Exhibit 10.10
CYPOST CORPORATION
EMPLOYMENT AGREEMENT
XXXXX XXXXXXX
EFFECTIVE DATE: OCTOBER 1, 2002
TERMINATION DATE: SEPTEMBER 30, 2005
RENEGOTIATION COMMENCEMENT DATE, NOT LATER THAN APRIL 1, 2005
----------------------------
THIS AGREEMENT is made as of the 1st day of October 2002 (the Agreement"),
by and between CyPost Corporation, a Delaware corporation ("The Company"),
and Xxxxx Xxxxxxx ("Employee").
WITNESSETH:
WHEREAS, The Company desires to employ Employee and Employee desires to be
employed by the Company as Chief Executive Officer of CyPost Corporation
including its subsidiaries, and;
WHEREAS, The Company recognizes the knowledge and talents of Employee and
desires to enter into this Agreement to secure the foregoing,
NOW, THEREFORE, in consideration of the promises herein contained, the
Parties covenant and agree as follows:
1. EMPLOYMENT: The Company agrees to employ Employee and Employee agrees to
be employed by the Company and to perform work as determined by the
Company, as Chief Executive Officer and to report to the Board of Directors
on the terms and conditions set forth in this Agreement. This Agreement
shall be effective as of the date hereof (the "Effective Date").
2. COMPENSATION: The Company agrees to pay Employee a base compensation of
Xxx Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars (USD $120,000.00) per
year. Compensation is to be prorated and paid two times per month in
accordance with the Company's normal payroll schedule. The Executive
Committee may increase the base compensation payable or increase benefits
at its discretion.
In addition to the base compensation, the Company agrees to pay or provide
Employee with the following:
A. Other Benefits: The Company shall provide Employee with other benefits
---------------
as are set forth on Exhibit A attached hereto and incorporated herein by
reference.
B. Expenses: Reimbursement for reasonable expenses actually incurred by
--------
Employee in the furtherance of the Company's business, including, but not
limited to, telephone calls (including business related calls on Employee's
cellular phone and business related long distance calls); entertainment in
support of the Company's business; the Company approved attendance at
conferences, conventions, institutes, industry training, certification, and
tuition fees provided proper itemization of said expenses is furnished the
Company by Employee. All such expenditures shall be subject to the
reasonable control of the Company. All Expenses shall be submitted monthly
for review by the Executive Committee.
C. Vehicle Lease: The Company will lease a vehicle, suitable to Employee's
-------------
position, for the use of Employee during the term of his employment.
Additionally, the Company will pay for the vehicle insurance(s), operating,
maintenance expenses, plus any other vehicle cost(s) to Employee.
D. Medical and Disability Benefits: Employee and his immediate family shall
-------------------------------
be entitled to participate in the Company's medical program, the Company
paid disability and other benefit programs as other executives of the
Company are entitled to participate in, as is in place from time to time.
E. Additional Benefits: Employee shall be entitled to participate in and
--------------------
receive such additional benefits as the Company shall from time to time
make available to its executive employees including, but not limited to
profit sharing, stock purchase, stock option and other incentive plans.
3. DUTIES: Employee agrees to perform work as determined by the Company,
subject to the direction of the Company and agrees to subject himself at
all times during the Term (as hereinafter defined) to the direction and
control of the Company in respect to the work to be performed. Employee
shall devote his full business time and attention to the furtherance of the
Company's best interests. In that regard, and as further consideration for
this Agreement, Employee agrees to comply with, and abide by such rules and
directives of the Company as may be reasonably established from time to
time, and recognizes the right of the Company, in its reasonable
discretion, to change, modify or adopt new policies and practices affecting
the employment relationship, not inconsistent with this Agreement, as
deemed appropriate by the Company. During the term of Employee's
employment, Employee will not undertake any new business ventures,
partnerships consulting arrangements or other enterprise or business other
than those on behalf of the Company, without the Company's prior written
consent, which shall not be unreasonably withheld or delayed.
Employee's typical responsibilities include, but are not limited to, those
set forth on Exhibit B attached hereto and incorporated by reference
herein.
4. WORKING FACILITIES: Employee shall be furnished with office space,
office equipment, and such other facilities and services suitable to
Employee's position and adequate for the performance of Employee's duties.
5. TERM OF EMPLOYMENT:
A. A. Employee's employment hereunder shall commence as of the
Effective Date hereof and continue for a period of three (3) years
thereafter (the "Term").
