EMPLOYMENT AGREEMENT This Employment Agreement made as of the 14th day of August , 2008.
EXHIBIT
10.4
This
Employment Agreement made as of the 14th day of August , 2008.
BETWEEN:
XXXXXXXXXXX
XXXXX
of
the
City of Denver
in
the
State of Colorado
(hereinafter
referred to as the “Executive”)
-
and
-
a
corporation incorporated pursuant to the
laws
of
the State of Nevada
(hereinafter
referred to as the “Corporation”)
WHEREAS
the Corporation is desirous of engaging the Executive
in the
position of Chief Operating Officer and Vice President of Sales, of the
Corporation;
AND
WHEREAS the parties hereto wish to confirm the terms and conditions relating
to
the Executive’s engagement with the Corporation;
NOW
THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is hereby agreed
as
follows:
ARTICLE
1
EMPLOYMENT
AND DUTIES OF CONSULTATION
1.01 Engagement
of Executive: In accordance with the terms and conditions of this Agreement,
the
Corporation hereby engages the Executive and the Executive hereby accepts
employment with the Corporation as its Chief Operating Officer and Vice
President of Sales, and agrees to perform such other duties as may be reasonably
determined and assigned to him from time to time by the President.
1.02 Duties
of
Employment: The Executive shall well and faithfully serve the Corporation
and
use his best efforts to promote the interests and goodwill of the Corporation
during the term of his engagement hereunder. The Executive shall devote such
of
his time and energy to the Corporation as shall be necessary to perform his
duties and exercise such powers as may be consistent with his position.
.
1.03 Reporting:
The Executive shall comply with all lawful and reasonable orders given to
him
by, and shall report to, the President of the Corporation and shall comply
with
all reasonable requests from the President. He will advise to the best of
his
ability and in accordance with reasonable business standards on business
matters
that may arise from time to time during his employment hereunder.
1.04 Term:
The
appointment of the Executive shall commence with effect from the date hereof
and
shall continue for a period of five years unless terminated in accordance
with
the provisions of this agreement.
ARTICLE
2
REMUNERATION
OF EXECUTIVE
2.01 Base
Remuneration: During the first year of this Agreement, the Executive’s base
remuneration shall be one
hundred and fifty thousand ($150,000) per
annum
payable in equal bi-weekly installments, not in advance, exclusive of bonuses,
benefits and other compensation, but subject to applicable statutory deductions
and contributions (“Base Remuneration”).
2.02 Review:
The Base Remuneration will be reviewed by the Board of Directors of the
Corporation (the “Board”) on an annual basis, and may, in the sole discretion of
the Board, be increased.
2.03 Stock
Option: At the sole discretion of the Board, the Executive may be granted
options to purchase common shares in the capital of the Corporation in
accordance with any Incentive Stock Option Plan, and the current practice
of the
Corporation with respect to specific terms. The Executive understands and
agrees
that upon the termination of his engagement by the Corporation, whether such
termination occurs with or without notice and with or without just cause,
then,
all rights that the Executive may have otherwise had in respect of stock
option(s) shall terminate effective as of and from 120 days after the date
on
which the Executive receives notice of such termination.
2.04 Automobile
Allowance: The Executive will pay to the Executive an automobile allowance
of
$600 per month. The Executive must provide his own vehicle.
2.05 Bonus:
The
Executive shall be entitled to participate in any bonus plan established
by the
Board for the benefit of employees and Executives generally.
ARTICLE
3
BENEFITS
3.01 Vacation
Entitlement: The Executive’s vacation entitlement shall be 6 weeks in each year
of Engagement. In selecting such vacation time the Executive undertakes to
consider the exigencies of his office.
3.02 Insurance
Benefits: The Executive shall be entitled to participate in any Group Insurance
Benefit Plan established by the Corporation and shall be entitled to medical,
dental and other benefits, in accordance with the provisions thereof. The
Corporation agrees that the Executive’s benefits pursuant to any such plan shall
be paid for by the Corporation to the extent that the Executive so
desires.
