EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ENTERED INTO AT MONTREAL ON 11 OCTOBER, 2006
BETWEEN: AVENSYS INC., having its head office at
000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, province xx
Xxxxxx, X0X 0X0, represented by Xx. Xxxx X.
Xxxxxx, the President of its Board of
Directors, duly authorized for the purposes
hereof as he so declares;
(hereinafter referred to as "AVENSYS")
AND: XXXXXX d'AMOURS, engineer, domiciled and
residing at 20022, place Xxxxxx, at Xxxx
x'Xxxx, xxxxxxxx xx Xxxxxx, X0X 0X0;
(hereinafter referred to as the "Employee")
AND TO WHICH INTERVENES: MANARIS CORPORATION, having its head office
at 1155 Blvd Xxxx-Xxxxxxxx West, suite
2720, Montreal, province of Xxxxxx,
X0X 0X0, represented by Xx. Xxxx X. Xxxxxx,
the president and chief executive, duly
authorized for the purposes hereof as he so
declares;
(hereinafter referred to as "MANARIS")
WHEREAS AVENSYS and the Employee wish to enter into an employment agreement
according to the terms and conditions provided hereinafter;
WHEREAS AVENSYS wishes to protect its legitimate business interest;
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WHEREAS AVENSYS operates a business of manufacturing and distribution of fiber
optical components, modules and instrumentations;
WHEREAS AVENSYS operates particularly in Canada, Unites States and Europe;
WHEREAS MANARIS owns AVENSYS;
WHEREAS as an essential condition of this Employment Agreement, the Parties wish
to agree on confidentiality, non-competition and non-solicitation covenants in
order to protect the legitimate business interest of AVENSYS.
THE PARTIES AGREE AS FOLLOWS:
The preamble forms part of the Agreement.
1. FUNCTIONS
1.1 The Employee shall act as President and Chief Executive Officer
(President et chef de la direction) of AVENSYS.
1.2 AVENSYS shall retain the services of the Employee as of November 1,
2006.
2. TERM OF EMPLOYMENT
2.1 The Employee's employment shall begin on November 1, 2006 and
continue for a period of two (2) years and eight (8) months,
terminating on June 30, 2009.
3. EMPLOYEE RESPONSIBILITIES
3.1 The Employee shall be responsible for all operations and management
of AVENSYS, including strategic planning & direction, mergers &
acquisition, relations with the board of directors and the parent
corporation, the whole in accordance with the instructions and the
direction of the Board of Directors of AVENSYS.
3.2 The Employee shall diligently, faithfully and honestly serve AVENSYS
during the term of his employment, and shall use his best efforts to
promote the interests of AVENSYS.
3.3 The Employee shall devote all his time and attention to carry out
his duties and shall not engage in conduct which would constitute a
conflict of interest with AVENSYS. The Employee shall not act as a
Director or on the advisory committee of other corporations without
the prior written authorization of AVENSYS. AVENSYS shall not unduly
withhold such authorization except if the said other corporations
are in business sector competing with those of AVENSYS.
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4. SALARY
4.1 AVENSYS shall pay the Employee the following salary:
- from November 1, 2006 to June 30, 2007: two hundred thousand
dollars ($200,000.00) on a yearly basis being sixteen thousand
six hundred and sixty-six dollars and sixty six cents
($16,666.66) monthly, less all applicable deductions, for each
of the eight (8) months of this period;
- from July 1, 2007 to June 30, 2008: two hundred and ten
thousand dollars ($210,000.00) on a yearly basis being
seventeen thousand five hundred dollars ($17,500.00) monthly,
less all applicable deductions, for each of the twelve (12)
months of this period;
- from July 1, 2008 to June 30, 2009: two hundred and twenty
five thousand dollars ($225,000.00) on a yearly basis being
eighteen thousand seven hundred and fifty dollars ($18,750.00)
monthly, less all applicable deductions, for each of the
twelve (12) months of this period.
to be paid out in accordance with the policies of AVENSYS as to
payment of salaries to its employees.
