Exhibit 10.4
MEMORANDUM OF AGREEMENT
BETWEEN: 0000-0000 XXXXXX INC., a legal person, duly incorporated under
the laws of Quebec, doing business under the name of Planet
000.xxx, having its head office at 000 Xxxx-Xxxxxxxx Xxxxxxxxx
Xxxx, Xxxxx 000, in the city and judicial district of Montreal,
Province of Xxxxxx, Xxxxxx, X0X 0X0, herein acting and
represented by Xxxxxx Xxxxx, Member of the Board of Directors,
duly authorized for these purposes by virtue of a resolution of
the Board of Directors dated as of March 27, 2000;
(hereinafter the "Corporation")
AND: XXXXX XXXXXX, domiciled and residing at 0000, Xxxxxxxx Xxxxxx,
Xxxxxxxx, Xx, X0X 0X0;
(hereinafter "Xxxxxx");
WHEREAS the Corporation operates an enterprise the principal activity of which
is the provision of e-commerce solutions to businesses;
WHEREAS the Corporation wishes to retain the services of Xxxxxx to perform the
duties and functions of President and Chief-Executive Officer of the Corporation
and of the public parent of the Corporate Group;
WHEREAS the Corporation and Xxxxxx wish to enter into this Agreement setting
forth the terms and conditions of the employment of Xxxxxx and the benefits
attached thereto;
NOW, THEREFORE, IN CONSIDERATION OF THE PROMISES AND MUTUAL COVENANTS HEREIN
CONTAINED, THE PARTIES DECLARE AND AGREE AS FOLLOWS:
1. PREAMBLE
1.1 The preamble forms an integral part of the present Agreement.
2. DEFINITIONS AND TERMINOLOGY
2.1 Amendment. No amendment hereto shall be binding unless expressly provided
for in an instrument duly executed in writing by the parties hereto.
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2.2 Definitions. For the purpose of this Agreement, or for the purposes of
any notice or communication required hereunder, the words and
expression set out in Schedule A shall have the respective meanings,
except where the context dictates otherwise, set out therein.
2.3 Entire Agreement. This Agreement together with any instruments to be
delivered pursuant hereto constitutes the entire Agreement between the
parties hereto pertaining to this subject matter hereof and supersedes
all prior Agreements, understandings, negotiations, and discussions
whether oral or written, in respect of such subject matter.
2.4 Governing Laws. This Agreement shall be governed by, interpreted and
construed in accordance with the laws of the Province of Quebec and
all applicable laws of Canada.
2.5 Headings. The headings of Sections herein are included solely for
convenience of reference and shall not affect the meaning or
interpretation of any of the provisions of this Agreement.
2.6 Severability. Any article, section, subsection or other subdivision of
this Agreement or any other provision of this Agreement which is
deemed to be or becomes, illegal, invalid or unenforceable shall be
severed herefrom and shall be ineffective to the extent of such
illegality, invalidity or unenforceability and shall not affect or
impair the remaining provisions hereof, which shall remain in full
force and effect.
3. DUTIES
3.1 Subject to the articles, by-laws and authority of the Board of
Directors, as President and Chief Executive Officer of the
Corporation, Xxxxxx will be responsible for the overall organization
of the Corporation, the recruiting of the management team of the
Corporation, the preparation and implementation of the business plan
of the Corporation and the preparation and implementation of the
marketing strategy of the Corporation.
3.2 Subject to the articles, by-laws and authority of the Board of
Directors, Xxxxxx shall be responsible for the overall management of
the operations and business of the Corporation.
4. AUTHORITY
4.1 Subject to the articles, by-laws and authority of the Board of
Directors, Xxxxxx shall bear the title of President and Chief
Executive Officer of the Corporation and shall have full power and
authority to manage and direct the operations of the Corporation
including without limitation power and authority to enter into merger
and acquisitions, contracts, engagements or commitments relating to
the operations of the Corporation in the name and on behalf of the
Corporation.
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4.2 Subject to the articles, by-laws and authority of the Board of
Directors, Xxxxxx shall have the authority to hire, discipline and
dismiss employees of the Corporation.
5. TERM OF AGREEMENT
5.1 The term of this Agreement shall commence on the date of its execution
and shall continue until termination in accordance with the provisions
hereof (the "Term").
6. SALARY AND BONUS
6.1 Base Salary. Xxxxxx shall be paid a salary of Two Hundred Thousand
Dollars ($200,000) ) ("Base Salary") per annum payable in monthly
installments or in such other manner as may from time to time be
mutually agreed to by the Corporation and Xxxxxx.
