Exhibit 10.17.1
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Chief Executive Officer
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Dear ▇▇▇▇:
RE: AMENDED AND RESTATED EMPLOYMENT AGREEMENT
In consideration of the premises and mutual covenants contained herein and for
other good and valuable consideration, the full receipt and sufficiency of which
is hereby acknowledged, it is agreed as follows:
AMENDMENT TO ORIGINAL AGREEMENT. This agreement (referred to herein as the
"Agreement") amends, confirms and restates the terms of your original employment
agreement with 724 dated April 13, 1998 ("Commencement Date"), pursuant to which
724 agreed to employ you as Chairman and Chief Executive Officer and pursuant to
which you accepted such employment.
DUTIES. So long as you are employed by 724:
(a) you will devote your full time and energy to the business and affairs of
724, well and faithfully serve 724, and use your best efforts, skills and
abilities to promote the interests of 724;
(b) you will be Chairman of the Board of Directors and Chief Executive Officer
of 724 and shall report to the Board of Directors in accordance with the
provisions, relating to your employment as such, of the unanimous
shareholders' agreement between 724 and its shareholders dated August 2,
1999 (the "Shareholders' Agreement").
(c) you will abide by any 724 policies that the Board of Directors of 724 may
establish or amend having general application to 724's staff and
management; and
(d) you acknowledge that the hours of work involved will vary and be irregular
and are those hours required to meet the objectives of 724 and you
acknowledge that this paragraph constitutes an agreement to work such hours
where such agreement is required by applicable legislation.
COMPENSATION AND BENEFITS. Your compensation and benefits are listed in Schedule
"A" attached hereto and forming part of this agreement. For greater certainty,
the monthly salary set out in Schedule "A" represents a 5% increase from the
annual salary payable to you prior to the date hereof. Your compensation will be
payable bi-weekly and will be subject to such periodic review as may be deemed
appropriate by 724 from time to time.
OWNERSHIP OF WORK. You expressly acknowledge that 724 shall have all proprietary
rights and intellectual property interests, including, without limitation, all
patent rights, trademark rights, copyrights, mask work rights, moral rights,
throughout the world (collectively, "Proprietary Rights") in connection with any
Proprietary Information (as defined below) of 724.
"Proprietary Information" means all information and/or technology that you
conceive of, create, discover, invent or develop (solely or jointly with others,
whether or not such others are employees or consultants of 724), during your
employment by 724 and as part of the service that you provide to 724 hereunder,
if it:
(a) relates in any manner to the actual business, research or development of
724 (or its subsidiaries, affiliates, partnerships and joint ventures); or
(b) relates in any manner to the reasonably anticipated business, research or
development of 724 (or its subsidiaries, affiliates, partnerships and joint
ventures); or
(c) is suggested by or results from matters with which you are aware as a
result of your employment with 724; or
(d) is suggested by or results from any task assigned to you or work performed
by you for or on behalf of 724 (or its subsidiaries, affiliates,
partnerships and joint ventures);
For greater certainty, Proprietary Rights include all proprietary rights and
intellectual property interests in any modifications, enhancements, and
improvements made to Proprietary Information which are conceived of, created,
discovered, invented or developed by you and which are subject to the
Pre-existing Proprietary Rights (as such term is defined below).
By way of example and without limitation, Proprietary Information includes (I)
discoveries, inventions (whether patentable or not), mask works, trade secrets,
algorithms, ideas, designs, techniques, processes or methods, formulas, and
other know-how, and (ii) works of authoriship (whether published or
unpublished), including, but not limited to, computer programs, files,
applications, development tools, source code, object code, data programs, and
other software, creative works, writings, drawings, designs, photographic or
other renderings.
You hereby assign fully to 724 any and all rights, title and interest that you
may have in the Proprietary Information to date or will later do so, whether or
not such Proprietary Information is capable of intellectual property protection,
and agree to sign appropriate documentation as requested by 724 to confirm such
ownership. You also agree, in connection with any Proprietary Information, to
promptly disclose them to 724 or its designee as appropriate, promptly execute a
specific assignment of title to 724 or its designee, and do anything else
reasonably necessary to enable 724 or its designee to secure patent, copyright
or other forms of protection for the Proprietary Information in Canada, the
United States, and in all other countries, at 724's expense. To that end you
will execute, verify, and deliver such documents and perform such other acts
(including appearances as a witness) as 724 may reasonably request in connection
with applying for, obtaining, perfecting, evidencing, sustaining, and enforcing
such Proprietary Rights and the assignment thereof.
