EMPLOYMENT AGREEMENT
THIS AGREEMENT made as at the 1st day of March, 2001.
B E T W E E N:
XXXXX X. XXXXXXXXX, an individual residing at 0000 Xxxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxx, X0X 0X0
(hereinafter referred to as the "Employee")
OF THE FIRST PART;
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THINKPATH INC.,
a corporation incorporated under the laws of the
Province of Ontario and having its head office at
000-00 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, X0X
0X0
(hereinafter referred to as the "Employer")
OF THE SECOND PART;
WHEREAS the Employee is presently employed by the Employer in a
position of confidence and trust under conditions where she has or may have
access to technical, confidential and secret information regarding the existing
or contemplated business of the Employer;
AND WHEREAS the Employee recognizes that as part of the duties of her
employment, all ideas and suggestions of interest to the Employer conceived or
made by her while she is employed by the Employer shall be made available to the
Employer;
AND WHEREAS the Employer is associated as subsidiary, affiliate,
associate or parent with corporations and unincorporated business enterprises,
the number of which varies from time to time, but all of which during the
pertinent times have common business interests either through ownership or
agreement (hereinafter all of such corporations and incorporated business
enterprises are referred to collective as the "Employer");
AND WHEREAS the Employer is desirous of employing the Employee to
provide services as an executive with a job title and description as set forth
below, in connection with the business carried on by the Employer, consisting
principally of the provision, online or otherwise, of training, staffing and
related consulting services, specializing in the Information Technology field,
including certain other business activities relating thereto (the "Business");
AND WHEREAS during the course of the Employee's employment with the
Employer, the Employee will be introduced to, have contact with, and her
services may be solicited by, one or more of the clients of or suppliers of the
Employer;
AND WHEREAS the Employee may be trained by the Employer to perform
services in connection with the Business and through such training the Employee
will acquire knowledge, experience and expertise, as well as detailed knowledge
of the Employer's confidential customer and supplier lists and information,
marketing techniques, price lists, trade secrets and other property which is and
shall be the property of the Employer, and the disclosure, loss or, unauthorized
use of which would be substantially harm the Business;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
respective covenants and agreements of the parties contained herein, the sum of
one dollar paid by each party hereto each of the other parties hereto and other
good and valuable consideration (the receipt and sufficiency of which hereby
acknowledged by each of the parties hereto), it is agreed as follows:
ARTICLE ONE - AGREEMENT
1.1 TERMINATION OF PRIOR AGREEMENTS. Notwithstanding the fact that the Employee
has been employed by the Employer since its inception, June 1, 1995, this
Employment Agreement, from and after the date hereof, supersedes and takes the
place of any other contracts of the same nature heretofore existing between the
parties hereto.
ARTICLE TWO - EMPLOYMENT
2.1 EMPLOYMENT. Subject to the terms and conditions herein, the Employer agrees
to employ the Employee and the Employee agrees to be employed by the Employer in
its Business and will have the title of Chief Financial Officer.
2.2 CONFORM WITH DIRECTIONS AND POLICIES. During her employment with the
Employer, the Employee shall in all respects conform to and comply with the
directions and policies of the Employer, perform each of the duties assigned
from time to time by the Employer to the best skill and ability, faithfully and
diligently serve the Employer, use her best efforts to promote the interests and
reputation of the Employer and devote her full working time, attention and
energies to the Business of the Employer. For the purposes of this Agreement,
the Employer shall speak and act through its C.E.O. to whom she shall report and
be responsible.
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2.3 TERMINATION OF EMPLOYMENT. The Employee's employment may be
terminated:
(a) by the Employer,
(i) for just cause at any time by the Employer
without notice and without any payment in lieu of
notice. The effective date of termination may be
the date that such cause occurred. "Just Cause"
includes, without limitation, any misconduct by
the Employee, any wilful breach or non-observance
by her of any of the conditions or obligations of
this agreement, any neglect or refusal by her to
carry out any of her duties hereunder, any
negligent performance of such duties, any
insubordinate or insulting behaviour towards the
Employer, its officers and clients; or
(ii) without cause, upon the payment equivalent to 12
months salary and a bonus of not less than 30% of
the said 12 months salary.
and the Employee hereby waives any claim to further notice or compensation and
the Employee agrees that the foregoing notice period(s) are deemed conclusively
to be reasonable notice of termination.
(b) by the Employee, upon the Employee giving the Employer at least
thirty (30) days' written notice.
2.4 EMPLOYEE NOT TO ENGAGE IN OTHER EMPLOYMENT. The Employee agrees not to
engage or be interested, directly or indirectly, in any other business or
employment during the term of this employment, except with the specific
permission of the Employer, given in writing.
ARTICLE THREE - REMUNERATION AND BENEFITS
3.1 REMUNERATION. During the Employee's employment with the Employer the
Employee shall be entitled to receive an annual gross salary of one hundred and
fifty thousand Canadian dollars ($150,000), payable with such regularity as the
Employer deems appropriate.
3.2 NO RIGHT TO XXX. The Employee shall have no further right to xxx the
Employer for damages or additional wages or benefits other than as set out
herein.
