Exhibit 10.17.5
February 17, 1998
Xxxxx Xxxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Dear Andre:
RE: EMPLOYMENT AS CHIEF TECHNOLOGY OFFICER
724 is pleased to extend to you an offer as a full-time employee on the terms
and conditions set out in this agreement. We are looking forward to your joining
the team. It is a condition of your employment that you sign and execute a copy
of this agreement and all accompanying documentation and return it to us by
March 2, 1998, after which time this offer will terminate.
EMPLOYMENT. 724 agrees to employ you as Chief Technology Officer and you accept
such employment on and subject to the terms of this agreement.
TERM. Your employment with 724 will start effective March 2, 1998.
DUTIES. So long as you are employed by 724:
(a) you will devote your full time and energy to the business and affairs of
724, well and faithfully serve 724, and use your best efforts, skills and
abilities to promote the interests of 724 and agree to perform such other
tasks and duties related to the foregoing as may from time to time be
determined by the managers of 724;
(b) you acknowledge that the Board of Directors of 724 reserves the right
during the course of your employment to enhance or modify your duties and
responsibilities as its deems necessary and appropriate from time to time;
(c) you will abide by any 724 policies that the Board of Directors of 724 may
establish or amend having general application to 724's staff and
management; and
- 2 -
(d) you acknowledge that the hours of work involved will vary and be irregular
and are those hours required to meet the objectives of 724 and you
acknowledge that this paragraph constitutes an agreement to work such hours
where such agreement is required by applicable legislation.
COMPENSATION AND BENEFITS. Your compensation and benefits are listed in the
attachment to this agreement. Your compensation will be payable bi-weekly and
will be subject to such periodic review as may be deemed appropriate by the
Board of Directors of 724 from time to time.
OWNERSHIP OF WORK. You expressly acknowledge that 724 shall have all proprietary
rights and intellectual property interests, in everything that you create,
develop, discover or conceive, by yourself or with others, while employed by
724, including customer and supplier lists, sales and marketing plans, reports,
drawings, prototypes, schematics, software, inventions, specifications,
confidential data and the like (the "Developments"), if the Developments:
(a) relate in any manner to the actual business, research or development of 724
(or its subsidiaries, affiliates, partnerships and joint ventures); or
(b) relate in any manner to the reasonably anticipated business, research or
development of 724 (or its subsidiaries, affiliates, partnerships and joint
ventures); or
(c) are suggested by or result from matters with which you are aware as a
result of your employment with 724; or
(d) are suggested by or result from any task assigned to you or work performed
by you for or on behalf of 724 (or its subsidiaries, affiliates,
partnerships and joint ventures);
You hereby assign fully to 724 any rights, title and interest that you may have
in the Developments to date or will later do so, whether or not these
Developments are capable of intellectual property protection, and agree to sign
appropriate documentation as requested by 724 to confirm such ownership. You
also agree, in connection with any Developments, to promptly disclose them to
724 or its designee as appropriate, promptly execute a specific assignment of
title to 724 or its designee, and do anything else reasonably necessary to
enable 724 or its designee to secure patent, copyright or other forms of
protection for the Developments in Canada and in all other countries, at 724's
expense.
- 3 -
Without limitation, all working papers, notes and memoranda or other
manifestations of confidential data which are made or obtained by you during the
term of your employment relating to the business of 724 shall be the property of
724 and will accordingly be provided to 724 upon termination of your employment.
WAIVER OF MORAL RIGHTS. You hereby expressly and irrevocably waive any and all
moral rights arising under copyright law that you, as author, may have with
respect to any copyrighted works prepared by you for 724 in the course of your
employment and you agree that 724 (and its subsidiaries, affiliates,
partnerships, joint ventures, direct and indirect licensees) may modify, adapt,
translate and use such works as it sees fit. You also expressly waive any right
that you may have as author of a work of authorship to include your name in any
Development that is a work of authorship when such work is distributed publicly
or otherwise.
