Exhibit 3.9
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EXECUTIVE EMPLOYMENT AGREEMENT
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Executed at Montreal, Quebec, on the 1st day of May, 2000, and effective as of
the 1st day of June, 2000
BY AND BETWEEN: ISEE3D INC. a body politic and corporate,
duly incorporated according to law, having a
place of establishment in the City and
District of Montreal, Province of Quebec, and
therein located at 0 Xxxxxxxxx Xxxxxx, Xxxxx
000, X0X 0X0, herein represented by Xx.
XXXXXX X. XXXXXXX, its Chairman and C.E.O.,
duly authorized for these purposes, as he so
declares, hereinafter referred to and
designated as:
"ISEE3D"
AND: XXXXXX X. XXXXXX, Executive, domiciled and
residing at 0000 Xxxxxx Xxxxxx, in Notre Dame
de Grace, District of Xxxxxxxx, Xxxxxx, X0X
0X0, hereinafter referred to and designated
as the:
"EXECUTIVE"
WHEREAS "ISEE3D" is desirous of retaining the services of "EXECUTIVE" for the
purposes of fulfilling the position of President and Chief Operating Officer, on
behalf of "ISEE3D", subject to such terms and conditions as are hereinafter to
be more fully enumerated;
WHEREAS the "EXECUTIVE" is desirous of becoming gainfully employed by "ISEE3D"
and to render such services as may be required of him acting as the President
and Chief Operating Officer ("C.O.O.") of "ISEE3D", subject, however, to such
terms and conditions as are hereinafter to be more fully enumerated;
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND THE
FOLLOWING COVENANTS, CONDITIONS AND AGREEMENTS, THE PARTIES
HERETO DO HEREBY MUTUALY AGREE AS FOLLOWS:
1. Preamble
The preamble herein recited above shall form an integral part of the present
"Executive Employment Agreement".
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2. Employment and Job Description.
"ISEE3D" hereby agrees to initially employ "EXECUTIVE" as its President and
Chief Operating Officer ("C.O.O."), on behalf of "ISEE3D", and Executive hereby
accepts such employment in accordance with the terms of this "Agreement" and the
terms of employment applicable to regular employees of "ISEE3D". In the event of
any conflict or ambiguity between the terms of this "Agreement" and terms of
employment applicable to regular employees, the terms of this "Agreement" shall
prevail.
The "EXECUTIVE" shall have a direct reporting obligation and relationship with
Morden X. Xxxxxxx, Chairman of the Board and C.E.O., and "ISEE3D" agrees to
provide equal and free access to the aforesaid individual in order for
"EXECUTIVE" to perform his duties during the term of this "Agreement" and/or any
extension thereof.
3. Duties of Executive.
The duties of "EXECUTIVE" shall include the performance of all of the duties
typical of the office held by "EXECUTIVE" as described in the bylaws of
"ISEE3D", if any, or as may be directed by the Board of Directors of "ISEE3D".
"EXECUTIVE" shall devote his entire productive time, ability and attention to
the business of "ISEE3D" and shall perform all duties in a professional, ethical
and businesslike manner. "EXECUTIVE" will not, during the term of this
"Agreement", directly or indirectly engage in any other business, either as an
employee, employer, consultant, principal, officer, director, advisor, or in any
other capacity, either with or without compensation, without the prior written
consent of the Chairman and C.E.O. of "ISEE3D", save and except for those Boards
of public companies on which the "EXECUTIVE" presently serves.
Your employment on a full-time basis, during the term of this "Agreement", shall
be located at the offices of "ISEE3D" at 0 Xxxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxx, X0X 0X0.
4. Compensation.
Executive will be paid the following base salary as forming part of his
compensation package, as hereinafter enumerated, during this "Agreement" as
follows:
E. 1) A base salary for the period June 1st, 2000 to May 31st, 2001 of ONE
HUNDRED AND SIXTY THOUSAND DOLLARS ($160,000.00) per year, payable in
installments according to "ISEE3D"'s regular payroll schedule.
2) A base salary for the period June 1st, 2001 to May 31st, 2002 of ONE
HUNDRED AND SEVENTY THOUSAND DOLLARS ($170,000.00) per year, payable in
installments according to "ISEE3D"'s regular payroll schedule.
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3) A base salary for the period June 1st, 2002 to May 31st, 2003 of ONE
HUNDRED AND EIGHTY THOUSAND DOLLARS ($180,000.00) per year, payable in
installments according to "ISEE3D"'s regular payroll schedule.
4) A base salary for the period June 1st, 2003 to May 31st, 2004 of ONE
HUNDRED AND NINETY THOUSAND DOLLARS ($190,000.00) per year, payable in
installments according to "ISEE3D"'s regular payroll schedule.
5) A base salary for the period June 1st, 2004 to May 31st, 2005 of TWO
HUNDRED THOUSAND DOLLARS ($200,000.00) per year, payable in installments
according to "ISEE3D"'s regular payroll schedule.