In addition, you will execute, verify, and deliver assignments of such
Proprietary Rights to 724 or its designee when requested. Your obligation to
assist 74 with respect to Proprietary Rights relating to Proprietary Information
in any and all countries shall continue beyond the termination of your
employment by 724, but 724 shall compensate you at a reasonable rate, after your
termination for the time actually spent by you at 724's request on such
assistance. In the event that 724 is unable for any reason, after reasonable
effort, to secure from you your signature on any document needed in connection
with the actions specified in this paragraph, you hereby irrevocably designate
and appoint 724 and its duly authorized officers and agents as your agent and
attorney in fact, to act for and, in your behalf, to execute, verify and file
any such documents and to do all other lawfully permitted acts to further the
purposes of this Agreement with the same legal force and effect as if executed
by you.
Without limitation, all working papers, notes and memoranda or other
manifestations of confidential data which are made or obtained by you during the
term of your employment relating to the business of 724 shall be the property of
724 and will accordingly be provided to 724 upon termination of your employment.
ASSIGNMENT OF ADDITIONAL PROPRIETARY RIGHTS. You acknowledge and confirm that
the terms and conditions of this Agreement concerning Proprietary Information
(as defined herein) and the ownership of Proprietary Rights therein (as defined
herein) are in substance the same as those terms and conditions which have
governed your employment since you started with 724. For greater certainty, you
specifically acknowledge and confirm that the paragraphs entitled "Ownership of
Work", "Waiver of Moral Rights", "Confidential Data and Non-Disclosure" and
"Pre-existing Proprietary Rights" of this Agreement are intended to apply to the
entire period of your employment with 724.
You acknowledge that the Proprietary Information and Proprietary Rights therein
created within the scope of your employment with 724, since the Commencement
Date of your employment, belong to 724 by operation of law, whether they were
created before or after the date of this Agreement. You acknowledge and confirm
that your assignment of all Proprietary Right in the Proprietary Information as
provided in the paragraph entitled "Ownership of Work", extends to all of such
Proprietary Rights, whether acquired or developed before or after the date of
this Agreement.
WAIVER OF MORAL RIGHTS. You hereby expressly and irrevocably waive any and all
moral rights arising under copyright law that you, as author, may have with
respect to any copyrighted works prepared by you for 724 in the course of your
employment and you agree that 724 (and its subsidiaries, affiliates,
partnerships, joint ventures, direct and indirect licensees) may modify, adapt,
translate and use such works as it sees fit, provided however that if such work
is so altered, you retain the right to not have your name associated with such
alterations. You also expressly waive any right that you may have as author of a
work of authorship to include your name in any Proprietary Information that is a
work of authorship when such work is distributed publicly or otherwise.
CONFIDENTIAL DATA AND NON-DISCLOSURE. 724 (and its subsidiaries, affiliates,
partnerships and joint ventures) will expend considerable time and money in
acquiring and developing software, hardware, inventions, trade secrets,
products, technology, techniques, methodologies, programs,
present and future developments, sales literature and brochures, form documents,
computer files, customer lists, customer and supplier relationships, corporate
and financial information, marketing or sales strategies, and other information
including confidential information and documents of third parties (the
"confidential data") to which you may have access as a result of your employment
by 724. You acknowledge that such confidential data is the property of 724 (and
its subsidiaries, affiliates, partnerships and joint ventures), and third
parties from which 724 has acquired confidential data, and agree that, during
the term of your employment and any time thereafter, you will not, directly or
indirectly, in any manner or for any reason whatsoever (other than in the
ordinary and usual course of 724's (and its subsidiaries, affiliates,
partnerships and joint ventures) business and for its benefit), disclose to any
person, firm or corporation any of the confidential data or use any of the
confidential data, except if the confidential data:
(i) is or becomes publicly available through no fault of yours;
(ii) is rightfully obtained by you from a third party;
(iii) is disclosed with the written consent of the party whose information
it is; or
(iv) is disclosed pursuant to court order, other legal compulsion or
required by law.
