Exhibit 10.42
THIS EMPLOYMENT AGREEMENT made effective as of the 19th day of September, 2005.
BETWEEN: NS8 CORPORATION, a company incorporated under the
laws of the State of Delaware, having offices at One
Union Square, 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxxxx 00000 and Xxxxx 000, 0000 Xxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
(hereinafter called the "Company" or "NS8", as the
context implies)
OF THE FIRST PART
AND: XXXX XXXXX, residing at #302 - 0000 Xxxxxxxxx Xxx.,
Xxx Xxxxxxx, Xxxxx xx Xxxxxxxxxx, Xxxxxx Xxxxxx of
America 90025
Social Security Number __________________________,
(hereinafter called the "Employee")
OF THE SECOND PART
WHEREAS:
A. The Company carries on the business of conducting scientific research and
development in the areas of computer software and internet communications and
marketing and distributing its various online products and services. In this
Agreement where the context requires, the term "Company" will refer to and
include CanOnline Media Corporation ("CMC"), its parent corporation CanOnline
Global Media, Inc. ("CGMI"), NS8 Corporation the parent corporation of CGMI, and
all other affiliates and subsidiaries of these corporations from time to time.
B. It is deemed to be in the best interest of the Company to obtain the benefit
of the services of the Employee as described in Schedule "A" attached to this
Agreement relating to the Company's business and NS8 wishes to engage the
services of the Employee pursuant to the terms and conditions of this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the respective
covenants and agreements hereinafter contained, the parties hereto agree as
follows:
1. Recitals Incorporated in Agreement
----------------------------------
The above mentioned recitals and all schedules and attachments to this Agreement
are hereby incorporated into this Agreement by reference and are deemed to be
true representations of the relevant party hereto as the context implies.
2. Engagement
----------
NS8 hereby contractually engages the Employee to provide the Employee's services
to the Company on the terms and conditions set forth herein and as set forth in
Schedule "A" to this Agreement for the Term (as hereinafter defined). The
Employee hereby agrees to accept such engagement on the terms and conditions of
this Agreement and Schedule "A" attached hereto. Without limiting the foregoing,
it is mutually agreed that during the Term of this Agreement the Employee will
be responsible to and subject to the direction of the management of the Company,
and that the services agreed to be provided by the Employee will be consistent
with those of the Employee's Job Description or as such Job Description may be
amended by NS8 from time to time. The Employee will perform all assigned
functions to the satisfaction of the management of the Company.
3. Time and Effort - Compliance with Policies
------------------------------------------
The Employee must apply his full time, attention and ability to the business and
affairs of the Company and shall well and conscientiously service the Company
during the Term. It is mutually agreed that the Employee will diligently abide
by the regulations, instructions, directions and policies of the Company and its
management.
4. Non-Disclosure
--------------
Except as required in the performance of the Employee's duties pursuant to this
Agreement, the Employee must not during the Term or for a period of three (3)
years after termination of this Agreement divulge, publish or disclose in any
manner or medium, electronic or otherwise, any Confidential Information (as
defined in the NDA Agreement attached hereto as Schedule "B" or in this
Agreement) of the Company or its affiliates or any trade secrets thereof to any
person or entity without the prior written consent of the Company. In addition,
the Employee agrees to execute and be absolutely bound by the terms and
conditions of the Employee's Confidentiality and Non-Circumvention Agreement
(the "NDA Agreement") in the form attached hereto as Schedule "B". Without
limiting the generality of the foregoing, the Employee further agrees that
during the Term of this Agreement and any extensions thereof, and for a period
of three (3) years after the Termination Date (as hereinafter defined) the
Employee agrees that the Employee will not directly or indirectly approach the
Company's customers, clients, or suppliers of services of a proprietary nature
in any manner whatsoever for any purpose. In addition, without limiting the
generality of the foregoing, the Employee further agrees that the Employee is
prohibited from discussing, commenting, or making remarks of any kind regarding
any matters that might directly or indirectly be related to the projects,
products, methods, strategies, services and operations of the Company to
individuals or parties outside of the facilities or place of business of the
Company without obtaining the prior written consent of the Company. Without
limiting the generality of the foregoing, Employee acknowledges and agrees that
Employee is strictly prohibited from disclosing on any document, resume, email
or other form of verbal or written communication any Confidential Information,
including information regarding the specific projects Employee is or has been
working on or describing any specific tasks Employee has contributed to perform.
This prohibition will continue in effect until the expiration of both the NDA
Agreement and the restrictive covenant and non-competition provisions of this
Agreement. Any contravention of this policy or the terms of this Agreement is
grounds for immediate dismissal of the Employee and the Company may take such
other legal action against Employee as may be appropriate or available to it.
The Employee further warrants and represents to the Company that the Employee is
not currently bound by any confidentiality, non-circumvention, or non-disclosure
agreements of any similar agreement ("Other NDA Agreement") in effect with any
other party including, without limiting the generality of the foregoing, any
party deemed to be a competitor of the Company or undertaking research and
development activities similar to those of the Company or having an interest in
intellectual property similar to that of the Company. If the Employee is bound
by an Other NDA Agreement with any third-party, the Employee acknowledges,
understands and agrees that the Employee must disclose the full particulars of
any such Other NDA Agreement to the Company by attaching a true copy of any such
Other NDA Agreement as Schedule "F" to this Agreement.
