Exhibit 4.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 02nd day of May, 2001,
BETWEEN:
STARNET COMMUNICATIONS INTERNATIONAL INC.,
a body corporate with its Head Office at
CIBC Centre, Old Xxxxxx Road, St. Xxxxx, Antigua, West Indies
(the "Company")
AND:
XXXXX XXXXXXX
Of
Oakville, Ontario, Canada
(the "Executive")
WHEREAS:
A. The Company is in the business of developing and producing a
broad range of Internet technologies and services for gaming
applications to be delivered by the Company or its affiliates
or partner companies;
B. The Executive has asserted that he has the required knowledge
and experience to manage the affairs of the Company as its
Chief Operations Officer;
C. The Executive has asserted that he has done the due diligence
he deems necessary and that he will on a best efforts basis
manage the operational affairs of the Company.
The Executive has expressed a desire to be employed by the Company
as Chief Operations Officer, and the Company wishes to engage the
Executive in that capacity on a full time basis effective May 02, 2001;
For their mutual, the parties have agreed to set out all of the terms and
conditions of their employment relationship in this employment agreement (the
"Agreement").
IN CONSIDERATION FOR the premises, and the mutual covenants and agreements
herein contained, the Company and the Executive have agreed that the terms and
conditions of their employment relationship shall be as follows:
1. EMPLOYMENT AND DUTIES
1.1 The Executive's responsibilities and duties shall include those items
outlined in the Position Profile attached as Schedule "A" to this Agreement, and
such other duties and responsibilities as may reasonably be assigned to him from
time to time by the President & C.E.O. The Executive represents and warrants to
the Company that he has the required skills and experience to perform the duties
and discharge the responsibilities described in Schedule "A". The Executive
shall faithfully and diligently perform the duties and discharge the
responsibilities assigned to him, devoting his best efforts and full business
time to the business and interests of the Company.
1.2 While employed under this Agreement, the Executive shall not be involved,
directly or indirectly, and whether as principal, partner, agent, shareholder
(other than shareholdings of less than ten percent (10%) if such shares are
listed on a recognized exchange), officer, advisor, employee or in any other
manner whatsoever, in any other business, enterprise or undertaking in
competition with the Company, other than managing his personal investments and
finances and participating in charitable activities which do not detract from
the Executive fulfilling his responsibilities and duties to the Company.
1.3 All policies regarding employment, required behaviour and similar matters
(collectively referred to as "Company Policies") published by the Company and
delivered to the Executive prior to or following this Agreement are incorporated
within this Agreement as though fully set forth in this Agreement. The Executive
agrees to be bound by and adhere to all such Company Policies as presently exist
or as may be hereafter issued or modified by the Company. Without limiting the
foregoing, the Executive agrees to conduct business on behalf of the Company in
a manner consistent with proper and ethical business practices and consistent
with the best interests of the Company.
2. TERM OF EMPLOYMENT
2.1 The Executive's employment under this Agreement, shall commence on May 2,
2001, and shall continue until terminated pursuant to the provisions set out in
Article 5 of this Agreement.
3. COMPENSATION
3.1 For the services rendered by the Executive under this Agreement, the Company
shall pay the Executive, less required statutory deductions, a base annual
salary ("Base Salary") and a discretionary annual bonus dependent on the
Company's financial performance and the Executive's performance ("Bonus") in the
form of cash and/or share options all as set out in Schedule "B" attached to
this Agreement (all elements of compensation hereafter collectively described as
"Total Compensation"). Base Salary and Bonus shall
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be payable in accordance with current Company Policies. Base Salary may be
increased from time to time by the Board by amendment to Schedule "B" in
writing.
3.2 The Executive agrees and acknowledges that it is a bona fide occupational
qualification of his position with the Company that travel may be required. The
Company shall pay or reimburse the Executive for all reasonable travel and
entertainment expenses incurred by the Executive in connection with the
performance of his duties, subject to the approval of the Company. The Executive
shall only be entitled to reimbursement to the extent that the Executive follows
the reasonable procedures established by the Company for reimbursement of such
expenses which will include, but will not necessarily be limited to, providing
satisfactory evidence of such expenditures. The Executive expressly agrees that
said expenses are incurred as part of the Executive's work for the Company and
are not compensation as set forth in paragraphs 3.1 and 3.2.
