EXHIBIT 10(B) EMPLOYMENT AGREEMENTS: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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EMPLOYMENT AGREEMENT
THIS AGREEMENT dated as of October 1, 1999 is between Reink
Corp or its designate (the "Company") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the "Executive").
RECITALS
a. The Company wishes to employ the Executive on the terms
and conditions set out below.
b. The Executive wishes to be so employed by the Company.
For good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
ARTICLE I : INTERPRETATION
I.1 INTERPRETATION. In this Agreement, certain capitalized terms shall have the
meanings set out in Schedule "A" hereto.
I.2 CURRENCY. All references to currency herein are to lawful money of the
United States ("US") unless otherwise noted.
ARTICLE II : TERM
II.1 EMPLOYMENT. The Company shall employ the Executive and the Executive shall
perform services on behalf of the Company as its employee as provided herein
during the Term (as hereinafter defined).
II.2 TERM. The initial term of employment shall be for three (3) years from the
date herein. Thereafter the employment shall continue until terminated based on
the terms and conditions hereinafter set forth (the "Term").
ARTICLE III : POSITION
III.1 CAPACITY AND SERVICES. The Company shall employ the Executive as "Chief
Operating Officer" of the Company. As such, the Executive shall perform such
duties and have such authority as may from time to time be assigned, delegated
or limited by the board of directors of the Company and it's affiliates (the
"Board"). The Executive shall perform these duties in accordance with the
charter documents and by-laws of the Company and it's affiliates, the
instructions of the Board, and Company policy.
III.2 FULL TIME AND ATTENTION. The Executive shall devote one hundred percent of
the Executive's business time to the Executive's duties hereunder, provided,
however, that the Executive may serve as a member of the board of directors of
another company if the Board, or an appropriate committee thereof, determines in
its sole discretion that such membership is not adverse to the interests of the
Company.
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ARTICLE IV : COMPENSATION AND BENEFITS
IV.1 COMPENSATION. The base salary rate ("Base Salary") of the Executive shall
BE $135,000.00 per year payable semi-monthly on the 15th and last business day
of each month. The Company may withhold from any amounts payable under this
Agreement such federal, state or city taxes and other statutory remittances as
shall be required by law to be so withheld.
IV.2 BENEFITS. The Company shall procure and maintain medical, dental, life (3
times base salary), short and long term disability insurance for the Executive
and his family (based on a senior executive level) during the Term and in
accordance with the employee benefit plans and policies maintained by the
Company and in force from time to time.
IV.3 BONUS. The Executive will be entitled to receive a bonus up to 50% of the
base salary based 60%on the achievement of specific objectives related to
manufacturing performance and 40% based on overall profitability of the Company.
The specific objectives will be established by the CEO relating directly to the
Executive's position described in Section 3.1. Proposed bonuses will be
determined by the Compensation Committee (the "Compensation Committee") of the
Board (with the assistance of any Executive that the Compensation Committee
determines is necessary) and approved by the Board. Additional bonuses may be
awarded at the sole discretion of the Compensation Committee and subject to
approval by the Board. In addition the Company agrees to guarantee $15,000 of
the above noted bonus to be paid out under the normal conditions under IV.1
above.
IV.4 AUTOMOBILE. The Company shall provide the Executive with the amount of
$750.00 per month to be used for the lease of an automobile by the Executive and
expenses related thereto. The Company shall not be responsible for any other
expenses associated with the Executive's automobile.
IV.5 VACATION. The Executive is entitled to take four (4) weeks vacation per
calendar year in accordance with the Company's policies and practices in effect
at the relevant time for senior executives and subject to the needs of the
Company. Notwithstanding the foregoing, any vacation of greater than 10
consecutive Business Days in length shall require the prior approval of the CEO.
Up to 10 Business Days of vacation not taken during the current year may be
carried forward to the following year.
IV.6 EXPENSES INCIDENTAL TO EMPLOYMENT. The Company shall reimburse the
Executive in accordance with its normal policies and practices for the
Executive's travel and other expenses or disbursements reasonably and
necessarily incurred or made in connection with the Company's business.
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3
ARTICLE V : CONFIDENTIALITY AND NON-COMPETITION
V.1 NON-COMPETITION. The Executive acknowledges that the Executive's services
are unique and extraordinary. The Executive also acknowledges that the
Executive's position will give the Executive access to confidential information
of substantial importance to the Company and its business. During the
Non-Competition Period, the Executive shall not, either individually or in
partnership or jointly or in conjunction with any other person, entity or
organization, as principal, agent, consultant, lender, contractor, employer,
employee, investor, shareholder or in any other manner, directly or indirectly,
advise, manage, carry on, establish, control, engage in, invest in, offer
financial assistance or services to, or permit the Executive's name or any part
thereof to be used by, any business in United States and, upon notice to the
Executive, in any other jurisdiction in Canada in which the Company is
conducting business, that competes with the business of the Company, its parent,
affiliated or subsidiary companies, or any business in which the Company, its
parent, affiliated or subsidiary companies is engaged (the "Business"). For
purposes of this Agreement, "Non-Competition Period" means a period beginning on
the date hereof and ending at the later of:
(a) Twelve (12) months after the end of the Peroid of Active Employment; or
(b) such other peroid for which the executive shall receive compensation
pursuant to the terms thereof.
