EMPLOYMENT AGREEMENT
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THIS AGREEMENT effective as of the 1st day of June, 2000
(the "Effective Date"):
BETWEEN:
XXXXXXXXXXXXXX.XXX, INC., a company duly incorporated pursuant to the federal
laws of Canada having an office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx, XXX, 00000
(herein "Company")
OF THE FIRST PART
AND:
XXXXXXX XXXXXXXX, 000 Xxxxxx Xxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxx, XXX, 00000
(herein "Employee")
OF THE SECOND PART
WHEREAS the Company has requested the assistance of the Employee in providing
certain employment services, as hereinafter described;
WHEREAS the Employee has agreed to provide such assistance and services to the
Company in accordance with the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants set forth below, the parties hereto agree as follows:
1. DUTIES AND DEVOTION OF TIME
1.1 Duties. During the term of this Agreement the Employee shall be
responsible for the duties contained in Schedule "A" attached hereto and
incorporated herein by this reference (the "Duties").
1.2 Devotion of Time. The parties hereto acknowledge and agree that the
work of the Employee is and shall be of such a nature that regular hours are
insufficient and impractical and occasions may arise whereby the Employee shall
be required to work more than eight (8) hours per day and/or five (5) days per
week. It is also anticipated that the Employee may be required to work during
evenings, Saturdays, Sundays and Public Holidays. The Employee agrees that the
consideration set forth herein shall be in full and complete satisfaction for
such work and services, regardless of when and where such work and services are
performed. The Employee further releases the Company from any claims for
overtime pay or other such compensation
which may accrue to the Employee by reason of any existing or future legislation
or otherwise. Notwithstanding the foregoing, the Company agrees that so long as
the Employee properly discharges his duties hereunder, the Employee may devote
the remainder of his time and attention to other non-competing business
pursuits.
1.3 Business Opportunities the Property of the Company. The Employee agrees
to communicate immediately to the Company all business opportunities, inventions
and improvements in the nature of the business of the Company which, during the
term of this Agreement, the Employee may conceive, make or discover, become
aware of, directly or indirectly, or have presented to him in any manner which
relates in any way to the Company, either as it is now or as it may develop, and
such business opportunities, inventions or improvements shall become the
exclusive property of the Company without any obligation on the part of the
Company to make any payments therefor in addition to the salary and benefits
herein described to the Employee.
1.4 No Personal Use. The Employee shall not use any of the work the
Employee shall perform for the Company for any personal purposes without first
obtaining the prior written consent of the Company.
2. SALARY, BONUSES AND BENEFITS
2.1 Salary. In consideration of the Employee providing the services
referred to herein, the Company agrees to pay the Employee a monthly base salary
(the "Monthly Base Salary") of five thousand U.S. dollars ($5,000.00) less
applicable deductions, payable bi-weekly, plus the performance bonus as set out
below, subject to increase from time to time as approved by the Board of
Directors of the Company or as agreed to in writing from time to time by both
parties.
2.2 Benefits. The Company shall provide, maintain and pay for:
(a) medical insurance for the Employee and his immediate family as is
provided by the Company's medical services plan; and
(b) such extended health and other benefits for the Employee and his
immediate family as are provided to other employees of the Company, subject to
the eligibility of the Employee.
2.3 Performance Bonus. The Company will pay to the Employee a performance
bonus (the "Performance Bonus") consisting of share purchase options (the
"Performance Options")to purchase an aggregate of fifty thousand (50,000) common
shares in the capital of the Company for the realization of specified
performance objectives, as initially defined in Schedule "B" attached hereto and
incorporated hereinafter by reference (the "Objectives"). The Performance
Options will have an exercise price which is equivalent to the fair market value
of the Company's common shares on the date of grant of the Performance Options
and such other terms as are determined by the Company's Board of Directors. In
addition, upon realization of the Objectives, the employee's Monthly Base
Salary, as prescribed in section 2.1 of this Agreement, shall increase to seven
thousand U.S. dollars ($7,000.00) per month and section 2.1 of this Agreement
shall be amended accordingly.
2.4 Signing Bonus. In consideration of the Employee entering into this
Agreement, the Company agrees to issue to the Employee a signing bonus
consisting of share purchase options to purchase an aggregate of fifty thousand
(50,000) common shares in the capital of the Company (the "Signing Bonus
Options"). The Signing Bonus Options shall be issued within thirty (30) days of
the execution of this Agreement by all parties hereto. The Signing Bonus Options
will have an exercise price which is equivalent to the fair market value of the
Company's common shares on the date of grant and such other terms as are
determined by the Company's Board of Directors.
