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EXHIBIT 10.42
RELEASE AND RESIGNATION AGREEMENT
THIS AGREEMENT is made as of the 20th day of June, 2000.
WHEREAS:
A. Xx. Xxxxxxx Xxxxxxx ("XXXXXXX") is the President, Director and Chief
Operating Officer of XxxxxXxxxxxx.xxx Inc. ("XXXXXXXXXXXX.XXX") and a
consultant to XxxxxXxxxxxx.xxx Inc. and its direct or indirect wholly owned,
subsidiary companies (collectively, the "SMARTSOURCES GROUP");
X. Xxxxxxx has agreed for and in consideration of the payments set out herein
to resign all offices, positions and terminate his employment and consulting
agreement with the SmartSources Group and will not stand for re-election as a
director of XxxxxXxxxxxx.xxx at the upcoming Annual General Meeting of
XxxxxXxxxxxx.xxx, and has further agreed to enter into this Release and
Resignation Agreement in order to release the SmartSources Group from all
further obligations on the terms hereinafter set forth.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
mutual agreements and covenants set out herein the parties agree as follows:
1.0 RESIGNATION AND RELEASE
1.1 Xxxxxxx has agreed to:
(a) resign as a director and officer of XxxxxXxxxxxx.xxx and shall resign
from his offices, position, employment and as a consultant with the
SmartSources Group as of July 1, 2000;
(b) not stand for, or be nominated for, re-election to the Board of
Directors of XxxxxXxxxxxx.xxx at the 2000 Annual General Meeting of
XxxxxXxxxxxx.xxx.
1.2 Xxxxxxx hereby releases and forever discharges each of the companies
which comprise the SmartSources Group, their respective employees, officers,
directors, successors, assigns and all other affiliated and subsidiary companies
of the SmartSources Group from all claims, demands, damages, actions or causes
of action of any sort which Xxxxxxx may have for any cause existing up to and
including the date of this Release and through until the date of his
resignation. This Release includes, but is not limited to, any claim arising
out of Xxxxxxx'x employment or consulting agreement with the SmartSources Group
or its termination, and more specifically, any claims under the Employment
Standards Act, any complaints under human rights legislation, any claims for
damages for wrongful dismissal, termination of Xxxxxxx'x position, loss of
status, loss of future job opportunity, loss of opportunity to enhance
reputation, the timing of the resignation and the manner in which it was
effected, loss of stock options, salary, bonuses, commissions or incentive pay,
loss of benefits included but not limited to life insurance, short-term and
long-term disability coverage and any other type of damages, in any way related
to Xxxxxxx'x resignation from employment with the SmartSources Group or the
terms of Xxxxxxx'x retainer as a consultant pursuant to the July 20, 1999,
Management Consulting Agreement letter from XxxxxXxxxxxx.xxx Technologies Inc.
to Xxxxxxx.
1.3 Xxxxxxx further agrees that the termination benefits referred to in
this Agreement include any amounts to which Xxxxxxx may be entitled under any
terms of any consulting agreement or employment with the SmartSources Group,
and the British Columbia Employment Standards Act and that neither Xxxxxxx, nor
any corporation or trust, directly or indirectly owned or controlled by Xxxxxxx
will file in any Court or with any other tribunal any claim for wrongful
dismissal, loss of benefits, termination pay, overtime, vacation pay or any
other remedy to which Xxxxxxx or such corporation or trust may be entitled, and
Xxxxxxx on behalf of himself and any such corporation or trust, hereby expressly
releases XxxxxXxxxxxx.xxx Technologies Inc., XxxxxXxxxxxx.xxx and the
SmartSources Group from all claims, demands, damages, actions or causes of
action of any sort which he may have with respect to the loss
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of any right to exercise any stock option or options (or any part thereof) which
would or might have vested or become exercisable at any time after the date of
Xxxxxxx'x resignation including without limitation the whole or any part of any
stock option which would or might have become vested or exercisable during any
period of reasonable notice deemed due to Xxxxxxx on termination of his
consulting agreement or employment.
