EXHIBIT 4.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 1st day of February, 2001.
B E T W E E N :
XXXXXX XXXXXX, businessman, residing at Quebec;
(hereinafter referred to as the "Employee")
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EQUILAR CAPITAL CORPORATION, a corporation
incorporated under the laws of the Province
of Ontario;
(hereinafter referred to as the "Company")
WHEREAS the Employee is a shareholder of Credit Chip Corporation ("C-Chip"), all
of the shares of which are being acquired by the Company pursuant to the terms
of a Share Exchange Agreement ("SEAgreement") dated the 31st day of January,
2001;
AND WHEREAS it is a condition precedent to the completion of the SEAgreement
that all of the right, title and interest of the Employee in and to the
Intellectual Property, patents, trademarks, copyrights, etc., past, present and
future, relating to the "credit chip" (the "C-Chip Technology") be assigned to
C-Chip, which is to become a wholly owned subsidiary of the Company under the
terms of the SEAgreement;
AND WHEREAS it is a term of the SEAgreement that the Employee enter into this
Employment Agreement (the "Agreement"); and it is acknowledged by the Employee
that primary consideration for the execution and delivery of this Agreement by
the Company is the exchange of shares and warrants in the capital stock of the
Company for the Employee's shares and warrants in C-Chip, under the SEAgreement,
and the full assignment and release by the Employee of all interest in the
Intellectual Property and the C-Chip Technology;
AND WHEREAS the parties hereto desire to set out the understanding reached
between them in a written agreement;
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the mutual
covenants and agreements herein contained, and for other good and valuable
consideration (the receipt and sufficiency whereof is hereby acknowledged), the
parties hereto hereby agree with each other as follows:
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1. DEFINED TERMS
Where used herein, except where the context otherwise requires, the following
terms shall have the meanings ascribed hereunder:
"AGREEMENT" means this employment agreement, and all extensions, modifications
and amendments hereto;
"BUSINESS DAY" means a day other than a Saturday, Sunday or other day on which
the principal Canadian Chartered banks are not generally open for business in
the City of Montreal;
"CONFIDENTIAL INFORMATION" includes information known or used by the Company in
connection with its activities, operation and business, including but not
limited to, any formula, design, prototype, compilation of information, data,
program, code, method, technique or process, information relating to any
product, device, equipment or machine, information about or relating to the
Company's customers (their names, addresses or requirements), the Company's
markets and marketing plans, past, present and future, information about or
relating to the Company's past, present or potential business ventures,
financial information of all kinds relating to the Company and its activities,
all Intellectual Property, inventions, ideas, and related material, but does not
include any of the foregoing which is or becomes a matter of general public
knowledge.
"DOLLARS" means the lawful money of Canada;
"EFFECTIVE DATE" means the 1st day of February, 2001;
"INTELLECTUAL PROPERTY" means all of the right, title and interest whatsoever,
whether registered or not, in and to any patents, trademarks, copyrights,
know-how, industrial design, trade xxxx, trade name, trade secret, logo, etc.,
or any application thereof in any part of the world;
"NOTICE" has the meaning set out in paragraph 14.
"PERIOD OF EMPLOYMENT" has the meaning set out in paragraph 3.
"PERSON" means an individual, partnership, joint venture, association,
corporation, legal person, trust, or a government or any department or agency
thereof or any other entity however designated or constituted; and
"WORK PRODUCT" has the meaning attributed to such term in paragraph 8.1.
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2. EMPLOYMENT
.1 The Company hereby agrees to employ the Employee as Vice-President of the
Company, and the Employee hereby accepts such offer of employment and agrees to
serve in such capacity, subject to the reasonable direction and control of the
Board of Directors of the Company, or such other committee or Person to whom it
may have delegated such powers. The Employee agrees to perform his assigned
duties, which duties shall include all functions of a person holding such a
position.
.2 It is agreed that the Employee shall remain based in Montreal. It is
acknowledged that there may be a substantial amount of travel, including stays
outside of the City of Montreal, required as part of the Employee's function
with the Company.
.3 The Employee shall, during the Period of Employment, use his best efforts to
promote and advance the business and interest of the Company and shall devote
his full time and attention to the business and affairs of the Company and to
the discharge, to the best of his ability and experience, of all duties and
responsibilities reasonably required of him hereunder. In carrying out these
duties and responsibilities, the Employee shall comply with all lawful and
reasonable instructions as may be given by the Board (or the Person so
authorized by the Board).
.4 The Employee acknowledges and agrees that the effective performance of the
Employee's duties requires the highest level of integrity and the Company's
complete confidence in the Employee's relationship with other personnel of the
Company and with all persons dealt with by the Employee in the course of
employment.
