EXECUTIVE EMPLOYMENT CONTRACT
Schedule A-2 to Shareholders Agreement
THIS AGREEMENT MADE AS OF THE ~ ~ DAY OF JANUARY, 2000..
Among:
MENTOR ON CALL, INC.
a corporation incorporated under
the laws of Nevada, U.S.A.
(hereinafter referred to as the "Corporation")
OF THE FIRST PART,
- and -
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
of the City of Toronto
Province of Ontario
Canada
(hereinafter referred to as the "Executive")
OF THE SECOND PART.
Whereas the Corporation wishes to retain the services of the Executive
to provide the services hereinafter described during the term hereinafter set
out;
NOW THEREFORE THIS AGREEMENT WiTNESSES that in consideration of the
mutual covenants and agreements herein contained and for other good and valuable
consideration, the parties agree as follows:
1. TERM
The Corporation shall employ the Executive for a period of five years
fromjANUARY 18, 2000 to and including January 18, 2005, unless such employment
shall be terminated earlier as hereinafter provided. Upon the expiry of the term
of this agreement on January 18, 2005, and on each anniversary of such date
falling thereafter, the term of this agreement shall automatically be extended
for on additional year on the same terms and conditions unless, not less than
six months prior to any such anniversary, either the Executive or the
Corporation shall have given written notice to the other that it does not wish
to further extend this agreement.
2. DUTIES
The Executive shall serve the Corporation and any subsidiaries of the
Corporation in such capacity or capacities and shall perform such duties and
exercise such power pertaining to the management and operation of the
Corporation as may be determined form time to time by the board of directors of
the Corporation consistent with the office of the Executive. Without limitation
of the foregoing, the Executive shall occupy the office of Chief Operating
Officer and Chief Financial Officer of the Corporation. The Executive shall:
(a) devote his full time and attention and his best efforts during
normal business hours to the business and affairs of the Corporation;
(b) perform those duties that may reasonably be assigned to the
Executive diligently and faithfully to the best of the Executive's abilities and
in the best interests of the Corporation; and
(c) use his best efforts to promote the interests and goodwill of the
Corporation.
3. REPORTING PROCEDURES
The Executive shall report to the person holding the office of Chief
Executive Officer. The Executive shall report fully on the management,
operations and business affairs of the Corporation and advise to the best of his
ability and in accordance with reasonable business standards on business matters
that may arise from time to time during the term of this agreement.
4. REMUNERATION
(a) The annual base salary payable to the Executive for his services
hereunder for the first year of the term of his agreement shall by U.S. $180,000
with U.S. $60,000 of this amount deferred until the Corporation retains earnings
of U.S. $750,000 in one quarter as determined in the sole discretion of the
Chief Executive Officer. At that time the deferred salary vests in the Executive
and is then due and payable in equal monthly increments over the ensuing six
months in addition to the monthly salary. The annual base salary payable to the
Executive for his services hereunder for each successive year of the term of
this agreement, exclusive of bonuses, benefits and other compensation, shall
increase by eight per cent of the annual base salary for the immediately
preceding year. The annual base salary payable to the Executive pursuant to the
provisions of this section 4 shall be payable in equal monthly instalments in
arrears on the first of each month or in such other manner as may be mutually
agreed upon, less, in any case, any deductions or withholdings required by law.
(b) The Corporation shall provide the Executive with employee benefits
comparable to those provided by the Corporation from time to time to other
senior executive of the Corporation to a maximum value of fifteen per cent of
Executive's salary with a floor often per cent of salary and shall permit the
Executive to participate in any share option plan, share purchase plan,
retirement
plan or similar plan offered by the Corporation from time to time to its senior
executives in the manner and to the extent authorized by the board of directors
of the Corporation.
5. PERFORMANCE BONUS
In addition to the Executive's annual base salary, the Executive shall
participate in the Corporation's executive bonus plan whereby upon completion of
the Learning Management System to the satisfaction of the Chief Executive
Officer utilizing third party and independent evaluators and conditional upon
receipt of a minimum of U.S. $1,500,000 from System Licenses, a Project
Completion Bonus of U.S. $125,000 will be immediately payable to the Executive.
6. STOCK OPTIONS
The Executive is entitled to Stock Options in the Corporation in the
amount of 250,000 no par value common shares at a strike price of U.S. $2.00 per
share exercisable for a period of five years from issuance of the performance
bonus ENUNCIATED IN ARTICLE 5 above.
7. NO FURTHER SALARY OR BONUS ADJUSTMENTS
Other than as herein provided, there shall be no cost-of-living
increase or merit increase in the annual base salary or the executive bonus
unless agreed to in writing by the Corporation.
8. VACATION
The Executive shall be entitled to four weeks' paid vacation per fiscal
year of the Corporation at a time approved in advance by the Chief Executive
Officer, which approval shall not be unreasonably withheld but shall take into
account the staffing requirements of the Corporation and the need for the timely
performance of the Executive's responsibilities. In the event that the Executive
decides not to take all the vacation to which he is entitled in any fiscal year,
the Executive shall be entitled to take up to one week of such vacation in the
next following fiscal year at a time approved in advance by the Chief Operating
Officer.