4. VACATION
4.1 The Executive shall receive an annual paid vacation of four weeks. Such
vacation entitlement will accrue to the Executive at the start of each fiscal
year and shall be pro-rated in the years in which the Executive's employment
pursuant to this Agreement begins and terminates. The Executive's vacation will
be scheduled in consultation with the President & C.E.0 so that it will
synchronize with the overall staffing needs of the Company.
5. TERMINATION WITH CAUSE, BY DISABILITY OR BY THE EXECUTIVE
5.1 The Company may terminate the Executive's employment at any time without
prior notice, pay in lieu of notice or severance compensation of any kind, with
the prior written consent of the Executive or if the Company has just cause for
termination. It is agreed that just cause includes any material and intentional
breach by the Executive of the terms of this Agreement and any conduct which
constitutes just cause for summary dismissal under the law.
5.2 This Agreement and the employment of the Executive by the Company shall
terminate upon the death of the Executive, upon the Executive becoming disabled
(as defined below) or upon the Executive reaching the age of 65 years. For the
purposes of this agreement, "Disabled" shall mean that the Executive shall have
qualified for and be receiving benefits under the Company's long-term disability
insurance plan.
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5.3 In the event of the termination of the Executive's employment and this
Agreement pursuant to paragraph 5.2, the company will accelerate the
exercise dates pursuant to any stock option agreements between the
Executive and the Company, whether or not those options were vested
on the date of termination, and will honour any such share options
which are exercised by the Executive or the executors,
administrators or representatives of the estate or the executive
within one (1) year of the Executive's termination.
5.4 The Executive may terminate his employment by giving the Company no
less than one month's written notice of termination. In such event, the Company
will not be required or liable to pay the Executive or any benefit plan insurer
any compensation or benefit premiums beyond those which are accrued due and
owing under this Agreement as at the effective date of termination.
6. CHANGE OF CONTROL OR TERMINATION WITHOUT JUST CAUSE
6.1 "ACTING IN CONCERT" has the meaning given to such phrase by Section 91
of the Securities Act (Ontario), or any replacement section, and includes the
successful solicitation of proxies for the election of a slate of the Company's
directors, other than the slate of directors proposed by the Company's
management which results in such slate being elected as the Company's directors.
6.2 "CHANGE OF CONTROL" means:
(i) where a Person (which term has the meaning ascribed in
paragraph 9.1(c)) or group of Persons Acting in Concert
acquires ownership or control of that percentage of the
outstanding shares of the Company carrying voting rights which
confer on the holder or holders thereof the right to elect at
least the majority of the Board; or
(ii) where more than 50.1% of the voting shares are acquired by a
person, or group of persons, who were not shareholders of the
Company as of May 2, 2001 through a single transaction or
series of transactions; or
(iii) where less than a majority of the nominees of the Company are
elected to the Board at any shareholders' meeting at which an
election of directors takes place; or
(iv) the sale, lease or transfer of all or substantially all of the
Company's assets to any other Person or Persons, except for
the company's present undertaking to redomicile the company to
the United Kingdom.
(v) The removal of the current President & CEO (Xxxx Xxxxxx) from
his executive duties at the company.
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6.3 "CONSTRUCTIVE DISMISSAL" means any adverse material change, without the
Executive's prior written consent, in the duties or responsibilities
set out in Schedule "A" or in the compensation set out in Schedule "B".
"SERVICE PERIOD" means the sum of one (1) plus 0.0833 for each year of
completed service by the Executive pursuant to this agreement, but in
no event shall the Service Period exceed two (2).
6.4 "TERMINATION DATE" means the effective last day of the Executive's
employment when this Agreement is terminated pursuant to any paragraph of this
Article.