.5 The parties acknowledge and agree that the employment relationship will be
governed by the standards and terms of the Company's policies, as they are
established from time to time, and they agree to comply with the rules,
regulations, directions and policies that have or may hereafter be established
by the Company so long as they are not inconsistent with any provisions of this
Agreement.
.6 The Employee shall not permit any conflict of interest to exist in such
manner that the best interests of the Company shall be prejudiced in any way.
3. PERIOD OF EMPLOYMENT
This Agreement shall commence at the Effective Date and shall continue for an
indefinite period of time, subject to the termination of this Agreement pursuant
to the provisions of paragraph 9. ("Period of Employment").
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4. SALARY
.1 During the Period of Employment, the Company shall pay to the Employee, an
annual salary of one hundred and twenty-four thousand, eight hundred Dollars
($124,800.00) per annum. Salary payments shall be made in accordance with the
standard policies of the Company in effect from time to time. It is the current
policy of the Company to pay salaries twice per month. All regular salary
payments to the Employee shall be net of government required remittances, as
well as agreed remittances or deductions for employee benefit or other similar
programs. The Company shall be responsible for making all such remittance
payments to the government or other authority.
.2 The Company shall review annually the salary payable to the Employee and
such salary shall be increased annually in accordance with the Employee's
performance and with salaries payable ON THE MARKET to employees holding similar
positions and responsibilities to that held by the Employee. The foregoing shall
be subject to the Company's performance and its ability to pay.
5. EXPENSES
In addition to salary provided to the Employee in this Agreement, the Employee
shall be entitled during the Period of Employment to:
.1 a monthly allowance of a maximum of seven hundred Dollars ($700.00) for the
use of a motor vehicle and, in addition to such allowance, all maintenance and
operating costs relating to such motor vehicle;
.2 the reimbursement of all reasonable business, travel and promotional
expenses incurred in the course of his employment, provided that evidence of
such expense is provided to the Company and such expenses are within the
reasonable expense polices of the Company for senior management employees; and
.3 the use, at the expense of the Company, of a personal computer, high speed,
internet link for work at his home office and a cellular phone.
6. PAID VACATION
The Employee shall be entitled to reasonable paid vacation, not to be less than
three (3) weeks per year, at such times, upon such terms and subject to such
conditions as may be reasonable and are consistent with the Company's vacation
policies for senior management.
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7. EMPLOYEE BENEFIT PROGRAMS
The Company undertakes to put into place, within twelve (12) months of the
Effective Date, the following Employee Benefit Programs and thereafter, during
the Period of Employment, the Employee shall have the right to participate in
such employee benefit programs, in accordance with their terms:
.1 a dental, disability insurance and life insurance plan; and
.2 a pension fund or collective registered retirement savings plan under which
the Company shall contribute an amount equal to the Employee's contribution,
subject to relevant government regulation.
8. OWNERSHIP OF INTELLECTUAL PROPERTY
.1 The Employee hereby expressly and irrevocably assigns, transfers and agrees
to assign and transfer to the Company all rights, including without limitation,
all rights to the Intellectual Property, in and relating to any work, computer
software, inventions, discoveries, developments, improvements and ideas (the
"Work Product") created made or designed by him during the Period of Employment,
whether alone or in conjunction with other Persons, if such Work Product results
from or arises out of any work performed by or opportunities accruing to the
Employee on behalf of the Company or arising out his work with the Company or
connected to any matter relating to any business in which the Company is
involved. Also included are all rights relating to the C-Chip Technology,
whether developed before or during the Period of Employment, by the Employee
whether assigned to C-Chip or not.
.2 The parties agree that all Work Product shall, from its inception, be the
property of the Company and the Company shall be the owner thereof without any
further act or documentation. The Employee agrees to confirm such ownership in
writing and to execute any assignments or other documentation, as reasonably
requested by the Company from time to time.
.3 At any time during the Period of Employment, or after the termination hereof,
the Employee shall:
.01 sign, acknowledge and deliver, at the Company's expense, but
without any other compensation, excepting a reasonable sum for time
actually spent by him if he is no longer in the Company's employ, any
working notes or other documents, including applications for
Intellectual Property rights and for assignment of all interest related
thereto or to the Work Product, or the C-Chip Technology, required to
enable the Company to publish or protect the Work Product or the C-Chip
Technology, whether by patent, or otherwise; and
.02 give any other assurance as the Company reasonably may require
with respect to any proceeding or litigation before any authority
relating to the Work Product or the C-Chip Technology, at the Company's
expense, but without any other compensation excepting a reasonable sum
for the actual time that he devotes thereto, if he is no longer
employed by the Company.