3.03 Life
Insurance: The Executive agrees to co-operate with the Corporation in the
event
that it wishes to put into place insurance on his life or key-man insurance,
provided that any premiums associated with such insurance shall be paid by
the
Corporation.
3.04 Other
Expenses: The Executive shall be entitled to reimbursement for all traveling,
entertainment and other expenses incurred by the Executive on behalf of the
Corporation in the course of the performance of his duties, upon production
of
appropriate receipts and invoices, forthwith after review and approval,
including all reasonable and related automobile expense.
3.05 Indemnity:
The Executive shall be provided with an indemnity from the Corporation or
such
other entity, as the case may be, in such a form as is contained in the by-laws
for such entity, or if no indemnity is provided therein then in such a form
as
is mutually acceptable to the Executive and the Board, acting reasonably.
ARTICLE
4
TERMINATION
OF EMPLOYMENT
4.01 Termination
by Executive: The Executive may terminate his Engagement pursuant to this
agreement by giving at least 12 month’s advance notice in writing to the
Corporation. The Corporation may waive such notice, in whole or in part,
by
providing the Executive with a lump sum payment equivalent to the Executive’s
Base Remuneration for the balance of the said notice period that remains
outstanding on the date that the Corporation so exercises such waiver. The
Executive understands and agrees that if the Corporation chooses to exercise
the
waiver referenced herein, then, the maximum period for which the Corporation
shall be required to provide the said lump payment shall not exceed the
outstanding balance of the twelve (12) month’s notice period referenced herein,
whether or not the Executive voluntarily elects to provide more than twelve
(12)
month’s notice of his resignation from employment.
4.02 The
Corporation may terminate the Executive’s Engagement without notice or payment
in lieu thereof, for cause. In such event, the Executive shall be entitled
to
receive any amounts on account of Base Remuneration or expenses accrued and
unpaid to the date of termination. For the purposes of this agreement “cause”
shall include:
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(a)
|
any
material breach of the provisions of this agreement by the Executive,
as
determined in the sole discretion of the
Board;
|
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(b)
|
consistent
poor performance on the part of the Executive, after being counseled
as to
the standard required, as determined in the sole discretion of
the
Board;
|
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(c)
|
any
intentional or grossly negligent disclosure of any information
by the
Executive, as determined in the sole discretion of the
Board;
|
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(d)
|
violation
by the Executive of any local, provincial or federal statute, with
the
exception of violations of the Highway Traffic Act and similar
statutes,
including, without limitation, an act of dishonesty such as embezzlement
or theft;
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(e)
|
competing
with the Corporation or aiding a competitor of the Corporation;
and
|
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(f)
|
any
and all omissions, commissions or other conduct which would constitute
cause at law, in addition to the specified
causes.
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| 4.03 |
(1) Termination
Without Cause: The Corporation may terminate the Executive’s Engagement
pursuant to this agreement at its sole discretion and for any reason
and
upon such termination, the Executive shall be entitled to receive
an
amount equal to the Executive’s Base Remuneration for a 12 month period,
together with the amount which the Executive may be entitled to
pursuant
to any bonus plan or incentives, and all entitlement to purchase
common
shares under existing stock options will immediately
vest.
|
(2) Pay
in
lieu of notice and severance pay, if any, will be provided in a form mutually
agreed to between the Executive and Corporation and shall be subject to all
deductions and withholdings required by law.
(3) The
payments contemplated in clause (1) include all entitlements to either notice
or
pay in lieu of notice and severance pay under the applicable employment or
labour standards legislation of Ontario. In the event that the minimum statutory
requirements as at the date of termination provide any greater benefits than
provided in this agreement, such statutory requirements will replace the
payments contemplated under this agreement.
