Corporation, or the person
to
whom the Executive reports, or otherwise wilfully and continuously
fails
to substantially perform his duties according to the terms of his
employment, and fails to remedy such refusal or failure, or fails
to take
active steps satisfactory to the Corporation (acting reasonably)
to
execute such directions within fifteen (15) business days of delivery
of
notice to remedy such refusal or failure, the Corporation shall be
entitled, in its sole discretion, to forthwith terminate this Agreement
without further notice or payment in lieu of notice, and the Corporation
shall thereafter have no further obligation to Executive hereunder
for
salary, bonuses, benefits or incentives, except to pay any amount
due and
unpaid hereunder as of the date of such
termination.
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|
6.2.3
|
If
any department under the Executive’s direct responsibility exceeds its
approved expense budget by a material amount, the Corporation shall
be
entitled, in its sole discretion, to terminate the employment of
the
Executive hereunder upon thirty (30) days written notice, and the
Corporation shall thereafter have no further obligation to the Executive
hereunder for salary, bonus, incentive or benefit, except to pay
any
amount due and unpaid hereunder as of the date of such
termination.
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|
6.2.4
|
The
Corporation shall be entitled, in its sole discretion, to forthwith
terminate the employment of the Executive hereunder, without notice
or
payment in lieu of notice, if the
Executive:
|
| 6.2.4.1 |
is
convicted of any criminal offence which would have a material adverse
impact on the ability of the Executive to perform his duties hereunder
or
on the business of the Corporation;
|
| 6.2.4.2 |
is
grossly negligent or acts in a manner constituting material misconduct
(as
determined by the Board of Directors, acting reasonably) or engages
in
self-dealing conduct in the performance of his duties hereunder,
or
engages in any criminal or dishonest act resulting or intended to
result
directly or indirectly in personal gain of the Executive at the expense
of
the Corporation or its shareholders;
or
|
| 6.2.4.3 |
wilfully
engages in any act that is materially injurious to the Corporation
or is
shareholders, monetarily or
otherwise;
|
and
in
any such case, the Corporation shall thereafter have no further obligation
to
the Executive hereunder for salary, bonus, incentive or benefit, except to
pay
any amount due and unpaid hereunder as of the date of such
termination.
|
6.2.5
|
The
Corporation may terminate this Agreement and the employment of the
Executive at any time and for any reason upon giving prior written
notice
of termination to the Executive three (3) months if such termination
occurs during the first year of the term of this Agreement, notice
of four
(4) months if in year two (2), notice of five (5) months if in year
three(3) and notice of six (6) months if such termination occurs
during
year four (4) or five (5) of the term. In the event of termination
pursuant to this paragraph 6.2.5, the Executive shall be entitled
to
receive, in addition to his Base Salary up to the date of termination
of
employment, his share of any Performance Bonus calculated on a pro
rata
basis to the date of termination, and the Corporation shall have
no
further obligation to the Executive
hereunder.
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|
6.3
|
The
employment of the Executive hereunder shall terminate upon the death
or
permanent disability of the Executive. Permanent disability shall
be
defined as it is for purposes of any disability insurance plan of
EIH.
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|
6.4
|
Any
statutory severance or termination payments required to be paid to
the
Executive under the laws of the Province of Quebec shall be paid
by the
Corporation notwithstanding anything to the contrary herein contained
or
implied, provided any such payments shall be credited against any
of the
payments otherwise payable by the Corporation under the terms of
this
Agreement.
|
ARTICLE
7 - CONFIDENTIALITY
|
7.1
|
The
Executive acknowledges that in the course of carrying out, performing
and
fulfilling his responsibilities hereunder during the Term, he will
have
access to and will be entrusted with confidential and proprietary
information and trade secrets relating to the present and contemplated
services, marketing and advertising techniques, procedures and know-how
of
the Corporation and confidential information and trade secrets concerning
the business and the clients of the Corporation, the disclosure of
any of
which confidential and proprietary information and trade secrets
to
competitors of the Corporation or its clients or to the general public
may
be detrimental to the best interests of the Corporation and those
of its
clients. The Executive hereby covenants and agrees with the Corporation
that he will not, without the prior written consent of the Corporation
either while he is employed hereunder or at any time thereafter,
disclose
any of such confidential and proprietary information and trade secrets
to
any person other than to the Corporation’s bankers, legal and financial
advisors, officers, directors and management nor shall he use the
same for
any purpose other than those of the Corporation provided, however,
that
the foregoing shall not apply to any information which is or becomes
available to, or is or becomes known to, the public or to the competitors
of the Corporation, as the case may be, otherwise than by a breach
of this
Agreement by the Executive.