6.2 At the sole discretion of the Corporation, Xxxxxx may receive, in
addition to his Base Salary, a bonus payment varying between fifty
percent (50%) and one hundred percent (100%) of his Base Salary per
year during the Term.
7. STOCK OPTIONS
7.1 The Corporation hereby undertakes to xxxxx Xxxxxx or any beneficiary
specified by Xxxxxx pursuant to and in accordance with the
Corporation's current and future stock plans, options to purchase one
million three hundred and fifty thousand (1,350,000) common shares in
the capital of Planet 000.xxx Inc. (U.S.A.) at a granted price of two
dollars ($2.00) a share at the following option issue date.
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Date of Vesting Option to Acquire Expiry Date
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March 1, 2001 25% March 2, 2005
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September 1, 2001 25% March 2, 2005
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March 1, 2002 50% March 2, 2005
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7.2 In addition to the Options mentioned above:
(i) The Corporation hereby undertakes, through its Board of Directors
or any appropriate committee thereof, to grant to Xxxxxx,
pursuant to and in accordance with the Corporation's current or
future Stock Option Plan, such number of options to purchase
common shares in the capital of the Corporation at an exercise
price as determined by the said Stock Option Plan for such shares
at the option issue date as is customarily granted to its
officers.
(ii) The Corporation hereby undertakes to cause each publicly traded
member of the Corporate Group, to grant to Xxxxxx, pursuant to
and in accordance with their respective current or future Stock
Option Plans,
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options to purchase common shares in their capital at an exercise
price as determined by the said Stock Option Plan for such shares
at the option issue date as is customarily granted to the
officers of such other members of the Group.
8. INSURANCE
8.1 During the Term, the Corporation shall, subject to the insurability of
Xxxxxx, subscribe to and pay for a life insurance policy providing
life insurance coverage of one million dollars ($1,000,000.00) with
named beneficiary being that designated by Xxxxxx, at its sole
discretion.
8.2 During the Term, and for a period of three (3) years thereafter, the
Corporation shall subscribe to and pay for a comprehensive directors
and officers civil liability insurance policy providing full coverage
to the extent of three million dollars ($3,000,000.00).
8.3 During the Term, and for a period of three (3) years thereafter, the
Corporation shall indemnify Xxxxxx for any civil liability arising
from or attributable to any act or omission by Xxxxxx while performing
his duties under the present Agreement.
9. OTHER BENEFITS
9.1 Xxxxxx shall be entitled to participate in all benefit plans which for
one health or luncheon club, said club to be selected by Xxxxxx, at
its sole discretion. In all cases, however, the Corporation shall not
pay more than five thousand dollars ($5,000.00) in annual dues
payments pursuant to this Article.
9.2 The Corporation shall pay all professional membership dues incurred by
Xxxxxx as a result of his membership in any professional associations.
10. RETIREMENT PLAN
10.1 The Corporation shall contribute fifty percent (50%) of all sums
determined to be admissible therefor by the appropriate taxing
authorities, at Xxxxxx'x discretion, to a registered retirement plan
for the benefit of Xxxxxx.
11. VACATION
11.1 Xxxxxx shall be entitled to annual paid vacations of up to four (4)
weeks. Vacations may be taken in the year of entitlement thereto or
thereafter and must be taken at a reasonable time mutually agreed on
between the parties. They may be accumulated from year to year.
12. EXPENSES
12.1 Xxxxxx shall be entitled to reimbursement by the Corporation for all
expenses reasonably incurred by Xxxxxx in the course of his employment
with the
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Corporation, upon presentation by him, from time to time, of such
vouchers and other receipts as the Corporation may require in
accordance with its standard procedures.
13. TERMINATION
The Corporation may terminate Xxxxxx'x employment under the present
Agreement:
13.1 For Cause in which event Xxxxxx will not be entitled to any payment;
13.2 For any other reason in which event Xxxxxx shall be entitled to his
Base Salary mentioned in Section 6 for three (3) years following the
date of termination of employment.
13.3 In the event this Agreement is terminated by reason of the death of
Xxxxxx, Xxxxxx'x estate shall be entitled to receive the Base Salary
for the current year pro rated to the number of complete months
expired immediately after such death and the Corporation shall also
pay Xxxxxx a special payment equivalent to six (6) months of service.