F. "EXECUTIVE" shall be granted an employee stock option package consisting of
One Million (1,000,000) employee stock options, at a price to be determined
by CDN through the traditional "price protection" process, the said
employee stock options to be vested to the extent of Two Hundred Thousand
(200,000) shares thereof every six-(6)-month period during term of the
present "Agreement", for a total grant of One Million (1,000,000) employee
stock options, the whole nevertheless subject to the usual and required
Board, shareholder and regulatory approvals. The employee stock options
herein granted, once they are vested, shall be exerciseable over a period
covering not less than five (5) years, subject, however, to the express
condition that "EXECUTIVE" shall be gainfully employed by "ISEE3D" at the
time that each increment thereof shall become vested, pursuant to the
foregoing formula.
In the event that there shall be a change of control of the beneficial
ownership of a majority of the issued and paid up capital stock of "ISEE3D"
during the term hereof, "EXECUTIVE" will also be entitled to a "performance
bonus" at the discretion of the Board of Directors.
"EXECUTIVE" will sign and execute a separate Employee Stock Option
Agreement, which will provide for the foregoing, as soon as "price
protection" has been granted and the usual director, shareholder and
regulatory approvals have been obtained.
G. In addition to the foregoing, subject to receipt of all necessary and
required shareholder, director and regulatory approvals, "ISEE3D" shall
issue from Treasury to "EXECUTIVE", on a pro rata basis during the
"Performance Period" (the defined term "Performance Period" shall mean the
term of the "EXECUTIVE"'s employment period, up to a maximum of Five
Million (5,000,000) "ISEE3D" shares (the "Performance shares"), one (1)
common share of the share capital of "ISEE3D" for each Ten Dollars ($10.00)
of "ISEE3D"'s gross revenues realized from the exploitation of the "Unique
Content", up to a maximum of Fifty Million Dollars ($50,000,000) of
"ISEE3D"'s gross revenues to be derived therefrom during the term of the
present "Agreement". The issuance of the "Performance Shares" to
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"EXECUTIVE" shall be made every six (6) months within thirty (30) days of
the filing of the interim six-(6)-month financial statements of "ISEE3D"
and the right to earn "Performance Shares" shall terminate twelve (12)
months after the end of the "Performance Period".
In addition to the foregoing and subject, as well, to the receipt of all
necessary and required shareholder, director and regulatory approvals,
"EXECUTIVE" shall be entitled to receive one (1) additional share for every
Three Dollars ($3.00) of gross profit earned by "ISEE3D" up to a maximum of
Three Million (3,000,000) shares of the share capital of "ISEE3D" during
the term of the "Performance Period".
8. Benefits.
I. Holidays. "EXECUTIVE" will be entitled to at least three (3) weeks paid
holidays each calendar year, not to be taken consecutively. "EXECUTIVE"
will notify "ISEE3D" on or about the beginning of each calendar year with
respect to the holiday schedule for the coming year.
J. Sick Leave "EXECUTIVE" shall be entitled to sick leave and emergency leave
according to the regular policies and procedures of "ISEE3D". Additional
sick leave or emergency leave over and above paid leave provided by
"ISEE3D", if any, shall be unpaid and shall be granted at the discretion of
the Board of Directors.
K. Medical and Hospital Insurance. "ISEE3D" agrees to include "EXECUTIVE" in
the group medical and hospital plan of "ISEE3D". "EXECUTIVE" shall be
responsible for payment of any Federal or Provincial income tax imposed
upon these benefits.
L. Expense Reimbursement. "EXECUTIVE" shall be entitled to reimbursement for
all reasonable expenses, including gas, auto expenses up to a maximum of
Seven Hundred and Fifty Dollars ($750.00) per month, and cellular telephone
expenses, incurred by "EXECUTIVE" in the performance of "EXECUTIVE"'s
duties. "EXECUTIVE" will maintain records and written receipts as required
by "ISEE3D"'s policies and as may be reasonably requested by the Board of
Directors to substantiate such expenses.
13. Term and Termination.
N. The Initial Term of this "Agreement" shall commence on June 1st, 2000 and
it shall continue in effect for a period of approximately sixty (60)
months, terminating on May 31st, 2005. Thereafter, the "Agreement" shall be
renewed upon the mutual agreement of
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"EXECUTIVE" and "ISEE3D". This "Agreement" and "EXECUTIVE"'s employment may
be terminated at "ISEED"'s discretion during the first year of the Initial
Term by the giving of a notice to "EXECUTIVE" of at least sixty (60) days'
duration prior to the expiry of the initial term hereof, provided, however,
that "ISEE3D" shall pay to "EXECUTIVE" an amount equal to payment of
"EXECUTIVE"'s base salary for a period of two (2) months from the
termination date. "EXECUTIVE" shall be entitled to an additional one (1)
month notice during each subsequent year of the balance of the term hereof.