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ARTICLE
8 - TITLE TO INTELLECTUAL PROPERTY
|
8.1
|
The
Executive covenants and agrees with the Corporation that he will
fully and
freely (and without expense to the Corporation) communicate to the
Corporation, and the Executive hereby waives his moral rights in
and
assigns to the Corporation, all discoveries, concepts, inventions
or
improvements, whether patentable or not, made, discovered, conceived,
invented or improved by the Executive as well as any ideas, plans,
concepts, copyrightable materials, copyrights, trademarks, trade
dress and
any other intellectual property conceived or created by the Executive
(hereinafter collectively called the “IP Rights”) during the period
commencing on the date hereof and ending on the termination of the
Term
and in any way relating to any process, formula, plan, skill, method
of
advertising, marketing, research, equipment, device, or method of
doing
business, developed or being developed, made, used, sold or installed
by
or made known to the Executive during the period of his employment
hereunder or resulting from or suggested by any work which the Executive
may do for the Corporation at the request of the Corporation and
relating
to any business carried on or proposed to be carried on by the
Corporation, and the Executive agrees that he will at the expense
of the
Corporation at all times (both during the period of his employment
hereunder and at all times thereafter) assist the Corporation or
its
assignees or their nominees in every way to protect the rights of
the
Corporation under this Section 8.1 and to vest in the Corporation
or its
assignees the entire right, title and interest, including, without
limitation, the copyright, in and to any and all of the IP Rights
and that
he will not disclose to any person, firm or company or use any such
IP
Rights for his own purposes or for any purposes other than those
of the
Corporation.
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ARTICLE
9 - NON-COMPETITION AND NON-SOLICITATION
|
9.1
|
The
Executive hereby covenants and agrees that he shall not at any time,
during which he has any working relationship with the Corporation
whether
as an employee, consultant or otherwise including the period of his
employment hereunder and for one year thereafter, 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 competing with any part of the business
carried
on by the Corporation or MSL within any city, province, state, country
or
other geographical area in which the Corporation or MSL carries on
any
such business or part thereof or in which the Corporation or MSL
has, at
the date of termination of Executive’s employment, formulated plans to
commence carrying on such business or part thereof, as the case may
be,
within one year after the termination of the Executive’s employment,
provided that nothing herein shall restrict or prevent the Executive
from
owning as a passive investor less than five percent (5%) of any class
of
securities of any competitor of the Corporation that are listed for
trading on a recognized stock exchange. Nothing in the foregoing
shall
prohibit the Executive from engaging in any business, after the
termination of Executive’s employment hereunder, that does not compete
with the Corporation and MSL. For the purposes of this section 9.1,
“business” means the business carried on by the Corporation and/or MSL,
namely, developing software and providing software support for the
development and integration of “Mahjong Mania” software and producing
materials incidental thereto, and licensing and exploitation and
commercialization of said Mahjong Mania
software.
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|
9.2
|
The
Executive hereby covenants and agrees that he shall not at any time
during
the period of his employment hereunder and for one year following
the
termination of his employment, directly or indirectly, approach or
solicit
any employee, client or supplier of the Corporation or MSL or attempt
to
direct any such employee, client or supplier away from the Corporation
or
MSL.
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ARTICLE
10 - RETURN OF PROPERTY
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10.1
|
The
Executive agrees that upon termination of his employment hereunder,
he
will immediately surrender and turn over to the Corporation, all
books,
forms, records, client lists and all other papers and writings relating
to
the Corporation, and all other property belonging to the Corporation,
it
being understood and agreed that the same are the sole property of
the
Corporation.
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ARTICLE
11 - INJUNCTIONS
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11.1
|
If
the Executive should violate any of the terms of this Agreement,
the
Corporation shall be entitled to all appropriate remedies, including,
without limitation, an interim, interlocutory or permanent injunction
to
be issued by any competent court enjoining and restraining the Executive
from such wrongful acts.
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ARTICLE
12 - ARBITRATION
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12.1
|
If
any controversy, dispute, claim, question or difference (a “Dispute”)
arises with respect to this Agreement or its performance, enforcement,
breach, termination or validity, the Parties will use their best
efforts
to settle the Dispute as expeditiously as possible. To this end,
they will
consult and negotiate with each other, in good faith and understanding
their mutual interests, to reach a just and equitable satisfactory
all of
the Parties.
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|
12.2
|
If
the Parties do not reach a resolution pursuant to Section 12.1 within
a
period of five business days following the first notice of the Dispute
by
any Party to another, then they may, if both parties agree, submit
the
Dispute to arbitration in accordance with the provisions of the Civil
Code
of Procedure of the Province of
Quebec.