V.2 OTHER EXECUTIVES, CUSTOMERS. The Executive agrees that during the Non-
Competition Period, neither the Executive nor any entity with whom the Executive
is at the time associated, related or affiliated shall, directly or indirectly,
hire or offer to hire or entice away or in any other manner persuade or attempt
to persuade any officer, employee, agent, supplier or customer of the Business
to discontinue or alter any one of their or its relationship with the Company
for a period of one year after the end of the Period of Active Employment.
V.3 CONFIDENTIALITY. Except in the normal and proper course of the Executive's
duties hereunder, the Executive will not use for the Executive's own account or
disclose to anyone else, during or for a period of five years after the Period
of Active Employment, any confidential or proprietary information or material
relating to the Company's operations or business which the Executive obtains
from the Company or its officers or employees, agents, suppliers or customers or
otherwise by virtue of the Executive's employment by the Company or by the
Company's predecessor. Confidential or proprietary information or material
includes, without limitation, the following types of information or material,
both existing and contemplated, regarding the Company or its parent, affiliated
or subsidiary companies: corporate information, including contractual licensing
arrangements, plans, strategies, tactics, policies, resolutions, patent,
trade-▇▇▇▇ and trade name applications, and any litigation or negotiations;
information concerning suppliers; marketing information, including sales,
investment and product plans, customer lists, strategies, methods, customers,
prospects and market research data; financial information, including cost and
performance data, debt arrangements, equity structure, investors and holdings;
operational and scientific information, including trade secrets; technical
information, including technical drawings and designs; and personnel
information, including personnel lists, resumes, personnel data, organizational
structure and performance evaluations (the "Confidential Information").
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V.4 RETURN OF DOCUMENTS. The Executive agrees that all documents (including,
without limitation, contact and customer lists, address books, software and
information in machine- readable form) of any nature pertaining to activities of
the Company and to it's parent and their respective affiliated, related,
associated or subsidiary companies, including Confidential Information, in the
Executive's possession now or at any time during the Period of Active
Employment, are and shall be the property of the Company and its parent, and
their respective affiliated, related, associated or subsidiary companies, and
that all such documents and all copies of them shall be surrendered to the
Company whenever requested by the Company.
V.5 BLUE PENCIL. If any court determines that any provision contained in this
Agreement including, without limitation, a restrictive covenant or any part
thereof is unenforceable because of the duration or geographical scope of the
provision or for any other reason, the duration or scope of the provision, as
the case may be, shall be reduced so that the provision becomes enforceable and,
in its reduced form, the provision shall then be enforceable and shall be
enforced.
V.6 ACKNOWLEDGEMENT. The Executive acknowledges that, in connection with the
Executive's employment by the Company, the Executive will receive or will become
eligible to receive substantial benefits and compensation. The Executive
acknowledges that the Executive's employment by the Company and all compensation
and benefits and potential compensation and benefits to the Executive from such
employment shall be conferred by the Company upon the Executive only because and
on condition of the Executive's willingness to commit the Executive's best
efforts and loyalty to the Company, including protecting the Company's right to
have its Confidential Information protected from non-disclosure by the Executive
and abiding by the confidentiality, non-competition and other provisions herein.
The Executive understands the Executive's duties and obligations as set forth in
Section 4.1 and agrees that such duties and obligations would not unduly
restrict or curtail the Executive's legitimate efforts to earn a livelihood
following any termination of the Executive's employment with the Company. The
Executive agrees that the restrictions contained in Section 4 are reasonable and
valid and all defences to the strict enforcement thereof by the Company are
waived by the Executive. The Executive further acknowledges that irreparable
damage would result to the Company if the provisions of Sections 5.1 through 5.4
are not specifically enforced, and agrees that the Company shall be entitled to
any appropriate legal, equitable, or other remedy, including injunctive relief,
in respect of any failure or continuing failure to comply with provisions of
Sections 5.1 through 5.4.
V.7 PASSIVE INVESTMENT. Notwithstanding anything in this Section 5, nothing in
this Agreement shall be deemed to prevent or prohibit the Executive from owning
shares in a public company as a passive investment, so long as the Executive
does not own more than 5% of the shares thereof.