6.5 In the event that:
(a) the Company terminates the employment of the Executive without
just cause or if such employment is terminated by the
resignation of the Executive which resignation has been
required by the Company without cause, or if the Executive is
terminated through constructive dismissal, each such
termination being herein referred to as "Company Termination";
or
(b) a Change of Control occurs and in the further event that:
(i) the Executive's employment with the Company is
subsequently or contemporaneously terminated by the
Company.
(ii) The executive in his absolute and unfettered
discretion elects, within six (6) months of the date
of a change of control, to terminate the Executive's
employment.
then the Company agrees to:
(c) pay to the Executive within four (4) months following the
Termination Date, or at such other time as is mutually agreed
upon in writing between the Company and the Executive, a
settlement payment equal to the total of:
(i) an amount equal to the product of the Base Salary to
which the Executive was entitled at the Termination
Date multiplied by the Service Period; plus
(ii) an amount equal to the product of the Company's
monthly premium contributions paid on behalf of the
Executive
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immediately prior to the Termination Date relating to
the Group Plan multiplied by twelve and by the
Service Period.
(iii) An amount equal to the product of the aggregate of
all bonuses which the Executive received, or was
entitled to receive, from the Company during, or
referable to, the twelve (12) months immediately
prior to the Termination Date.
(d) accelerate the exercise dates pursuant to any stock option
agreements between the Executive and the Company (the "Option
Agreement") to allow the Executive to exercise the options to purchase
shares granted thereby, whether or not those options are vested at the
Termination Date, within one year of the Termination Date. In the event
that any of the terms of such options are not ascertainable or in the
event that applicable securities legislation precludes the acceleration
of the exercise dates in the manner described herein, the Company
agrees to compensate the Executive by way of a cash payment with that
amount of money which the Executive would have been entitled to if he
had exercised any such options on the Termination Date at the price
pursuant to the Option Agreement and sold the securities on the Toronto
Stock Exchange at the highest trading price during the one year
immediately following the termination date on which the subject
securities were traded. In the event that such average trading price
does not exceed the exercise price no compensation is payable by either
party with respect to the Option Agreement.
6.6 If the Executive's employment is terminated pursuant to this Article,
the Executive will accept the payments stipulated, in full and final
satisfaction and accord of any and all claims which the Executive has or may
have for compensation resulting from, arising out of or connected with the
termination of this Agreement and his employment with the Company. It is
understood and agreed that such payments will serve to release and forever
discharge the Company, its Executives, directors, predecessors, successors and
assigns from any and all manner of claims, complaints, actions, causes of
action, damages, costs and expenses which the Executive then has or may have at
common law, in equity or under statute.
7. DUTY TO MITIGATE
The Executive shall in no circumstances whatsoever be under any duty to
mitigate the Executive's losses with respect to the termination of the
Executive's employment with the Company, regardless of the cause of that
termination or whether that termination is initiated by the Company or the
Executive.
8. SUBSEQUENT EMPLOYMENT
The Executive shall not be bound in any manner whatsoever to rebate to
the Company nor to forgive any claim against the Company with respect to any
amounts
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or benefits payable hereunder in the event of the Executive's subsequent
re-employment in any manner whatsoever.
9. NON-DISCLOSURE AND CONFIDENTIALITY
9.1 In this Article 9:
(a) "Confidential Information" means all information, data, facts,
knowledge, plans, feasibility studies, approvals, business
projections, trade secrets and know-how (whether or not
reduced to writing or stored in electronic form) in any way
concerning or relating to the business of the Company which is
not in the public domain and which in any way has been or may
be communicated to the Executive by the Company under this
Agreement or is acquired by, or learned of by the Executive
Confidant, either directly or indirectly, from the Company.
(b) "Confidant Group" means directors, officers, employees, agents
and advisors of the Company and its affiliates and their
respective directors, officers, employees, agents and
advisors;
(c) "Person" shall be interpreted broadly to mean any corporate
entity, association, proprietorship, group, joint venture,
partnership or individual.