5. Permitted Investments and Activities
------------------------------------
Nothing in this Agreement shall restrict or impede the Employee from holding,
re-investing or liquidating investments held by the Employee at the date hereof
or from participation in any other investment, activity or business so long as
such participation
(a) is not contrary to the interests of the Company; or
(b) does not make it impossible for the Employee to properly
fulfil his duties hereunder; or
(c) does not contravene any xxxxxxx xxxxxxx rules, regulations or
laws limiting the investment activities of insiders of the
Company.
The Employee hereby acknowledges, understands and agrees that the Employee shall
throughout the Term of this Agreement be considered an insider of the Company
for the purposes of applying the securities rules, regulations and laws of the
United States of America and Canada to the Employee's investment activities.
Accordingly, the Employee agrees to adhere to all such rules, regulations and
laws that are in effect throughout the Term of this Agreement.
6. Term
----
The Employee hereby acknowledges, understands and agrees that this Employment
Agreement is an "at will" employment agreement and the term of this Agreement
and the term of the Employee's rights and obligations under this Agreement
(collectively, the "Term") will commence on the Commencement Date set forth in
Schedule "A" (the "Commencement Date") and will terminate, pursuant to the
express terms and conditions set out in paragraph 12 of this Agreement, on the
first occurring of the following:
(a) upon the Employee terminating this Agreement and the
employment of the Employee pursuant to the terms of this
Agreement; or
(b) upon the Company terminating this Agreement and the employment
of the Employee pursuant to the terms of this Agreement.
7. Remuneration
------------
NS8 will pay and the Employee agrees to accept as compensation for all the
services to be rendered hereunder during the Term, the remuneration as set forth
in Schedule "A" hereto. The Employee agrees that all deductions from source
required to be made by NS8 in respect of the employment of the Employee
including, without limitation, federal income tax deductions, or like payments
will be made by NS8 and the Employee agrees to hold the Company harmless from
any claim made by any competent government authority for taxes or other
deductions which might have been made by the Company.
8. Benefits
--------
The Employee will receive the same medical and dental benefits offered to other
officer class US employees of the Company. In addition, the Employee will be
provided with appropriate medical and dental benefits and travel insurance
coverage for his international travel (collectively, the "Benefits"). These
terms are subject to change at the discretion of management or the Benefits
policy provider. The Benefits that are currently available to the employees of
the Company as of the Commencement Date of this Agreement are described in
Schedule "A" hereto.
9. Vacation
The Employee will be entitled to the number of weeks of vacation in each year as
set forth in Schedule "A". The Company and the Employee will mutually agree in
advance to all vacation time to be taken by Employee. During the Employee's
vacation no services are required to be rendered to the Company hereunder.
10. Expenses and Automobile
-----------------------
The Company agrees to reimburse the Employee for all necessary and authorized
expenses reasonably incurred in connection with the provision and performance of
the Employee's services hereunder and for which statements and receipts are
submitted to the Company in a timely manner, including authorized travel and
other expenses incidental to the duties undertaken hereunder. The Company agrees
to pay the Employee for Employee's use of the Employee's vehicle for Company
business as set forth in Schedule "A".
11. Office and Staff
----------------
The Company, at its own cost, will provide the Employee with appropriate office
facilities and staff assistance, if necessary or required, for the proper
performance of the Employee's duties and functions.
12. Termination
-----------
The parties understand and agree that this Employment Agreement is an "at will"
employment agreement and NS8 may terminate this Employment Agreement without
cause at any time in accordance with the applicable governing State and Federal
laws of the United States of America. The parties further understand and agree
that any benefits granted under Sections 8, 9, 10 & 11 of this Agreement will
end as of the effective date of termination.
On termination of employment the Employee shall immediately resign all offices
held (including directorships) in the Company, its affiliates, parent and
subsidiaries and, except as provided in the Employment Agreement, If the
Employee fails to resign from any such office as mentioned, the Company is
irrevocably authorized to appoint some person in the Employee's position, place
and xxxxx and in his name and on the Employee's behalf to sign any documents or
do any things necessary or requisite to give cause and effect to any such
resignation.
If the Company terminates the employment of the Employee after one year from the
Commencement Date of his employment then he shall be entitled to receive a
severance payment in an amount equal to three (3) months base salary in effect
at the date of termination (the "Severance Pay"). However, the Employee shall
not be entitled to receive any other compensation for loss of office or
employment by reason of his resignation or the termination of his employment
except for the Severance Pay and the amount of salary and reasonable expenses
owing to the Employee up to the effective date of Employee's termination.
13. Illness or Disability
---------------------
If the Employee by reason of illness or mental or physical disability or
incapacity fails to perform the Employee's duties hereunder for any two (2)
consecutive calendar months in any calendar year or for three (3) months in the
aggregate in any successive calendar years, NS8 may by two (2) months' notice in
writing to the Employee terminate the employment of the Employee hereunder. In
such event this Agreement, except for Paragraphs 4, 14, 15, 16, 17, 18 and 25
hereof, which Paragraphs shall continue in force, and the employment of the
Employee pursuant to this Agreement will be terminated effective as of the
termination date contained in the written notice given by NS8 to the Employee,
and the Employee shall have no claim against the Company for damages or
otherwise for such termination except for the payment of the remuneration
provided for in Paragraph 7 above to the date of termination.
