EXHIBIT 10.7
DATED 11TH MARCH 1999
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BETWEEN:
TRADE WIND GROUP PTY LTD
("the Company")
AND:
XXXXXXXX XXXXXXX BIRD
(the "Employee")
EMPLOYMENT CONTRACT
XXXXXX XXXXXX
Corporate & Commercial Lawyers
Xxxxx 00, 00 Xxxxxxxxxxx Xxxxxx
XXXXXX XXX 0000
THIS DEED is made on 1999
BETWEEN: TRADEWIND GROUP PTY LTD. of 27th 'Floor, Grosvenor Place, 000 Xxxxxx
Xxxxxx, Xxxxxx XXX (the company")
AND: XXXXXXXX XXXXXXX BIRD of 0 Xxxxxx Xxxxxx, Xxxxxx XXX 0000
("Employee");
RECITALS:
A. The business of the Company is to provide voice and data communication
systems and broadcast fax services and to act as the holding company for
the Trade Wind group of companies ("the Group").
B. The Employee possesses certain expertise in connection with the business of
the Company.
C. The Company has agreed to engage the Employee as an employee to provide the
Services on the following terms and the Employee agrees to provide the
Services.
IT IS AGREED:
1. INTERPRETATION
(a) In this Deed:
"BOARDS" means the boards of directors of the Company, Trade Wind
Communications Limited and other parent companies from time to time;
"CONFIDENTIAL INFORMATION" means any confidential information in respect of
the Company's business and includes, but is not limited to, any document,
book, account, process, specification, drawing, design or know-how which:
(i) comes to the notice of the Employee in the course of the Employee's
employment; or
(ii) is generated by the Employee in the course of performing the
Employee's obligations;
"SALARY PACKAGE" means all forms of remuneration and employee benefits paid
or made available by the Company to or at the direction of the Employee
including, without limitation, all expenses, costs and mandatory
contributions to superannuation as agreed by the parties.
"SERVICES" means the services envisaged in Clause 2.3;
(b) In this Deed, unless the context requires otherwise:
(i) The singular includes, without limitation, the plural and vice versa.
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(ii) A reference to one gender includes, without limitation, a reference;
to all other genders.
(iii) Headings to Clauses are included for the sake of convenience only and
shall not affect the interpretation of the Clauses to which they
relate.
(iv) References to any statute or statutory provision include, without
limitation, that statute or statutory provision as amended, extended,
consolidated or replaced by subsequent legislation and any orders,
regulations, instruments or other subordinate legislation made under
the relevant statute.
(v) The word `person' includes, without limitation, a natural person, a
company, a firm or any other legal entity, whether acting as a trustee
or not.
(vi) All amounts are in Australian dollars.
(vii) This Deed shall bind each party's legal personal representatives,
successors and assigns.
2. EMPLOYMENT, DUTIES AND OBLIGATIONS
2.1 The Company engages the Employee as an employee to provide the Services on
an exclusive basis to the Company during the Term and the Employee agrees
to provide the Services on the terms set out in this Deed.
2.2 During the Term, the Employee shall:
(a) perform all of his duties as envisaged in Clause 2.3 promptly and
efficiently.
(b) observe and conform to all the laws and customs of the business
conducted by the Company in conducting and carrying out his duties and
conduct himself in a manner becoming of a person in his position.
(c) carry out his duties during the normal business hours of the Company
and faithfully and diligently attend to the business of the Company.
(d) keep and render to the Company true and just accounts of all services
and other business done by him in connection with the business of the
Company and of all monies he shall receive and immediately pay all
monies so received to the credit of the bank account of the Company
without any deductions.
2.3 The duties of the Employee shall be:
(a) to act as Managing Director of the Company reporting to the Boards
responsible for the overall performance of the company under direction
of the board]
(b) to preserve, protect and enhance the goodwill of the business carried
on by the Company and its subsidiaries;
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(c) to promote actively the products and services provided and distributed
by the; Company and its subsidiaries
(d) to liaise with the Board and other employees of the Company in
ensuring the orderly and profitable conduct of the business of the
Company and its subsidiaries;
(e) generally to do all things necessary to ensure that the Company meets
its board of directors approved business plans and objectives and that
the good reputation of the Group is maintained; and
(f) to provide and perform such other duties with a high level of
professional competence in connection with the business carried on by
the Group as the Boards may direct from time to time.