2.5 Resale Restrictions. The Employee acknowledges that any common shares
(the "Option Shares") issued pursuant to an exercise of either the Performance
Options or the Signing Bonus Options will be subject to a one year hold period
and such other restrictions as are imposed by the Employee's jurisdiction of
residence. The Employee agrees to execute any collateral agreements required in
connection with the issuance of the Performance Options, the Signing Bonus
Options or the Option Shares.
3. VACATION
3.1 Entitlement to Vacation. The Company acknowledges that the Employee
shall be entitled to an annual vacation of three (3) weeks. The Employee shall
use his best efforts to ensure that such vacation is arranged with the Company
in advance such that it does not unduly affect the operations of the Company.
3.2 Increase in Vacation. The period set out in Section 3.1 above may be
increased from time to time as mutually agreed to by the Employee and the Board
of Directors.
4. REIMBURSEMENT OF EXPENSES
4.1 Reimbursement of Expenses. The Employee shall be reimbursed for all
reasonable out-of-pocket expenses incurred by the Employee in or about the
execution of the Duties contained herein, including without limitation, all
reasonable travel and promotional expenses payable or incurred by the Employee
in connection with the Duties under this Agreement. All payments and
reimbursements shall be made within ten (10) days of submission by the Employee
of vouchers, bills or receipts for such expenses.
5. CONFIDENTIAL INFORMATION
5.1 Confidential Information. The Employee shall not, either during the
term of this Agreement or at any time thereafter, without specific consent in
writing, disclose or reveal in any manner whatsoever to any other person, firm
or corporation, nor will he use, directly or indirectly, for any purpose other
than the purposes of the Company, the private affairs of the Company or any
confidential information which he may acquire during the term of this Agreement
with relation to the business and affairs of the directors and shareholders of
the Company, unless the Employee is ordered to do so by a court of competent
jurisdiction or unless required by any statutory authority.
5.2 Non-Disclosure Provisions. The foregoing provision shall be subject to
the further non-disclosure provisions contained in Schedule "C" attached hereto
and incorporated hereinafter by this reference.
5.3 Provisions Survive Termination. The provisions of this section shall
survive the termination of this Agreement.
6. TERM
6.1 Term. This Agreement shall remain in effect until terminated in
accordance with any of the provisions contained in this Agreement.
7. TERMINATION
7.1 Termination by Employee. Notwithstanding any other provision contained
herein, the parties hereto agree that the Employee may terminate this Agreement,
with or without cause, by giving ninety (90) days written notice of such
intention to terminate.
7.2 Resignation or Cessation of Duties. In the event that the Employee
ceases to perform all of the Duties contained herein, other than by reason of
the Employee's death or disability, or if the Employee resigns unilaterally and
on his own initiative from all of his positions this Agreement shall be deemed
to be terminated by the Employee as of the date of such cessation of Duties or
such resignation, and the Company shall have no further obligations under
Section 2 hereof.
7.3 Termination by Company. The Company may terminate this agreement at any
time for just cause. The parties further agree that except for termination for
just cause, the Company may not terminate this Agreement without payment, at
that time, to the Employee of a termination allowance equivalent to one (1)
month of the Monthly Base Salary payable by the Company to the Employee,
regardless of the date of termination.
7.4 Death. In the event of the death of the Employee during the term of
this Agreement, this Agreement shall be terminated as of the date of such death.
7.5 Disability. In the event that the Employee will during the term of this
Agreement by reason of illness or mental or physical disability or incapacity be
prevented from or incapable of performing the Duties hereunder, then the
Employee shall be entitled to receive the remuneration provided for herein at
the rate specified hereinbefore for the period during which such illness,
disability or incapacity will continue, but not exceeding six (6) successive
months. If such illness, disability or incapacity continues or will continue
for a period longer than six (6) successive months, then this Agreement may, at
the option of the Director of the Company, forthwith be terminated.
7.6 Termination Payments. Any payments made by the Company to the Employee
upon the termination of this Agreement shall, be made in cash in a lump sum
payment, or, if the Company does not have available funds, in equal monthly cash
instalments over one year with interest at 8% per annum. All payments required
to be made by the Company to the Employee pursuant to
Section 7 hereof shall be made in full, irrespective of the amount of the term
remaining under this Agreement.
8. RIGHTS AND OBLIGATIONS UPON TERMINATION
8.1 Rights and Obligations. Upon termination of this Agreement, the
Employee shall deliver up to the Company all documents, papers, plans, materials
and other property of or relating to the affairs of the Company, other than the
Employee's personal papers in regard to his role in the Company, which may then
be in its or the Employee's possession or under his control.
