EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 7th day of August, 2006.
BETWEEN:
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇
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(Hereinafter referred to as the "Employee")
- And -
Manaris Corporation,
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Herein represented by ▇▇▇▇ ▇▇▇▇▇▇, duly authorized;
(Hereinafter referred to as the "Company")
WHEREAS the Employer wishes to employ the Employee in accordance with the
by-laws of the Employer;
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:
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;
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"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 7th day of August, 2006
"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 ▇▇▇▇, trade name, trade secret, logo, etc.,
or any application thereof in any part of the world;
"Notice" has the meaning set out in clause 13.
"Period of Employment" has the meaning set out in clause 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
2. EMPLOYMENT
A. The Company hereby agrees to employ the Employee as a Controller 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 by the
President and Chief Executive Officer of the Company, Mr. ▇▇▇▇ ▇▇▇▇▇▇, or such
other committee or Person to whom it may have delegated such powers. The
Employee agrees to perform his assigned duties.
B. The Employee shall, during the Period of Employment, use his best efforts
to promote and advance the business and interests of the Company. In carrying
out these duties and responsibilities, the Employee shall comply with all lawful
and reasonable instructions as may be given by the President and Chief Executive
Officer of the Company (or the Person so authorized by the Board).
C. 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.
D. 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
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E. 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 clause 2 paragraph 2 and clause 8 ("Period of Employment").
4. PROBATION
The parties hereto agree that the initial three (3) month period of this
agreement is "probationary" in the following respects:
1) The Employer shall have an opportunity to assess the performance,
attitude, skills and other employment-related attributes and
characteristics of the Employee
2) The Employee shall have an opportunity to learn about both the Employer
and the position of employment;
3) Either party may terminate the employment relationship at any time
during the initial three month period without advance notice or
justifiable reason, in which case there will be no continuing
obligations of the parties to each other, financial or otherwise.
5. SALARY
A. During the Period of Employment, the Company shall pay to the Employee, an
annual salary of Ninety five thousand dollars ($95,000.00 CAD) per annum. Salary
payments shall be made in accordance with the standard policies of the Company
in effect from time to time. It is the current policy of the Company to pay
salaries twice per month. All regular salary payments to the Employee shall be
net of government required remittances, as well as agreed remittances or
deductions for employee benefit or other similar programs. The Company shall be
responsible for making all such remittance payments to the government or other
authority.
B. Pursuant to the Company 2006 Non-Qualified Incentive Stock Option Plan,
the Employee shall be granted options to purchase 50,000 common shares of the
Company at a price of USD$ ______. The options shall have a term of 5 years from
the date of their grant and will be released to the Employee according to the
schedule below:
1) 12,500 options will become exercisable on November 7, 2006;
2) 12,500 options will become exercisable on February 7, 2007;
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3) 12,500 options will become exercisable on May 7, 2007;
4) 12,500 options will become exercisable on August 7, 2007;
Upon the exercise of the options, the underlying common shares of the Company
will be free of restrictions of any kind. It is understood that if the Employee
was to resign from his Employment, or if the Company was to terminate the
Employment pursuant to the provisions of clause 2 paragraph 2 and clause 7 of
this Agreement, the options that would have not been already released to the
Employee will be immediately cancelled.
6. VACATION
The employee will be entitled to a maximum of three (3) weeks to be available
upon the Employee's first year anniversary with the Company. Vacation shall be
scheduled with approval of the Chief Financial Officer.
7. EXPENSES
In addition to salary provided to the Employee in this Agreement, the Employee
shall be entitled during the Period of Employment to 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 employees. Any expenses shall have to be pre-approved by the Chief
Executive Officer of the Company prior to the Employee incurring the expense.
8. TERMINATION
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:
1) 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;
2) In the event of the death of the Employee
3) 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;
4) Upon the giving of Fifteen (15) days prior written notice of
termination; or
5) 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.
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If the Employee's employment is terminated pursuant to the provisions of
paragraph 8.1, 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.
9. NON-COMPETITION
A. The Employee acknowledges that as Controller 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.
B. 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, 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.
C. The Employee acknowledges that, by reason of his employment as Controller
of the Company, 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 clause 9
are fair and reasonable.
10. CONFIDENTIALITY
A. 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 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.
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B. 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.
C. 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.
11. NON-SOLICITATION
A. 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:
1) 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,
2) 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
3) approach or attempt to solicit any of the sponsors, customers, or
persons, firms or corporations that do business with the Company, or
its subsidiaries.
12. ENFORCEABILITY
A. 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.
B. 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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C. 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.
13. 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 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.
14. INDEPENDENT LEGAL ADVICE
The Employee acknowledges that he has sought and obtained independent legal
advice prior to executing this Agreement.
15. GENERAL PROVISIONS
A. 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.
B. Languages: Les parties ont mutuellement convenues ▇▇ ▇▇▇▇▇▇▇ la presente
entente en anglais. The parties have mutually agreed to draft the Agreement in
English.
C. Entire Agreement: This Agreement and the terms hereof constitute the
entire agreement between the parties and supersede 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.
D. 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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E. 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.
F. Inurnment: The provisions of this Agreement shall inure 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:
/s/ ▇▇▇▇ ▇▇▇▇▇▇
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Witness ▇▇▇▇ ▇▇▇▇▇▇, President & CEO
Manaris Corporation
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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