ARTICLE VI : TERMINATION AND RESIGNATION
VI.1 TERMINATION FOR CAUSE. The Company may immediately terminate this Agreement
at any time for cause by written notice to the Executive. Without limiting the
foregoing, any one or more of the following events shall constitute cause:
(a) theft, dishonesty, or other similar behavior by the Executive as
determined by a competent court, within the employees jurisdiction;
(b) continuing or repeated neglect of duty or misconduct of the Executive
in discharging any of the Executive's material duties and
responsibilities hereunder;
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(c) conduct of the Executive which is materially detrimental or
embarrassing to the Company as determined by the Company acting
reasonably, including but not limited to the Executive being convicted
of an offense punishable by imprisonment under any applicable Criminal
Code;
(d) the Executive's acceptance of a gift of any kind, other than gifts of
nominal or inconsequential value, from any source directly or
indirectly related to the Executive's employment with the Company,
unless prior approval by the Board has been obtained;
(e) any default of the Executive's obligations unde this Agreement that is
not cured within ten (10) days of written notification thereof to the
Executive by the Company; or,
(f) failure of or refusal by the Executive to compl with the policies,
rules and regulations of the Company (except to the extent that such
policies, rules and regulations expressly conflict with the provisions
of this Agreement) that is not cured by the Executive within ten (10)
days of written notification thereof to the Executive by the Company.
If the Company terminates this Agreement for cause under this Section 6.1, the
Company shall not be obligated to make any further payments under this
Agreement, except for the payment of any Base Salary and benefits due and owing
pursuant to Section 4.1 at the time of termination and reasonable expenses due
and owing pursuant to Section 4.6 at the time of the termination.
VI.2 RESIGNATION BY EXECUTIVE. The Executive shall give the Company not less
than 4 weeks notice of the resignation of the Executive's employment hereunder.
If the Executive resigns the Executive's employment and terminates this
Agreement for any reason, the Company shall have no further obligations or
responsibilities hereunder to the Executive, and nothing herein contained shall
be construed to limit or restrict in any way the Company's ability to pursue any
remedies it may have at law or equity pursuant to the provisions of this
Agreement.
VI.3 TERMINATION WITHOUT CAUSE. The Company may terminate this Agreement at any
time without cause or upon the Disability of the Executive by providing the
Executive with a payment of an amount equal to the greater of :
o the balance remaining in the three (3) year contractual period,
payable monthly under the terms in IV.1 or
o six (6) monthly payments of the Executive's Base Salary, payable
monthly under the terms in IV.1.
The payments provided for in this Section 6.3 shall be inclusive of the
Executive's entitlement to notice and severance pay under any applicable
EMPLOYMENT STANDARDS ACT.
VI.4 BENEFITS ON TERMINATION: Where this Agreement is terminated in accordance
with Section 6.3, the Benefits provided to the Executive pursuant to Section 4.2
shall continue for the amount of months of Base Salary the Executive is entitled
to following the termination of this Agreement pursuant to this Section 6 or
until the Executive commences alternative employment, whichever should first
occur.
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VI.5 RESULTS OF TERMINATION. Upon termination or resignation of the Executive's
employment pursuant to this Section 6, this Agreement and the employment of the
Executive shall be wholly terminated with the exception of the clauses
specifically contemplated to continue in full force and effect beyond the
termination of this Agreement, including those set out in Article V.
ARTICLE VII : REPRESENTATIONS AND WARRANTIES
VII.1 REPRESENTATIONS AND WARRANTIES. The Executive represents and warrants to
the Company that the execution and performance of this Agreement will not result
in or constitute a default, breach, or violation, or an event that, with notice
or lapse of time or both, would be a default, breach, or violation, of any
understanding, agreement or commitment, written or oral, express or implied, to
which the Executive is currently a party or by which the Executive or the
Executive's property is currently bound. The Company and the Executive shall
defend, indemnify and hold each other harmless from any liability, expense or
claim (including solicitor's fees incurred in respect thereof) by any person in
any way arising out of, relating to, or in connection with any incorrectness of
breach of the representations and warranties in this Section 7.1 except in
respect of any non-solicitation obligations by which the Executive is bound. The
Company and Executive acknowledge that a breach of this Article by the Executive
will allow the Company to terminate the Executive's employment for cause.
ARTICLE VIII : MISCELLANEOUS COVENANTS
VIII.1 RIGHTS AND WAIVERS. All rights and remedies of the parties are separate
and cumulative, and none of them, whether exercised or not, shall be deemed to
be to the exclusion of any other rights or remedies or shall be deemed to limit
or prejudice any other legal or equitable rights or remedies which either of the
parties may have.
VIII.2 WAIVER. Any purported waiver of any default, breach or non-compliance
under this Agreement is not effective unless in writing and signed by the party
to be bound by the waiver. No waiver shall be inferred from or implied by any
failure to act or delay in acting by a party in respect of any default, breach
or non-observance or by anything done or omitted to be done by the other party.
The waiver by a party of any default, breach or non-compliance under this
Agreement shall not operate as a waiver of that party's rights under this
Agreement in respect of any continuing or subsequent default, breach or
non-observance (whether of the same or any other nature).
VIII.3 SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of the prohibition or unenforceability and shall be severed
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from the balance of this Agreement, all without affecting the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
VIII.4 NOTICES.