On termination of your employment or upon demand by 724, you agree to return to
724 (and its subsidiaries, affiliates, partnerships and joint ventures) all
confidential data embodied or recorded in tangible form which is in your
possession or control, including without limitation, all, working papers, notes
and memoranda which are made or obtained by you during the term of your
employment relating to the business of 724. Your obligation under this section
will continue if your employment with 724 terminates for any reason.
You also agree not to disclose to 724 (and its subsidiaries, affiliates,
partnerships and joint ventures), use in its business or cause it to use any
information that is confidential to others. For greater certainty, You agree to
not, at any time, disclose to, or discuss with, 724 (and its subsidiaries,
affiliates, partnerships and joint ventures) employees any confidential or
proprietary data belonging to your former employers.
PRE-EXISTING PROPRIETARY RIGHTS. Proprietary Rights, if any, including without
limitation inventions, if any, whether patented or unpatented, which you
conceived, created, or developed, of which became known to you prior to the
commencement of your employment relationship with 724 ("Pre-existing Proprietary
Rights") are excluded from the scope of this Agreement. For greater certainty,
to your best knowledge, the Pre-existing Proprietary Rights referred to in this
paragraph includes, without limitation, the Proprietary Information listed in
Schedule "B" attached hereto.
NON-COMPETITION AND NON-SOLICITATION. You recognize that in performing the
duties of your employment, you will occupy a position of trust and confidence,
giving you knowledge with respect to many aspects of the business carried on by
724 (and its subsidiaries, affiliates, partnerships and joint ventures). Such
knowledge shall be used solely in furtherance of the business interests of 724
(and its subsidiaries, affiliates, partnerships and joint ventures) and not in
any manner which would be detrimental to it. You agree that so long as you are
employed by
724 and for one (1) year thereafter, unless you obtain the prior written consent
of 724, you shall not directly or indirectly, in any manner or capacity
whatsoever.
(a) carry on or be engaged in or hold any interest in or advise, manage or
assist in (e.g. act as an officer, director, employee, independent
contractor, partner, consultant, advisor, agent proprietor, trustee or
investor) any business enterprise (e.g. division, subsidiary or business
unit) of any entity in any country of the world where 724 does business or
proposes to do business which offers or, based on your knowledge or
information that is publicly available, proposes to offer any goods or
services which directly competes with the goods or services offered or,
based on your best knowledge, proposed to be offered by 724 (and its
subsidiaries, affiliates, partnerships and joint ventures) as of the date
on which your employment terminates ("Competitive Business"); or
(b) solicit or enter into any form of business arrangement with any person who
was or is proposed to be a client or business partner of 724 (and its
subsidiaries, affiliates, partnerships and joint ventures) at the date that
your employment terminates, or during the prior one (1) year period, if
such business arrangement or proposed business arrangement is in respect of
a Competitive Business;
provided, however, that nothing in this paragraph shall prevent you from owning
up to 5% of the voting stock of any entity.
724 hereby expressly acknowledges that you are involved as an investor, advisor,
member of the board of directors, or in some other capacity with the following
companies: (i) Bayshore Capital; (ii) RPM Technologies; (iii) iMoney; (iv) Blue
Sky Capital Corporation; (v) 1319079 Ontario Inc.; (vi) Delano Technology Corp.;
(vii) Orchard Capital. 724 consents to your involvement with such companies,
provided that you comply with your obligations of confidentiality to 724 in
accordance with the terms of this Agreement, and further provided that to the
extent that any such company is involved in or stands to be involved in a
Competitive Business, you agree not to exert any day-to-day management control
over such company.
If the provisions of this section are ever adjudicated to exceed the limitations
on time or geographic scope permitted by applicable law, then such provisions
shall be deemed reformed to the maximum time or geographic scope permitted by
applicable law.