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9. TERMINATION
.1 The Company shall have the right to terminate the employment of the
Employee, upon written notice, without being bound to pay any indemnity
or severance whatsoever, in the following cases:
.01 if the Employee becomes physically or mentally disabled to an
extent as to make him unable to perform his duties hereunder normally
and adequately for a period of three (3) consecutive months or for a
period of six months in any twelve month period;
.02 in the event of the death of the Employee
.03 in the event of fraud, theft, gross negligence or misconduct of a
criminal or quasi criminal nature, involving matters which would
directly affect the reputation or business and affairs of the Company,
on the part of the Employee which would normally constitute cause for
dismissal;
.04 in the event the Employee takes any action which threatens the
Company's right title or interest in the Intellectual Property or the
C-Chip Technology; or
.05 if the Employee fails to comply with any of the provisions of this
Agreement and such default is not cured within thirty (30) days
following receipt of written notice from the Company, provided that if
such default is material and reoccurring no further notice shall be
required.
If the Employee's employment is terminated pursuant to the provisions of
paragraph 9.1, the Employee shall not be entitled to receive any remuneration or
other payment under this Agreement other than accrued and unpaid salary and
general benefits pro-rated to the effective date of termination.
If an event of default occurs, the Company shall have, in addition to any other
remedies which the Company may have in accordance with this Agreement or at law,
the right to enforce the provisions of this Agreement by way of injunction in
order to enjoin any breach or threatened breach of any of the terms of this
Agreement.
.2 If the Company terminates the employment of the Employee for any reason other
than those set out in paragraph 9.1 above, the Company shall pay to the Employee
a one time severance of two hundred and fifty thousand Dollars ($250,000.00), in
full satisfaction of all claims, for damages or otherwise, that the Employee may
have in respect of his employment by the Company or any associated or affiliated
Person. The Employee acknowledges that the notice periods, or payment in lieu
provided for herein, are fair and reasonable, given all the circumstances.
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10. NON-COMPETITION
.1 The Employee acknowledges that as Vice-President of the Company, he will
gain knowledge of, and a close working relationship with the Company's
customers, which would injure the Company if made available to a competitor or
used for competitive purposes. He further acknowledges that the execution and
delivery of this Agreement is a condition of the acquisition of all of the
shares and warrants of C-Chip by the Company under the SEAgreement, and that the
C-Chip Technology, the goodwill of C-Chip, and the ongoing Intellectual
Property, Work Product and goodwill of the Company are important elements of the
value of such securities. The Employee is a vendor of securities under the
SEAgreement.
.2 At any time while the Employee remains in the employ of the Company, and
where his employment is terminated, then at any time during a period of twelve
(12) months following the date of such termination (unless such termination is
made without cause and the Company has failed to pay or make reasonable
provisions for the payment of the monies contemplated in paragraph 9.2), the
Employee shall not, unless with the prior written consent of the Company, either
individually or in partnership or jointly or otherwise in conjunction with any
person or persons, and whether as principal, agent, manager shareholder,
creditor, officer, director or sales representative for any person, firm,
association, organization, syndicate, company or corporation or in any other
manner whatsoever:
(i) carry on, or
(ii) advise, assist, lend money to, guarantee the debts or other
obligations of or permit his name or any part thereof to be
used or employed by any person carrying on,
any business which is competitive with the existing or proposed
business or interests of the Company.
.3 The Employee acknowledges that, by reason of his employment as
Vice-President, he will have access to proprietary information relating to
strategic planning, client lists, supplier lists, specialized computer software
applications and other important proprietary information acquired by the
Company, and for this reason acknowledges and agrees that the terms of this
paragraph 10 are fair and reasonable.
11. CONFIDENTIALITY
.1 The Employee acknowledges that he has received and will receive Confidential
Information in the course of his employment. The Employee acknowledges that the
disclosure of such Confidential Information could be prejudicial to the Company
and contrary to its interests. Accordingly, the Employee agrees that, during the
Period of Employment and at any time thereafter, he shall keep secret and
confidential and shall not, directly or indirectly, in any manner whatsoever,
disclose, communicate or divulge to any Person, nor use for the benefit of
himself or any Person other than the Company, any Confidential Information,
except (I) information which is permitted to be disclosed by the Company (II)
information which at any time of disclosure is readily available to trade or the
public, (III) information which after disclosure becomes readily available to
the trade or the public other than through a breach of this agreement, (IV)
information which has subsequently lawfully and in good faith
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obtained by the Employee from an independent third party without breach of this
agreement, (V) information which was in the possession of the Employee prior to
the disclosure, or (VI) information which is required to be disclosed by law or
by a valid order of a court of competent jurisdiction.
.2 The Employee agrees that he will deliver to the Company, at any time, upon
request, all documents, files, lists, samples and other information and property
belonging to the Company or relating to the business and copies thereof in his
possession or under his control.