B. Considerations for renewal of this Agreement or modifications therein
shall commence not later than six (6) calendar months before and be
completed not less than three (3) calendar months before the termination
date of this Agreement except as mutually agreed between the Parties.
C. Anything herein to the contrary notwithstanding, Employee's employment
hereunder may be terminated at any time and for any reason by either party
upon not less than ninety (90) days' prior written notice to the other
party. It is understood and acknowledged that the Company shall have the
right to effect such termination at will, with or without Reasonable Cause
(as hereinafter defined). Any such termination shall be effective as of the
end of such ninety (90) day period (the "Final Date").
6. SEVERANCE
A. If Employee's employment hereunder shall be terminated by the Company
without Reasonable Cause pursuant to Xxxxxxxxx 0X or because of Employee's
disability, as determined by the Company in good faith, or if Employee
voluntarily terminates employment hereunder for Good Reason, then Employee
shall be entitled to (i) Severance compensation equal to Employee's
then-current base salary and benefits described in 2A and 2E above
calculated to the date of termination and the benefits of 2D above to the
extent allowed under the benefit provider(s) agreement(s), which for
purposes hereof shall include all compensation payable hereunder for a
period equal to the Severance Period (as defined below); ("Severance
Benefits"). Such Severance pay shall be prorated and paid two times per
month in accordance with the Company's normal payroll schedule. Not
withstanding the previous, a lump sum of all monies due and payable shall
be paid Employee immediately if the Company has the financial ability to
pay on the date of termination. The Severance Benefits are intended to be
in lieu of any and all other payments to which Employee might otherwise be
entitled in respect of termination of Employee's employment without
Reasonable Cause or in respect of any action by the Company constituting
Good Reason for voluntary termination. Acceptance of Severance by Employee
shall release the Company by Employee, his agents, assigns, estate, and
survivors, etal of any and all claim(s) against the Company forever.
B. B. If Employee's employment hereunder shall be terminated for
Reasonable Cause pursuant to Xxxxxxxxx 0X, or if Employee voluntarily
terminates Employee's employment without Good Reason, Employee shall be
entitled to receive Employee's base salary as accrued through the effective
date of such termination, but shall not be entitled to any Severance
Benefits or other amounts in respect of such termination.
C. C. "Reasonable Cause," as used herein, shall mean Employee's
involvement in any action or inaction involving a criminal act; any illegal
act resulting in a personal benefit in excess of any payments to which
Employee is entitled hereunder; dishonesty; or, material violation of
Corporation policy and procedures. Employee shall vacate the offices of the
Company on such effective date.
D. "Good Reason," as used herein, means the occurrence of any of the
following events without Employee's consent:
(a) Material diminution in Employee's duties and responsibilities;
(b) A reduction in Employee's base salary, or unreasonable delay in
payment;
(c) A forced relocation; or
(d) A Change of Control, if the Successor Company, as defined in Paragraph
6F below, fails to assume this Agreement in its entirety.
E. "Severance Period," as used herein, means six (6) months during the
first year of employment in any executive position with the Company, and
twelve (12) months during the second and subsequent years.
F. "Change of Control" means a sale outside the ordinary course of business
of more than fifty percent (50%) of the assets of or equity interests in
the Company to any person or entity; or shareholder approved liquidation of
the Company.
7. COMPLIANCE WITH LAWS: Employee will comply with all federal, state and
provincial laws, rules and regulations relating to any of Employee's
responsibilities and duties with the Company and will not violate any such
laws, rules and regulations.
8: COVENANT NOT TO COMPETE: Employee agrees to conform to the following
concerning non-competition:
A. The Employee will receive confidential information and knowledge about
the Company's business policies, accounts procedures and methods. For the
purposes of this Agreement, the term "confidential information" shall
include but is not limited to any list of suppliers, customers, investors,
stockholders, including their names, addresses, phone numbers, amount of
investments and similar information. In addition, any operational
information of the Company, including but not limited to information on the
Company's methods of conducting business, profits and/or losses of the
Company, marketing material and any information that would reasonably be
considered proprietary or confidential in nature. The Company has
established a valuable and extensive trade in its products and services,
which business has been developed at a considerable expense to the Company.
The nature of the business is such that the relationship of its customers
with the Company must be maintained through the close personal contact of
its employees.