1.4 Xxxxxxx agrees to save harmless and indemnify the SmartSources Group from
any and all proceedings which may occur in the future arising out of the payment
of any amounts referred to in this Agreement.
2.0 CONFIDENTIALITY
2.1 Xxxxxxx covenants and agrees that he will not divulge, disclose or
communicate to any person, firm or corporation in any manner whatsoever, any
information concerning matters affecting or relating to the business of the
SmartSources Group, or any of the SmartSources Group's subsidiaries or
affiliates including all of the companies and individuals in the SmartSources
Group, their owners, shareholders, officers and directors which is in the nature
of a trade secret, including, without limitation, their financial statements,
financial projections, information, records, business plans or strategies,
special project plans, customers, the prices they obtain or have obtained from
the sale of their products, their manner of operation, their plans, processes or
other data, the parties hereto stipulating that, as between them, the same are
confidential and gravely affect the effective and successful conduct of the
business of the SmartSources Group.
2.2 Xxxxxxx agrees that on his last active day of work for the SmartSources
Group he will immediately deliver and return to the SmartSources Group:
(a) all documents, lists, books and records (whether stored in
printed or electronic form) and
(b) all other property in his possession or control,
(the "PROPERTY")
of, or connected with, the business of the SmartSources Group, and shall if
required by the SmartSources Group upon delivery of such Property certify by way
of execution of a Statutory Declaration in a form prescribed by the SmartSources
Group that:
(c) he no longer has possession of, or control over, any other
Property relating to the SmartSources Group;
(d) he has not entrusted to any third party other than the
SmartSources Group possession or control over any other
Property; and
(e) that he has neither taken, nor kept copies of any such
Property either in printed or electronic form.
2.3 Any breach of the terms of this Article 2.0 shall be a material breach of
this Agreement.
3.0 SEVERANCE TERMS
3.1 XxxxxXxxxxxx.xxx and Xxxxxxx hereby covenant and agree that:
(a) XxxxxXxxxxxx.xxx shall continue payment to Xxxxxxx of his
current salary (and if applicable less all statutory
deductions) until July 1, 2000.
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(b) Until July 1, 2000 Xxxxxxx agrees to continue performance of his
customary duties as an consultant or employee of XxxxxXxxxxxx.xxx;
(c) On July 1, 2000 XxxxxXxxxxxx.xxx shall pay to Xxxxxxx in a lump sum as
compensation for length of service and as a severance allowance in
full satisfaction of any amount due to Xxxxxxx under the terms of the
July 20, 1999 Management Consulting Agreement, the gross sum of U.S.
$70,000.00 (the "SEVERANCE ALLOWANCE"). Payment of the Severance
Allowance shall be subject, to all applicable withholding
requirements;
(d) XxxxxXxxxxxx.xxx shall provide Xxxxxxx with a positive recommendation
and letter of reference; and
(e) the SmartSources Group shall, subject to the extent permitted by law
and in particular any applicable corporate, securities or criminal
legislation, releases and forever discharge Xxxxxxx from all claims,
demands, damages, actions or causes of action of any sort which the
SmartSources Group may have for any cause existing up to and including
the date of Xxxxxxx'x resignation, PROVIDED THAT this release shall
not apply to any claim by the SmartSources Group against Xxxxxxx
arising from any breach by Xxxxxxx of any corporate, securities or
criminal legislation.
3.2 Xxxxxxx hereby acknowledges that after his departure from
XxxxxXxxxxxx.xxx on July 1, 2000 he shall conduct himself to the highest level
of integrity and shall not disparage the business of SmartSources Group or its
employees, officers and directors.
3.3 Except for payment of the Severance Allowance in accordance with
either Article 3.2 or 3.3, Xxxxxxx shall not be entitled to any further
compensation for loss of any benefits (included but not limited to loss of life
insurance or short-term and long term disability coverage), loss of incentive
compensation, or any other claims or damages in any way related to the
termination of Xxxxxxx'x consulting agreement or employment, and payment of the
Severance Allowance shall in all cases be subject to execution of a Release of
All Claims in a form prescribed by XxxxxXxxxxxx.xxx.
