EXHIBIT 10.11
EMPLOYMENT AGREEMENT
--------------------
THIS AGREEMENT made as March 2, 0000
X X X X X X X:
XXXXXX X. FAIRFAX
(hereinafter referred to as the "Employee")
OF THE FIRST PART
- and -
IRONSIDE TECHNOLOGIES INC.
(hereinafter referred to as the "Employer")
OF THE SECOND PART
WHEREAS the Employer wishes to have the benefit of the Employee's
knowledge and experience as a full-time employee;
AND WHEREAS the Employer and the Employee are desirous of entering
into an employment relationship for their mutual benefit;
AND WHEREAS the Employer and the Employee have agreed that the terms
and conditions of the employment relationship shall be as set out herein;
NOW THEREFORE in consideration of the terms, conditions, covenants and
obligations herein contained (the adequacy of which is hereby acknowledged by
each of the parties), the parties hereto have agreed and do hereby agree as
follows:
-2-
ARTICLE ONE - DEFINITION
------------------------
1.01 "Just Cause" means (i) wilful failure of the Employee to properly
carry out his duties after written notice by the Employer of the failure to do
so and an opportunity for the Employee to correct the same within a reasonable
time from the date of receipt of such written notice from the Employer; or (ii)
theft, fraud or material dishonesty or misconduct by the Employee involving the
property or affairs of the Employer or the carrying out of the Employee's
duties; or after written notice by the Employer and an opportunity for the
Employee to correct within a reasonable time from the date of receipt of such
written notice from the Employer; (a) any material breach of the obligations
of the Employee pursuant to this Agreement; or (b) cause as determined by a
California court of competent jurisdiction.
ARTICLE TWO - SCOPE OF EMPLOYMENT
---------------------------------
2.01 Employment: The Employer hereby agrees to employ the Employee and the
----------
Employee hereby accepts such employment on a full time basis in the position of
Chief Financial Officer, upon the terms and conditions set forth in this
Agreement.
2.02 Duties and Responsibilities: The duties and responsibilities of the
---------------------------
Employee shall consist of recruiting employees for Ironside Technologies, plus
other responsibilities that may be assigned by the Employer's Chief Executive
Officer. More specifically, the duties and responsibilities of the Employee
shall be outlined as per the GROE which shall be mutually agreed with the
Employer's Chief Executive Officer.
2.03 Full and Faithful Service: The Employee shall devote to the business
-------------------------
and affairs of the Employer all of his working time, attention and ability to
carry out the duties of his position and will ensure that he is not, at any
time, engaged in conduct that would constitute a conflict with the interests of
the Employer. The Employee agrees that he will, in the performance of his
duties, promote the interest, business and reputation of the Employer and shall
perform all such duties as are essential or conducive to the efficient
management thereof in accordance with the rules and policies of the Employer.
-3-
2.04 Acknowledgement: The Employee acknowledges that the effective
---------------
performance of his duties requires the highest level of integrity and the
Employer's complete confidence in the Employee's relationship with other
employees of the Employer and with all persons dealt with in the course of his
employment. The Employee shall diligently, faithfully and honestly serve the
Employer during the continuance of his employment hereunder and shall use his
best efforts to promote the interests of the Employer.
ARTICLE THREE - TERM OF EMPLOYMENT
----------------------------------
3.01 Term Period: The term of employment created herein shall be for an
-----------
indefinite period commencing on March 9, 2000, unless this Agreement is
terminated earlier by either of the parties in accordance with the provisions
set out herein.
ARTICLE FOUR - COMPENSATION
---------------------------
4.01 Base Salary: As remuneration for his services hereunder, the Employee
-----------
shall be paid a base salary (the "Base Salary") at the rate of US $175,000 per
annum, less all applicable statutory deductions, which Base Salary shall be paid
in arrears and in equal semi-monthly installments.
4.02 Incentive Compensation: The Employee shall be entitled to participate
----------------------
in the Employer's annual incentive sales compensation plan, a copy of which is
attached hereto as Schedule "A" (the "Incentive Compensation Plan").
4.03 Benefits: The Employee shall be entitled to participate in the
--------
employee benefit plans and programs which are generally made available to
employees of the Employer from time to time.