B. Employee desires to enter into or continue in the employ of the Company
and by virtue of such employment by the Company, Employee will become
familiar with the manner, methods, secrets and confidential information
pertaining to such business. Employee will become personally acquainted
with the business of the Company and its methods of operation.
C. C. In consideration of the employment or continued employment of
Employee as herein provided, and the disclosure to Employee of the
knowledge and confidential information described above, the Company
requests and Employee makes the covenants hereinafter set forth.
Employee understands and acknowledges that such covenants are required
for the fair and reasonable protection of the business of the Company
carried on in the area to which the covenants are applicable and that
without the limited restrictions on Employee's activities imposed by
the covenants, the business of the Company would suffer irreparable
and immeasurable damage. The covenants on the part of Employee shall
be construed as an agreement independent of any other provision of
this Agreement, and existence of any claim or course of action whether
predicated on this Agreement or otherwise, shall not constitute a
defence to the enforcement by the Company of the covenants.
D. D. Employee shall nor be held responsible if the Company suffers
irreparable harm and immeasurable damage due to lack of financing and
shortage of funds caused by or due to previous management(s) and any
of their practices prior to Employee assuming responsibility.
E. Employee agrees that during the term of Employee's employment and for
the period of twelve (12) months immediately following the termination
of employment Employee will not, within the territory hereinafter
defined, directly or indirectly, for Employee, or on behalf of others,
as an individual on Employee's own account, or as an employee, agent,
or representative for any other person, partnership, firm or
corporation,
i. compete with the business of the Company by engaging or
participating in or furnishing aid or assistance in competition
with the business of the Company; or
ii. engage in any capacity, directly or indirectly, in or be employed
by any business similar to the kind or nature of business
conducted by the Company during the employment.
iii. For the purposes of this Paragraph 8, the business of the Company
shall be limited to Internet Service, which means any business
primarily involving the direct selling of internet connectivity,
shared web hosting, and co-location.
F. The territory referred to in this Paragraph 8 shall be within the
Company's normal area of operations known at the time of termination.
G. Each restrictive covenant is separate and distinct from any other
covenant set forth in this paragraph. In the event of the invalidity
of any covenant, the remaining obligation shall be deemed independent
and divisible. The parties agree that the territory set forth is
reasonable and necessary for the protection of the Company. In the
event any term or condition is deemed to be too broad or
unenforceable, said provision shall be deemed reduced in scope to the
extent necessary to make said provision enforceable and binding.
H. The provisions of Paragraph 8D and 8E shall not apply if the Company
without Reasonable Cause terminates Employee's employment.
9. INDUCING EMPLOYEE OF THE COMPANY TO LEAVE: Any attempt on the part of
Employee to induce others to leave the Company's employ or any efforts by
Employee to interfere with the Company's relationship with other employees
would be harmful and damaging to the Company. Employee expressly agrees
that during the term of Employee's employment, Employee will not in any way
directly or indirectly:
A. Induce or attempt to induce an employee to sever his or her employment
with the Company; or
B. Interfere with or disrupt the Company's relationship with other
employees; or
C. Solicit, entice, take away or employ any person employed with the
Company.
10. CONFIDENTIAL INFORMATION: It is understood between the parties hereto
that during the term of employment, Employee will be dealing with
confidential information, as defined above, which is the Company's
property, used in the course of its business. Employee will not disclose to
anyone while employed by the Company or anytime thereafter, directly or
indirectly, any of such confidential information or use such information
other than in the course of Employee's employment. All documents that
Employee prepares, or confidential information that might be given to
Employee in the course of employment, are the exclusive property of the
Company and shall remain in the Company's possession on the premises. Under
no circumstances shall any such information or documents be removed without
the Company's written consent first being obtained.
11. RETURN OF THE COMPANY'S PROPERTY: On termination of employment,
regardless of how termination is effected, or whenever requested by the
Company, Employee shall immediately return to the Company all of the
Company's property used by Employee rendering services hereunder or
otherwise that is in Employee's possession or under Employee's control.
12. VACATION: Employee shall be entitled to a vacation period of four (4)
weeks per calendar year. Employee shall take vacation at such time during
the year and for such period(s) as determined by mutual agreement between
the Company and Employee.
13. REFERENCES: The Company agrees that, upon termination of this
Agreement, it will, upon written request of Employee, furnish references to
third parties, including prospective employers, regarding Employee.
However, Employee acknowledges that it is the Company's policy to confirm
employment only and not to release any additional information without a
written release from Employee.