(1) Any notice, certificate, consent, determination or other communication
required or permitted to be given or made under this Agreement shall
be in writing and shall be effectively given and made if (i) delivered
personally, (ii) sent by prepaid same day courier service, or (iii)
sent prepaid by fax or other similar means of electronic
communication, in each case to the applicable address set out below:
(a) if to the Company, to:
Reink Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTENTION: PRESIDENT AND CHIEF EXECUTIVE OFFICER
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) if to the Executive, to:
Need Address
ATTENTION: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - PERSONAL & CONFIDENTIAL
Fax:
(2) Any such communication so given or made shall b deemed to have been
given or made and to have been received on the day of delivery if
delivered personally or by courier service, or on the day of faxing or
sending by other means of recorded electronic communication, provided
that the day in either event is a Business Day and the communication
is so delivered, faxed or sent prior to 4:30 p.m. on that day.
Otherwise, the communication shall be deemed to have been given and
made and to have been received on the next following Business Day. Any
such communication given or made in any other manner shall be deemed
to have been given or made and to have been received only upon actual
receipt.
(3) Any party may from time to time change its address under this Section
8.4 by notice to the other party given in the manner provided by this
Section.
VIII.5 TIME OF ESSENCE. Time shall be of the essence of this Agreement in all
respects.
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VIII.6 SUCCESSORS AND ASSIGNS. This Agreement shall enure to the benefit of, and
be binding on, the parties and their respective heirs, administrators,
executors, successors and permitted assigns. The Company shall have the right to
assign this Agreement to any successor (whether direct or indirect, by purchase,
amalgamation, arrangement, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company provided only
that the Company must first require the successor to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
The Executive by the Executive's signature hereto expressly consents to such
assignment. The Executive shall not assign or transfer, whether absolutely, by
way of security or otherwise, all or any part of the Executive's rights or
obligations under this Agreement without the prior consent of the Company, which
may be arbitrarily withheld.
VIII.7 AMENDMENT. No amendment of this Agreement will be effective unless made
in writing and signed by the parties.
VIII.8 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties pertaining to the subject matter of this Agreement and supersedes
all prior agreements, understandings, negotiations and discussions, whether oral
or written. There are no conditions, warranties, representations or other
agreements between the parties in connection with the subject matter of this
Agreement (whether oral or written, express or implied, statutory or otherwise)
except as specifically set out in this Agreement.
VIII.9 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey and the laws of the United
States applicable in that State and shall be treated, in all respects, as a New
Jersey contract.
VIII.10 HEADINGS. The division of this Agreement into Sections and the insertion
of headings are for convenience or reference only and shall not affect the
construction or interpretation of this Agreement.
ARTICLE IX : SATISFACTION OF ALL CLAIMS
IX.1 FULL SATISFACTION. The terms set out in this Agreement, provided that such
terms are satisfied by the Company and the Executive, are in lieu of (and not in
addition to) and in full satisfaction of any and all other claims or
entitlements which the Company and the Executive have or may have upon the
termination of the Executive's employment pursuant to Section 6 and the
compliance by the Company and the Executive with these terms will affect a full
and complete release of the Company, their parent and their respective
affiliates, associates, subsidiaries and related companies and the Executive,
from any and all claims which both parties may have for whatever reason or cause
in connection with the Executive's employment and the termination of it, other
than those obligations specifically set out in this Agreement. In agreeing to
the terms set out in this Agreement, the Executive agrees to execute a formal
release document to that effect and will deliver upon request appropriate
resignations from all offices and positions with the Company and its parent and
their respective affiliated, associated subsidiary or affiliated companies if,
as and when requested by the Company upon termination of the Executive's
employment within the circumstances contemplated by this Agreement.
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ARTICLE X : EXECUTIVE ACKNOWLEDGEMENT
X.1 ACKNOWLEDGEMENT.
The Executive acknowledges that:
(a) the Executive has had sufficient time to review this Agreement
thoroughly;
(b) the Executive has read and understands the term of this Agreement and
the obligations hereunder;
(c) the Executive has been given an opportunity to obtain independent
legal advice concerning the interpretation and effect of this
Agreement; and,
(d) the Executive has received a fully executed counterpart copy of this
Agreement.
IN WITNESS WHEREOF the parties have executed counterpart copies of this
Agreement.
------------------------------------------ -----------------------------------
WITNESS LL
LL
Per:
-----------------------------------
NAME:
TITLE:
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SCHEDULE "A"
DEFINITIONS
"Agreement" means this agreement and all amendments made hereto by written
agreement between the Company and the Executive.
"Business Day" means a day other than Saturday, Sunday or statutory holiday in
the United States.
"Disability" means a physical or mental incapacity of the Executive that has
prevented the Executive from performing the duties customarily assigned to the
Executive for one hundred and eight (180) days, whether or not consecutive, out
of any twelve (12) consecutive months and that in the opinion of the Board is
likely to continue.