CONFIDENTIAL DATA AND NON-DISCLOSURE. 724 (and its subsidiaries, affiliates,
partnerships and joint ventures) will expend considerable time and money in
acquiring and developing software, hardware, inventions, trade secrets,
products, technology, techniques, methodologies, programs, present and future
developments, sales literature and brochures, form documents, customer lists,
customer and supplier relationships, marketing or sales strategies, and other
information including confidential information and documents of third parties
(the "confidential data") to which you may have access. You acknowledge that
such confidential data is the property of 724 (and its subsidiaries, affiliates,
partnerships and joint ventures), and third parties from which 724 has acquired
confidential data, and agree that, during the term of your employment and any
time thereafter, you will not, directly or indirectly, in any manner or for any
reason whatsoever (other than in the ordinary and usual course of 724's (and its
subsidiaries, affiliates, partnerships and joint ventures) business and for its
benefit), disclose to any person, firm or corporation any of the confidential
data or use any of the confidential data, except if the confidential data:
(i) is or becomes publicly available through no fault of your's;
(ii) is rightfully obtained by you from a third party;
(iii) is disclosed with the written consent of the party whose information it
is; or
(iv) is disclosed pursuant to court order, other legal compulsion or required
by law.
On termination of your employment, you agree to return to 724 (and its
subsidiaries, affiliates, partnerships and joint ventures) all confidential data
embodied or recorded in
- 4 -
tangible form which is in your possession or control. Your obligation under this
section will continue if your employment with 724 terminates for any reason.
You also agree not to disclose to 724 (and its subsidiaries, affiliates,
partnerships and joint ventures), use in its business or cause it to use any
information that is confidential to others. For greater certainty, you agree to
not, at any time, disclose to, or discuss with, 724 (and its subsidiaries,
affiliates, partnerships and joint ventures) employees any confidential or
proprietary data belonging to your former employers.
NON-COMPETITION AND NON-SOLICITATION. You recognize that in performing the
duties of your employment, you will occupy a position of trust and confidence,
giving you knowledge with respect to many aspects of the business carried on by
724 (and its subsidiaries, affiliates, partnerships and joint ventures). Such
knowledge shall be used solely in furtherance of the business interests of 724
(and its subsidiaries, affiliates, partnerships and joint ventures) and not in
any manner which would be detrimental to it. You agree that so long as you are
employed by 724 and for one (1) year thereafter, unless you obtain the prior
written consent of 724, you shall not directly or indirectly, in any manner or
capacity whatsoever:
(a) carry on or be engaged in or hold any interest in or advise, manage or
assist in any business enterprise which is in significant competition
(as reasonably determined by 724) with the business of 724 (and its
subsidiaries, affiliates, partnerships and joint ventures) as it exists
at the date on which your employment terminates ("Competitive
Business"); or
(b) solicit or enter into any form of business arrangement with any person
who was or is proposed to be a client, supplier or business partner of
724 (and its subsidiaries, affiliates, partnerships and joint ventures)
at the date that your employment terminates, or during the prior one
(1) year period, if such business arrangement or proposed business
arrangement is in respect of a Competitive Business;
provided however, that nothing in this paragraph shall prevent you from owning
up to 5% of the voting stock of any entity.
EMPLOYEES. You agree that during the term of your employment and for one (1)
year thereafter, you will not, directly or indirectly, or assist others to,
recruit, solicit or endeavour to entice away from 724 (or its subsidiaries,
affiliates, partnerships and joint ventures) any individual who was or becomes
an employee of or service provider to 724
- 5 -
(or its subsidiaries, affiliates, partnerships and joint ventures) at any time
within the one (1) year period before or after termination of your employment.