EMPLOYEES. You agree that during the term of your employment and for one (1)
year thereafter, you will not, directly or indirectly, or assist others to,
recruit, solicit or endeavour to entice away from 724 (or its subsidiaries,
affiliates, partnerships and joint ventures) any individual who was or becomes
an employee of or service provider to 724 (or its subsidiaries, affiliates,
partnerships and joint ventures) at any time within the one (1) year period
before or after termination of your employment.
COVENANTS REASONABLE AND INJUNCTION. You acknowledge that (a) the covenants
contained in the paragraphs entitled "Confidential Data and Non-Disclosure",
"Non-Competition and Non-Solicitation" and "Employees" are essential elements to
this Agreement and that, but for your agreement to enter into such covenants,
724 would not have entered into this Agreement with you; and (b) since your
breach of any of such provisions would cause serious and irreparable
harm to 724 which could not adequately be compensated for in damages, and in the
event of a breach by you of any of such provisions, you acknowledge that an
injunction may be issued against you restraining you from any further breach of
any such provision. The provisions of this paragraph shall not be construed so
as to be derogation of any other remedy which 724 may have in the event of such
a breach.
The existence of any claim or cause of action that you may have against 724
(or its subsidiaries, affiliates, partnerships and Joint ventures), whether
pursuant to this Agreement or otherwise, shall not constitute a defence to the
enforcement by 724 of the provisions of this paragraph or the paragraphs
entitled "Confidential Data and Non-Disclosure", "Non-Competition and
Non-Solicitation" and "Employees".
NON-DISPARAGEMENT. You agree that you shall not, during the term of your
employment with 724 and for one year thereafter, in any communications with any
customer or client of 724, or any of its affiliates, criticize, ridicule or make
any statement which disparages or is derogatory of 724, or any of its
affiliates, or any of their officers, directors, agents or employees.
NO CONFLICTING OBLIGATION. You represent and covenant that your entry into and
performance of all the terms of this Agreement and of your responsibilities as
an employee of 724 does not and will not breach any confidentiality, secrecy or
other agreement or obligation, whether written or oral, that you have with or to
any third party.
TERMINATION. Your employment may be terminated by 724:
(a) without compensation if you, by reason of physical or mental disability,
are unable to fulfill your obligations and duties hereunder on a full time
basis (other than by reason of authorized vacation or leave) for a period
in excess of 40 working days in any 4 month period;
(b) without compensation, for cause, which shall include, without limitation:
(i) any willful and continuing failure by you to observe and perform any
of your covenants and obligations hereunder,
(ii) fraud, dishonesty, gross negligence or willful malfeasance by you in
connection with the performance of your duties hereunder; or
(iii) any abuse of alcohol or drugs by you which adversely affects your
ability to perform your duties hereunder; or
(c) without cause at any time upon giving you notice or payment in lieu of
notice and severance, as required by any statutory and common law
requirement applying to your employment with 724, and as provided in this
Agreement, payable on your delivery of a release to the Board of Directors
of 724.
The parties acknowledge and confirm that, notwithstanding the section entitled
"Entire Agreement", nothing in this Agreement is intended nor shall be
interpreted to interfere in any way with any provision of the Shareholders'
Agreement that relates to your employment or the
termination thereof, and 724 shall not take any action pursuant to this
Agreement that would conflict with, or cause a breach by 724 of, any provision
of the Shareholders' Agreement relating thereto.
COMPENSATION ON TERMINATION FOR DISABILITY. During any period that you fail to
perform your duties hereunder as a result of disability due to physical or
mental illness, you shall continue to receive the salary payable to you until
your employment is terminated pursuant to subparagraph (a) in the paragraph
entitled "Termination", provided that payments so made to you shall be reduced
by the sum of the amounts, if any, payable to you, under any disability benefit
plans of 724 or under any governmental disability insurance programmes or other
plans in which you are a participant or pursuant to which you are entitled to
receive benefits.
COMPENSATION ON TERMINATION FOR CAUSE. If your employment is terminated for
cause, 724 shall pay you your salary and benefits through the date of
termination and 724 shall have no further obligations to you under this
Agreement or in connection with your employment by 724.