3.3 ADJUSTMENT OF REMUNERATION. The Employer and the Employee may from time to
time, by mutual written agreement, adjust the amount of salary referred to in
Section 3.1 hereof without changing the interpretation of any of the other
provisions of this Agreement.
3.4 REDEFINITION OF EMPLOYMENT. The Employer may from time to time redefine the
job title, description, place of employment, functions and/or responsibilities
of the Employee without changing any of the rights or obligations of the parties
hereto.
3.5 REIMBURSEMENT OF EXPENSES. The Employee shall be reimbursed by the Employer
for all business and promotional expenses actually and properly incurred by the
Employee in connection with her duties under this Agreement in accordance with
the normal policy of the Employer. The reimbursement of expenses shall be
subject to the provision by the Employee to the Employer of receipts, statements
and vouchers to the satisfaction of the Employer. The Employer shall be entitled
to provide to the Employee a company credit card to facilitate the payment of
such expenses, and to be fully and promptly reimbursed by the Employee in the
event that she uses this credit card for non-Employer purposes.
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3.6 BENEFITS. The Employer shall make available to the Employee the benefits
that it, in its sole discretion, makes available to other Employees from time to
time. This shall include group insurance when available.
3.7 BONUS. In addition to the salary described in Paragraph 3.1 above, the
Employee shall be entitled to consideration for bonuses from time to time. The
Employee understands and agrees that the amount of such bonus, entitlement to
and payment of any bonuses is entirely within the sole and arbitrary discretion
of the Employer, save and except n the case of subparagraph 2.4(a)(ii).
3.8 CAR ALLOWANCE. The Employer shall provide the Employee with a company car,
the cost of operating which shall be borne by the Employer, subject to the
Employee's obligation to reimburse the Employer for any personal use thereof, as
provided by the INCOME TAX ACT or the Employer.
3.9 SHARES AND OPTIONS. The Employee currently holds approximately 52,000 common
shares of the Employer, plus options for a further 132,500 common shares, and is
entitled to participate in the Employer's stock option plan as it is detailed
from time to time.
3.10 NO PROVISION FOR TAXABLE BENEFIT. The Employer shall not be obliged to
reimburse or otherwise make allowance to the Employee in respect of any deemed
benefit or income for income tax purposes as a result of the provision to and
use by the Employee of any company car or other allowance or reimbursement
provided by the Employer.
ARTICLE FOUR - VACATION
4.1 VACATION ENTITLEMENT. The Employee shall be entitled to five (5) weeks of
vacation with pay at the end of each twelve-month period of employment of the
Employee, to be taken as per company policy and at a mutually convenient time.
ARTICLE FIVE - EMPLOYEE COVENANTS - NON-SOLICITATION
5.1 NON-SOLICITATION. During the Employee's employment with the Employer and for
a period of:
(a) One (1) year; or in the event that such time period is found
by any Court of competent jurisdiction to be unreasonable or
otherwise unenforceable,
(b) nine (9) months; or in the event that such time period is
found by any Court of competent jurisdiction to be
unreasonable or otherwise unenforceable,
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(c) six (6) months; or in the event that such time period is found
by any Court of competent jurisdiction to be unreasonable or
otherwise unenforceable,
(d) three (3) months;
following the termination of the Employee's employment with the Employer, the
Employee covenants and agrees not to solicit any employee, independent
contractor or other person working with the business of the employer or any
client of the employer as of the date of the employee's termination of
employment, away from working with or doing business with the employer.
ARTICLE SIX - EMPLOYEE COVENANTS
6.1 COVENANTS OF THE EMPLOYEE. The employee covenants both during and after
employment with the Employer as follows:
(a) that, except in fulfillment of her duties hereunder or any
other document or instrument approved by the Employer, she
shall not enter into any contract on behalf of, or in the name
of, the Employer, and shall not pledge the credit of the
Employer;
(b) that she shall not at any time be guilty of any act or conduct
causing or calculated to cause damage or discredit to the
reputation or business of the Employer;
(c) that she shall not at any time during her employment with the
Employer or after the termination thereof take any steps or
make any approach either directly or indirectly to any
employee of the Employer calculated to lead to such employee
leaving her or her employment;
(d) that as soon as notice of termination of employment has been
given by either party and or her employment with the Employer
shall terminate, whichever is the earlier, she shall deliver
up to the Employer all books, records, printouts, lists, notes
and other documents or copies thereof relating to the business
of the Employer which may be in her possession or directly
under her control;
(e) that she shall not at any time during and/or after employment
use for her own interest and shall not release directly or
indirectly to anyone any information concerning the Employer's
business practices, operations, procedures, policies, budget,
products, financial information, client names, suppliers,
etc., which the Employer shall deem confidential or against
its business interests; and
(f) the Employee further acknowledges that the information found
in the Employer's books, records, printouts, lists, notes, or
any other documents or copies thereof relating to the business
of the Employer is the exclusive property of the Employer and
can only be used for the benefit of the Employer.