13.4 Should the Corporation terminate Xxxxxx'x employment hereunder other
than "for Cause" within two (2) years following a Change in Control of
the Corporation, or Xxxxxx terminates his employment for Good Reason,
Xxxxxx shall receive at his choice in addition to any other payment
mentioned hereinabove three (3) years of his Base Salary. Payment
under this Section 13.4 is not to be combined with any other payments
provided for in the present Article 13.
14. CONFIDENTIALITY
14.1 Confidential Information is related namely to the field of e-commerce
solutions to businesses and shall mean all information (including a
trade secret) written or oral, furnished between and among the
Corporation and Xxxxxx (whether such information is prepared by or
obtained from the parties, their clients, partners, advisors or
otherwise) that is disclosed for the furtherance of Xxxxxx'x services
and duties. Confidential Information shall include, without
limitation, Research and Development issues involving application,
business, financial and marketing sales matter, computer/software
developments, operational system technique and methodology and the
like;
14.2 The term Confidential Information shall not include any information
which:
1) at the time of disclosure is or become public domain without the
fault on the part of Xxxxxx;
2) is previously known by Xxxxxx without an obligation to keep it
confidential;
3) is expressly released in writing from the obligation of
confidentiality imposed by this Agreement;
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4) is required to be disclosed pursuant to any applicable law,
regulation, judicial or administrative order or decree, or
request by a regulatory organization having authority pursuant to
the law; provided however that the Corporation shall have given
notice and make reasonable efforts to obtain a protective order
requiring that Confidential Information not be disclosed.
14.3 The term Person as used in this Agreement shall be interpreted broadly
to include, without limitation, the media, any corporation, company,
group, partnership, joint venture, trust, estate, organization
association, syndicate or individual.
14.4 Xxxxxx agrees that he shall not at any time during or following the
end of the Term directly or indirectly, divulge or disclose for any
purpose whatsoever, any of such Confidential Information which has
been obtained by or disclosed to Xxxxxx as a result of his discussions
with the Corporation, except that Xxxxxx may disclose the information
or portion thereof to those of the Corporation's employees who need to
know such Confidential Information for the purpose of performing
duties within the normal scope of their employment (it being
understood that those Corporation's employees will be informed of the
confidential nature of the information and will agree to be bound by
this Agreement and not to disclose the information to any other
Person).
14.5 Xxxxxx agrees he shall not use Confidential Information to compete
with the Corporation in any manner;
14.6 Xxxxxx agrees that any and all Confidential Information furnished by
the Corporation will not be reproduced or disclosed to any Person
without the express prior written approval of the Corporation;
14.7 All Confidential Information is and shall remain the property of the
Corporation. Neither this Agreement nor any disclosure hereunder shall
be deemed, by implication or otherwise to vest in Xxxxxx any license
or other ownership rights to or under any inventions, patents,
know-how, trade secrets, trademarks, all copyrights owned or
controlled by the Corporation;
14.8 In the event of a breach or threatened breach by Xxxxxx of any
obligations pursuant to the present Agreement, the Corporation shall
be entitled to any remedy including injunction relief, damage or any
other right available to it, to prevent or to restrain any such breach
by Xxxxxx.
15. SPECIAL EXPENSES
15.1 In addition to the reimbursement of the expenses mentioned in Section
12.1, the Corporation will reimburse Xxxxxx upon presentation of
reasonable documentation therewith all cost and expenses incurred by
Xxxxxx in connection with the preparation, execution and delivery of
this Agreement including without limitation the reasonable fees of
counsel with respect thereto.
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16. XXXXX XXXXXX AND ASSOCIATES INC.
16.1 The Corporation agrees and consents that Xxxxxx has a period of three
(3) months following the execution of this Agreement to withdraw from
the operations and business of Xxxxx Xxxxxx and Associates Inc.
17. ASSIGNMENT OF RIGHTS
17.1 The Agreement and all of the Corporation's rights and obligations
hereunder may be assigned, delegated or transferred by the Corporation
(whether by operation of law or otherwise) to any of its affiliates or
subsidiaries or to any business entity which at any time by
amalgamation, consolidation, sale or otherwise acquires all or
substantially all of its assets, it being understood, however, that no
such assignment, delegation or transfer should substantially alter the
nature or status of Xxxxxx'x responsibilities. Upon such assignment,
delegation or transfer, any such affiliate, subsidiary or business
entity shall be deemed to be substituted for all purposes as the
Corporation hereunder.
