EXHIBIT 10.4
EMPLOYMENT AGREEMENT FOR
XXXXX XXXX
SCHEDULE "A"
EMPLOYMENT AGREEMENT
SPORTSMARK INC.
000 - 00000 Xxxxxxxxx Xxxx X.X.
Xxxxxxx, Xxxxxxx, X0X 0X0
/ /, 1999
To: / /
Re: EMPLOYMENT AGREEMENT
This Agreement contains the terms and conditions of your employment with
SportsMark Inc. (the "Company").
You will be employed for a term (the "Term") of three years commencing on / /
1999 and ending on / / 2002, unless your employment is terminated or the Term is
extended in accordance with the provisions of this Agreement.
1. DEFINITIONS
In this Agreement:
(a) "AFFILIATE" has the same meaning as in the Alberta BUSINESS
CORPORATIONS ACT or any successor legislation, as amended from time to
time.
(b) "AGREEMENT" means this letter agreement and schedules attached to this
letter agreement, as amended or supplemented from time to time.
(c) "BOARD" means the board of directors of the Company.
(d) "BUSINESS OF THE COMPANY" means the business carried on by the Company
from time to time, and includes without limitation the provision of
entertainment services including the distribution of sports related
information and the operation of contests involving the predicted
outcome of sporting events.
(e) "CAUSE" includes:
(i) any wilful failure by you in the performance of any of your duties
under this Agreement;
(ii) your conviction of a crime (indictable level or penalized by
incarceration or a lesser crime involving moral turpitude), or any act
involving money or other property involving the Company or any other
member of the Group that would constitute a crime in the jurisdiction
involved;
(iii) any act of fraud, misappropriation, dishonesty, embezzlement or
similar conduct against the Company or an Affiliate or customer of the
Company;
(iv) the use of illegal drugs or the habitual and disabling use of alcohol
or drugs;
(v) any material breach of any of the terms of this Agreement which
remains uncured after the expiration of ten days following the
delivery of written notice of such breach to you by the Company;
(vi) any threatened or actual attempt by you to secure any personal profit
in connection with the Business of the Company or the corporate
opportunities of any member of the Group;
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(vii) any act which is materially injurious to the Business of the Company;
and
(viii) your failure to devote adequate time to the Business of the Company,
or conduct by you amounting to insubordination or inattention to, or
substandard performance of, your duties and responsibilities under
this Agreement.
(f) "COMPANY" means SportsMark Inc., a company formed under the laws of
Alberta.
(g) "COMPETITIVE BUSINESS" means any business or enterprise that competes
or intends to compete with the Business of the Company.
(h) "CONFIDENTIAL INFORMATION" means all confidential or proprietary
facts, data, techniques and other information relating to the Business
of the Company which may before or after the date of this Agreement be
disclosed to you by the Company or by any other member of the Group or
which may otherwise come within your knowledge or which may be
developed by you in the course of your employment under this Agreement
or from any other Confidential Information.
(i) "GROUP" means the Company and its Affiliates.
(j) "INTELLECTUAL PROPERTY RIGHTS" means all rights in respect of
intellectual property including, without limitation, all patent,
industrial design, integrated circuit topography, know-how, trade
secret, privacy and trade-xxxx rights and copyright, to the extent
those rights may subsist anywhere in the universe.
(k) "PERSON" means any individual, partnership, limited partnership, joint
venture, syndicate, sole proprietorship, company or corporation with
or without share capital, unincorporated association, trust, trustee,
executor, administrator or other legal personal representative,
regulatory body or agency, government or governmental agency or entity
however designated or constituted.
2. EMPLOYMENT
The terms of your employment will be as follows:
(a) POSITION AND RESPONSIBILITIES: You will be employed by the Company in
the position set out on Schedule "A" to this Agreement, and you will
fulfil the duties and responsibilities set out on Schedule "A" to this
Agreement, subject to changes that may be prescribed by the Board from
time to time.
(b) SCOPE OF DUTIES: During your employment, you will devote the whole of
your time, attention and abilities during normal business hours to the
duties hereby granted and accepted and you will give the Company the
full benefit of your knowledge, expertise, technical skill and
ingenuity.
(c) SALARY: You will receive an annual salary (the "Salary") in the amount
set out on Schedule "A" to this Agreement, subject to changes by
mutual agreement, payable in accordance with the Company's standard
salary payment schedule. Payment of your Salary will be subject to
income tax source deductions and other deductions required by
applicable law.