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EMPLOYMENT AGREEMENT
THIS AGREEMENT dated as of October 1, 1999 is between Reink
Corp or its designate (the "Company") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Executive").
RECITALS
A. The Company wishes to employ the Executive on the terms and conditions
set out below.
B. The Executive wishes to be so employed by the Company.
For good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
ARTICLE I : INTERPRETATION
I.1 INTERPRETATION. In this Agreement, certain capitalized terms shall have the
meanings set out in Schedule "A" hereto.
I.2 CURRENCY. All references to currency herein are to lawful money of the
United States ("US") unless otherwise noted.
ARTICLE II : TERM
II.1 EMPLOYMENT. The Company shall employ the Executive and the Executive shall
perform services on behalf of the Company as its employee as provided herein
during the Term (as hereinafter defined).
II.2 TERM. The initial term of employment shall be for three (3) years from the
date herein. Thereafter the employment shall continue until terminated based on
the terms and conditions hereinafter set forth (the "Term").
ARTICLE III : POSITION
III.1 CAPACITY AND SERVICES. The Company shall employ the Executive as "Vice
President, Finance" of the Company. As such, the Executive shall perform such
duties and have such authority as may from time to time be assigned, delegated
or limited by the board of directors of the Company and it's affiliates (the
"Board"). The Executive shall perform these duties in accordance with the
charter documents and by-laws of the Company and it's affiliates, the
instructions of the Board, and Company policy.
III.2 FULL TIME AND ATTENTION. The Executive shall devote one hundred percent of
the Executive's business time to the Executive's duties hereunder, provided,
however, that the Executive may serve as a member of the board of directors of
another company if the Board, or an appropriate committee thereof, determines in
its sole discretion that such membership is not adverse to the interests of the
Company.
Page 1 of 1
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ARTICLE IV : COMPENSATION AND BENEFITS
IV.1 COMPENSATION. The base salary rate ("Base Salary") of the Executive shall
BE $90,000.00 PER YEAR PAYABLE SEMI-MONTHLY ON THE 15TH and last business day of
each month. The Company may withhold from any amounts payable under this
Agreement such federal, state or city taxes and other statutory remittances as
shall be required by law to be so withheld.
IV.2 BENEFITS. The Company shall procure and maintain medical, dental, life (2
times base salary), short and long term disability insurance for the Executive
and his family (based on a senior executive level) during the Term and in
accordance with the employee benefit plans and policies maintained by the
Company and in force from time to time.
IV.3 BONUS. The Executive will be entitled to receive a bonus up to 40% of the
base salary based 50%on the achievement of specific objectives related to
individual performance and 50% based on overall profitability of the Company.
The specific objectives will be established by the CEO relating directly to the
Executive's position described in Section 3.1. Proposed bonuses will be
determined by the Compensation Committee (the "Compensation Committee") of the
Board (with the assistance of any Executive that the Compensation Committee
determines is necessary) and approved by the Board. Additional bonuses may be
awarded at the sole discretion of the Compensation Committee and subject to
approval by the Board.
IV.4 AUTOMOBILE. The Company shall provide the Executive with the amount of
$500.00 per month to be used for the lease of an automobile by the Executive and
expenses related thereto. The Company shall not be responsible for any other
expenses associated with the Executive's automobile.
IV.5 VACATION. The Executive is entitled to take four (4) weeks vacation per
calendar year in accordance with the Company's policies and practices in effect
at the relevant time FOR SENIOR EXECUTIVES AND SUBJECT TO THE NEEDS OF THE
COMPANY. Notwithstanding the foregoing, any vacation of greater than 10
consecutive Business Days in length shall require the prior approval of the CEO.
Up to 10 Business Days of vacation not taken during the current year may be
carried forward to the following year.
IV.6 EXPENSES INCIDENTAL TO EMPLOYMENT. The Company shall reimburse the
Executive in accordance with its normal policies and practices for the
Executive's travel and other expenses or disbursements reasonably and
necessarily incurred or made in connection with the Company's business.
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ARTICLE V : CONFIDENTIALITY AND NON-COMPETITION
V.1 NON-COMPETITION. The Executive acknowledges that the Executive's services
are unique and extraordinary. The Executive also acknowledges that the
Executive's position will give the Executive access to confidential information
of substantial importance to the Company and its business. During the
Non-Competition Period, the Executive shall not, either individually or in
partnership or jointly or in conjunction with any other person, entity or
organization, as principal, agent, consultant, lender, contractor, employer,
employee, investor, shareholder or in any other manner, directly or indirectly,
advise, manage, carry on, establish, control, engage in, invest in, offer
financial assistance or services to, or permit the Executive's name or any part
thereof to be used by, any business in United States and, upon notice to the
Executive, in any other jurisdiction in Canada in which the Company is
conducting business, that competes with the business of the Company, its parent,
affiliated or subsidiary companies, or any business in which the Company, its
parent, affiliated or subsidiary companies is engaged (the "Business"). For
purposes of this Agreement, "Non-Competition Period" means a period beginning on
the date hereof and ending at the later of:
(A) twelve (12) months after the end of the Period of Active Employment;
or
(B) such other period for which the Executive shall receive compensation
pursuant to the terms thereof.