3. TERM
Provision of the Services by the Employee to the Company shall commence on the
date of this Agreement and shall continue for a period of 5 years (or until
terminated beforehand pursuant to the provisions of this Deed) and thereafter
until terminated by the Company or the Employee by not less than 2 months'
notice to the other expiring at any time (the initial period and any extension
being the "Term"). In the event that termination of the Deed is a direct result
of a takeover, merger or a major change of shareholder or board control referred
to in Clause 12.2, then the Company must pay the Employee not less than the
greater of:
(i) the equivalent of the Employee's Salary Package for the balance of the
Term; and
(ii) the equivalent of the Employee's Salary Package for the last 12 month
period of the Term,
as compensation instead of notice.
4. NO COMPETITION DURING THE TERM
4.1 The Employee shall not, during the Term, without the written permission of
the Company, be actively engaged or interested, directly or indirectly, in
any capacity whatsoever, in the conduct of activities under any contract of
or for services or employment other than in connection with the business
conducted by the Company.
4.2 Clause 4.1 in no way limits the ability of the Employee to hold any shares,
convertible notes, options to acquire shares or convertible notes or any
other securities in any company or to be the beneficiary of any trust which
holds any such securities in any company which may carry on business in
competition with the Company.
5. FAITHFUL SERVICE
During the Term, the Employee shall show the utmost good faith and shall devote
his whole time and attention to the business of the Company and shall use his
best endeavours to promote the interest and welfare of the Company and shall in
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all respects diligently obey and observe all lawful directions of the Company
and its Boards.
6. PAYMENT
6.1 By way of payment for the Services provided pursuant to this Deed, the
Company shall pay or procure the provision to the Employee of a Salary
Package comprising the components set out in the Schedule. The salary
component of this Salary Package shall be deemed to accrue from day to day
and shall be paid in installments on the 15th day of each month or as
otherwise agreed by the parties during the Term.
6.2 As part of the Salary Package the Company must:
(a) If applicable pay all reasonable insurance premiums (as salary
sacrifice) in respect of life, disability and accident insurance in
respect of the Employee with an insurer approved by the Company;
(b) make available to the Employee such other benefits as may be
determined by the Company and agreed by the Employee; and
(c) pay all required superannuation contributions.
6.3 In addition to the Salary Package the Company must pay such long service
entitlements to which the Employee is entitled in accordance with
applicable legislation.
6.4 The Salary Package of the Employee will be reviewed by the Board or its
nominee annually and the Salary Package will be varied in accordance with
that review.
7. EXPENSES
The Company will reimburse reasonable work related travelling and entertainment
expenses and other out-of-pocket expenses reasonably incurred by the Employee in
connection with the provision of the Services by the Employee.
8. PERIOD OF SERVICE EACH YEAR
8.1 In each year of the Term, the Employee shall be entitled to:
(a) annual leave of 20 working days which will accrue during the Term.
(b) sick leave of 10 working days which will not accrue during the Term.
8.2 The Employee must take annual leave at a period or periods agreed between
the Company and the Employee and, in the absence of agreement or statutory
requirements to the contrary, when directed by the Company on at least one
month's notice.
8.3 Subject to any statutory provision, the Company may require the Employee to
take any significant accrued leave entitlement when directed by the Company
on at least one month's notice.
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9. BONUSES
The Employee will be eligible to receive performance-based bonuses, if relevant
performance criteria determined by the Boards from time to time are achieved.
10. CONFIDENTIALITY
10.1 The Employee must:
(a) keep any Confidential Information secret and confidential, except to
the extent that the Employee is required by law to disclose;
(b) take all reasonable and necessary precautions to maintain the accuracy
and prevent the disclosure of any Confidential Information; and
(c) not disclose Confidential Information to any third party without first
obtaining the written consent of the Board except in the ordinary and
proper course of employment with the Company.