(d) STOCK OPTIONS: You will be entitled to participate in any stock option
plans as are now or may hereafter be established and offered by the
Company for the benefit of its employees generally.
(e) MEDICAL, INSURANCE AND OTHER BENEFITS: You will be entitled to
participate in any medical, dental, health, life and accident
insurance programs as are now or may hereafter be established and
offered by the Company for the benefit of its employees generally. If
you serve as a director of the Company or any of its affiliates, then
you will be entitled to director's liability insurance coverage as may
be established and offered by the Company for the benefit of its
directors generally.
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(f) REIMBURSEMENT OF EXPENSES: You will be entitled to reimbursement of
reasonable expenses incurred in the course of fulfilling your
employment duties and responsibilities to the Company, as may be
specifically approved by the Board in advance or expressly permitted
in accordance with the Company's expense policies in effect from time
to time.
(g) VACATION ENTITLEMENT: You will receive the period of paid vacation set
out on Schedule "A" to this Agreement. Your vacation must be taken in
accordance with the Company's vacation policies in effect from time to
time.
(h) EXTENSION OF TERM: If the Company does not prior to expiry of the Term
or any extension of the Term provide you with written notice that the
Company does not wish to extend the Term, and if you do not prior to
expiry of the Term or any extension of the Term provide the Company
with written notice that you do not wish to extend the Term, then upon
expiry of the Term and every extension of the Term, the Term of this
Agreement will be deemed to be extended for an additional one year
period on the same terms and conditions as provided for under this
Agreement, unless otherwise agreed in writing.
3. ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS
As consideration for your employment with the Company, you covenant and agree as
follows:
(a) DISCLOSURE: You will make prompt and full disclosure to the Company of
any discovery, invention, development, production, process,
improvement or other work product conceived, made, improved upon or
participated in by you, solely or jointly, in the course of, arising
from or relating to any Intellectual Property Rights of or your
employment with the Company or any other member of the Group (the
"Work Products").
(b) ASSIGNMENT: The Company will hold all Intellectual Property Rights in
respect of the Work Products for the exclusive benefit of the Company
and you agree not to claim or apply for registration or challenge the
Company's registration of, any such Intellectual Property Rights. Your
acceptance of the terms of this Agreement constitutes your absolute,
unconditional and irrevocable assignment, transfer and conveyance of
all past, present and future right, title, benefit and interest in and
to all Intellectual Property Rights in respect of the Work Products.
You hereby waive in favour of the Company all claims of any nature
whatsoever that you now or hereafter may have for infringement of any
Intellectual Property Rights for the Work Products so assigned to the
Company. To the extent that copyright may subsist in the Work
Products, you hereby waive all past, present and future moral rights
you may have.
(c) INTELLECTUAL PROPERTY PROTECTION: The Work Products and all related
Intellectual Property Rights will be the absolute and exclusive
property of the Company. The Company may apply for patent, copyright
or other intellectual property protection in the Company's name or,
where such procedure is proper, in your name, anywhere in the world.
You will, at the Company's request and sole expense, execute all
documents and do all such acts and things considered necessary by the
Company to obtain, confirm or enforce any Intellectual Property Rights
in respect of the Inventions. In case the Company requires but is
unable to secure your signature for any such purpose in a timely
manner, you hereby irrevocably designate and appoint the Company and
any duly authorized officer or agent of the Company as your agent and
attorney, to act for you and in your behalf and stead to execute any
such documents and to do all other lawfully permitted acts to carry
out the intent of this provision, with the same legal force and effect
as if executed or done by you.
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4. OBLIGATIONS OF EMPLOYMENT
You further covenant and agree as follows:
(a) PERFORMANCE AND DUTY TO THE COMPANY: Throughout your employment you
will well and faithfully serve the Company and use all reasonable
endeavours to promote the interests of the Company. You will act
honestly, in good faith and in the best interests of the Company. You
will adhere to all applicable policies of the Company.
(b) BUSINESS OF THE COMPANY: You will not, during your employment with the
Company, engage in any business, enterprise or activity that is
contrary to or detracts from the Business of the Company or the proper
fulfilment of your duties and responsibilities to the Company.