3.4 All benefits under the SmartSources Group's Employee Group Benefits
Plan as provided to Xxxxxxx will be continued until July 1, 2000, and payment
of the consultant or employee's share of the monthly premium cost of such
benefits shall be made by way of monthly deductions from the gross amounts paid
to Xxxxxxx.
4.0 INDEPENDENT ADVICE
4.1 Xxxxxxx hereby declares and acknowledges that he has obtained
independent legal advice before entering into this Agreement and has read this
Agreement and fully understands its terms and Xxxxxxx hereby agrees and
acknowledges that he has not been influenced to any extent whatsoever in making
this Agreement by any representations or statements made by the SmartSources
Group or persons representing the SmartSources Group other than as herein set
out.
5.0 LAW AND ARBITRATION
5.1 This Agreement will be interpreted in accordance with the laws of the
Province of British Columbia.
5.2 In the event of any dispute arising between the parties concerning
this Agreement, its enforceability or the interpretation thereof shall be
settled by a single arbitrator appointed pursuant to the provisions of the
Commercial Arbitration Act of British Columbia, or any successor legislation
then in force. The place of arbitration shall be Vancouver, British Columbia.
The language to be used in the
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arbitration proceedings shall be English. Nothing in Article 5.2 shall prevent
a party hereto from applying to a court of competent jurisdiction for interim
protection such as, by way of example, an interim injunction.
6.0 GENERAL:
6.1 No condoning, excusing or overlooking by any party of any default,
breach or non-observance by any other party at any time or times in respect of
any covenants, provisos, or conditions of this Agreement shall operate as a
waiver of such party's rights under this Agreement in respect of any continuing
or subsequent default, breach or non-observance, so as to defeat in any way the
rights of such party in respect of any such continuing or subsequent default or
breach and no waiver shall be inferred from or implied by anything done or
omitted by such party, save only an express waiver in writing.
6.2 No exercise of a specific right or remedy by any party precludes it
from or prejudices it in exercising another right or pursuing another remedy or
maintaining an action to which it may otherwise be entitled either at law or in
equity.
6.3 The terms and provisions, covenants and conditions contained in this
Agreement which by the terms hereof require their performance by the parties
hereto after the date of execution of his Agreement shall be and remain in
force. In particular it is agreed that all the covenants and agreements of
Xxxxxxx contained in this Agreement shall continue and shall remain in full
force and effect after the date of Xxxxxxx'x resignation as a consultant, or
termination, from employment with the SmartSources Group.
6.4 In the event that any part, section, clause, paragraph or subparagraph
of this Agreement shall be held to be indefinite, invalid, illegal or otherwise
voidable or unenforceable, the entire agreement shall not fail on account
thereof, and the balance of the Agreement shall continue in full force and
effect.
6.5 The parties hereto acknowledge that the law firm of RBS Lawyers has
acted solely for the SmartSources Group in connection with this Agreement.
6.6 This Agreement sets forth the entire understanding between the parties
and no modifications hereof shall be binding unless executed in writing by the
parties hereto.
IN WITNESS WHEREOF the parties have hereunto set their hand and seal this ___
day of June, 2000.
WITNESS: )
)
/s/ XXXXXXX X. XXXX )
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Witness Signature )
)
XXXXXXX X. XXXX )
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Address )
[ILLEGIBLE] ) /s/ XXXXXXX XXXXXXX
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000-0000 XXXXXXXX XXXXXX ) XXXXXXX XXXXXXX
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VANCOUVER, B.C. )
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V6E 4R7 )
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TEL:(000)000-0000 )
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Occupation )
XXXXXXXXXXXX.XXX TECHNOLOGIES INC. )
by its authorized signatory )
)
/s/ XXXXXX XXXXX )
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Authorized Signatory )