4.04 Stock Option Plan: Upon signing this Employment Agreement, the
-----------------
Employee shall be granted an initial amount of 900,000 stock options, in
accordance with the terms, conditions and eligibility requirements of the
Employer's stock option plan. In addition, subject to the
-4-
discretion of the Employer, the Employee shall be permitted to participate in
any further stock option grants as offered by the Employer. Upon the closing of
any event that creates a change of control of the Employer, the stock options
granted to the Employee shall become fully vested, exercisable and will not be
subject to Employer's right of repurchase.
4.05 Profit Sharing Plan: Subject to the discretion of the Employer, the
-------------------
Employee shall be permitted to participate in any profit sharing plan that is
established by the Employer in accordance with the terms, conditions and
eligibility requirements of the plan.
4.06 Vacation: The Employee shall be entitled to three (3) weeks vacation
--------
leave during each full year that this Agreement is in effect at the Base Salary
provided for in Section 4.01 herein. Such vacation to be taken at such time or
times as the Employer may determine having regard to the business and
undertaking of the Employer and having regard to the dates requested by the
Employee. In the event that the Employee's employment is terminated, the
Employee shall be entitled to all accrued and unused vacation leave that has
been earned during the period of employment. During the initial year of the
Employee's employment with the Employer, his vacation leave shall be pro-rated
to the date on which he commenced employment with the Employer.
4.07 Expenses: The Employee shall be reimbursed for all reasonable pre-
--------
authorized travel, business and entertainment expenses incurred by him in the
performance of his duties hereunder, subject to such limits as may be
established by the Employer and revised by it from time to time. As a condition
to the reimbursement of such expenses, the Employee shall furnish to the
Employer receipts for expenses incurred.
-5-
ARTICLE FIVE - TERMINATION OF EMPLOYMENT
----------------------------------------
5.01 Termination by Employer: This Agreement, and the employment
-----------------------
contemplated hereunder, may be terminated in the following manner and in the
following circumstances:
(a) by the Employer, at any time, for Just Cause, in which case the
employment of the Employee and this Agreement shall terminate
immediately upon written notice from the Employer to the Employee. In
the event of any termination for Just Cause, the Employee shall be
entitled to receive any outstanding Base Salary and vacation pay which
has accrued to the effective date of such termination. Upon receipt
of such notice by the Employee, the Employer shall be under no further
obligation to provide the Employee with pay in lieu of reasonable
notice, severance pay or termination pay whether under statute or at
common law;
(b) upon the death of the Employee, in which case the employment of the
Employee and this Agreement shall terminate on the date of the
Employee's death. In the event of such termination, all outstanding
Base Salary, Incentive Compensation and vacation pay which has
accrued to the effective date of termination shall be paid to the
Employee's estate; and
(c) by the Employer, at any time, by providing the Employee written notice
of termination of employment, or pay in lieu thereof, continuation
of Benefits per Section 4.03 for a period of six months, plus any
vacation pay which has accrued through the date of notice, and six
months of Base Salary continuation. If termination occurs prior to
the first anniversary of the commencement of vesting of the options
granted per Section 4.04, then 1/48th of the total number of shares
multiplied by the number of months that the Employee was employed
will immediately vest and will not be subject to Employer's
repurchase right.
5.02 Termination by Employee: This Agreement and the employment
-----------------------
contemplated hereunder may be terminated by the Employee for any reason and at
any time by providing to the
-6-
Employer two (2) weeks notice in writing of his termination of employment. The
Employee shall be entitled to receive all Base Salary and vacation pay which
accrues to the effective date of such termination.
Change of Position: In the event that the Employer proposes material
changes to the Position, effective Duties and Responsibilities, or Compensation
of the Employee, and should the Employee not accept Employer's proposed changes,
the Employee may terminate his active employment by providing Employer with two
(2) weeks notice and shall then be entitled to receive continuation of Benefits
per Section 4.03 for a period of six months, six months of Base Salary
continuation, plus any vacation pay which has accrued through the date of
notice. If termination occurs prior to the first anniversary of the commencement
of vesting of the options granted per Section 4.04, then 1/48th of the total
number of shares multiplied by the number of months that the Employee was
employed will immediately vest and will not be subject to Employer's repurchase
right.