(c) CONFIDENTIALITY: You will retain all Confidential Information
developed, utilised or received by the Company and each other member
of the Group in the strictest confidence and will not disclose or
permit the disclosure of Confidential Information in any manner other
than in the course of your employment with and for the benefit of the
Company or as required by law or a regulatory authority having
jurisdiction. You will not use Confidential Information for your own
personal benefit or permit it to be used for the benefit of any Person
other than the Company, either during your employment with the Company
or thereafter. You will take all reasonable precautions to prevent any
Person from having unauthorized access to Confidential Information or
use of it. In particular, you will not record, copy, modify or part
with any Confidential Information, in whole or in part, except solely
in accordance with the written approval of the Company or only as may
be required to carry out your duties under this Agreement. All copies
of Confidential Information, and all documents and electronic or other
records which now or hereafter may contain Confidential Information,
are and will remain the exclusive and absolute property of the
Company.
(d) EXCEPTIONS: Any obligations specified in subsection 4(c) will not
apply to the following:
(i) any information which is presently in the public domain; or
(ii) any information that subsequently becomes part of the public domain
through no fault of your own.
(e) RESTRICTIONS: You will comply with all of the restrictions set forth
below at all times during your employment and for a period of one year
after the termination of your employment:
(i) you will not, either individually or in conjunction with any Person,
as principal, agent, director, officer, employee, investor or in any
other manner whatsoever, directly or indirectly, engage in or become
financially interested in any Competitive Business within North
America;
(ii) you will not, either directly or indirectly, on your own behalf or on
behalf of others, solicit, divert or appropriate or attempt to
solicit, divert or appropriate to any Competitive Business, any
Business or actively sought prospective Business of the Company or any
customers with whom the Company or any other member of the Group has
current agreements relating to the Business of the Company, or with
whom you have dealt, or with whom you have supervised negotiations or
business relations, or about whom you have acquired Confidential
Information in the course of your employment;
(iii) you will not, either directly or indirectly, on your own behalf or on
behalf of others, solicit, divert or hire away, or attempt to solicit,
divert, or hire away, any independent contractor or any person
employed by the Company or any other member of the Group or persuade
or attempt to persuade any such individual to terminate his or her
employment with the Company; and
(iv) you will not directly or indirectly impair or seek to impair the
reputation of the Company or any other member of the Group, nor any
relationships that the Company or any other member of the Group has
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with its employees, customers, suppliers, agents or other parties with
which the Company or any other member of the Group does business or
has contractual relations.
(f) NO PERSONAL BENEFIT: You will not receive or accept for your own
benefit, either directly or indirectly, any commission, rebate,
discount, gratuity or profit from any Person having or proposing to
have one or more business transactions with the Company or any other
member of the Group, without the prior approval of the Board, which
may be withheld.
(g) CUSTOMER CONTACTS: During your employment you will communicate and
channel to the Company all knowledge, business and customer contacts
and any other information that could concern or be in any way
beneficial to the Business of the Company. Any such information
communicated to the Company as aforesaid will be and remain the
property of the Company notwithstanding any subsequent termination of
your employment.
(h) RETURN OF COMPANY PROPERTY: Upon termination of your employment, you
will promptly return to the Company all Company property including all
written or other fixed information including, without limitation,
documents, tapes, discs, memory devices and copies thereof, and any
other material on any medium in your possession or control pertaining
to the Business of the Company, without retaining any copies or
records of any Confidential Information whatsoever. You will also
return any keys, pass cards, identification cards or other property
belonging to the Company.
5. TERMINATION
(a) MUTUAL AGREEMENT: Your employment may be terminated at any time upon
the mutual written agreement by the parties.
(b) RESIGNATION: You will not resign from the Company during the first
year of your employment, and if for any reason you should wish to
leave the Company after that time you will provide the Company at
least six months' prior written notice of your intention.
(c) WITH CAUSE: The Company may terminate your employment at any time for
Cause, immediately upon delivery by the Company to you of a notice of
termination of your employment for Cause, in which case you will not
be entitled to receive any further compensation, severance pay,
notice, payment in lieu of notice or damages of any kind, except only
any compensation accrued and owing under this Agreement but unpaid at
the date of termination of your employment.
(d) WITHOUT CAUSE: The Company may terminate your employment without Cause
at any time after the first year of your employment by providing you
with the greater of the following:
(i) six months' written notice or payment in lieu of notice; or
(ii) the minimum notice or payment in lieu of notice prescribed by the
EMPLOYMENT STANDARDS ACT (Alberta) or any successor legislation,
as amended from time to time.