V.2 OTHER EXECUTIVES, CUSTOMERS. The Executive agrees that during the Non-
Competition Period, neither the Executive nor any entity with whom the Executive
is at the time associated, related or affiliated shall, directly or indirectly,
hire or offer to hire or entice away or in any other manner persuade or attempt
to persuade any officer, employee, agent, supplier or customer of the Business
to discontinue or alter any one of their or its relationship with the Company
for a period of one year after the end of the Period of Active Employment.
V.3 CONFIDENTIALITY. Except in the normal and proper course of the Executive's
duties hereunder, the Executive will not use for the Executive's own account or
disclose to anyone else, during or for a period of five years after the Period
of Active Employment, any confidential or proprietary information or material
relating to the Company's operations or business which the Executive obtains
from the Company or its officers or employees, agents, suppliers or customers or
otherwise by virtue of the Executive's employment by the Company or by the
Company's predecessor. Confidential or proprietary information or material
includes, without limitation, the following types of information or material,
both existing and contemplated, regarding the Company or its parent, affiliated
or subsidiary companies: corporate information, including contractual licensing
arrangements, plans, strategies, tactics, policies, resolutions, patent,
trade-▇▇▇▇ and trade name applications, and any litigation or negotiations;
information concerning suppliers; marketing information, including sales,
investment and product plans, customer lists, strategies, methods, customers,
prospects and market research data; financial information, including cost and
performance data, debt arrangements, equity structure, investors and holdings;
operational and scientific information, including trade secrets; technical
information, including technical drawings and designs; and personnel
information, including personnel lists, resumes, personnel data, organizational
structure and performance evaluations (the "Confidential Information").
V.4 RETURN OF DOCUMENTS. The Executive agrees that all documents (including,
without limitation, contact and customer lists, address books, software and
Page 3 of 1
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information in machine- readable form) of any nature pertaining to activities of
the Company and to it's parent and their respective affiliated, related,
associated or subsidiary companies, including Confidential Information, in the
Executive's possession now or at any time during the Period of Active
Employment, are and shall be the property of the Company and its parent, and
their respective affiliated, related, associated or subsidiary companies, and
that all such documents and all copies of them shall be surrendered to the
Company whenever requested by the Company.
V.5 BLUE PENCIL. If any court determines that any provision contained in this
Agreement including, without limitation, a restrictive covenant or any part
thereof is unenforceable because of the duration or geographical scope of the
provision or for any other reason, the duration or scope of the provision, as
the case may be, shall be reduced so that the provision becomes enforceable and,
in its reduced form, the provision shall then be enforceable and shall be
enforced.
V.6 ACKNOWLEDGEMENT. The Executive acknowledges that, in connection with the
Executive's employment by the Company, the Executive will receive or will become
eligible to receive substantial benefits and compensation. The Executive
acknowledges that the Executive's employment by the Company and all compensation
and benefits and potential compensation and benefits to the Executive from such
employment shall be conferred by the Company upon the Executive only because and
on condition of the Executive's willingness to commit the Executive's best
efforts and loyalty to the Company, including protecting the Company's right to
have its Confidential Information protected from non-disclosure by the Executive
and abiding by the confidentiality, non-competition and other provisions herein.
The Executive understands the Executive's duties and obligations as set forth in
Section 4.1 and agrees that such duties and obligations would not unduly
restrict or curtail the Executive's legitimate efforts to earn a livelihood
following any termination of the Executive's employment with the Company. The
Executive agrees that the restrictions contained in Section 4 are reasonable and
valid and all defences to the strict enforcement thereof by the Company are
waived by the Executive. The Executive further acknowledges that irreparable
damage would result to the Company if the provisions of Sections 5.1 through 5.4
are not specifically enforced, and agrees that the Company shall be entitled to
any appropriate legal, equitable, or other remedy, including injunctive relief,
in respect of any failure or continuing failure to comply with provisions of
Sections 5.1 through 5.4.
V.7 PASSIVE INVESTMENT. Notwithstanding anything in this Section 5, nothing in
this Agreement shall be deemed to prevent or prohibit the Executive from owning
shares in a public company as a passive investment, so long as the Executive
does not own more than 5% of the shares thereof.