9.2 The Executive acknowledges that the Confidential Information is and
will remain the sole and exclusive property of the Company and agrees
that he will at all times keep all Confidential Information in the
strictest confidence, will hold all Confidential Information in trust
for the Company; and will not at any time directly, indirectly or in
any other manner:
(a) reproduce, exploit or disclose the Confidential Information,
in whole or in part, to or for any Person;
(b) publish, or in any way participate or assist in the publishing
of, any Confidential Information; or
(c) utilize any Confidential Information, except as provided below
in Article 9.4 of this Agreement.
9.3 If the Company requests the return of any Confidential Information,
the Executive will immediately:
(a) return all Confidential Information to the Company and will
not retain any reproductions or extracts of the Confidential
Information for any purpose; and
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(b) destroy all documents, memoranda, notes and records prepared
by the Executive based on or arising from the Confidential
Information and certify such destruction to the Company in a
form reasonably satisfactory to the Company.
9.4 The Executive may disclose Confidential Information only in the following
limited circumstances:
(a) to a Person who has entered into a non-disclosure and
confidentiality agreement with the Company in substantially
the same form as this Agreement;
(b) to a member of the Confidant Group who is directly involved
and needs to know the contents of the Confidential Information
in order to analyze and evaluate the Company's business, who
has been provided with a copy of this Agreement by the
Executive and who has acknowledged in writing that he is bound
by the terms of the Agreement;
(c) if required by law to disclose Confidential Information, in
which case the Executive will first seek agreement with the
Company on the form of the disclosure prior to its being made;
or
(d) with the prior written permission of the Company.
9.5 Notwithstanding anything to the contrary, the provisions of this Agreement
shall not apply to the following Confidential Information:
(a) Confidential Information which at the time of disclosure is
already in the public domain;
(b) Confidential Information which, after disclosure, is published
or otherwise becomes part of the public domain through no
fault of the Executive;
(c) Confidential Information which was already in the Executive's
possession at the time of disclosure and was not acquired,
directly or indirectly, from the Company; or
(d) Confidential Information which the Executive received from a
third person who did not acquire it, directly or indirectly,
from the Company and who did not require the Executive to hold
it in confidence.
9.6 The Executive:
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(a) acknowledges that the success, profitability and competitive
position of the Company requires that strict confidentiality
be maintained at all times with respect to all Confidential
Information, and that any breach of such confidentiality is
capable of causing substantial damage to the Company;
(b) acknowledges and agrees that a breach by him of any of the
covenants contained in the above paragraphs 9.2, 9.3, or 9.4
of this Agreement would result in irreparable harm to the
business carried on by the Company, such that the Company
could not be adequately compensated for such harm by an award
of damages. Accordingly, the Executive agrees that in the
event of any such breach, in addition to all other remedies
available to the Company at law or in equity, the Company
shall be entitled as a matter of right to obtain from a Court
of competent jurisdiction such relief by way of restraining
order, injunction, decree or otherwise as may be appropriate
to ensure compliance with the provisions of paragraphs 9.2,
9.3, and 9.4 of this Agreement.
9.7 The covenants contained in this Article 9 of this Agreement shall remain in
full force and effect, together with the Company's right to enforce such
covenants and recover damages in the event of a breach of any such covenants,
notwithstanding the termination of the Executive's employment with the Company.
10. RESTRICTIVE COVENANTS
10.1 The Executive agrees that following termination of this Agreement, for a
period of twelve (12) months, the Executive will not individually or in
partnership or in conjunction with any person, association, syndicate,
partnership, firm, company, corporation or other business enterprise, whether as
principal, partner, agent, shareholder, officer, advisor, employee or in any
other manner whatsoever:
(a) except for the benefit of the Company or its subsidiaries or
its affiliates, solicit any clients or customers of the
Company or its subsidiaries with whom he has dealt in the
course of being engaged in the business of the Company or its
subsidiaries (as such business, as a whole, is being conducted
at the time of termination);
(b) carry on or engage in any business which competes directly or
indirectly with the Company or its subsidiaries (as such
business, as a whole, is being conducted at the time of
termination);
(c) offer his services to or participate in any way with any
company, partnership or other organization which competes
directly or indirectly with the Company or any of its
subsidiaries (as such business, as a whole, is being conducted
at the time of termination); or
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(d) solicit or intend to solicit, interfere with or endeavour to
procure, recruit, entice or advise the Company's employees
away from the Company for any reason, including, but not
limited to, other employment opportunities existing or
contemplated and within the knowledge of the Executive.