COVENANTS REASONABLE AND INJUNCTION. You acknowledge that (a) the covenants
contained in the paragraphs entitled "Confidential Data and Non-Disclosure",
"Non-Competition and Non-Solicitation" and "Employees" are essential elements to
this agreement and that, but for your agreement to enter into such covenants,
724 would not have entered into this agreement with you; and (b) since your
breach of any of such provisions would cause serious and irreparable harm to 724
which could not adequately be compensated for in damages, and in the event of a
breach by you of any of such provisions, you consent to an injunction being
issued against you restraining you from any further breach of any such
provision. The provisions of this paragraph shall not be construed so as to be
derogation of any other remedy which 724 may have in the event of such a breach.
The existence of any claim or cause of action that you may have against 724 (or
its subsidiaries, affiliates, partnerships and joint ventures), whether pursuant
to this agreement or otherwise, shall not constitute a defence to the
enforcement by 724 of the provisions of this paragraph or the paragraphs
entitled "Confidential Data and Non-Disclosure", "Non-Competition and
Non-Solicitation" and "Employees".
TERMINATION. Your employment may be terminated by 724:
(a) without compensation if you, by reason of physical or mental
disability, are unable to fulfill your obligations and duties hereunder
on a full time basis (other than by reason of authorized vacation or
leave) for a period in excess of 20 working days in any 2 month period;
(b) without compensation, for cause, which shall include, without
limitation:
(i) any willful and continuing failure by you to observe and perform
any of your covenants and obligations hereunder;
(ii) fraud, dishonesty, gross negligence or willful malfeasance by you
in connection with the performance of your duties hereunder;
(iii) any abuse of alcohol or drugs by you which adversely affects your
ability to perform your duties hereunder; or
(iv) your death; or
- 6 -
(c) without cause at any time upon giving you notice or payment in lieu of
notice and severance, as required by any statutory and common law
requirement applying to your employment with 724, and as provided in
this agreement, payable on your delivery of a release to the Board of
Directors of 724.
COMPENSATION ON TERMINATION FOR DISABILITY. During any period that you fail to
perform your duties hereunder as a result of disability due to physical or
mental illness, you shall continue to receive the salary payable to you until
your employment is terminated pursuant to subparagraph (a) in the paragraph
entitled "Termination", provided that payments so made to you shall be reduced
by the sum of the amounts, if any, payable to you, under any disability benefit
plans of 724 or under any governmental disability insurance programmes or other
plans in which you are a participant or pursuant to which you are entitled to
receive benefits.
COMPENSATION ON TERMINATION FOR CAUSE. If your employment is terminated for
cause, 724 shall pay you your salary and benefits through the date of
termination and 724 shall have no further obligations to you under this
agreement or in connection with your employment by 724.
NOTICES. Any notice which may or is required to be given pursuant to this
agreement shall be in writing and shall be sufficiently given or made if mailed
by prepaid registered mail, faxed or served personally upon the party for whom
it is intended, addressed to the other party at the address or fax number first
above written. The date of receipt of any notice, if served personally or by
fax, shall be deemed to be the date of delivery thereof and, if mailed, the
third business day after delivery.
ASSIGNMENT. You acknowledge that 724 may assign this agreement and the benefits
of your covenants and obligations under this agreement to any person who
purchases all or substantially all the assets of 724. In addition, this
agreement and the rights and obligations of 724 may be assigned at any time by
724 to an affiliate of 724. Subject to the forgoing, neither this agreement nor
any rights or obligations hereunder shall be assignable by any party without the
prior written consent of the other party. Subject thereto, this agreement shall
enure to the benefit of and be binding upon the parties and their respective
heirs, executors, administrators, legal personal representatives, successors
(including any successor by reason of amalgamation or statutory arrangement of
any party) and permitted assigns.
INVALIDITY AND SEVERABILITY. If a court of competent jurisdiction would
otherwise adjudge, declare or decree all or any portion of the covenants set
forth in this agreement
- 7 -
void or unenforceable in the circumstances, the portions thereof which would
otherwise be held void or unenforceable shall, automatically and without further
act on the part of either of us, but only as regards those matters or parties
before the court, be reduced in scope, territory or duration of time to such an
extent that such court would hold the same to be enforceable in the
circumstances before the court, or alternatively, that provision shall be deemed
to be severed herefrom, and the remaining provisions of this agreement shall not
be affected thereby and shall remain valid and enforceable.