ARTICLE SIX - CONFIDENTIALITY
-----------------------------
6.01 Confidential Information: The Employee acknowledges that during the
------------------------
course of his employment, the Employee will be exposed to secret and
confidential business information belonging to the Employer, its affiliates and
associates which gives it a commercial advantage over others. Except as may be
required by law, the Employee agrees to not use, directly or indirectly, for own
account or for the account of any person, firm, corporation or other entity or
disclose to any person, firm, corporation or other entity, any of the Employer's
or its affiliates' or its associates' proprietary information disclosed or
entrusted to him or developed or generated by him in the performance of his
duties hereunder, including but not limited to, information relating to the
Employer's and/or its affiliates' and/or its associates' organizational
structure, operations, business plans, technical projects, pricing data,
business costs, research data results, inventions, trade secrets, customers
lists, customer prices or other work produced, developed by or for the Employer
or its affiliates or its associates, whether on the premises of the Employer or
elsewhere.
6.02 Exceptions: The provisions of Section 6.01 shall not apply to any
----------
proprietary, confidential or secret information which is, at the commencement of
the term of this Agreement
-7-
or at some later date, publicly known under circumstances involving no breach of
this Agreement or is lawfully and in good faith made available to the Employee
without restrictions as to disclosure to a third party.
6.03 Property and Documents: The Employee acknowledges, understands and
----------------------
agrees that all memoranda, notes, records, charts, formulae, client lists, price
lists, marketing plans, office products including, but not limited to, personal
computers, fax machines, printers and photocopiers, financial information and
other documents made, received, held or used by the Employee during the course
of his employment shall be the property of the Employer and shall be delivered
by the Employee to the Employer upon request at any time during the course of
employment or on termination of employment as herein before provided. The
Employee acknowledges and agrees that he shall not retain any copies of such
documentation without the written consent of the Employer. With respect to all
confidential information and other documents of the Employer held by the
Employee, the Employee acknowledges that he is in a position of trust and
subject to a fiduciary duty to use the information only in the interests of the
Employer and its business.
6.04 Inventions and Improvements: Any and all inventions and improvements
---------------------------
which the Employee may conceive or make, during the period of employment,
relating to or in any way appertaining to or connected with any of the matters
which have been, are or may become the subject of the Employer's investigations,
or which the Employer has been, is or may become interested, including, but not
limited to, product design, computer software or technology, shall be the sole
and exclusive property of the Employer, and the Employee will, whenever
requested by the Employer, execute any and all applications, assignments and
other instruments which the Employer shall deem necessary in order to apply for
and obtain Letters of Patent or Copyrights of Canada or foreign countries for
the inventions or improvements, and in order to assign and convey to the
Employer all sole and exclusive right, title and interest in and to the
inventions or improvements, all expenses in connection with them to be borne by
the Employer.
-8-
ARTICLE SEVEN - NON-SOLICITATION
--------------------------------
7.01 Non-Solicitation: The Employee acknowledges that by reason of his
----------------
employment with the Employer, he will or may develop a close working
relationship with the Employer's customers and clients, gain a knowledge of the
Employer's methods of operation and acquire and be exposed to confidential
materials and information, all of which would cause irreparable harm and injury
to the Employer if made available to a competitor or used for competitive
purposes. Accordingly, the Employee agrees that:
(a) the Employee shall not, for any reason, directly or indirectly,
either during the term of this Agreement or for a period of one
(1) year following the termination of this Agreement, regardless
of how that termination should occur, hire any employees of the
Employer or induce or attempt to induce, solicit or attempt to
solicit, any of the employees of the Employer to leave their
employment; and
(b) the Employee shall not, for any reason, directly or indirectly,
without the prior written consent of the Employer, either during
the term of this Agreement or for a period of one (1) year
following the termination of this Agreement, regardless of how
that termination should occur, solicit or otherwise contact any
client or customer or potential client or customer of the
Employer which was serviced or solicited by the Employer during
the term of this Agreement, for the purpose of selling any
products or services to that client or customer, or for purposes
of soliciting orders for any products or services from that
client or customer, where such products or services are the same
as or substantially similar to or in any way competitive with the
products or services sold by the Employer at the time of
termination of this Agreement;
7.02 Reasonableness and Severability: The parties to this Agreement
-------------------------------
acknowledge
-9-
and agree that the scope of these covenants are, in all respects, and
particularly in respect of time and subject matter no more than what is
reasonably required to protect the Employer's interest. The parties to this
Agreement further agree that if any limitation or provision contained in these
covenants are determined to be void or unenforceable in whole or in part, it
shall not be deemed to affect or impair the validity of any other covenant or
provision hereof.