5. VACATIONS AND BENEFITS
5.1 Vacations: The Employee shall be entitled to five (5) weeks (or
twenty-five business days) of paid vacation on a yearly basis.
Vacations will be taken at times mutually agreed upon between the
Employee and AVENSYS.
5.2 Stock Option: The Employee shall benefit as of November 1, 2006 of
an option agreement for one million (1,000,000) Common stock in the
share capital of Manaris Corporation, a Nevada corporation, the
whole in accordance with the terms and conditions of the Option
Agreement and the Stock Option Plan attached hereto as schedule A.
In case of termination without Serious Reason, as defined in
paragraph 9.2, the Employee will be entitled to exercise the options
that are vested at the date of termination and the options that
would have vested within twelve (12) months of the said termination,
within ninety (90) days of said date of termination. In no event may
the vested options be exercised later than the expiration of the
term of the options as set forth in the Option Agreement.
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5.3 Bonus: The Employee shall benefit from a yearly bonus as set forth
in Schedule B.
5.4 Benefits: The Employee shall benefit of the group insurance plan
offered to AVENSYS employees. AVENSYS reserves the right to modify
the group insurance plan at any time, at its absolute discretion.
5.5 Car Allowance: AVENSYS will pay up to one thousand five hundred
dollars ($1,500) per month for the use of a car. This amount shall
include all costs in relation to insurance, licensing, maintenance
and normal usage of the car.
5.6 Expenses: AVENSYS agrees to reimburse the Employee for the eligible
expenses incurred in the execution of its functions, upon
presentation of an expense report, in accordance with AVENSYS
policies, which may be modified from time to time by AVENSYS at its
absolute discretion.
5.7 Others: AVENSYS shall reimburse the cost of high speed internet at
the home of the Employee and provide the Employee with all necessary
business tools including a portable computer and Blackberry or the
equivalent.
6. CONFIDENTIAL INFORMATION
6.1 Access to information: As part of its functions with AVENSYS or any
current or future subsidiary of AVENSYS within the meaning of the
Companies Act (Quebec) (individually a "Subsidiary" or collectively
the "Subsidiaries"), the Employee shall have access to information
concerning the business of AVENSYS, its clients or its supplier and
its subsidiaries.
6.2 Confidential information: Information that can reasonably be
considered confidential or whose disclosure would have an impact on
the interests of AVENSYS, its clients or its subsidiaries and
namely, without limiting the general scope of the foregoing, any
information concerning the affairs of AVENSYS, its clients or its
subsidiaries, including bids, financial information, methods,
processes, software, names, clients' skills and requirements,
suppliers, list of employees and distributors, ideas, concepts,
projects, discoveries, inventions (patentable or not), know-how as
well as other technical and business knowledge, regardless of their
form or the media (if applicable) on which they may be presented,
including all sketches, lists, reports, models, prototypes, disks,
diskettes, tapes or other documents or similar objects, constitutes
confidential information under the present agreement and is the
property of AVENSYS, its clients and its subsidiaries, whether or
not such information has been declared confidential.
6.3 Confidentiality: The Employee agree, for the entire duration of the
present agreement and after the termination of it, to maintain the
confidentiality of the confidential information as defined in
paragraph 6.2 and not to disclose, directly or indirectly, any part
of it to anyone or to use it in any manner without first obtaining
written authorization from AVENSYS.
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6.4 Photocopies or other reproductions: At the request of AVENSYS, the
Employee shall immediately hand over any documents in its possession
or under its control that contain information about confidential
information, as well as reproductions thereof.
6.5 Policies: The Employee agrees to respect all policies that may be
implemented by AVENSYS or its subsidiaries from time to time
regarding confidential information, the confidential information of
any AVENSYS client, as well as any commitments to which they are
privy and that bind AVENSYS with any of its clients.
6.6 Use of information: The Employee agrees not to take or keep, at the
end of his employment, any document or any reproduction of
confidential information or any other physical property belonging to
AVENSYS, its clients or the companies associated with it.