NOTICES. Any notice which may or is required to be given pursuant to this
Agreement shall be in writing and shall be sufficiently given or made if mailed
by prepaid registered mail, faxed or served personally upon the party for whom
it is intended, addressed to the other party at the address or fax number first
above written. The date of receipt of any notice, if served personally or by
fax, shall be deemed to be the date of delivery thereof and, if mailed, the
third business day after delivery.
ASSIGNMENT. You acknowledge that 724 may assign this Agreement and the benefits
of your covenants and obligations under this Agreement to any person who
purchases all or substantially all the assets of 724. In addition, this
Agreement and the rights and obligations of 724 may be assigned at any time by
724 to an affiliate of 724. Subject to the foregoing, neither this Agreement nor
any rights or obligations hereunder shall be assignable by any party without the
prior written consent of the other party. Subject thereto, this Agreement shall
enure to the benefit of and be binding upon the parties and their respective
heirs, executors, administrators, legal personal representatives, successors
(including any successor by reason of amalgamation or statutory arrangement of
any party) and permitted assigns.
INVALIDITY AND SEVERABILITY. If a court of competent jurisdiction would
otherwise adjudge, declare or decree all or any portion of the covenants set
forth in this Agreement void or unenforceable in the circumstances, the portions
thereof which would otherwise be held void or unenforceable shall, automatically
and without further act on the part of either of us, but only as regards those
matters or parties before the court, be reduced in scope, territory or duration
of time to such an extent that such court would hold the same to be enforceable
in the circumstances before the court, or alternatively, that provision shall be
deemed to be severed herefrom, and the remaining provisions of this Agreement
shall not be affected thereby and shall remain valid and enforceable.
FURTHER ASSURANCES. You agree to do such acts and execute such further
documents, conveyances, deeds, assignments, transfers and the like, and will
cause the doing of such acts and will cause the execution of such further
documents as are within your power as 724 may in
writing at any time and from time to time reasonably request be done and or
executed, in order to give full effect to the provisions of this Agreement.
WAIVER OF RIGHTS. Any waiver of, or consent to depart from, the requirements of
any provision of this Agreement shall be effective only if it is in writing and
signed by the party giving it, and only in the specific instance and for the
specific purpose for which it has been given. No failure on the party of any
party to exercise, and no delay in exercising, any right under this Agreement
shall operate as a waiver of such right. No single or partial exercise of any
such right shall preclude any other or further exercise of such right or the
exercise of any other right.
SCHEDULE "A"
COMPENSATION AND BENEFITS OF
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1. SALARY. Your salary will be $24,150 per month, any amount of which you may
allocate to your RRSP.
2. BENEFITS. You will be entitled upon written notice to 724 to participate in
any plans maintained from time to time by 724 for the benefit of 724's
employees, including, but not limited to, those pertaining to group life,
accident, dental, prescription, sickness and medical, and long term
disability insurance.
3. OTHER BENEFITS. You will be entitled to:
(a) a reasonable amount for use of your personal automobile;
(b) annual membership dues and fees (excluding initial membership fees) in two
social/sports clubs of your selection; and
(c) to travel on business in the class of your choice.
ENTIRE AGREEMENT. THIS AGREEMENT AND THE SCHEDULES HERETO CONSTITUTE THE ENTIRE
AGREEMENT BETWEEN US PERTAINING TO YOUR EMPLOYMENT BY 724 AND SUPERSEDES AND
MERGES ALL PRIOR AGREEMENTS, NEGOTIATIONS, DISCUSSIONS AND UNDERSTANDINGS,
WRITTEN OR ORAL, BETWEEN US, INCLUDING ANY CONTRARY PROVISION CONTAINED IN A
SEPARATE AGREEMENT WITH 724 WHICH YOU HAVE PREVIOUSLY OR CONTEMPORANEOUSLY
EXECUTED. THIS AGREEMENT MAY BE AMENDED OR SUPPLEMENTED ONLY BY A WRITTEN
AGREEMENT SIGNED BY BOTH 724 AND YOU.
CHOICE OF LAW. This Agreement is governed by the laws of Ontario.
Dated: July 30, 1999 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Signature
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Please print name of Employee
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Toronto, Ontario
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Address
Received:
724 SOLUTIONS INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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President
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Name and Title
724 Solutions Inc.