14. Intellectual Property Rights
----------------------------
The Employee acknowledges and agrees that NS8 is engaging the services of the
Employee to benefit NS8 and its various affiliates and subsidiaries, and their
respective businesses and projects, and that the Employee is being fully
compensated for Employee's services by virtue of the remuneration that the
Employee agrees to accept as provided for in this Agreement. Accordingly,
Employee acknowledges and agrees that the Company is and at all times will be
the sole and absolute owner of all right, title and interest in and to all
copyright, patents, trademarks, trade secrets and all other proprietary and
intellectual property rights relating to the business and operations of the
Company and the services performed by the Employee for the Company, its
affiliates and subsidiaries (collectively called the "Intellectual Property
Rights"). The Employee agrees to waive all so called "moral rights" and all
similar rights under any applicable copyright legislation. The Employee further
agrees that at the request of the Company, the Employee will duly and promptly
execute and deliver to the Company assignments or transfers of any of the
Intellectual Property Rights in the prescribed manner together with all
necessary related prescribed documentation (the "Transfers"). The Transfers
shall be in favour of and name the Company, or any third party designated by the
Company, as the transferee or assignee, at no cost to the Employee. The Employee
hereby irrevocably and absolutely designates and appoints the Company as his
Attorney-in-Fact with full power and authority to duly execute and deliver any
Transfers on behalf of and in the name of the Employee if the Employee is unable
or unwilling to duly execute and deliver any Transfers to or as directed by the
Company. The provisions of the NDA Agreement attached hereto as Schedule "B"
shall also continue to apply to all matters relating to Intellectual Property
Rights and will survive the termination of this Agreement by either party.
15. Restrictive Covenant
--------------------
The Employee hereby agrees that if the employment of the Employee with the
Company is terminated for any reason whatsoever, then the Employee will be
restricted for a period of two (2) years from the date of termination from
directly or indirectly carrying on or being engaged or concerned in any trade,
operation or business similar to that carried on by the Company before or at the
date of termination, or from giving any advice to or guaranteeing the debts or
obligations of, either directly or indirectly, anyone involved in any such
trade, operation or business anywhere within Canada or the United States of
America.
16. Indemnification
---------------
The Employee agrees to indemnify the Company and hold it harmless against any
claim or action for infringement of copyright or of any other intellectual
property or other proprietary right arising from or in connection with the use
of material contributed by the Employee in the course of Employee's employment
or under the terms of this Agreement, provided that this indemnity shall not
extend to such claims of infringement of copyright or other intellectual
property rights based upon material supplied by the Employee and in respect of
which the Employee had previously advised the Company in writing that the
Employee does not own or have any other proprietary interest in the intellectual
property rights.
17. Return of Records
-----------------
On termination of this Agreement for any reason, the Employee agrees to return
to the Company, as it may direct and at the Employee's cost, all business
records, correspondence, files, technical data, equipment, samples and other
material or records in the Employee's possession at the time of termination and
belonging to or supplied by the Company, its customers, suppliers, directors,
officers or shareholders.
18. Equipment
---------
It is mutually agreed that Employee will be responsible for the custody and care
of any equipment or supplies belonging to the Company or belonging to any other
person or entity that the Employee might use in the performance of Employee's
services herein. The Employee understands and agrees that, If terminated, the
Employee must return all equipment or supplies belonging to the Company on or
before the effective date of termination. It is further agreed that no equipment
purchased and provided for Employee by the Company may leave the premises of
Company without first obtaining the authorization of two additional directors,
officers or supervisors of Company. Employee hereby understands and agrees that
breach of this section will be just cause for Employee's immediate termination
under the terms of this Agreement.
19. Monitoring of Employee
----------------------
The Employee acknowledges, understands and agrees that the Company is developing
and possesses certain confidential proprietary information, materials, systems
and trade secrets including, without limitation, scientific, technical, business
and financial information that if disclosed could result in substantial loss and
damage to the Company. Accordingly, the Employee acknowledges, understands and
agrees that the Company must protect its confidential and proprietary
information by utilizing a variety of monitoring and surveillance systems and
equipment that will monitor and observe the Employee and the activities of the
Employee as well as other employees including, without limitation, video and
audio surveillance recording systems, interception of communications made by and
to the Employee, monitoring of Employee's telephone conversations, and
monitoring of Employee's computer activities. The Employee hereby agrees and
consents to being subject to all such monitoring and surveillance systems and
activities whether performed directly by the Company or by any third party
acting on the Company's behalf.
20. Personal Information
--------------------
The Employee acknowledges, understands and agrees that during the Term of this
Agreement and initially during the pre-engagement period to assist the Company
in determining whether to hire the Employee the Company must collect, use and
share personal information as may be necessary and reasonable to engage,
remunerate, monitor, evaluate or terminate the Employee as provided for in this
Agreement. Personal information includes, but is not limited to, information
regarding the employment, income, taxation, health, citizenship, criminal,
marital status, and records of the Employee. Employee will be expected to allow
the Company to make a copy of the Employee's fingerprints along with two pieces
of identification, one bearing the Employee's photograph. Accordingly, the
Employee hereby consents to the collection, use and sharing by the Company of
all such personal information as may be necessary for such purposes by whatever
means including information gathered from the Employee, third-parties,
monitoring or surveillance of the Employee, or by other lawful means as outlined
above. The Employee acknowledges and agrees that the gathering and analysis of
such information might involve the use of investigative techniques, background
checks and internal surveillance which will not be made available for review by
the Employee or third parties except as required by an order of a court of
competent jurisdiction or pursuant to a governing statute or regulation. All
personal information retained by the Company will be stored in a secure, locked
area until destroyed after a period of 5 years from the date of expiration of
Employee's employment by Company. The Company agrees that the collection, use
and sharing of Employee's personal information will be in compliance, with
applicable federal and provincial legislation and consistent with the Privacy
Policy attached hereto as Schedule "C". The Company further agrees that any
personal information collected during the Term of this Agreement will be kept
for up to two (2) years after the Agreement is no longer in effect and at that
time it will be destroyed or rendered un-attributable to the Employee unless
otherwise required by law or for so long as it may be necessary and reasonable
for it to be retained.