ARTICLE EIGHT - INJUNCTIVE RELIEF
---------------------------------
8.01 Injunctive Relief: The Employee acknowledges and agrees that in the
-----------------
event of any violation of the covenants provided for in Sections 6 and 7, the
Employer shall be entitled as a matter of course to injunctive relief in
addition and without prejudice to any other remedy the Employer may have at law.
ARTICLE NINE - GENERAL
----------------------
9.01 Headings: The division of this Agreement into Articles and Sections
--------
and the insertion of headings are for the convenience of reference only and
shall not affect the construction or interpretation of this Agreement.
9.02 Enurement: This Agreement shall enure to the benefit of and be
---------
binding upon the heirs, executors, administrators and legal personal
representatives of the Employee and the successors and permitted assigns of the
Employer, respectively.
9.03 Entire Agreement: This Agreement constitutes the entire agreement
----------------
between the parties with respect to the subject matter hereof and cancels and
supersedes any prior understandings and agreements between the parties hereto
with respect thereto. There are no representations, warranties, terms,
conditions, undertakings or collateral agreements, express, implied or statutory
between the parties other than as expressly set forth in this Agreement.
9.04 Amendments: No amendments to this Agreement shall be valid or binding
----------
unless set forth in writing and duly executed by both of the parties hereto. No
waiver of any breach of any
-10-
provision of this Agreement shall be effective or binding unless made in writing
and signed by the party purporting to give same and, unless otherwise provided
in the written waiver, shall be limited to the specific breach waived.
9.05 Invalidity: If any provision of this Agreement is determined to be
----------
invalid or unenforceable in whole or in part, such invalidity or
unenforceability shall attach only to such provision or part thereof and the
remaining part of such provision and all other provisions hereof shall continue
in full force and effect.
9.06 Further Assurances: The parties shall do all such further acts and
------------------
things and provide all such assurances and deliver all such documents in writing
as may be required from time to time in order to fully carry out the terms,
provisions and intent of this Agreement.
9.07 Notice: Any demand, notice or other communication to be given in
------
connection with this Agreement shall be in writing and given by delivery or
sending it by overnight delivery, telecopy or other similar form of
communication addressed:
To the Employer:
---------------
Ironside Technologies Inc.
000 Xxxx Xxxx, 0xx Xx.
Xxxxxxx, Xxxxxxx XXXXXX
X0X OP6
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx xxXxxxxxx
To the Employee:
---------------
Xxxxxx X. Fairfax
0000 Xxxxx Xxxxx Xxx
Xxxxxxxx Xxxx
Xxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Any such notice, direction or other instrument given as aforesaid shall be
deemed to have been effectively given, if sent by telecopier or other similar
form of telecommunications on the next
-11-
business day following such transmission or, if delivered, to have been received
on the date of such delivery. Any party may change its address for service from
time to time by notice given in accordance with the foregoing and any subsequent
notice shall be sent to the party at its changed address.
9.08 Independent Legal Advice: Employee hereby represents and warrants to
------------------------
the Employer that she had the opportunity to seek and was not prevented nor
discouraged by the Employer from seeking independent legal advice prior to the
execution of this Agreement and that, in the event that she did not avail
herself of that opportunity prior to signing this Agreement, did so
voluntarily without any undue pressure and agrees that failure to obtain
independent legal advice shall not be used by as a defense to the
enforcement of obligations under this Agreement.
9.09 Jurisdiction: This Agreement shall be governed by and construed in
------------
accordance with the laws of the State of California.
IN WITNESS WHEREOF this Agreement has been executed by the parties
hereto on the date first above written.
SIGNED, SEALED and DELIVERED
in the presence of:
/s/ X.X. XXXXXX /s/ XXXXXX X. FAIRFAX
___________________________________ ___________________________________
X.X. XXXXXX XXXXXX X. FAIRFAX
IRONSIDE TECHNOLOGIES INC.
Witnessed By: ___________________