6.7 Exceptions: AVENSYS recognizes that the Employee shall not be in
default of its commitments under this agreement if the Employee
discloses information:
6.7.1 That, not being the fault of the Employee or any other person
under the terms of their commitments to AVENSYS or AVENSYS
clients, is in the public domain or becomes so;
6.7.2 That, in accordance with the law, must be disclosed; or
6.7.3 That the Employee must necessarily disclose in exercising its
functions with AVENSYS, AVENSYS clients or the companies
associated with it.
7. LOYALTY AND NON-COMPETITION
7.1 Loyalty: The Employee agrees during his employment not to act in a
manner that is disloyal to AVENSYS, its subsidiaries, or their
clients, including, without limiting the general scope of the
foregoing, not negatively impacting or attempting to negatively
impact the relations of AVENSYS, its subsidiaries with their
employees, distributors, suppliers, representatives, clients or
other parties with which AVENSYS, or its subsidiaries, do business;
furthermore, the Employee shall not accept any commissions or
earnings from persons doing business with AVENSYS, its subsidiaries,
their clients or companies related thereto.
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7.2 Non-competition: The Employee agrees, for the entire duration of the
present agreement and for a period of twelve (12) months following
the end of the agreement, not to do the following, either directly
or indirectly:
7.2.1 The Employee will not enter the employment of any other person
partnership, or corporation or provide services to any such
person which is in direct competition with the Products (as
hereinafter defined) of the AVENSYS and its subsidiaries and
Employee shall not engage directly or indirectly in such
competitive business or enterprise, financially, or as an
advisor, consultant, owner or agent or in any other relation
or capacity whatsoever in Canada;
For the purpose of this agreement, "Products" means
manufacturing and distributing fiber optical components and
distributing environmental monitoring systems;
7.2.2 Solicit the clients of AVENSYS and its subsidiaries in order
to personally profit from contacts established with these
persons during the employment in order to sell them Products
that are in competition with those of AVENSYS and its
subsidiaries;
7.2.3 Employ or solicit to employ or poach any persons in the employ
of AVENSYS or its subsidiaries.
In the event that the employment of the Employee is unilaterally
terminated by AVENSYS without Serious Reason and in the event that
the twelve (12) months compensation mentioned in sub-section 9.3 is
not fully paid by AVENSYS upon termination of the employment, the
provisions of the section 7.2.1 shall not apply.
7.3 Reasonableness: The Employee expressly declares and recognize that
the restrictions stipulated in paragraphs 7.1 and 7.2 are reasonable
and valid in terms of their duration, the activities and persons
targeted, that they are essential in order to allow AVENSYS and its
subsidiaries to adequately protect their position in the market in
which they do business, operate and pursue activities, that they
represent the agreement concluded between AVENSYS and the Employee
and, consequently, dispense AVENSYS and its subsidiaries from having
to establish their validity. In the event that a court were to rule
that the above-mentioned non-competition commitment is too broad in
scope of activities or territory or too long in duration, the
Parties undertake to negotiate new covenants respecting the maximum
level deemed reasonable.
8. PENALTIES AND EXTENT OF RESTRICTIONS
8.1 Failure to respect commitments: The Employee recognizes that their
failure to respect his commitments and obligations mentioned in
section 6 or 7 would cause irreparable damage to AVENSYS and that
AVENSYS and its subsidiaries shall have the right to resort to legal
action to obtain an injunction or damages or any other recourse in
response to such a violation or threat of violation.
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8.2 Extent of restrictions: The parties recognize that if the extent of
any restriction contained in section 6 or 7 is deemed unreasonable
to allow for full applicability, such restriction shall then be
applicable to the maximum extent permitted by the laws in the
Province of Quebec. The Employee hereby agrees and accept that the
extent of this restriction may, if necessary, be modified
accordingly as part of any legal action taken in order to give
effect to this restriction and ensure it is respected.
9. TERMINATION
9.1 This agreement shall be renewed automatically for succeeding terms
of one (1) year unless AVENSYS gives notice to Employee, at least
one hundred and eighty (180) days prior to the expiration of this
agreement or of any term of renewal, of its intention not to renew.