FURTHER ASSURANCES. You agree to do such acts and execute such further
documents, conveyances, deeds, assignments, transfers and the like, and will
cause the doing of such acts and will cause the execution of such further
documents as are within your power as we may in writing at any time and from
time to time reasonably request be done and or executed, in order to give full
effect to the provisions of this agreement.
WAIVER OF RIGHTS. Any waiver of, or consent to depart from, the requirements of
any provision of this agreement shall be effective only if it is in writing and
signed by the party giving it, and only in the specific instance and for the
specific purpose for which it has been given. No failure on the part of any
party to exercise, and no delay in exercising, any right under this agreement
shall operate as a waiver of such right. No single or partial exercise of any
such right shall preclude any other or further exercise of such right or the
exercise of any other right.
ENTIRE AGREEMENT. This agreement and the schedules hereto constitute the entire
agreement between us pertaining to your employment by 724 and supersedes all
prior agreements, negotiations, discussions and understandings, written or oral,
between us. This agreement may be amended or supplemented only by a written
agreement signed by both 724 and you.
- 8 -
TIME OF THE ESSENCE. Time is and shall remain of the essence of this agreement
and all of its provisions.
CHOICE OF LAW. This agreement is governed by the laws of Ontario.
Yours truly,
724 SOLUTIONS INC.
By: /s/ Xxxxx Xxxxxxxx
---------------------
Xxxxx Xxxxxxxx
President
Accepted this _______ day of February, 1998.
Witness: /s/ Xxxx Xxxxx /s/ Xxxxx Xxxxxx
------------------ --------------------
PRINT NAME OF WITNESS: Xxxxx Xxxxxx
SCHEDULE "A"
COMPENSATION AND BENEFITS OF
XXXXX XXXXXX
1. SALARY. Your salary will be $150,000 per annum, any amount of which you may
allocate to your RRSP.
2. VACATION. You will be entitled to a vacation of four (4) weeks in each
calendar year. Such vacations shall be taken at such time as 724 may from
time to time approve, having regard to the operations of 724. Vacation time
shall be cumulative, in accordance with 724's standard policies applicable
to management.
3. BENEFITS. You will be entitled to participate in any plans maintained from
time to time by 724 for the benefit of 724's employees, including, but not
limited to, those pertaining to group life, accident, dental, prescription,
sickness and medical, and long term disability insurance, provided that
premiums for such coverages are reasonable, as determined by 724 in its
sole discretion.
4. OPTIONS TO PURCHASE SHARES.
Subject to you and 724 entering into the Option Agreement attached hereto
as Schedule "B", 724 hereby grants to you:
(a) the option to purchase up to 100,000 common shares of 724 (or the group
of companies that forms 724) at a purchase price of $1 per share;
(b) the option to purchase an additional 33,333 common shares of 724 (or
the group of companies that forms 724) at a purchase price of $1 per
share, which option vests on and continues from the first anniversary
of your employment;
(c) the option to purchase an additional 33,333 common shares of 724 (or
the group of companies that forms 724) at a purchase price of $1 per
share, which option vests on and continues from the second anniversary
of your employment; and
(d) the option to purchase an additional 33,333 common shares of 724 (or
the group of companies that forms 724) at a purchase price of $1 per
share, which option vests on and continues from the third anniversary
of your employment.
Please note that the terms and conditions of the Option Agreement govern
the options granted in this agreement and from time to time. In particular,
you should note that your entitlement to unvested options will be
automatically forfeited if your employment with 724 terminates for any
reason.
- 2 -
5. MBA. In addition to your salary and benefits, 724 will pay the balance of
your MBA fees, subject to any terms and conditions that placed on this
benefit by your previous employer, provided that two (2) weeks per year of
your vacation time will be applied towards the class days required to
complete your MBA.