17.2 The Corporation will require any successor (whether direct or
indirect, by amalgamation, consolidation, sale or otherwise) to all or
substantially all of its business and assets to expressly assume and
agree to perform this Agreement in the same manner and to the same
extent that the Corporation would be required to perform it if no such
succession had taken place.
17.3 This Agreement shall be binding upon and inure to the benefit of, the
parties hereto, any successors to or assigns of the Corporation and
Xxxxxx'x heirs and the personal representatives of the Xxxxxx'x
estate. If Xxxxxx should die while any amount would still be payable
to Xxxxxx hereunder if Xxxxxx had continued to live, all such
payments, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Xxxxxx'x devisee,
legatee, or other designee, or, if there is no such designee, to
Xxxxxx'x estate.
18. NOTICES
18.1 Any notice hereunder by any party to the other parties shall be given
in writing by personal delivery or certified mail, returned receipt
requested, postage prepaid, addressed as follows:
If to Xxxxxx: Xxxxx Xxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
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If to the Corporation: 0000-0000 Xxxxxx Inc.
000 Xxxx-Xxxxxxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx
X0X 0X0
or to such other address as such party may have furnished to the other
party in writing in accordance herewith. A notice shall be deemed
given if by personal delivery, on the date of such delivery, or, if by
certified mail on the date shown on the applicable return receipt.
19. COUNTERPARTS
19.1 This Agreement may be executed by the parties hereto in counterpart,
each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
20. CONFIDENTIALITY OF THE AGREEMENT
20.1 The parties hereto agree that the terms and conditions of the present
Agreement and the content of discussions that led to its execution
shall remain confidential.
21. NON-WAIVER
21.1 No failure of the Corporation or Xxxxxx to exercise, nor any delay in
exercising, any right hereunder shall operate as a waiver of that or
any other right or remedy of the Corporation, nor shall any partial
exercise preclude any further or other exercise.
22. LANGUAGE
22.1 The parties hereto acknowledge that they have requested and are
satisfied that this Agreement and all related documents be drawn up in
the English language. Les parties aux presentes reconnaissent avoir
requis que la presente entente et les documents qui y sont relatifs
soient rediges en anglais.
WHEREOF the parties have signed and duly executed this Agreement in Montreal, as
of the 27th day of March 2000.
9066-4871 QUEBEC INC.
/s/ Xxxxxx Xxxxx
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Per: Xxxxxx Xxxxx
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XXXXX XXXXXX
/s/ Xxxxx Xxxxxx
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Per: Xxxxx Xxxxxx
23. INTERVENTION
Planet 000.xxx Inc. represented herein by Xxxxxx Xxxxx duly authorized for these
purposes as he so declares intervenes to the present Agreement and assumes and
guaranties the execution of any and all of the obligations of the Corporation.
Per: /s/ Xxxxxx Xxxxx
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Planet 000.xxx Inc.
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APPENDIX A
A) Cause
"Cause" shall mean , without being limited to, the occurrence of any one of
the following acts or events:
1) Habitual insobriety, being intoxicated while performing duties or any
drug use by Xxxxxx;
2) Theft, fraud or embezzlement or any other material act of dishonesty;
3) Gross negligence or gross misconduct by Xxxxxx against the
Corporation.
B) Change in Control
"Change in Control" shall be interpreted broadly and shall mean without
being limited to, the following:
1) a significant change in the composition of the Board of Directors of
the Corporation without Xxxxxx'x consent;
2) the sale, lease or other transfer of substantially all of the assets
of the Corporation;
3) the approval by the shareholders or directors of the Corporation of a
merger of the Corporation with another business organization against
the will of the Officer;
4) the approval by the shareholders or directors of the Corporation of a
liquidation or dissolution, whether voluntary or forced, of the
Corporation; or
5) the de-listing of the shares of one of the members of the Corporate
Group from a recognized stock exchange.
C) Corporate Group
"Corporate Group" shall mean the Corporation and its subsidiaries and
affiliates.
D) Good Reason
"Good Reason" shall mean, without Xxxxxx'x express consent, written or
otherwise, any of the following:
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(a) Assignment to Xxxxxx of any duties inconsistent with his status as
President and Chief Executive Officer of the Corporation, or a
substantial alteration in the nature of Xxxxxx'x responsibilities;
(b) Unilateral modification by the Corporation of Xxxxxx'x work conditions
in a substantial manner;
(c) Relocation and/or transfer of Xxxxxx outside a radius of 25 miles of
the Montreal Urban Community without Xxxxxx'x consent.