9. CLOSING
9.1 Closing Date. This Agreement shall be effective on the day after
completion of the Purchase (as defined below).
9.2 Conditions of Closing. The parties hereto agree that it shall be a
condition of the execution of this Agreement that prior to or contemporaneously
with the execution of this Agreement:
(a) this Agreement shall be approved by the Board of Directors of the
Company;
(b) the Employee shall terminate any previously existing employment
contracts or terms; and
(c) the Company shall complete the purchase (the "Purchase") of all of the
assets of Xxxxxxxx Park, LLC ("Xxxxxxxx Park") pursuant to an Asset Purchase
Agreement between the Company and Xxxxxxxx Park.
10. NOTICES AND REQUESTS
10.1 Notices and Requests. All notices and requests in connection with this
Agreement shall be deemed given as of the day they are received either by
messenger, delivery service, or mailed by registered or certified mail with
postage prepaid and return receipt requested and addressed as follows:
(a) if to the Company:
XxxxxxxXxxxxxx.xxx, Inc.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx, XXX, 00000
with a copy to:
XXXXX, XXXXXX
Xxxxx 000-000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Attention: Xxxxxxx Xxxxxx
(b) If to the Employee:
Xxxxxxx Xxxxxxxx
000 Xxxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
XXX
or to such other address as the party to receive notice or request so designates
by written notice to the other.
11. INDEPENDENT PARTIES
11.1 Independent Parties. This Agreement is intended solely as an
employment services agreement and no partnership, agency, joint venture,
distributorship or other form of agreement is intended.
12. AGREEMENT VOLUNTARY AND EQUITABLE
12.1 Agreement Voluntary. The parties acknowledge and declare that in
executing this Agreement they are each relying wholly on their own judgment and
knowledge and have not been influenced to any extent whatsoever by any
representations or statements made by or on behalf of the other party regarding
any matters dealt with herein or incidental thereto.
12.2 Agreement Equitable. The parties further acknowledge and declare that
they each have carefully considered and understand the provisions contained
herein, including, but without limiting the generality of the foregoing, the
Employee's rights upon termination and the restrictions on the Employee after
termination and agree that the said provisions are mutually fair and equitable,
and that they executed this Agreement voluntarily and of their own free will.
13. CONTRACT NON-ASSIGNABLE; INUREMENT
13.1 Contract Non-Assignable. This Agreement and all other rights, benefits
and privileges contained herein may not be assigned by the Employee.
13.2 Inurement. The rights, benefits and privileges contained herein,
including without limitation the benefits of Sections 2 and 3 hereof, shall
inure to the benefit of and be binding upon the respective parties hereto, their
heirs, executors, administrators and successors.
14. ENTIRE AGREEMENT
14.1 Entire Agreement. This Agreement represents the entire Agreement
between the parties and supersedes any and all prior agreements and
understandings, whether written or oral, between the parties. The Employee
acknowledges that he was not induced to enter into this Agreement by any
representation, warranty, promise or other statement, except as contained
herein.
14.2 Previous Agreements Cancelled. Save and except for the express
provisions of this Agreement, any and all previous agreements, written or oral,
between the parties hereto or on
their behalf relating to the services of the Employee for the Company are hereby
terminated and cancelled and each of the parties hereby releases and further
discharges the other of and from all manner of actions, causes of action, claims
and demands whatsoever under or in respect of any such Agreement.
15. WAIVER
15.1 Waiver. No consent or waiver, express or implied, by either party to
or of any breach or default by the other party in the performance by the other
of its obligations herein shall be deemed or construed to be a consent or waiver
to or of any breach or default of the same or any other obligation of such
party. Failure on the part of any party to complain of any act or failure to
act, or to declare either party in default irrespective of how long such failure
continues, shall not constitute a waiver by such party of its rights herein or
of the right to then or subsequently declare a default.
16. SEVERABILITY
16.1 Severability. If any provision contained herein is determined to be
void or enforceable in whole or in part, it is to that extent deemed omitted.
The remaining provisions shall not be affected in any way.
17. AMENDMENT
17.1 Amendment. This Agreement shall not be amended or otherwise modified
except by a written notice of even date herewith or subsequent hereto signed by
both parties.
18. HEADINGS
18.1 Headings. The headings of the sections and subsections herein are for
convenience only and shall not control or affect the meaning or construction of
any provisions of this Agreement.
19. GOVERNING LAW
19.1 Governing Law. This Agreement shall be construed under and governed by
the laws of the State of Illinois and the laws of the United States applicable
therein.
20. EXECUTION
20.1 Execution in Several Counterparts. This Agreement may be executed by
facsimile and in several counterparts, each of which shall be deemed to be an
original and all of which shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day of April, 2000.