ARTICLE VI : TERMINATION AND RESIGNATION
VI.1 TERMINATION FOR CAUSE. The Company may immediately terminate this Agreement
at any time for cause by written notice to the Executive. Without limiting the
foregoing, any one or more of the following events shall constitute cause:
(a) theft, dishonesty, or other similar behavior by the Executive as
determined by a competent court, within the employees jurisdiction;
(b) continuing or repeated neglect of duty or misconduct of the Executive
in discharging any of the Executive's material duties and
responsibilities hereunder;
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(c) conduct of the Executive which is materially detrimental or
embarrassing to the Company as determined by the Company acting
reasonably, including but not limited to the Executive being convicted
of an offense punishable by imprisonment under any applicable Criminal
Code;
(d)
the Executive's acceptance of a gift of any kind, other than gifts of
nominal or inconsequential value, from any source directly or
indirectly related to the Executive's employment with the Company,
unless prior approval by the Board has been obtained;
(e) any default of the Executive's obligations unde this Agreement that is
not cured within ten (10) days of written notification thereof to the
Executive by the Company; or,
(f) failure of or refusal by the Executive to compl with the policies,
rules and regulations of the Company (except to the extent that such
policies, rules and regulations expressly conflict with the provisions
of this Agreement) that is not cured by the Executive within ten (10)
days of written notification thereof to the Executive by the Company.
If the Company terminates this Agreement for cause under this Section 6.1, the
Company shall not be obligated to make any further payments under this
Agreement, except for the payment of any Base Salary and benefits due and owing
pursuant to Section 4.1 at the time of termination and reasonable expenses due
and owing pursuant to Section 4.6 at the time of the termination.
VI.2 RESIGNATION BY EXECUTIVE. The Executive shall give the Company not less
than 4 weeks notice of the resignation of the Executive's employment hereunder.
If the Executive resigns the Executive's employment and terminates this
Agreement for any reason, the Company shall have no further obligations or
responsibilities hereunder to the Executive, and nothing herein contained shall
be construed to limit or restrict in any way the Company's ability to pursue any
remedies it may have at law or equity pursuant to the provisions of this
Agreement.
VI.3 TERMINATION WITHOUT CAUSE. The Company may terminate this Agreement at any
time without cause or upon the Disability of the Executive by providing the
Executive with a payment of an amount equal to the greater of:
o the balance remaining in the three (3) year contractual period,
payable monthly under terms of IV.1 or
o six (6) monthly payments of the Executive's Base Salary, payable
monthly under terms of IV.1.
The payments provided for in this Section 6.3 shall be inclusive of the
Executive's entitlement to NOTICE AND SEVERANCE PAY UNDER ANY APPLICABLE
EMPLOYMENT STANDARDS ACT.
VI.4 BENEFITS ON TERMINATION: Where this Agreement is terminated in accordance
with Section 6.3, the Benefits provided to the Executive pursuant to Section 4.2
shall continue for the amount of months of Base Salary the Executive is entitled
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to following the termination of this Agreement pursuant to this Section 6 or
until the Executive commences alternative employment, whichever should first
occur.
VI.5 RESULTS OF TERMINATION. Upon termination or resignation of the Executive's
employment pursuant to this Section 6, this Agreement and the employment of the
Executive shall be wholly terminated with the exception of the clauses
specifically contemplated to continue in full force and effect beyond the
termination of this Agreement, including those set out in Article V.
ARTICLE VII : REPRESENTATIONS AND WARRANTIES
VII.1 REPRESENTATIONS AND WARRANTIES. The Executive represents and warrants to
the Company that the execution and performance of this Agreement will not result
in or constitute a default, breach, or violation, or an event that, with notice
or lapse of time or both, would be a default, breach, or violation, of any
understanding, agreement or commitment, written or oral, express or implied, to
which the Executive is currently a party or by which the Executive or the
Executive's property is currently bound. The Company and the Executive shall
defend, indemnify and hold each other harmless from any liability, expense or
claim (including solicitor's fees incurred in respect thereof) by any person in
any way arising out of, relating to, or in connection with any incorrectness of
breach of the representations and warranties in this Section 7.1 except in
respect of any non-solicitation obligations by which the Executive is bound. The
Company and Executive acknowledge that a breach of this Article by the Executive
will allow the Company to terminate the Executive's employment for cause.
ARTICLE VIII : MISCELLANEOUS COVENANTS
VIII.1 RIGHTS AND WAIVERS. All rights and remedies of the parties are separate
and cumulative, and none of them, whether exercised or not, shall be deemed to
be to the exclusion of any other rights or remedies or shall be deemed to limit
or prejudice any other legal or equitable rights or remedies which either of the
parties may have.
VIII.2 WAIVER. Any purported waiver of any default, breach or non-compliance
under this Agreement is not effective unless in writing and signed by the party
to be bound by the waiver. No waiver shall be inferred from or implied by any
failure to act or delay in acting by a party in respect of any default, breach
or non-observance or by anything done or omitted to be done by the other party.
The waiver by a party of any default, breach or non-compliance under this
Agreement shall not operate as a waiver of that party's rights under this
Agreement in respect of any continuing or subsequent default, breach or
non-observance (whether of the same or any other nature).
VIII.3 SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of the prohibition or unenforceability and shall be severed from
the balance of this Agreement, all without affecting the remaining provisions of
this Agreement or affecting the validity or enforceability of such provision in
any other jurisdiction.