9.2 AVENSYS may terminate this Agreement for Serious Reason in writing
at any time and without notice period or compensation of any kind
whatsoever. The employment of the Employee under the present
agreement may be terminated or end earlier, and shall in fact be
automatically terminated without notice in the following cases:
9.2.1 The Parties agree in writing to terminate this Agreement; or
9.2.2 The Employee dies; or
9.2.3 The Employee seriously neglects his obligations under the
present agreement; or
9.2.4 The Employee is regularly intoxicated while performing his
duties; or
9.2.5 The Employee commits act of theft, fraud or embezzlement
against AVENSYS or any other material acts of dishonesty; or
9.2.6 Any serious reasons within the meaning of section 2094 of the
Civil Code of Quebec.
9.3 Termination of the Employee without Serious Reason: Due to the
nature of AVENSYS's competitive business environment, the fact that
its business is highly knowledge driven and because of the
Employee's executive position, AVENSYS may, in its sole and absolute
discretion, at any time, without being obliged to demonstrate cause
or Serious Reason, terminate the Employee's employment upon the
payment of an indemnity in lieu of notice equal to the Employee's
salary and benefits that would have been payable under sub-sections
4.1 and 5.4 of this agreement for the twelve (12) months following
termination, as well as of any bonus or portion of bonus as defined
in Schedule B. Such indemnity shall be paid, at the sole discretion
of AVENSYS, in a lump sum or in twelve (12) equal installments.
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9.4 Termination by the Employee: The employment of the Employee under
this Agreement shall terminate upon receipt by AVENSYS of a two (2)
month prior written notice of resignation signed by the Employee. In
such event, the Employee shall receive no further payment after the
expiry of this resignation notice.
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10. RECOURSE AND ENFORCEABILITY
10.1 Recourse: The Employee recognizes that the beneficiaries of their
obligations under the terms of the present agreement could suffer
serious and irreparable damage due to the breach of the commitments
stipulated in the present agreement, harm that damages would be
unable to compensate. The Employee expressly agrees that in the
event that the above-mentioned commitments are breached, AVENSYS and
any other beneficiary of the present commitments may resort to
injunctions or other remedial action permitted by a competent court
to have the provisions of the present agreement executed without
harming the exercising of all other available recourse, including
but without limiting the general scope of the foregoing, recourse to
damages.
11. NOTICES
11.1 Any notice, request or other communication required pursuant to this
Agreement shall be in writing and shall be delivered in person, or
sent by mail, registered mail, if the postal service is in operation
throughout Canada, or by fax to the following addresses:
11.1.1 to Xxxxxx d'Amours:
00000, xxxxx Xxxxxx
Xxxx-x'Xxxx (Xxxxxx) X0X 0X0
Fax: (000) 000-0000
11.1.2 to Avensys:
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx (Xxxxxx), X0X 0X0
To the attention of the President of the Board of Directors
Fax: (000) 000-0000
Such notice shall be deemed as having been received the business day
immediately following the delivery or transmission by fax or in person. If
it is sent by mail, it shall be deemed as having been received the third
(3rd) business day after the date it was mailed. However, if after having
mailed the notice, the postal service is stopped for whatever reason, it
shall be delivered in person or faxed. A Party may, from time to time,
change his mailing address by notifying the other Parties.
12. FURTHER DOCUMENTATION
12.1 The parties hereto and each of them hereby consents and agrees to do
such things, attend such meetings, and to execute such further
documents and assurances as may be deemed necessary or advisable
from time to time in order to carry out the terms and conditions of
this Agreement in accordance with its true intent.
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13. WAIVERS
13.1 No waiver of any of the provisions of this Agreement shall be deemed
to constitute a waiver of any other provision (whether or not
similar); nor shall such waiver be binding unless executed in
writing by the party to be bound by the waiver.
13.2 No waiver shall be deemed a continuing waiver or waiver in respect
of any subsequent breach or default, either of a similar or
different nature, unless expressly so stated in writing.