21. Non-Waiver of Contractual Rights
--------------------------------
The failure of either party to enforce any provision of this Agreement will not
be construed as a waiver or limitation of that party's right to subsequently
enforce and compel strict compliance with each and every provision of this
Agreement.
22. Insurance
---------
The Company reserves the right to obtain and maintain life insurance on the life
of the Employee in an amount that the Company determines. The costs of such
insurance will be borne entirely by the Company and the benefits of such
insurance will be entirely the property of the Company.
23. Assignment
----------
This Agreement is not assignable by the Employee. The Company may assign this
Agreement without the consent of the Employee.
24. Modification
------------
No modification of this Agreement will be valid unless made in writing and duly
executed by the parties hereto.
25. Governing Law
-------------
The validity, construction and performance of this Agreement shall be governed
by the laws of the State of Washington without regard to the conflicts of law
provisions of such laws. The parties hereto expressly recognize and agree that
the implementation of this Section 25 is essential in light of the fact that
Employer has its corporate headquarters and its principal executive offices
within the State of Washington, and there is a critical need for uniformity in
the interpretation and enforcement of the employment agreements between NS8 and
its employees. Employee acknowledges that he is a United States based employee
of a United States based corporation and that he is not in anyway entitled to
the protections of the employment laws of Canada. The King County Superior
Court, Seattle, Washington shall have exclusive jurisdiction of any lawsuit
arising from or relating to Employee's employment with, or termination from, the
Company, or arising from or relating to this Agreement. Employee consents to
such venue and personal jurisdiction.
26. Arbitration
-----------
(a) Except for the right of Company and Employee to seek injunctive relief
in court, any controversy, claim or dispute of any type arising out of
or relating to Employee's employment or the provisions of this
Agreement shall be resolved in accordance with this Section regarding
resolution of disputes, which will be the sole and exclusive procedure
for the resolution of any disputes. This Agreement shall be enforced in
accordance with the Federal Arbitration Act, the enforcement provisions
of which are incorporated by this reference. Matters subject to these
provisions include, without limitation, claims or disputes based on
statute, contract, common law and tort and will include, for example,
matters pertaining to termination, discrimination, harassment,
compensation and benefits. Matters to be resolved under these
procedures also include claims and disputes arising out of statutes
such as the Fair Labor Standards Act, Title VII of the Civil Rights
Act, the Age Discrimination in Employment Act, the Washington Minimum
Wage Act, and the Washington Law Against Discrimination. Nothing in
this provision is intended to restrict Employee or NS8 from submitting
any matter to an administrative agency with jurisdiction over such
matter.
(b) NS8 and Employee will make a good faith attempt to resolve any and all
claims and disputes by submitting them to mediation in Seattle,
Washington, before resorting to arbitration or any other dispute
resolution procedure. The mediation of any claim or dispute must be
conducted in accordance with the then-current JAMS procedures for the
resolution of employment disputes by mediation, by a mediator who has
had both training and experience as a mediator of general employment
and commercial matters. If the parties to this Agreement cannot agree
on a mediator, then the mediator will be selected by JAMS in accordance
with JAMS' strike list method. Within thirty (30) days after the
selection of the mediator, NS8 and Employee and their respective
attorneys will meet with the mediator for one mediation session of at
least four hours. If the claim or dispute cannot be settled during such
mediation session or mutually agreed continuation of the session,
either NS8 or Employee may give the mediator and the other party to the
claim or dispute written notice declaring the end of the mediation
process. All discussions connected with this mediation provision will
be confidential and treated as compromise and settlement discussions.
Nothing disclosed in such discussions, which is not independently
discoverable, may be used for any purpose in any later proceeding. The
mediator's fees will be paid in equal portions by NS8 and Employee,
unless NS8 agrees to pay all such fees.
(c) If any claim or dispute has not been resolved in accordance with
subsection (b) of this Section, then the claim or dispute will be
determined by arbitration in accordance with the then-current JAMS
employment arbitration rules and procedures, except as modified herein.
The arbitration will be conducted by a sole neutral arbitrator who has
had both training and experience as an arbitrator of general employment
and commercial matters and who is and for at least ten (10) years has
been, a partner, a shareholder, or a member in a law firm. If NS8 and
Employee cannot agree on an arbitrator, then the arbitrator will be
selected by JAMS in accordance with Rule 13 of the JAMS employment
arbitration rules and procedures. No person who has served as a
mediator under the mediation provision, however, may be selected as the
arbitrator for the same claim or dispute. Reasonable discovery will be
permitted and the arbitrator may decide any issue as to discovery. The
arbitrator may decide any issue as to whether or as to the extent to
which any dispute is subject to the dispute resolution provisions
referred to in this Section and the arbitrator may award any relief
permitted by law. The arbitrator must base the arbitration award on the
provisions of this Section and applicable law and must render the award
in writing, including an explanation of the reasons for the award.