10.2 The Executive acknowledges that he has extensive knowledge of all the
services and products proposed or to be provided by, and the present customers
and clients of, the Company and its subsidiaries and therefore fully understands
and accepts the scope of the restraints on his activities set out above as being
necessary, reasonable and fundamental to the protection of the competitive
advantage of the Company in its business, its trade secrets, confidential
information and goodwill, while at the same time do not place undue restrictions
on his ability to utilize at the conclusion of his employment, the knowledge and
skills gained by him while employed by the Company.
10.3 The Executive acknowledges and agrees that a breach by him of any of the
covenants contained in paragraphs 10.1 or 10.2 of this Agreement would result in
irreparable harm to the business carried on by the Company, such that the
Company could not be adequately compensated for such harm by an award of
damages. Accordingly, the Executive agrees that in the event of any such breach,
in addition to all other remedies available to the Company at law or in equity,
the Company shall be entitled as a matter of right to obtain from a Court of
competent jurisdiction such relief by way of restraining order, injunction,
decree or otherwise as may be appropriate to ensure compliance with the
provisions of paragraphs 10.1 and 10.2 of this Agreement.
10.4 The Company and the Executive acknowledge that the covenants made in
section 10.1 of this Agreement are made in recognition of the Executive's
specific knowledge of the Company's business and of the fact that the Company
intends to carry on its business throughout the geographic area specified
therein. If any of such covenants shall be held to be unreasonable by a Court of
competent jurisdiction by reason of the area, duration or type or scope of
service, then said covenant shall be given effect in such reduced form as may be
decided or directed by such Court. Notwithstanding the foregoing, if any portion
of such covenant should be declared to be unenforceable or invalid for any
reason whatsoever, such declaration shall be severable from this Agreement and
shall not affect the enforceability or validity of the remaining portions of
such covenant.
11. ENTIRE AGREEMENT
11.1 The terms of this Agreement may be amended or supplemented by those terms
as may be set out in Schedule B. To the extent that there is an inconsistency
between this Agreement and Schedule B, the terms and conditions contained in
Schedule B shall prevail.
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11.2 This Agreement, and any policies and Schedules, referred to herein
constitute the complete and entire agreement between the Executive and the
Company concerning the employment of the Executive and, as of the date this
Agreement is executed, replace and supersede any and all prior agreements,
written or oral, between the Executive and the Company or any of its
predecessors or affiliates relating thereto. Except as specifically set forth in
this Agreement, neither party makes any representation or warranty, express or
implied, statutory or otherwise, to the other.
11.3 No waiver or modification of this Agreement or any covenant, condition or
restriction herein contained shall be valid unless executed in writing by both
the Company and the Executive.
12. CONSIDERATION
12.1 The parties acknowledge and agree that this Agreement has been executed by
each of them in consideration of the mutual promises and covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged.
12.2 The parties hereby waive any and all defences relating to an alleged
failure or lack of consideration in connection with this Agreement.
12.3 In the event that this Agreement provides a lesser benefit to the
Executive than the minimum standard contained in any applicable legislation,
the minimum standard contained in the legislation shall prevail to the extent
of such inconsistency.
13. NOTICE
13.1 Any notice required to be given under this Agreement shall be sufficiently
given if delivered by hand or sent by registered mail to the Executive at:
0000 Xxxxxxxx Xxxx, Xxxxxxxx Xxxxxxx, X0X 0X0 Xxxxxx.
and to the Company at:
CIBC Centre, Old Xxxxxx Road, P.O. Box 3265, St. Xxxxx, Antigua, West Indies.
14. SEVERABILITY
14.1 All paragraphs and covenants contained in this Agreement are severable, and
in the event that any of them shall be held to be invalid, unenforceable or void
by a court or tribunal of competent jurisdiction, such paragraphs or covenants
shall be severed and the remainder of this Agreement shall remain in full force
and effect.