10.2 The Employee's obligations under this Part 10 survive the termination of
the Employee's employment with the Company.
11. TERMINATION
11.1 This Deed may be terminated at any time after the date 3 years from the
date of this Deed by either party giving not less than 6 months notice in
writing to the other.
11.2 The Company may immediately terminate this Deed upon giving written notice
to the Employee of such termination, on the happening of any one of the
following:
(a) the Employee becomes incapacitated by illness or injury and is unable
to perform his duties pursuant to this Deed for a period or periods in
excess of 20 weeks in any period of 12 months during the Term.
(b) the Employee becomes of unsound mind or a person whose person or
estate is liable to be dealt with under any law relating to mental
health.
11.3 If the Company wishes to terminate this agreement and notice is required to
be given under this part 11, the Company may at its option, in lieu of part
or all of the notice period, pay the Employee an amount equal to the
greater of
(a) the equivalent of the Employee's annual Salary Package for the balance
of the Term; and
(b) the equivalent of the Employee's annual Salary Package for the last 18
month period of the Term.
Any payment under this clause 11.3 constitutes full satisfaction and discharge
of the Company's obligations with respect to notice of termination.
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11.4 If on termination of this Deed the Employee is a director of the Company,
the Employee must resign as director of the Company. The Employee
irrevocably appoints any employee of the Company nominated by the Company,
as attorney to provide the Employee's resignation on behalf of the Employee
if the Employee refuses to resign upon termination of this agreement.
11.5 On termination of this Deed, the Employee must immediately return to the
Company all tangible property of the Company including, without limitation,
all documents and other material containing any Confidential Information,
all books, documents, papers, materials, credit cars, vehicles and keys
held by the Employee or under the Employee's controls;
12. POST-TERMINATION COMPETITION RESTRICTIONS
12.1 Subject to Clause 12.2, the Employee agrees that, for a period of 12 months
after the termination of this Deed, he will not:
(a) make public or divulge to any person, company or other legal entity
any trade secret, or any information concerning the business or
finances of the Company or any of its dealings, transactions or
affairs.
(b) solicit, canvass or in any way whatsoever seek the custom of or act
for directly or indirectly any of the customers or clients of the
Company, whether on behalf of the Employee or any other party.
(c) approach directly or indirectly any customer or client of the Company
to influence it to cease to carry on business with the Company or
otherwise to entice it away from the Company.
(d) approach directly or indirectly any employee or director of the
Company to influence him to cease employment with or resign his
directorship with the Company or otherwise entice or seek to entice
him away from the Company.
(e) do any act or thing whatsoever which may injure, impair or reduce or
be likely to injure, impair or reduce the business, goodwill or
reputation of the Company or its standing in the eyes of the public or
any of its customers or clients.
12.2 Clause 12.1 ceases to have effect on the earlier of:
(a) the date any person or group of persons associated with each other
becomes the beneficial owner, directly or indirectly, of more than 40%
of the total issued share capital of the Company or any holding
company of the Company
(b) the date any person or group of persons associated with each other who
are principally engaged in a business which is competitive with the
business carried on by the Group becomes the beneficial owner,
directly or indirectly, of more than [20%] of the issued share capital
of the Company or the holding company of the Company;
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(c) the date the Company or the holding company of the Company
consolidates with or merges with or into another person or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
potentially all of the assets of the Group to any person or any person
consolidates with or merges with or into the Company or the holding
company of the Company, in each case pursuant to a transaction in
which the issued share capital of the Company or the holding company
of the Company is converted into or exchanged for cash, securities or
other property; and
13. NOTICES
Service of any notice under or relating to this Deed shall be sufficiently
served:
(a) if delivered personally to the party to be served.
(b) if left at or sent by pre-paid registered post to:
(i) the address of the party to be served as set out in the description of
that party at the beginning of this Deed.
(ii) the last known place of abode or business of the party to be served.
(iii) the registered office of any party to be served which is a company.
and in the case of posting such notice shall be deemed to have been duly
served on the second day after such notice has been posted.
(c) if sent by facsimile transmission to the last known facsimile number of the
party to be served and shall be deemed to have been duly served at the time
such facsimile transmission is sent.