Judgment upon the award may be entered by any court having jurisdiction
of the matter, and the decision of the arbitrator will be final and
binding. The statute of limitations applicable to the commencement of a
lawsuit will apply to the commencement of an arbitration under this
subsection (c). The arbitrator's fees will be paid in equal portions by
NS8 and Employee.
(d) Unless otherwise agreed, the prevailing party will be entitled to its
costs and reasonable attorneys' fees incurred in the resolution of any
dispute relating to the interpretation or enforcement of this Agreement
27. Notice
------
Any notice required or permitted to be given in respect of this Agreement shall
be validly given if in writing and either hand delivered, communicated by
facsimile transmission or sent by prepaid mail to the other party to its address
or fax number appearing on the first page of this Agreement, or to such other
address or fax number as a party hereto may notify the other party in writing.
Any notice which is hand delivered to a party or sent by facsimile transmission
shall be deemed to be delivered on the date of such hand delivery or facsimile
transmission and notices mailed by prepaid post shall be deemed delivered on the
second business day following such posting.
28. Severability
------------
If any provision of this Agreement is unenforceable or invalid for any reason
whatever, such unenforceability or invalidity shall not affect the
enforceability or validity of the remaining provisions of this Agreement and
such provisions shall be severable from the remainder of this Agreement.
29. Entire Agreement
----------------
The provisions herein and in the Schedules hereto constitute and contain the
entire employment agreement between the parties and supersedes all previous
understandings, communications, representations and agreements, whether verbal
or written, between the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF this Agreement was duly executed by the parties hereto as of
the day and year first above written.
NS8 CORPORATION )
)
)
Per: ______________________________ )
)
)
Per: ______________________________ )
)
SIGNED, SEALED & DELIVERED )
BY THE EMPLOYEE in the presence of: )
)
)
--------------------------------- ) -----------------------------
Signature of Witness ) XXXX XXXXX
)
--------------------------------- )
Address of Witness )
)
--------------------------------- )
Occupation of Witness )
[FINGER PRINT GRAPHIC OMITTED]
SCHEDULE "A"
Section numbers listed below correspond to Paragraph numbers in the
Employment Agreement.
Recital B. and Paragraph 2. Engagement
---------------------------------------
>> Description of the Employee's skills and services:
o (see: Resume of Record attached to this Agreement as Schedule
"D").
>> Employee's Position & Title:
o Executive Vice President, Media Distribution & Deployment
>> Employee's Duties & Responsibilities:
To implement and maintain content aggregation relationships and strategic
positioning of NS8's interactive services to broadband PC providers and
International IPTV broadcasters. Without limiting the generality of the
foregoing, the Employee will be responsible for:
o Aggregating, Managing and Maintaining domestic and international
media catalogue libraries from receipt to post-production to
broadcast delivery over NS8's interactive services or customer
platform.
o Managing competitive software and technological infrastructure
enhancements.
o Implementation, sale and management of domestic and international
broadband PC deployments of NS8's interactive services.
o Aggregating, Negotiating and Managing domestic and international
content rights and usages with broadcast networks, distribution
companies, movie studios and other sources of content.
o Management and creative supervision of all xxxxxx programs on
NS8's interactive services or mainstream television for
promotions domestically and internationally.
o Management of domestic and international NS8 interactive services
content real estate, release windows, play rights and
distribution enforcement.
o Providing progress reports on an on-going regular basis to the
Chief Executive Officer of the Company ("CEO"), to the President
or to such other officer or director of the Company designated
for that purpose, from time to time.
o Performing such other functions and duties as might be determined
by the Company's Directors or Chief Executive Officer, from time
to time.
o Travel will be required.
Paragraph 6. Term
-----------------
>> Commencement Date: September 19, 2005
>> Anticipated Performance Evaluation Date: December 19, 2005
Department Head Signature: ___________________________
Paragraph 7. Remuneration
-------------------------
>> Description of the Employee's Remuneration and terms of payment, etc.:
(a) Salary: US$165,000.00 annually. This salary is subject to review in
three (3) months after the Commencement Date based upon the
recommendations of the CEO or the Board of Directors; any increase in
salary at that time is subject to the Employee closing deals for
Company in the Asia-Pacific region. Performance Objectives and
Incentive Benefits are set out in Schedule "G" to this Employment
Agreement.
(b) Employee Stock Options & Commissions:
(i) The Employee will be granted non-qualified stock options (the
"NSO's") to purchase 1,500,000 shares (the "Stock Options") of
the common stock of the Company (the "Common Shares") at an
exercise price equal to the market price of the Common Shares
as of the date of the execution of the Employment Agreement
and are exercisable, subject to the vesting provisions of
Schedule "G" attached to this Employment Agreement and to the
Company's 2004 Stock Option Plan (the "Stock Option Plan"),
over a period of five (5) years from the date of grant. This
grant of Stock Options to the Employee is conditional upon the
Employee having met the goals as described and attached as
Schedule "G" to this Employment Agreement. If the Employee has
already been granted his Stock Options plus any bonus stock
option as described herein during a one year period, then the
Employee will not be eligible for stock option bonuses under
this compensation plan until the immediately ensuing calendar
year. In addition, should the Employee meet certain additional
performance goals as set out in and subject to the vesting
provisions of Schedule "G" attached hereto, he may be granted
up to an additional 1,000,000 performance bonus stock options
(the "Performance Bonus Options") at the market price
prevailing upon the date of grant and exercisable pursuant to
the terms of the Stock Option Plan over a period of five (5)
years from the date of grant.