9. AUTOMOBILE
The Executive shall be supplied with an allowance of U.S.$375 per month
when the Corporation is earning a profit of a minimum of U.S. $750,000 in any
quarter, as determined in the sole discretion of the Chief Financial Officer,
towards a leased car selected by the Corporation to be used by him for the
Corporation's business.
10. EXPENSES
The Executive shall be reimbursed for all reasonable travel and other
out-of-pocket expenses actually and properly incurred by the Executive from time
to time in connection with carrying out his duties hereunder. For all such
expenses the Executive shall furnish to the Corporation original of all invoices
or statements in respect of which the Executive seeks reimbursement.
11. TERMINATION
(a) For Cause
The Corporation may terminate the employment of the Executive without
notice or any payment in lieu of notice for cause which, without limiting the
generality of the foregoing, shall include:
(i) if there is a repeated and demonstrated failure on the
part of the Executive to perform the material duties of the Executive's
position in a competent manner and where the Executive fails to
substantially remedy the failure within a reasonable period of time
after receiving written notice of such failure from the Corporation;
(ii)if the Executive is convicted of a criminal offence
involving fraud or dishonesty;
(iii) if the Executive or any member of his family makes any
personal profit arising out of or in connection with a transaction to
which the Corporation is a party or with which it is associated without
making disclosure to and obtaining the prior written consent of the
Corporation;
(iv) if the Executive fails to honour his fiduciary duties to
the Corporation, including the duty to act in the best interests of the
Corporation; or
(v) if the Executive disobeys reasonable instructions given in
the course of employment by the Chief Operating Officer or the board of
directors of the Corporation that are not inconsistent with the
Executive's management position and not remedied by the Executive
within a reasonable period of time after receiving written notice of
such disobedience.
(B) For Disability/Death
This agreement may be immediately terminated by the Corporation by
notice to the Executive if the Executive becomes permanently disabled. The
Executive shall be deemed to have become permanently disabled as defined in the
Shareholders Agreement to which this Executive Employment Agreement is attached
as Schedule A.
This agreement shall terminate without notice upon the death of the
Executive.
12. SEVERANCE PAYMENTS
(a) Upon termination of the Executive's employment: (i) for cause; (ii)
by the voluntary termination of employment of the Executive; or (iii) by the
non-renewal of this Agreement, the Executive shall not be entitled to any
severance payment other than compensation earned by the Executive before the
date of termination calculated pro rata up to and including the date of
termination calculated pro rata up to and including the date of termination,
together with any AMOUNT TO WHICH THE EXECUTIVE IS ENTITLED UNDER THE EMPLOYMENT
STANDARDS ACT (Ontario), as amended and in force from time to time,
(b) If the Executive's employment is terminated for any other reason
other than the reasons set forth in subsection 12(a), the Executive shall be
entitled to receive the lesser of:
(i) Six months salary if termination occurs from month seven
to 12;
(ii) Twelve months salary if termination occurs in month 13 to
25;
(iii) Eighteen months salary if termination occurs in month 25
to term.
In any event, the compensation under the contract is guaranteed by the
Corporation for one year of salary from the date of execution, if terminated
without cause as enunciated in 12 (a).
13. CONFIDENTIALITY
The Executive acknowledges and agrees that:
(a) in the course of performing his duties and responsibilities as COO
and CFO of the Corporation, he has had and will continue in the future to have
access to and has been and will be entrusted with detailed confidential
information and trade secrets (printed or otherwise) concerning past, present,
future and contemplated products, services, operations and marketing techniques
and procedures of the Corporation and its subsidiaries, including, without
limitation, information relating to addresses, preference, needs and
requirements of past, present and prospective clients, customers, suppliers
(which, for all purposes of this agreement, shall be deemed to include, without
limitation, all old Pathfinder clients,) and employees of the Corporation
(collectively, "Trade Secrets"), the disclosure of any of which to competitors
of the Corporation or to the general public, or the use of same by the Executive
or any competitor of the Corporation or any of its subsidiaries, would be highly
detrimental to the interests of the Corporation;
(b) in the course of performing his duties and responsibilities for the
Corporation, the Executive has been and will continue in the future to be a
representative of the Corporation to its customers, clients and suppliers and as
such has had and will continue in the future to have significant responsibility
for maintaining and enhancing the goodwill of the Corporation with such
customers, clients and suppliers and would not have, except by virtue of his
employment with the
Corporation, developed a close and direct relationship with the customers,
clients and suppliers of the Corporation;
(c) the Executive, as an officer of the Corporation, owes fiduciary
duties to the Corporation, including the duty to act in the best interests of
the Corporation; and
(d) the right to maintain the confidentiality of the Trade Secrets, the
right to preserve the goodwill of the Corporation and the right to the benefit
of any relationships that have developed between the Executive and the
customers, clients and suppliers of the Corporation by virtue of the Executive's
employment with the Corporation constitute proprietary rights of the
Corporation, which the Corporation is entitled to protect.