The annual renewals after May 31st, 2005 shall be at the discretion of the
Board of Directors of "ISEE3D" and, as well, with respect to any revisions
to be made to your compensation package, based on performance.
O. In the event that this "Agreement" is terminated by "EXECUTIVE", for any
reason whatsoever, "ISEE3D" may immediately relieve "EXECUTIVE" of all
duties and immediately terminate this "Agreement".
P. In the event that "EXECUTIVE" is in breach of any material obligation owed
"ISEE3D" in this "Agreement", habitually neglects the duties to be
performed under this "Agreement", engages in any conduct that materially
injures "ISEE3D" which is dishonest, damages the reputation or standing of
"ISEE3D", or is convicted of any criminal act or engages in any act of
moral turpitude relating to duties of an Executive Officer of "ISEE3D", the
happening of any of which only circumstances would constitute "just cause"
for termination, then "ISEE3D" may terminate this "Agreement" upon five (5)
days written notice to "EXECUTIVE". In event of termination of the
"Agreement" pursuant to this subsection, "EXECUTIVE" shall be paid only at
the then applicable base salary rate up to and including the date of
termination. "EXECUTIVE" shall not be paid any incentive salary payments or
other compensation, prorated or otherwise.
Q. In the event that "EXECUTIVE" is disabled, for any reaso whatsoever, and is
physically or mentally unable to perform his duties for a period of four
(4) consecutive months, then the present "Agreement" may be terminated by
"ISEE3D" at its option.
18. Notices.
Any notice required by this "Agreement" or given in connection with it, shall be
in writing and shall be given to the appropriate party by personal delivery or
by certified mail, postage prepaid, or recognized overnight delivery services;
If to "ISEE3D":
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ISEE3D INC.
0 Xxxxxxxxx Xxxxxx,
Xxxxx 000,
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: Xx. Xxxxxx X. Xxxxxxx,
Chairman & C.E.O.
With a Copy to:
Mtre. Xxxxx St. Arnaud
Lazarus, Charbonneau, Advocates
000 Xxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx, X0X 0X0
(Fax No.: (000) 000-0000)
(E-mail: xxxxxx@xxxxxxxx.xxx)
If to "EXECUTIVE":
XXXXXX X. XXXXXX
0000 Xxxxxx Xxxxxx
Xxxxx Xxxx xx Xxxxx, Xxxxxx
X0X 0X0
(E-mail: xxxxxx.xxxxxx@xxxxxxxxx.xx)
19. Final Agreement.
This "Agreement" terminates and supersedes all prior understandings or
agreements on the subject matter hereof. This "Agreement" may be modified only
by a further writing that is duly executed by both parties.
20. Governing Law.
This Agreement shall be construed and enforced in accordance with the laws of
the Province of Quebec.
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21. Headings.
Headings used in this Agreement are provided for convenience only and shall not
be used to construe meaning or intent.
22. No Assignment.
Neither this "Agreement" nor any rights and/or interests herein stipulated
and/or contained in this "Agreement" may be assigned by "EXECUTIVE" without the
prior express written approval of "ISEE3D", which may be withheld by "ISEE3D" at
"ISEE3D"'s absolute discretion.
23. Severability.
If any term of this "Agreement" is held by a court of competent jurisdiction to
be invalid or unenforceable, then this "Agreement", including all of the
remaining terms, will remain in full force and effect as if such invalid or
unenforceable term had never been included.
24. Arbitration.
The parties agree that they will use their best efforts to amicably resolve any
dispute arising out of or relating to this "Agreement". Any controversy, claim
or dispute that cannot be so resolved shall be settled by final binding
arbitration in accordance with the rules of the Code of Civil Procedure and the
provisions therein contained regarding arbitration and resolution of disputes.
Any such arbitration shall be conducted in the City and District of Montreal,
Province of Quebec, or such other place as may be mutually agreed upon by the
parties. Within fifteen (15) days after the commencement of the arbitration,
each party shall select one person to act as arbitrator, and the two arbitrators
so selected shall select a third arbitrator within ten (10) days of their
appointment. Each party shall bear its own costs and expenses and an equal share
of the Arbitrator's expenses and administrative fees of arbitration.
25. Language.
The parties hereto acknowledge that they have requested and are satisfied that
the foregoing and all related documents be drawn up in the English language. Les
parties aux presentes reconnaissent qu'elles ont exige que ce qui precede et
tous documents qui s'y rattache soient rediges et executes en anglais et s'en
declarent satisfaits.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
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SIGNED, SEALED AND DELIVERED by )
)
ISEE3D INC )
In the presence of: )
----------------------------- )
Name )
----------------------------- ) --------------------------
Address ) MORDEN X. XXXXXXX
----------------------------- ) Chairman and C.E.O.
Occupation ) Authorized Signature
XXXXXX X. XXXXXX )
In the presence of: )
-------------------------- )
Name )
----------------------------- ) --------------------------
Address ) XXXXXX X. XXXXXX
----------------------------- ) Authorized Signature
Occupation )