14. NOTICES: All notices, requests, consents, and other communications
under this Agreement shall be in writing and shall be deemed to have been
delivered on the date personally delivered or the date mailed, postage
prepaid by certified mail, return receipt requested, or taxed and
confirmed, if addressed to the respective parties as follows:
If to the Company: CyPost Corporation
000 - 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Attention: Board of Directors
If to Employee: Xxxxx Xxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx, XX X0X 0X0
Either party may change its address for the purpose of receiving notices,
demands, and other communications by giving written notice to the other
party of the change.
15. VOLUNTARY AGREEMENT: Employee represents that he has not been
pressured, misled or induced to enter this Agreement based upon any
representation by The Company not contained herein.
16. PROVISIONS TO SURVIVE: The parties hereto acknowledge that many of the
terms and conditions of this Agreement are intended to survive the
employment relationship. Therefore, any terms and conditions that are
intended by the nature of the promises or representations to survive the
termination of employment shall survive the term of employment regardless
of whether such provision is expressly stated as so surviving.
17. MERGER: This Agreement represents the entire Agreement between the
Parties and shall not be subject to modification or amendment by any oral
representation, or any written statement by either party, except for a
dated written amendment to this Agreement signed by Employee and an
authorized officer of the Company.
18. VENUE AND APPLICABLE LAW: This Agreement shall be enforced and
construed in accordance with the laws of the Province of British Columbia,
and venue to any action or arbitration under this Agreement shall be
Vancouver, BC.
19. SUBSIDIARIES AND AFFILIATED ENTITIES: Employee acknowledges and agrees
that the Company has or may have various subsidiaries and affiliated
entities. In rendering services to the Company, Employee will have
considerable contact with such subsidiaries and affiliates. Therefore,
Employee agrees that all provisions of paragraphs 7, 8, 9 and 10 shall
apply to all such subsidiaries and affiliates.
20. PERSONNEL INFORMATION: Employee shall not divulge or discuss personnel
information such as salaries, bonuses, commissions and benefits relating to
Employee or other employees of the Company or any of its subsidiaries with
any other person except the Executive Committee and the Board of Directors
of the Company.
21. GENDER: Any reference to a gender in this Agreement shall also mean the
opposite gender.
22. ASSIGNMENT: This Agreement shall not be assignable by either party
without the written consent of the other party; provided, however, that
this Agreement shall be assignable to any corporation or entity that
purchases the assets of or succeeds to the business of the Company (a
"Successor Company"). Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Date
first above written.
CYPOST CORPORATION
/s/ J. Xxxxxx Xxxxxxxx
---------------------------------------------
By: J. Xxxxxx Xxxxxxxx, Chairman
------------------------------------------
EMPLOYEE
/s/ Xxxxx Xxxxxxx
---------------------------------------------
Xxxxx Xxxxxxx
---------------------------------------------
EXHIBIT A
BONUS STRUCTURE:
1) 1) Gross Revenue Growth in Company and/or its subsidiaries
2) 2) Signing Bonus
(1) Revenue Growth: bonus payable as a result of the gross sales that
--------------
achieve the following results. The corresponding percentage will be
applicable and paid to Employee on an ongoing annual basis:
$ 5,000,000.00 - $ 10,000,000.00 1.00%
$10,000,000.01 - $ 20,000,000.00 1.25%
$20,000,000.01 - $ 50,000,000.00 1.50%
$50,000,000.01 - $ 100,000,000.00 1.75%
Revenues over - $ 100,000,000.01 2.00%
2) Signing Bonus: Twenty Five thousand U.S. dollars (USD 25,000)
-------------
will become due and payable upon completion of 180 days
of service from the Date of this Agreement.
EXHIBIT B
EMPLOY RESPONSIBILITIES INCLUDED BUT NOT LIMITED TO THE FOLLOWING:
1. 1. Report to the Board of Directors
2. 2. Report to the Executive Committee on matters relating to
executive wages and benefits
3. 3. Enact Board decisions and directives
4. 4. Enforce Company policies and regulations
5. 5. Communicate with the Directors of the Board on a regularly
established basis.
6. 6. Take charge of all Company matters including but not limited to:
a) a) Regulatory Compliance
b) b) Financial and accounting
c) c) Legal
d) d) Record keeping
e) e) Marketing
f) f) Shareholder Relations
g) g) Public Relations
h) h) Hiring and firing of employees except executive positions;
i) i) Ensuring confidentiality of Company materials is maintained
where required