14. WHOLE AGREEMENT
The parties acknowledge that this Deed embodies the whole agreement between them
relating to the subject matter of this Deed and supersedes any and all oral and
written negotiations and communications by or on behalf of any of them. Each
party acknowledges that it has not, in entering into this Deed, relied on any
warranty, representation or statement, whether oral or written, made or
published by any other party or any person on behalf of any other party or
otherwise in connection with the subject matter of this Deed, except such as are
expressly provided in this Deed, and subject thereto has relied entirely upon
its own enquiries relating to the subject matter of this Deed. The parties agree
that, to the extent that each of them may exclude any warranties or conditions
which might otherwise be implied in connection with this Deed or the subject
matter of this Deed by any competent legislation, then each party expressly
excludes from application all such implied warranties and conditions.
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15. PROPER LAW
This Deed shall be governed by and construed pursuant to the laws of the State
of New South Wales and the parties agree to submit to the jurisdiction of the
Courts of the State of New South Wales in connection with any dispute relating
to this Deed.
16. SEVERABILITY
Any provision of this Deed which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions of this Deed or affecting the validity or enforceability of such
provisions in any other jurisdiction.
EXECUTED as a Deed.
COMMON SEAL of )
TRADE WIND GROUP PTY LTD. ) [Seal of company]
was affixed to this document )
in the presence of: )
/s/ X. Xxxx /s/ Xxxxx Xxxxxxxx
---------------------------------- ----------------------------------
Director/Secretary Director
Xxxxx Xxxx Xxxxx Xxxxxxxx
---------------------------------- ----------------------------------
Name (please print) Name (please print)
SIGNED SEALED & DELIVERED )
by XXXXXXXX XXXXXXX BIRD )
in the presence of: ) /s/ N. R. Bird
----------------------------------
Xxxxxxxx Xxxxxxx Bird
/s/ X. Xxxxxx
----------------------------------
Witness
Xxxxxx Xxxxxx
----------------------------------
Print Name
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SCHEDULE
la OPTIONS (A)
Options that have been previously issued in the capital of Trade Wind
Communications Limited (329,989 options exercisable at C$1.25) that will be
rolled over to a US company (currently planned to be Xxxxx Ventures Inc.)
as 209,620 options (calculated as 329,989 / 1,385.321 x 880,000) with an
exercise price of C$1.99. Issuance of these options in the US company is
subject to regulatory approval.
lb OPTIONS (B)
Options to acquire 400,000 ordinary shares in the capital of
Xxxxxxxxxxxxxx.xxx Inc. (previously Xxxxx Ventures Inc) at an exercise
price of C$1.99. Issuance of these options is subject to regulatory
approval.
lc OPTION NON-DILUTION
All options (both 1 a & 1 b above), will be protected from dilution caused
by the issuance of additional share capital of Trade Wind Communications
Limited or the US company (currently planned to be Xxxxx Ventures Inc.), as
applicable. Accordingly, the number of options granted shall represent
4.55% (calculated as (209.620 + 400,000 / (10,900,000 + 2,500,000)) of
fully-diluted share capital, less options exercised.
2. SALARY
A total package of A$197,027 excluding the other benefits listed below
which will be paid for by the company. This will be reviewed each year with
a guaranteed minimum 5% increase at the beginning of each financial year.
3 OTHER BENEFITS
1. Compulsory Superannuation as determined by Australian Federal
Government
2. Life and disability insurance on the life of Xxxx Xxxx with the
insurance proceeds being owned by Xxx. X X Xxxx
3. Any bonuses that may be determined by the board from time to time
4. Financial tax advice as long as this is done by the company
auditors or financial consultants.
5. The provision of a fully maintained (the company pays all lease,
maintenance, fuel & parking costs.) suitable company vehicle or a
mutually agreed allowance in lieu
6. The provisioning and costs of a telephone line, fax line &
security to the employees residence including cost of calls.
4 The company will ensure the payment of premiums for reasonable directors
and officers insurance is maintained by the company on behalf of the
Employee for the term and a minimum period of seven years after expiry of
the term.
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