(ii) The NSO's shall be exercisable at any time, in whole or in
part, during the five (5) year period commencing upon the
respective date of the grant of the Stock Options.
(a) The NSO's shall be non-transferable, other than to an
entity in which the Employee exercises 100% control,
or to a trust in which all beneficial interests are
held by members of the Employee's immediate family.
(b) The shares to be issued upon exercise of the NSO's
are restricted shares, and, unless registered, will
bear legends imposed by the Securities Act of 1933.
So long as the Employee is employed by Company, Rule
144 will limit and control all dispositions of such
shares.
(c) Except as may be otherwise provided for in this
Agreement and the Schedules to the Agreement, all
bonuses will be determined based on the employee's
performance on an annual basis to be solely
determined by Employee's supervising Management or
Board of Directors of the Company, in it's sole
absolute discretion.
Paragraph 8. Benefits
---------------------
The Employee will receive the same medical and dental benefits offered to other
officer class US employees of the Company. In addition, the Employee will be
provided with appropriate medical and dental benefits and travel insurance
coverage for his international travel. These terms are subject to change at the
discretion of management or policy provider.
Paragraph 9. Vacations
----------------------
>> Number of weeks of vacation and holidays available to the Employee:
o Employee will be entitled during each year of employment to three (3)
weeks (15 business days) paid vacation. This entitlement will commence
after one year of employment- Vacation time will be calculated and
provided in accordance with Company policy, as amended from time to
time
o Statutory Holidays of Washington State and USA
Paragraph 10. Expenses and Automobile
-------------------------------------
BUSINESS EXPENSES:
(a) Company will reimburse the Employee for necessary and reasonable business
expenses (e.g. phones, travel, etc.) upon production of receipts and within the
following parameters:
(i) Air Travel
o Economy Class tickets on domestic flights, upgrades when
reasonable; and
o Business Class tickets on international flights if financially
reasonable and available.
(ii) Car Rental
o Economy Class car for Domestic Travel or upgrades when
reasonable; and
o Premium Class car or driver assisted vehicle for International
Travel.
(iii) Accommodation
o No greater than $300 USD for Domestic Travel; and
o No greater than $400 USD for International Travel.
(b) The Company will provide the Employee with up to $1,500.00 USD a month in
business expense allowance for the purposes of meetings, dinners, event
functions or promotions for the purposes of conducting the business of the
Company. The Employee must provide the Company with valid receipts for all
business expenses at the end of each month prior to being entitled to
reimbursement.
CAR ALLOWANCE:
The Company agrees to provide the Employee with a car allowance of $500 USD per
month. This allowance may be for the purposes of a leased vehicle, fuel and
repair expenses the Employee may incur as a result of using his personal vehicle
for Company business.
SPECIAL PARTICULARS & OTHER REQUIREMENTS (IF ANY)
o Email address: xxxxx@xx0xxxx.xxx
o The parties acknowledge that Employee will be residing in Los Angeles, CA,
accordingly, Employee understands that frequent travel to Seattle, WA and
Vancouver, BC will be required, whenever necessary or at the request of the
CEO or the Board of the Company.
o Employee will not have signing authority with respect to any financial
transactions of the Company and will not have the authority to enter into
any transaction to purchase, lease or divest real estate property,
equipment or intellectual property of the Company.
o Employee will not have the authority to hire, terminate or release any
executive or non-executive class personnel of the Company without the prior
written approval of the Chief Executive Officer, Chief Operating Officer or
Board of Directors.
o Employee will be required, at the request of the Company, to complete an
officers and directors questionnaire and, provide full, true and accurate
disclosure as may be necessary from time to time, and provide full
disclosure regarding any potential conflicts of interest or other
information that might materially affect the Company or as might otherwise
be required by governing securities law or other relevant legislation.
o Employee under temporary status pending delivery and satisfaction of
necessary reference checks and additional background information. Employee
has limited security access privileges pending successful completion of
such checks.
o Security Level (Red). - Employee has access to some sensitive level
networking, design and project operations supervised and accompanied by a
member of Senior Management. Employee does not have access to operations
and development networking facilities (SERVCOM), BKOPS-Central, Research
and Development or to any security sensitive equipment and hardware.
o Employee is prohibited from conducting electronic transmissions of Company
related data or material of any kind outside the premises of the Company
without prior authorization from Employee's supervisor or Senior
Management.
o Employee cannot conduct or carry out project tasks relating to the Company
or its business outside of office facilities or acquire copies of project
or internal materials of data in any form or medium for the purposes of
offsite operations, distribution, presentation or general possession
without authorization from Employee's supervisor or Senior Management.
Employee is introduced to projects or assignments on a project by project
basis.
o Employee cannot conduct third party consultation work, carry out part-time
employment or contract assignments ("Outside Engagements") similar to that
of the projects or operations of the Company. Employee must disclose in
writing any existing or intended Outside Engagements and attach such
disclosure hereto as Schedule "E" for the purpose of allowing Company to
assess any Outside Engagement and either to authorize the Outside
Engagement or terminate the Employee's employment due to the nature of the
Outside Engagement. Employee understands and agrees that the Company may in
its sole and absolute discretion, without notice, terminate the employment
of the Employee in the event Employee is in breach of this provision
without payment of any severance or additional compensation.