(4) The
Executive agrees to accept the pay in lieu of notice and benefits as stipulated
in clause (1) in full and final settlement of all amounts owing to the Executive
by the Corporation on termination, including any payment in lieu of notice
of
termination, entitlement of the Executive under any applicable statute and
any
rights which the Executive may have at common law and the Executive hereby
waives any claim to any other payment or benefits from the
Corporation;
4.04 Termination
on Death or Disability: The
employment of the Executive shall be terminated upon the death of the Executive
and may be terminated by reason of disability, defined as failure to perform
the
essential requirements of the Executive’s employment duties on a full-time basis
for a period of 180 consecutive days or failure to perform such duties for
more
than 365 days in any single two year period, provided that the disability
of the
Executive shall only constitute cause for termination if the Executive’s
disability constitutes a disability as defined in the then current long-term
disability insurance policy maintained by the Corporation on his behalf and
the
Executive is entitled to receive benefits thereunder. In the event of
termination hereunder, the Executive shall be entitled to receive an amount
equal to his Base Remuneration for a period of one year, together with any
amount to which he may be entitled pursuant to any bonus or incentive
arrangement and any amounts relating to accrued and unpaid expense
allocations.
4.05 Return
of
Materials: As soon as the Executive ceases to be engaged by the Corporation,
or
at any time upon request by the Corporation, the Executive shall immediately
deliver to the Corporation all property of the Corporation in the possession
of
or directly or indirectly under the control of the Executive. The Executive
agrees not to make for his personal or business use or that of any other
party,
reproductions or copies of any such property.
ARTICLE
5
CONFIDENTIAL
INFORMATION
5.01 Confidential
Information: The Executive hereby agrees to maintain in confidence and not
to
disclose to any person, corporation, group or organization whatsoever, during
the term of this Agreement and for a one year period thereafter, any information
respecting the business affairs, prospects, operations or strategic plans
respecting the Corporation or its affiliates or subsidiaries gained in the
Executive’s capacity as a Executive to the Corporation or otherwise, and not
otherwise publicly available or disclosed.
ARTICLE
6
NON-COMPETITION
COVENANTS
6.01 Representation:
The Executive represents and agrees that his experience and capabilities
are
such that the provisions of this Article will not prevent him from earning
a
livelihood and that irreparable and substantial injury could befall the
Corporation should the Executive violate this Article. The Executive and
the
Corporation agree that the Corporation is entitled to protect its business
interest and that of its affiliates and subsidiaries from any unfair advantage
taken by the Executive in the event of and subsequent to his termination
under
Article 4 herein, which unfair advantage includes but is not limited to engaging
in any activity proscribed by Article 6.02.
6.02 Solicitation:
For a period of one year from the date of termination of this Agreement,
the
Executive shall refrain from interfering with the employment arrangements
between the Corporation (or any of its affiliates or subsidiaries) and its
employees and will not in any way solicit, recruit, hire, assist others in
recruiting or hiring, or discuss employment with any employees of the
Corporation or any of its affiliates or subsidiaries and the Executive shall
refrain from soliciting, contracting with, making regular presentations to
or
otherwise being concerned with the customers of the Corporation or any of
its
affiliates or subsidiaries, or aid or abet any solicitation of employees
or
customers to transfer business from the Corporation or any of its affiliates
or
subsidiaries, to any other person or entity, provided that this prohibition
shall not apply to advertising of a general nature, speaking or writing
engagements for general publication or to similar activities and provided
that
this prohibition shall not preclude the Executive from providing services
to
existing clients of any new employer of the Executive.
6.03 Time
and
Scope Reduction: The Executive agrees that if the period of time, geographical
coverage or the scope of the restrictive covenant contained in this Article
should be adjudged unreasonable in a proceeding before a court of competent
jurisdiction, then the period of time shall be reduced by such number of
months,
or the coverage or scope shall be reduced, by elimination of such portion
thereof deemed unreasonable, so that the covenant herein may be enforced
in such
coverage and scope and during such period of time as may be adjusted to be
reasonable.