.3 The Employee undertakes to keep the terms of this Agreement confidential
except where disclosure thereof is made in normal circumstances (e.g.
application for bank loan, credit card) or is required by law.
12. NON-SOLICITATION
.1 The Employee agrees that during the Period of Employment, and until the
first anniversary of the termination with the Company (whether by reason of the
Company terminating his employment or otherwise), he shall not directly or
indirectly:
.01 attempt to solicit, entice away, engage or employ any person
employed by or who contracts for the provision of services to the
Company, or any of its subsidiaries, at the date of termination or
during the three (3) months immediately prior to termination,
.02 be involved in the procurement of such a person to be engaged or
employed by any other business which competes in a material way with
any business carried on by the Company at the date of termination, or
.03 approach or attempt to solicit any of the sponsors, customers, or
persons, firms or corporations that do business with the Company, or
its subsidiaries.
13. ENFORCEABILITY
.1 The Employee has carefully considered the nature and extent of the
restrictive covenants set forth herein and agrees that the same are: I)
reasonable, including with respect to duration, scope of activity and
geographical area; II) are necessary to protect the legitimate interests of the
Company; and III) do not prevent him from reasonably earning his living. The
Employee hereby acknowledges that all restrictions herein contained are
reasonable and valid and all defenses to the strict enforcement of all or any
portion thereof are hereby waived. The Company may apply for or have an
injunction restraining breach or threatened breach of the covenants herein.
.2 In the event that a court of competent jurisdiction should conclude that any
of these covenants herein contained shall be unreasonable, by reason of the
area, duration or type or scope of service covered by the said covenant, then
the said court shall have the power and duty to modify such covenant and give
effect to it in such reduced form as may be decided by such court.
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.3 In the event that any provision of this Agreement shall be determined to be
unenforceable, by a court of competent jurisdiction, the parties agree that the
invalidity or unenforceability of such provision shall not affect the legality,
validity or enforceability of either the Agreement, in whole, or any other
clause or provision hereof. Such provision shall be deemed to be deleted and the
Agreement, and every other provision hereof, shall remain in full force and
effect and the interpreted as if such offending provision was not included, all
necessary amendments to this Agreement to be made MUTATIS MUTANDI.
14. NOTICE
Any notice which shall or may be given in accordance with the terms of this
Agreement shall be in writing, in the English language and hand-delivered or
mailed by prepaid registered and regular mail or by receipted facsimile. Notice
hereunder shall be addressed to the Company at its head office in Montreal and
to the Employee at his last residence address maintained in the Company's
records. Notice shall be deemed to be received by the party on the date that it
is hand-delivered or transmitted to the party (provided that if such day is not
a Business Day it shall be deemed to arrive on the next Business Day), or on the
fifth (5th) Business Day following mailing of such notice as set out above.
15. INDEPENDENT LEGAL ADVICE
The Employee acknowledges that he has sought and obtained independent legal
advice prior to executing this Agreement.
16. GENERAL PROVISIONS
.1 GOVERNING LAW: This Agreement shall be governed by and construed in
accordance with the laws of the Province of Quebec and Canada and the parties
agree to attorn to the jurisdiction of the Courts therein.
.2 ENTIRE AGREEMENT: This Agreement and the terms hereof constitute the entire
agreement between the parties and supersedes all prior, oral or written
understandings, agreements or contracts, formal or informal, between the parties
hereto with respect to the subject matter of this Agreement. No modification,
alteration or waiver of the terms of this Agreement shall be binding unless the
same shall be in writing dated subsequent to the date of this Agreement and
duly-executed by each of the parties hereto. The Agreement's execution has not
been induced by, nor do the parties rely upon or regard as material, any
representations or writings whatsoever not incorporated herein.
.3 NON-WAIVER: Failure by the Company to enforce any provision of this
Agreement, or a waiver by the Company of the exercise of its rights upon the
occurrence of any event of default, shall not operate or be construed as a
waiver of any continuing or subsequent breach of this Agreement by the Employee.
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.4 NON-ASSIGNMENT: This Agreement shall be a personal services contract and, as
a consequence, not assignable, in whole in part, by the Employee without the
prior written consent of the Company, which consent may be unreasonably
withheld.
.5 ENUREMENT: The provisions of this Agreement shall enure to the benefit of
and be binding upon the heirs, executors, administrators and personal
representatives of the Employee and the successors and assigns of the Company.
IN WITNESS WHEREOF the parties have duly executed this Agreement as of the day
and date first above written
SIGNED, SEALED AND DELIVERED in the presence of:
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Witness ) Xxxxxx Xxxxxx
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) EQUILAR CAPITAL CORPORATION
)
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) Per:----------------------------------
) A.S.O.
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