In acknowledgment of the matters described above and in consideration
of the payments to be received by the Executive pursuant to this agreement, the
Executive hereby agrees that he will not, for five years from the date hereof;
directly or indirectly disclose to any person or in any way make use of; other
than for the benefit of the Corporation, in any manner, any of the Trade
Secrets, provided that such Trade Secrets shall be deemed not to include
information that is or becomes generally available to the public other than as a
result of disclosure by the Executive.
14. NON-SOLICITATION
The Executive hereby agrees that he will not, during the period
commencing on the date hereof and ending five years following the expiration of
the term of this agreement, be a party to or abet any solicitation of customers,
clients or suppliers of the Corporation or any of its subsidiaries, to transfer
business from the Corporation or any of its subsidiaries to any other person, or
seek in any way to persuade or entice any employee of the Corporation or any of
its subsidiaries to leave that employment or to be a party to or abet any such
action.
15. DISCLOSURE
During the employment period, the Executive shall promptly disclose to
the Chief Executive Officer full information concerning any interest, direct or
indirect, of the Executive (as owner, shareholder, partner, lender or other
investor, director, officer, employee, consultant or otherwise) or any member of
his family in any business that is reasonably known to the Executive to purchase
or otherwise obtain services or products from, or to sell or otherwise provide
services or products to the Corporation or to any of its suppliers or customers.
16. PLACE OF EMPLOYMENT
The Corporation shall not move or otherwise relocate the place of
business at which the Executive reports to work more than 50 kilometres from
downtown ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ for the term of this contract and then, only
if mutually agreed by both parties hereto, to a mutually agreed upon location
with all expenses paid by the Corporation.
17. RETURN OF MATERIALS
All files, forms, brochures, books, materials, written correspondence,
memoranda, documents, manuals, computer disks, software products and lists
(including lists of customers, suppliers, products and prices) pertaining to the
business of the Corporation or any of its subsidiaries and associates that may
come into the possession or control of the Executive shall at all times remain
the property of the Corporation or such subsidiary or associate, as the case may
be. On termination of the Executive's employment for any reason, the Executive
agrees to deliver promptly to the Corporation all such property of the
Corporation in the possession of the Executive or directly or indirectly under
the control of the Executive. The Executive agrees not to make for his personal
or business use or that of any other party, reproductions or copies of any such
property or other property of the Corporation.
18 GOVERNING LAW
This agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario.
19. SEVERABILITY
If any provision of this agreement, including the breadth or scope of
such provision, shall be held by any court of competent jurisdiction to be
invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remaining provisions, or part thereof; of this agreement and such remaining
provisions, or part thereof; shall remain enforceable and binding.
20. ENFORCEABILITY
The Executive hereby confirms and agrees that the covenants and
restrictions pertaining to the Executive contained in this agreement, including,
without limitation, those contained in sections 13 and 14 hereof; are reasonable
and valid and hereby further acknowledges and agrees that the Corporation would
suffer irreparable injury in the event of any breach by the Executive of his
obligations under any such covenant or restriction. Accordingly, the Executive
hereby acknowledges and agrees that damages would be an inadequate remedy at law
in connection with any such breach and the Corporation shall therefore be
entitled in lieu of any action for damages, temporary and permanent injunctive
relief enjoining and restraining the Executive from any such breach.
21. NO ASSIGNMENT
The Executive may not assign, pledge or encumber the Executive's
interest in this agreement nor assign any of the rights or duties of the
Executive under this agreement without the prior written consent of the
Corporation.
22. LEGAL ADVICE
The Executive hereby represents and warrants to the Corporation and
acknowledges and agrees that he had the opportunity to seek and was not
prevented nor discouraged by the Corporation from seeking independent legal
advice prior to the execution and delivery of this agreement and that, in the
event that he did not avail himself of that opportunity prior to signing this
agreement, he did so voluntarily without any undue pressure and agrees that his
failure to obtain independent legal advice shall not be used by him as a defense
to the enforcement of his obligations under this agreement.
23 NOTICES
Any notice or other communication required or permitted to be given
hereunder shall be in writing and either delivered by hand or mailed by prepaid
registered mail. If there is a general discontinuance of postal service due to
strike, lock-out or otherwise, a notice sent by prepaid registered mail shall be
deemed to have been received three business days after the resumption of postal
service. Notice shall be addressed as follows:
(a) If to the Corporation:
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(b) If to the Executive:
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IN WITNESS WHEREOF THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT AS
OF THE DATE first above written.
SIGNED, SEALED AND DELIVERED
by a duly authorized officer of Mentor On Call, Inc.
C/S
SIGNED, SEALED AND DELIVERED
by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and duly witnessed by:
Witness
Address