Department Head Signature: __________________________
SCHEDULE "C"
NS8 CORPORATION (NS8)
EMPLOYEE PRIVACY POLICY 23.08.04
NS8 Corporation, its subsidiaries and affiliates (collectively the "Company" or
"NS8") is committed to protecting the private information of all of its
employees. This Privacy Policy covers personally identifiable information
collected through the course of your application for employment and your
employment by NS8. Your knowledge of and consent to how personal information is
collected, used or disclosed, if ever, is therefore required. This Privacy
Policy outlines what personally identifiable information is collected, how it is
used, with whom it will be shared or disclosed to, if at all, and the purposes
for which it is being collected. Your consent to the collection, use or
disclosure of personal information as specified and requested herein or as is
provided during the application for employment process or subsequently during
your employment, is indicated by accepting the terms of your employment
agreement with your signature.
WHAT INFORMATION DOES NS8 COLLECT AND HOW WILL IT BE USED?
When you apply to receive information regarding employment opportunities at NS8
or if you actually apply for an employment position, we ask that you provide
your name, telephone and fax number, mailing address, email address, educational
history, particulars of your current employment status and, if applicable, the
name of the institution you are currently employed by. This information is used
to facilitate correspondence with you, evaluate your application (if applicable)
and for other related purposes only. Occasionally, we also aggregate information
to evaluate employment related enquiries and improve our information provision
services in that regard. Any personal information provided to our Company will
therefore not be used or disclosed for purposes other than those outlined herein
and within your employment agreement without your express consent or as required
by law recognizing your right to privacy and our need to collect, use or
disclose personal information in a reasonable manner.
Initially, during the pre-engagement period to assist the Company in the process
of determining whether to hire a person as an employee, and once a person is
engaged as an employee of the Company during the term of the employee's
employment agreement, the Company must collect, use and share personal
information as may be necessary and reasonable to engage, remunerate, monitor,
evaluate or terminate the employee as provided for in the employment agreement.
Personal information includes, but is not limited to, information regarding the
employment, income, taxation, health, citizenship, criminal, marital status, and
records of the employee. As part of this process, each employee is expected to
allow the Company to make a copy of employee's passport and fingerprints at the
commencement of employment. Accordingly, each employee and employee candidate
must consent to the collection, use and sharing by the Company of all such
personal information as may be necessary for such purposes by whatever means
including information gathered from the employee, third-parties, monitoring or
surveillance of the employee, or by other lawful means as outlined above. This
might involve the gathering and analysis of such information and the use of
investigative techniques, background checks and internal surveillance which will
not be made available for review by the employee, employee candidate or third
parties except as required by an order of a court of competent jurisdiction or
pursuant to a governing statute or regulation. All personal information retained
by the Company will be stored in a secure, locked area until destroyed. The
Company will exercise its best efforts to ensure that the collection, use and
sharing of the personal information of an employee or employee candidate will be
in compliance with applicable federal and provincial legislation and consistent
with this Privacy Policy and the employee's employment agreement. Personal
information collected during the term of the employment agreement will be kept
for up to two (2) years after the employment agreement is no longer in effect
and at that time it will be destroyed or rendered un-attributable to the
employee unless otherwise required by law or for so long as it may be necessary
and reasonable for it to be retained in accordance with reasonable and legal
standards.
THE INFORMATION WE COLLECT FROM OR IN RESPECT OF YOU MAY ALSO BE USED IN THE
COURSE OF ACTIVE BUSINESS DEALINGS UNDERTAKEN WITH YOU. AT THE CONCLUSION OF
THAT BUSINESS RELATIONSHIP, YOUR PERSONAL INFORMATION WILL BE RETAINED ONLY FOR
THE PURPOSES OF MAINTAINING COMPANY RECORDS AS MAY BE NECESSARY IN ACCORDANCE
WITH REASONABLE AND LEGAL STANDARDS.
MAY I CHOOSE WHAT INFORMATION I DISCLOSE?
We need certain personal information for employment purposes and to consider you
as an applicant for employment as described above. Therefore, all information
requested from you must be provided to us so that we can qualify your expressed
interest in our Company. The collection of personal information is limited to
that which is necessary for the purposes identified in this Privacy Policy or in
any other privacy policy that may be adopted by NS8 hereafter and posted to our
website or otherwise communicated to you. Information will at all times be
collected by fair and lawful means.
WHAT IF I NEED TO REVIEW OR CHANGE THE PERSONAL INFORMATION I PREVIOUSLY
DISCLOSED?
NS8 endeavors to ensure that all personal information provided to us is as
accurate, complete and up-to-date as necessary for the purposes outlined herein.
We therefore encourage employee candidates and employees to update or provide
edited personal information to keep our records current and correct. You can
correct or update personal information by contacting Human Resources to provide
current information.
WHAT KIND OF SECURITY IS USED TO PROTECT MY INFORMATION?
We store all user information in secure databases protected by a variety of
access controls. All personal information is protected by security safeguards
appropriate to the sensitivity of the information. This data is accessed only
for the purposes specified in this Privacy Policy.
FOR HOW LONG WILL MY PERSONAL INFORMATION BE USED?
Personal information will be retained until a period of five (5) years has
elapsed from the date of expiration of the Employee's employment by the Company.
WHO HAS ACCESS TO MY INFORMATION?
We do not share personally identifiable data with other companies apart from
companies acting as our agents to provide services you might request and who
agree to use it only for that stated purpose (such as health insurance or other
employee benefits) or for the other employment related purposes stated above
except as is necessary to fulfill a transaction request or unless you authorize
us to do so. NS8 may also share personal information in response to legal
processes such as a court order or subpoena. If NS8, its subsidiaries,
affiliates or divisions were ever sold or merged with another entity, personally
identifiable data residing within each entity would be transferred to the other
entity but always subject to this Privacy Policy statement (as may be amended
from time to time) and subject to the condition that the other entity agrees to
use it only for the purposes set out in this policy.