XXXXXXXXXXXXXX.XXX, INC.
Per: /s/ Xxxxxx Xxxxxxxx
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Authorized Signatory
)
SIGNED, SEALED and DELIVERED by XXXXXXX XXXXXXXX
in the presence of:. )
)
)
Signature )
) /s/ Xxxxxxx Xxxxxxxx
Print Name ) -------------------
) XXXXXXX XXXXXXXX
Address )
)
Occupation )
SCHEDULE "A"
The Employee's Duties include those duties that are assigned to him from time to
time by the Board of Directors of the Company.
SCHEDULE "B"
OBJECTIVES
Preparation and development of a server to host the TAME language/software
applications, (with the server to be capable of fast CGI applications).
SCHEDULE "C"
NON-DISCLOSURE PROVISIONS
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1. CONFIDENTIAL INFORMATION AND MATERIALS
(a) "Confidential Information" shall mean, for the purposes of this
Agreement, non-public information which the Company designates as being
confidential or which, under the circumstances surrounding disclosure ought
reasonably to be treated as confidential. Confidential Information includes,
without limitation, information, whether written, oral or communicated by any
other means, relating to released or unreleased the Company software or hardware
products, the marketing or promotion of any product of the Company, the Company
business policies or practices, and information received from others which the
Company is obliged to treat as confidential. Confidential Information disclosed
to the Employee by any subsidiary and/or agents of the Company is covered by
this Agreement.
(b) Confidential Information shall not include that information defined as
Confidential Information hereinabove which the Employee can exclusively
establish:
(i) is or subsequently becomes publicly available without breach of any
obligation of confidentiality owed by the Company;
(ii) became known to the Employee prior to disclosure by the Company to the
Employee;
(iii) became known to the Employee from a source other than the Company
other than by the breach of any obligations of confidentiality owed to the
Company; or
(iv) is independently developed by the Employee.
(c) Confidential Materials shall include all tangible materials containing
Confidential Information, including, without limitation, written or printed
documents and computer disks or tapes, whether machine or user readable.
2. RESTRICTIONS
(a) The Employee shall not disclose any Confidential Information to third
parties for a period of three (3) years following the termination of this
Agreement, except as provided herein. However, the Employee may disclose
Confidential Information during bona fide execution of the Duties or in
accordance with judicial or other governmental order, provided that the Employee
shall give reasonable notice to the Company prior to such disclosure and shall
comply with any applicable protective order or equivalent.
(b) The Employee shall take reasonable security precautions, at least as
great as the precautions it takes to protect its own confidential information,
to keep confidential the Confidential Information, as defined hereinabove.
(c) Confidential Information and Materials may be disclosed, reproduced,
summarized or distributed only in pursuance of the business relationship of the
Employee with the Company, and only as provided hereunder. The Employee agrees
to segregate all such Confidential Materials from the materials of others in
order to prevent co-mingling.
3. RIGHTS AND REMEDIES
(a) The Employee shall notify the Company immediately upon discovery of any
unauthorized use or disclosure of Confidential Information or Materials, or any
other breach of this Agreement by the Employee, and shall co-operate with the
Company in every reasonable manner to aid the Company to regain possession of
said Confidential Information or Materials and prevent all such further
unauthorized use.
(b) The Employee shall return all originals, copies, reproductions and
summaries of or relating to the Confidential Information at the request of the
Company or, at the option of the Company, certify destruction of the same.
(c) The parties hereto recognize that a breach by the Employee of any of the
provisions contained herein would result in damages to the Company and that the
Company could not be compensated adequately for such damages by monetary award.
Accordingly, the Employee agrees that 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, injunction, decree or
otherwise, as may be appropriate to ensure compliance with the provisions of
this Agreement.
4. MISCELLANEOUS
(a) All Confidential Information and Materials are and shall remain the
property of the Company. By disclosing information to the Employee, the Company
does not grant any express or implied right to the Employee to or under any and
all patents, copyrights, trademarks, or trade secret information belonging to
the Company.
(b) All obligations created herein shall survive change or termination of
any and all business relationships between the parties.
(c) The Company may from time to time request suggestions, feedback or other
information from the Employee on Confidential Information or on released or
unreleased software belonging to the Company. Any suggestions, feedback or
other disclosures made by the Employee are and shall be entirely voluntary on
the party of said Employee and shall not create any obligations on the part of
the
Company or a confidential agreement between the Employee and the Company.
Instead, the Company shall be free to disclose and use any suggestions, feedback
or other information from the Employee as the Company sees fit, entirely without
obligation of any kind whatsoever to the Employee.