14. HEADINGS
14.1 The insertion of headings and the division of this Agreement into
sections and subsections is for convenience of reference only and
shall not affect the interpretation hereof.
15. MISCELLANEOUS
15.1 Currency: Amounts to be advanced, paid or calculated under this
Agreement are to be advanced, paid or calculated in Canadian
dollars.
15.2 Enforceability: Any decision by a court to the effect that one of
the provisions in the present agreement is null or non enforceable
shall in no way affect the validity or the enforceability of the
other provisions in the present agreement.
15.3 Applicable laws: The present agreement is interpreted under and
governed by the applicable laws of Quebec and the applicable laws of
Canada. The Superior court of the province of Quebec, district of
Montreal shall have jurisdiction.
16. FRENCH LANGUAGE
16.1 The parties have expressly agreed that this agreement as well as any
related documents be drafted in English. Les parties reconnaissent
avoir expressement exige la redaction en anglais de la presente
convention, ainsi que tout document execute a la suite ou
relativement a la presente convention.
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IN WITNESS WHEREOF, the parties signed the present service agreement on the date
and at the place mentioned above.
AVENSYS INC.
/s/ Xxxx X. Xxxxxx /s/ Xxxxxx d'Amours
---------------------------- ----------------------------
By: XXXX X. XXXXXX, Chairman XXXXXX d'AMOURS
MANARIS CORPORATION
/s/ Xxxx X. Xxxxxx
----------------------------
By: XXXX X. XXXXXX, President and C.E.O.
SCHEDULE B
BONUS
The yearly Reference Period and remuneration for the establishment of the Bonus
shall be as per section 4.1, except for the period of November 1st, 2006 to June
30th, 2007, which shall be interpreted as a full 12 months Reference Period
corresponding to the fiscal year of AVENSYS.
Discretionary Bonus: The Employee is eligible to an annual discretionary bonus
in cash, targeted at 10% of the remuneration payable for the Reference Period,
based on the general achievement of the Employee during a given Reference
Period. One of the intent of this bonus is for AVENSYS to be able to compensate
the Employee's for his efforts and achievement that are not directly reflected
in the revenue and the EBITDA of AVENSYS. This bonus will be granted based on
the non financial objectives of AVENSYS at the sole discretion of the Board of
Directors on its first meeting that will follow any applicable Reference Period.
Performance Bonus: The Employee is eligible to an annual discretionary bonus in
cash on the base of forty percent (40%) of the remuneration payable in the
Reference Period. Such bonus shall be payable in function of the revenue and
EBITDA of AVENSYS for the Reference Period in reference to the budget applicable
for such reference period, the whole as described in schedule B of the present
agreement.
The objectives will be fixed by the board of directors before each Reference
Period. The EBITDA can be replaced by the Profit before taxes as a measurement
metric at the discretion of the board of directors. Upon agreement of the
Parties, the present bonus plan may be amended from time to time.
Both Discretionary Bonus and Performance Bonus are payable at the latest ninety
(90) days following the end of the Reference Period.
In case of termination without Serious Reason, as set forth in paragraph 9.2,
the amount of the Performance Bonus to which the Employee would otherwise be
entitled for the Reference Period in which the date of termination occurs shall
be pro-rated to the number of complete months expired on said date of
termination.
The Performance Bonus will be based on the annual budget for the Reference
Period (fiscal year of AVENSYS). For each fiscal year, a budget is approved by
the board of director at the beginning of the year. Exceptionally, the budget
can be subsequently revised by the board of directors for exceptional reasons
such as mergers & acquisition or other events outside of the normal business
context.
No Performance Bonus will be paid if less than 80% of the revenue objective AND
less than 40% of the EBITDA objective is reached.
The EBITDA is "Earning before Interest, Taxes and Depreciation of Assets" and
should also exclude any extraordinary/unplanned adjustment/provision requested
by the auditor or decided by the board of director.
The formula to calculate the Performance Bonus is the following:
A = Achieved % of EBITDA objective
B = Achieved percentage of revenue objective
C = Target Performance Bonus (40% of remuneration)
Bonus = A * B * C