ARTICLE
7
MISCELLANEOUS
PROVISION
7.01 Amendment
and Waiver: No amendment, modification or waiver of any provision of this
Agreement or consent to any departure by the parties from any provision of
this
Agreement is effective unless it is in writing and signed by the parties
and
then the amendment, modification, waiver or consent is effective only in
the
specific instance and for the specific purpose for which it is
given.
7.02 Further
Assurances: The Executive and the Corporation shall do, execute, acknowledge
and
deliver or cause to be done, executed, acknowledged and delivered such further
acts and documents as shall be reasonably required to accomplish the intention
of this Agreement.
7.03 Applicable
Law and Jurisdiction: This Agreement and all of the rights and obligations
arising herefrom shall be interpreted and applied in accordance with the
laws of
the State of Nevada and the courts of the State of Nevada shall have exclusive
jurisdiction to determine all disputes relating to the Agreement and all
of the
rights and obligations created hereby. The Executive and the Corporation
hereby
irrevocably attorn to the jurisdiction of the courts of the State of
Nevada.
7.04 Other
Provisions: At all times while engaged by the Corporation, the Executive
will at
his own expense maintain a valid driving license and a valid passport. The
Executive acknowledges that as a condition of his engagement he will be required
to travel to various locations worldwide from time to time to carry out his
duties on behalf of the Corporation.
7.05 Prohibitive
Provisions: In the event that any provision or any part of any provision
is
deemed to be invalid by reason of the operation of any law or by reason of
the
interpretation placed thereon by a court, this Agreement shall be construed
as
not containing such provision or part of such provisions and the invalidity
of
such provision or such part shall not affect the validity of any other provision
or the remainder of such provision hereof. All other provisions thereof which
are otherwise lawful and valid shall remain in full force and
effect.
7.06 Notice
Provisions:
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(a)
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Except
as otherwise expressly provided herein, all notices shall be in
writing
and either delivered personally or by registered or certified mail,
telex,
telegram cable or telecopier. In the case of the Corporation, notice
shall
be at the Corporation’s office at ●. In the case of the Executive, notice
shall be delivered to the most current address of his residence
on file
with the Corporation.
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(b)
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Any
notice which is delivered personally shall be effective when delivered
and
any notice which is delivered by telex, telecopier, cable or telegram
shall be effective on the business day following the day of
sending.
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(c)
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Any
notice given by telex, telecopier, cable or telegram shall immediately
be
confirmed by registered or certified
mail.
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7.07 Entire
Agreement: This agreement supersedes all prior agreements, oral or written,
between the parties hereto with respect to the subject-matter hereof. This
agreement contains the final and entire understanding and agreement between
the
parties hereto with respect to the subject-matter hereof, and they shall
not be
bound by any terms, conditions, statements, covenants, representations, or
warranties, oral or written, not herein contained with respect to the
subject-matter hereof.
7.08 Independent
Legal Advice: The Executive acknowledges that he has read and understands
this
agreement, and acknowledges that he has had the opportunity to obtain
independent legal advice with respect to it.
7.09 Binding
Effect: This Agreement and all of its provisions shall enure to the benefit
of
and be binding upon the parties, the successors and assigns of the Corporation
and to the heirs, executors and administrators of the
Executive.
IN
WITNESS WHEREOF the parties here have caused this Agreement to be executed
and
delivered as of the date first above written.
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SIGNED,
SEALED AND DELIVERED
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in
the presence of:
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| ______________________________ |
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/s/
Xxxxxxxxxxx Xxxxx
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(Witness)
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)
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Xxxxxxxxxxx
Xxxxx
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ENHANCE
SKIN PRODUCTS, INC.
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Per:
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/s/
Xxxxxx Xxxxxxx
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Name:
Xxxxxx Xxxxxxx, Ph.D.
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Title:
President and Chief Executive
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Officer
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