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15. INTERPRETATION
15.1 Headings are included in this Agreement for convenience of reference
only and do not form part of this Agreement.
16. GOVERNING LAW
16.1 This Agreement shall be governed by the laws of Toronto, Canada and the
parties irrevocably attorn to the courts of that jurisdiction.
17. ENUREMENT
17.1 The provisions of this Agreement shall be binding upon the Executive,
his heirs, executors, administrators, successors and assigns, and shall enure
to the benefit of the Company, its successors and assigns.
18. ASSIGNMENT
18.1 This Agreement may not be assigned by either party.
19. INDEPENDENT LEGAL ADVICE
19.1 By the execution of this Agreement, the Executive acknowledges that he
has received independent legal advice with regard to all of the terms and
conditions set forth herein. Should the Executive waive independent legal
advice, he acknowledges that the Executive does so of his own free will, free
of any duress, unconscionability, or such other factor as may be applicable.
If the Executive waives independent legal advice, the Executive acknowledges
same by affixing his initials next to this clause.
IN WITNESS WHEREOF this Agreement has been executed by the parties as of
the day, month and year first above written.
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Witness Signature
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Witness Name XXXXX XXXXXXX
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Address
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Occupation
STARNET COMMUNICATIONS
INTERNATIONAL INC.
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by its authorized signatory
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XXXXXXX XXXXXX
President & CEO
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SCHEDULE "A"
POSITION PROFILE FOR XXXXX XXXXXXX
The Executive's title shall be C.O.O reporting directly to the President &
C.E.O. As the Chief Operating Officer, this Executive will be accountable
for the day-to-day operational activities of the company, direct reports from
Business Unit Heads as well as for the Profit and Loss of the company.
The Executive shall be responsible for financial management including but not
limited to Marketing (Advertising, Promotions, I.R, P.R.), Sales,
Operations, and for worldwide expansion activities. The Executive is also
responsible for recruiting well-established senior individuals to the company
who can assist with these expansion activities.
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SCHEDULE "B"
(Additional Terms - Xxxxx Xxxxxxx)
1. BASE SALARY AS AT MAY 02, 2001: CD$220,000/annum
An increase of CD$50,000/Annum will
be granted upon achieving financing
in excess of US$2,000,000.00, and an
increase of CD$80,000.00/Annum upon
achieving financing in excess of
US$5,000,000.00. Annual Salary
starting January 2002 will be set at
CD$330,000/annum.
2. BONUS: Up to 70% of Base Salary, as
determined approved by the
president & CEO.
3. OPTIONS AS AT MAY 02, 2001: 400,000 base options, to vest in 27
equal tranches of 14,815 options,
monthly over a 27 month period from
date of employment, at $0.69.
4. ADDITIONAL OPTIONS 150,000 options, to vest 100%
commencing May 02, 2001, at $0.69
subject to a 6-month hold
requirement upon exercise.
250,000 options to vest in 27 equal
tranches of 9260 options, monthly
over a 27 month period commencing
June 2, 2001 at the following
exercise prices:
First 50,000 options $2.25
Second 50,000 options $3.25
Third 50,000 options $4.25
Fourth 50,000 options $6.25
Fifth 50,000 options $8.25
5. BONUS OPTIONS AS AT MAY 02, 2003: 200,000 bonus options, vested on
May 02, 2003, at the closing market
price on May 01, 2003
6. ADDITIONAL SHARES: If the company issues additional
shares from treasury, the executive
shall be immediately given options
to acquire 2.9% (1/34.2) all such
shares at the closing market price
on the dates of any such issuance.
7. ALLOWANCES In accordance with Company Policies
for its Executives--up to
$1000.00/month for a vehicle
Allowance.
8. DIRECTOR & OFFICER LIABILITY: Company agrees to provide Director
and Officer Liability Insurance.
9. EMPLOYEE BENEFITS: Executive and his dependents shall
be entitled at the company's expense
to such benefits generally provided
by the company including extended
medical, dental, vision,
pharmaceutical, accidental death &
dismemberment, life insurance, short
term disability and long term
disability coverages