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ARTICLE
13 - GENERAL MATTERS
|
13.1
|
Any
notice which may be given pursuant to or concerning this Agreement
shall
be in writing and shall be sufficiently given if personally delivered
(which shall include delivery by courier or other agent) or sent
by
registered letter, postage prepaid, or transmitted by facsimile addressed
as follows:
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|
13.1.1
if
to the Corporation,
|
at: 0000-0000 Xxxxxx Inc. |
| 00 Xxxxx Xxxxxxx | |
| Xxxxxxxx, XX X0X 0X0 | |
|
Attention:
Board of Directors
|
|
| Telephone: ____________ | |
| Telecopier: ____________ | |
|
with
a copy
to:
|
Events International Holding Corporation |
|
000
Xxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxx,
XX X0X 0X0
|
|
| Attention:
President
Telephone:
(000) 000-0000
Telecopier:
(000) 000-0000
|
|
|
13.1.2
if
to Executive, at:
|
Xxx Xxxxxxxxxxx
00
Xxxxx Xxxxxxx
Xxxxxxxx,
XX X0X 0X0
|
|
Telephone:
____________
Telecopier:
____________
|
|
13.2
|
or
to such other address as the party to whom such notice is to be given
shall have last notified the party giving the same in the manner
provided
in this Article 15. Any notice delivered to the party to whom it
is
addressed as hereinabove provided shall be deemed to have been given
and
received on the date it is so delivered to such address, provided
that if
such day is not a business day, then such notice shall be deemed
to have
been and received on the next business day following such day. Any
notice
mailed as hereinabove provided shall be deemed to have been given
and
received on the fifth (5th) business day next following the date
of its
mailing. Any notice transmitted by facsimile as hereinabove provided
shall
be deemed to have been given and received on that date it is so
transmitted if transmitted during the normal business hours of the
recipient and, if not so transmitted, on the next business day after
its
transmission. For the purposes of this Article 13, “business day” means a
day on which banks in the City of Montreal are open for
business.
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|
13.3
|
If
any provision of this Agreement as applied to any party or to any
circumstance shall be adjudged by the court of competent jurisdiction
to
be invalid or unenforceable, the same shall in no way affect any
other
provision of this Agreement, the application of such provision in
any
other circumstances, or the validity or enforceability of this Agreement.
The parties agree that the provisions of this Agreement are reasonable
and
intend it: to be enforced as written. However, if any provision,
or part
thereof, is held to be unenforceable because of the duration thereof,
the
area covered thereby, or the types of activities restricted thereby,
all
parties agree that a Court of competent jurisdiction making such
determination shall have the power to reduce the duration and/or
area of
such provision or types of activities restricted and/or to delete
specific
words or phrases and in its reduced form such provision shall then
be
enforceable.
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|
13.4
|
This
Agreement constitutes the entire agreement between the parties hereto
relative to the subject matter hereof and supersedes all prior agreements
and understandings whether written or oral relative to the employment
of
the Executive. Except as otherwise specifically set forth in this
Agreement, neither party makes any representation or warranty express
or
implied, statutory or otherwise to the other party hereto. This Agreement
may not be amended or modified except by written instrument executed
by
each of the parties hereto.
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|
13.5
|
No
provision of this Agreement shall be deemed to be waived as a result
of
the failure of either of the parties to require the performance of
any
term or condition of this Agreement or by other course of conduct.
To be
effective, a waiver must be in writing, signed by each of the parties
hereto and state specifically that it is intended to constitute a
waiver
of a term or breach of this Agreement. A waiver by either of the
parties
of any term or breach of this Agreement shall not prevent a subsequent
enforcement of such term or any other term and shall not be deemed
to be a
waiver of any subsequent breach.
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|
13.6
|
This
Agreement shall be deemed to have been made in and shall be construed
in
accordance with the laws of the Province of Quebec and, for the purposes
of all legal proceedings, this Agreement shall be deemed to have
been
performed in Quebec. The parties hereto hereby irrevocably attorn
to the
exclusive jurisdiction of the Courts of Quebec, which shall have
sole and
exclusive jurisdiction to entertain any action arising under this
Agreement.
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|
13.7
|
This
Agreement shall not be assigned by the Executive. This Agreement
may be
assigned by the Corporation to a related corporation or to any person
which purchases or acquires substantially all of the Corporation’s assets
and undertaking. This Agreement shall enure to the benefit of and
be
binding upon the parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns. The provisions
of this
Agreement shall survive the termination of the employment of the
Executive
hereunder.
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|
13.8
|
All
references herein to dollar amounts refer to Canadian
funds.
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13.9
|
Each
of the parties hereto hereby covenants and agrees to promptly do
all such
acts and execute all such further agreements, assurances and other
documents as the other party hereto may from time to time reasonably
request in writing be done and/or executed in order to better evidence
and/or perfect the respective matters and things herein provided
for
and/or the respective obligations created or intended to be created
hereby.
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|
13.10
|
Words
importing the singular number include the plural and vice-versa and
words
importing gender include all
genders.
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13.11
|
Headings
preceding the text, sections, subsection or paragraphs hereof, have
been
inserted for the convenience of reference and shall not be construed
to
affect the meaning or effect of this
Agreement.
|
|
13.12
|
The
parties hereto have required that this Agreement and related documents
be
drafted in the English language. Les
parties aux présentes ont exigé que ce contrat et les documents y
afférents soient rédigés dans la langue
anglaise.
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IN
WITNESS
WHEREOF
this
Agreement has been executed by the parties hereto on the date first written
above.
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9143-3250
QUEBEC INC.
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| By: | /s/ XXX XXXXXXXXXXX | |
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XXX XXXXXXXXXXX |
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