You will not be entitled to receive any further severance pay, notice,
payment in lieu of notice or damages of any kind and you will not be
entitled to receive any further compensation, except only any
compensation accrued and owing under this Agreement but unpaid at the
date of termination of your employment. Payments in lieu of notice
will be subject to all income tax source deductions and other
deductions required by law.
6. AGREEMENT VOLUNTARY AND EQUITABLE
You acknowledge that you have carefully considered and understand the terms of
employment contained in this Agreement, that you have had the opportunity to
obtain independent legal advice regarding this Agreement, that you
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consider the terms of this Agreement to be mutually fair and equitable, and that
you have executed this Agreement voluntarily and of your own free will.
7. IRREPARABLE HARM
You acknowledge and agree that any breach of section 3, subsection 4(c) or
subsection 4(e) of this Agreement by you will cause irreparable harm to the
Company and in addition to all of the remedies available to the Company by law,
the Company will be entitled to equitable relief including without limitation,
injunctive relief to ensure your compliance with section 3 and subsections 4(c)
and 4(e) of this Agreement.
8. ASSIGNMENT AND ENUREMENT
You may not assign this Agreement, any part of this Agreement or any of your
rights under this Agreement without the prior written consent of the Company.
This Agreement enures to the benefit of and is binding upon you and the Company
and your respective heirs, executors, administrators, successors and permitted
assigns.
9. SEVERABILITY
If any provision or portion of this Agreement is determined to be invalid or
unenforceable for any reason, then that provision or portion will be severed
from this Agreement, and the rest of this Agreement will remain in full force
and effect.
10. ENTIRE AGREEMENT
This Agreement contains the whole agreement between you and the Company with
respect to your employment by the Company, and there are no representations,
warranties, collateral terms or conditions, express or implied, other than as
set forth in this Agreement. This Agreement supersedes any written or oral
agreement or understanding between you and the Company. No change or
modification of this Agreement will be valid unless it is in writing and
initialled by both parties.
11. NOTICE
Any notice required or permitted to be given hereunder must be in writing and
will be sufficiently given or made if delivered or sent by registered mail to
the address of the parties set out on page 1 hereof. Any notice so given will be
deemed to have been given and to have been received on the day of delivery if it
is a business day and otherwise on the next succeeding business day or, if
mailed, on the third business day following the mailing thereof (excluding each
day during which there exists any interruption of postal services due to strike,
lockout or other cause). Addresses for notice may be changed by giving notice in
accordance with this section.
12. NON-WAIVER
No failure or delay by you or the Company in exercising any power or right under
this Agreement will operate as a waiver of such power or right. Any consent or
waiver by you or by the Company to any breach or default under this Agreement
will be effective only in the specific instance and for the specific purpose for
which it was given.
13. SURVIVAL OF TERMS
The provisions of sections 1, 3, 5 and 7 and of subsections 4(c), 4(e), 4(g) and
4(h) of this Agreement will survive the termination of your employment.
14. FURTHER ASSISTANCE
The parties will execute and deliver any documents and perform any acts
necessary to carry out the intent of this Agreement.
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15. TIME
Time is of the essence of this Agreement.
16. GOVERNING LAWS
This Agreement will be construed in accordance with and governed by the laws of
Alberta and the laws of Canada applicable in Alberta.
17. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which will
be deemed to be an original and all of which will constitute one Agreement.
SPORTSMARK INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
I acknowledge and accept the terms and conditions of my employment with the
Company as set out above.
DATED this ________ day of ____________, 1999.
------------------------------------
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SCHEDULE "A"
Employee's Name Xxxxxxxx X. Xxxx
Commencement Date and Term: February 5, 1999, three years
Position: President of SportsMark Inc and
SportsMark Promotions Inc.,
Executive Vice-President of
Classroom 2000 Inc.
Duties & Responsibilities Marketing, Administration, Systems
Design and Corporate Planning for
SportsMark Inc., SportsMark
Promotions Inc. and Classroom 2000
Inc.
Salary: $110,000.00/year
Paid Vacation: Four weeks each year
SPORTSMARK INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
I acknowledge and accept the terms and conditions of my employment with the
Company as set out above.
DATED this ________ day of ______________, 1999.
------------------------------------
XXXXXXXX X. XXXX