Last Modified - 08/25/2004
--------------------------------------------------------------------------------
SCHEDULE "G"
This Schedule "G" forms an integral part of the U.S Employment Agreement entered
into by NS8 Corporation and the Employee.
Stock Options
-------------
Upon the of the execution of the Employment Agreement by both parties, the
Employee will be granted non-qualified stock options (the "NSO's") to purchase
1,500,000 shares (the "Stock Options") of the common stock of the Company (the
"Common Shares") at an exercise price equal to the market price of the Common
Shares as of the date of the execution the Employment Agreement and are
exercisable, subject to the vesting provisions of this Schedule "G" to this
Employment Agreement and to the Company's 2004 Stock Option Plan (the "Stock
Option Plan"), over a period of five (5) years from the date of grant. Except as
described below with respect to the "Signing Bonus Options", this grant of the
Stock Options to the Employee is conditional upon the Employee having met the
goals as described below. If the Employee has already been granted his stock
options plus any bonus stock option as described herein during a one year
period, then the Employee will not be eligible for stock option bonuses under
this compensation plan until the immediately ensuing year.
Signing Bonus Options
---------------------
Of the 1,500,000 Stock Options referred to above, 500,000 Stock Options will
vest immediately and will be considered a "signing bonus" (the "Signing Bonus
Options"). Should the Employee cease to be employed by the Employer for any
reason during the first twelve (12) months of employment from the date of the
signing the Employment Agreement, the Signing Bonus Options will expire upon the
date that is thirty (30) days from the date that the Employee ceases to be an
employee of the Company, unless the Employee is terminated for cause, in which
case the Signing Bonus Options will expire upon the date of termination.
Employment Performance Options and Bonus Performance Options
------------------------------------------------------------
This grant of the Stock Options to the Employee is conditional upon the Employee
having achieved the following goals. On each anniversary date of the
Commencement Date (or thereabouts), the Chief Executive Officer or the Board of
Directors will review the goals established for the Employee and new performance
objectives will be established, if deemed necessary:
EMPLOYEE'S PERFORMANCE GRANT OF TOTAL BONUS STOCK COMMISSION
bona-fide content provider Performance contracts for more
(Signing Bonus INCREASE IN
Options and SALARY
Employment
Performance
Options)
-------------------------------------------- ----------------------- --------------------- --------------------
I. Upon Execution of Employment Agreement:
A) Signing of Definitive 500,000 Signing NIL NIL
Employment Agreement Bonus Options
-------------------------------------------- ----------------------- --------------------- --------------------
II. Within the first 6 months of employment:
B) Complete 2 PC Movie 250,000 NIL 7.5% of total
(NS8 Interactive) platform Employment contract value
deployments, domestic or Performance paid over
international; Options the term
of the contracts
-------------------------------------------- ----------------------- --------------------- --------------------
C) Complete 2 content 250,000 250,000 Bonus NIL
distribution deals with a Employment Stock Options If
bona-fide content provider Performance contracts for more
(i.e. Discovery Channel) or Options than 5 bona-fide
major Hollywood studio content provider
(i.e. Sony, Paramount etc.) relationships and
having a total library size of over 250 premium
not less than 100 premium content titles are
content titles for internet completed.
PC distribution; and
-------------------------------------------- ----------------------- --------------------- --------------------
D) Complete establishment of 50,000 NIL NIL
proper management Employment
process for distribution Performance
handling and post- Options
production
-------------------------------------------- ----------------------- --------------------- --------------------
III. Within the first 12 months of employment:
Complete 3 additional PC Movie 250,000 125,000 if greater 7.5% of total
(NS8 Interactive platform) Employment than 3 platform contract value
deployments. Performance deployments paid over the
Options completed over a term of the
12 month period. contracts
-------------------------------------------- ----------------------- --------------------- --------------------
Complete a minimum of 3 200,000 125,000 if greater 7.5% of total
(domestic or foreign) IPTV Employment than 3 IPTV contract value
consulting contracts that allow Performance consulting paid over the
NS8 to provide its NS8 Options deployments term of the
Interactive technologies or completed over a contracts
similar technologies (i.e. Amino) 12 month period.
to carrier providers desiring to
provide IPTV or PC-Movie
platforms to their consumers
-------------------------------------------- ----------------------- --------------------- --------------------
Contribute a minimum of NIL 500,000 if all NIL
$1,000,000 USD in revenue objectives are met
contracts to the Company by a and the total
combination of the above means or realizable revenue
by other opportunities that are over a 12 month
in the best commercial interest period exceeds
of the Company. $1.0mm.
----------------------------------------- ----------------------- --------------------- --------------------
TOTAL 1,500,000 Options 1,000,000 Options
----------------------------------------- ----------------------- --------------------- --------------------
Notes: All amounts expressed in this Schedule are in U.S. dollars.
AGREED AND ACCEPTED TO:
/s/ Xxxx Xxxxx
------------------
Xxxx Xxxxx
---------------------------------
Title of Employee
---------------------------------
Social Insurance Number of Employee
AGREED AND ACCEPTED TO:
------------------------------------------ --------------------------------
Authorized Signatory - Human Resources Authorized Signatory
- Officer Director