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ARTICLE SEVEN - INCAPACITY
7.1 INCAPACITY OF EMPLOYEES. Notwithstanding any other provision in this
Agreement, where during the terms of this Agreement, the Employee by reason of
her mental or physical condition (an "Incapacity") is unable, in the sole
opinion of the Employer (acting reasonably), to perform her duties hereunder and
such Incapacity shall continue for a period of more than thirty (30) consecutive
days or forty (40) non-consecutive days within a twelve (12) month period, the
Employer shall hereafter have the right, on not less than fourteen (14) days'
written notice to the Employee, to terminate this Agreement and the Employee's
employment. In such case, the Employee shall have no claim for wages or damages
against the Employer, except for the payment of her full salary to the date of
termination.
ARTICLE EIGHT - GENERAL CONTRACT PROVISIONS
8.1 GOVERNING LAW. The terms of this Agreement are governed under the laws of
the Province of Ontario and as such it is considered a contract of employment.
8.2 NO RELATED PARTY DEALINGS. The Employee shall not be allowed to deal on
behalf of the Employer with any company in which she or her immediate family has
an undisclosed financial interest.
8.3 NOTICE. Any notice to be given by either party hereunder may be validly
given if sent by delivery or by registered mail, postage prepaid, addressed to
the other at the respective addresses set forth above, or as subsequently
notified in writing to the other party.
8.4 LANGUAGE. The parties acknowledge that they have required this agreement to
be drawn in the English language.
(Les parties reconnaissent qu'ils exige que la presente entente soit redigee en
langue anglais.)
8.5 SURVIVAL. The representations, warranties and covenants of the Employee
contained in this Agreement shall survive any termination of the Employee's
employment with the Employer.
8.6 DAMAGES. The Employee agrees that in the event of any breach of this
Agreement by the Employee damages will be an inadequate remedy and that the
Employer shall be entitled to make an application to a court of competent
jurisdiction for temporary and/or permanent injunctive relief against the
Employee, without the necessity of proving actual damage to the Employer.
8.7 SEVERABILITY. If any covenant or provision contained herein is determined to
be void, invalid or unenforceable in whole or in part for any reason whatsoever,
it shall not be deemed to affect or impair the validity or enforceability of any
other covenant or provisions hereof, and such unenforceable covenant or
provisions or part thereof shall be treated as severable from the remainder of
this Agreement.
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8.8 ENTIRE AGREEMENT. This Agreement and any schedules attached hereto
constitutes the whole of the agreement between the parties. There are no
collateral representations, agreements or conditions not specifically set forth
herein. The Employee acknowledges that any express representations not contained
in this Agreement, made negligently, innocently or otherwise to the Employee, by
the officers, directors, employees or agents of the Employer, whether acting
with actual or ostensible authority or otherwise, and whether such
representations are made prior to, on or subsequent to the date thereof, have
been, are or shall be so made without responsibility on the part of the
Employer, its officers, directors, employees or agents, for any tortious
liability, economic losses, non-pecuniary losses or other damages. The Employee
also further acknowledges and agrees that any representations that may by
implication arise as a result of the past, present or future interactions of the
Employer and the Employee, shall not attribute or import any tortious liability
to the Employer, its officers, directors, employees or agents, including without
limitation any such representation found in the Employer's Employee Handbook
from time to time.
8.9 AMENDMENTS. No modification, amendment or variation hereof shall be of
effect or binding upon the parties thereto unless agreed to in writing by each
of them and thereafter such modification, amendment or variation shall have the
same effect as if it had originally formed part of this Agreement.
8.10 ENUREMENT. This Agreement shall enure to the benefit of and be binding upon
the parties hereto and their respective legal personal representatives, heirs,
executors, administrators or successors.
8.11 ASSIGNMENT. This Agreement is personal to the Employee and may not be
assigned by the Employee.
8.12 WAIVER. No waiver by the parties hereto of any breach of any condition,
covenant or agreement hereof shall constitute a waiver of such condition,
covenant or agreement except in respect of the particular breach giving rise to
such waiver.
8.13 NO UNTRUTHS. The Employee represents and warrants that all information
provided to the Employer in any application form or during any interview for
employment or other negotiations was accurate and contained no untruths or
misinterpretations. The Employee agrees that the provision of any false or
misleading information on an application form or during any employment interview
are grounds for immediate dismissal of the Employee by the Employer without any
further compensation payable to the Employee.
8.14 EMPLOYEE'S ACKNOWLEDGMENT. The Employee acknowledges that she has read and
understands the foregoing and that the Employer has advised her that this
Agreement substantially alters and supersedes the Employee's rights at common
law. The Employee specifically acknowledges that the Employer has advised her to
seek independent legal advice prior to executing this Agreement.
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IN WITNESS WHEREOF the parties have duly executed this
Employment Agreement as at the date first set forth above.
SIGNED, SEALED AND DELIVERED )
in the presence of )
) /S/ XXXXX XXXXXXXXX
) --------------------------
Witness ) Xxxxx X. Xxxxxxxxx
)
) THINKPATH INC.
) per:
)
) /S/ DECLAN FRENCH
-----------------------------------
) Declan French
) I have the authority to bind the
Corporation.
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