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VIII.4 NOTICES.
(1) Any notice, certificate, consent, determination or other communication
required or permitted to be given or made under this Agreement shall
be in writing and shall be effectively given and made if (i) delivered
personally, (ii) sent by prepaid same day courier service, or (iii)
sent prepaid by fax or other similar means of electronic
communication, in each case to the applicable address set out below:
(a) if to the Company, to:
Reink Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTENTION: PRESIDENT AND CHIEF EXECUTIVE OFFICER
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) if to the Executive, to:
Need Address
ATTENTION: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - PERSONAL & CONFIDENTIAL
Fax:
(2) Any such communication so given or made shall b deemed to have been
given or made and to have been received on the day of delivery if
delivered personally or by courier service, or on the day of faxing or
sending by other means of recorded electronic communication, provided
that the day in either event is a Business Day and the communication
is so delivered, faxed or sent prior to 4:30 p.m. on that day.
Otherwise, the communication shall be deemed to have been given and
made and to have been received on the next following Business Day. Any
such communication given or made in any other manner shall be deemed
to have been given or made and to have been received only upon actual
receipt.
(3) Any party may from time to time change its address under this Section
8.4 by notice to the other party given in the manner provided by this
Section.
VIII.5 TIME OF ESSENCE. Time shall be of the essence of this Agreement in all
respects.
VIII.6 SUCCESSORS AND ASSIGNS. This Agreement shall enure to the benefit of, and
be binding on, the parties and their respective heirs, administrators,
executors, successors and permitted assigns. The Company shall have the right to
assign this Agreement to any successor (whether direct or indirect, by purchase,
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amalgamation, arrangement, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company provided only
that the Company must first require the successor to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
The Executive by the Executive's signature hereto expressly consents to such
assignment. The Executive shall not assign or transfer, whether absolutely, by
way of security or otherwise, all or any part of the Executive's rights or
obligations under this Agreement without the prior consent of the Company, which
may be arbitrarily withheld.
VIII.7 AMENDMENT. No amendment of this Agreement will be effective unless made
in writing and signed by the parties.
VIII.8 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties pertaining to the subject matter of this Agreement and supersedes
all prior agreements, understandings, negotiations and discussions, whether oral
or written. There are no conditions, warranties, representations or other
agreements between the parties in connection with the subject matter of this
Agreement (whether oral or written, express or implied, statutory or otherwise)
except as specifically set out in this Agreement.
VIII.9 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey and the laws of the United
States applicable in that State and shall be treated, in all respects, as a New
Jersey contract.
VIII.10 HEADINGS. The division of this Agreement into Sections and the insertion
of headings are for convenience or reference only and shall not affect the
construction or interpretation of this Agreement.
ARTICLE IX : SATISFACTION OF ALL CLAIMS
IX.1 FULL SATISFACTION. The terms set out in this Agreement, provided that such
terms are satisfied by the Company and the Executive, are in lieu of (and not in
addition to) and in full satisfaction of any and all other claims or
entitlements which the Company and the Executive have or may have upon the
termination of the Executive's employment pursuant to Section 6 and the
compliance by the Company and the Executive with these terms will affect a full
and complete release of the Company, their parent and their respective
affiliates, associates, subsidiaries and related companies and the Executive,
from any and all claims which both parties may have for whatever reason or cause
in connection with the Executive's employment and the termination of it, other
than those obligations specifically set out in this Agreement. In agreeing to
the terms set out in this Agreement, the Executive agrees to execute a formal
release document to that effect and will deliver upon request appropriate
resignations from all offices and positions with the Company and its parent and
their respective affiliated, associated subsidiary or affiliated companies if,
as and when requested by the Company upon termination of the Executive's
employment within the circumstances contemplated by this Agreement.
ARTICLE X : EXECUTIVE ACKNOWLEDGEMENT
X.1 ACKNOWLEDGEMENT.
The Executive acknowledges that:
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(a) the Executive has had sufficient time to review this Agreement
thoroughly;
(b) the Executive has read and understands the term of this Agreement and
the obligations hereunder;
(c) the Executive has been given an opportunity to obtain independent
legal advice concerning the interpretation and effect of this
Agreement; and,
(d) the Executive has received a fully executed counterpart copy of this
Agreement.
IN WITNESS WHEREOF the parties have executed
counterpart copies of this Agreement.
------------------------------------------ -----------------------------------
WITNESS LL
LL
Per:
-----------------------------------
NAME:
TITLE:
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SCHEDULE "A"
DEFINITIONS
"Agreement" means this agreement and all amendments made hereto by written
agreement between the Company and the Executive.
"Business Day" means a day other than Saturday, Sunday or statutory holiday in
the United States.
"Disability" means a physical or mental incapacity of the Executive that has
prevented the Executive from performing the duties customarily assigned to the
Executive for one hundred and eight (180) days, whether or not consecutive, out
of any twelve (12) consecutive months and that in the opinion of the Board is
likely to continue.
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