Exhibit 10.9
CONSULTANCY AGREEMENT
This consultancy agreement is dated as of January 1, 2003 by
and between ▇▇▇▇▇▇▇▇▇▇.▇▇▇, a Nevada corporation (the "Company"),
Micro-American, Inc. ("Micro") and ▇▇▇▇▇▇ ▇▇▇▇ (herein "▇▇▇▇"). This agreement
supercedes any previous agreements with these parties.
WHEREAS, the Company has requested that Micro provide the
services of ▇▇▇▇▇▇ ▇▇▇▇ in the position of Chief Executive Officer and
Vice-Chairman of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ (herein referred to as "▇▇▇▇");
WHEREAS, ▇▇▇▇ was one of the founders of the Company and has
acted as Chief Executive Officer and Chairman of the Company from October 21,
1999 to date; and
WHEREAS, the Company recognizes that ▇▇▇▇'▇ talents and
abilities are unique, and have been integral to the success of the Company and
thus wishes to secure the ongoing services of ▇▇▇▇ on the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants set forth below, the parties hereby agree as follows:
1. The Company hereby continues with ▇▇▇▇ as the Chief Executive Officer and
Vice-Chairman of the Board of Directors of the Company, and ▇▇▇▇ hereby accepts
such appointments, on the terms and conditions set forth below (herein the
"Consultancy Period").
2. Term. Micro's consultancy term shall begin on January 1, 2003 (the "Effective
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Date") and end on the third anniversary of such date (the "Renewal Date") and
shall automatically be extended so as to terminate three years from the Renewal
Date, unless at least 60 days prior to the Renewal Date either the Company or
Micro shall give written notice to the other that the Consultancy Period shall
not be so extended.
3. Position and Duties. During the Consultancy Period, ▇▇▇▇ shall serve as the
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Chief Executive Officer of the Company with such duties, authority and
responsibilities as are normally associated with and appropriate for such
position. ▇▇▇▇ shall also assume the position of Vice-Chairman of the Company
and shall have such duties, authority and responsibilities as are normally
associated with and appropriate for such position. ▇▇▇▇ shall devote
substantially all of his working time, attention and energies during normal
business hours (other than absences due to illness or vacation) to the
performance of his duties for the Company. Notwithstanding the above, ▇▇▇▇ shall
be permitted, to the extent such activities do not substantially interfere with
his performance of his duties and responsibilities hereunder, to (i) manage his
personal, financial and legal affairs, (ii) serve on civic or charitable boards
or committees (it being expressly understood and agreed that ▇▇▇▇ continuing to
serve on any such board and/or committees on which he is serving, or with which
he is otherwise associated, as of the Effective Date, shall be deemed not to
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interfere with his performance of his duties and responsibilities under this
Agreement), (iii) serve on boards of other companies and ▇▇▇▇ shall be entitled
to receive and retain all remuneration received by him from the items listed in
clauses (i) through (iii) of this paragraph.
4. Place of Performance. During the Consultancy Period, the Company shall
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maintain executive offices for ▇▇▇▇ in Vancouver, British Columbia and in any
other location the Company established offices at but ▇▇▇▇ shall not be required
to relocate to any other location unless he is in full agreement to it and all
his expenses are covered for the move including but not limited to travel,
accommodation, work permits, legal and accounting, any extra taxes due,
transportation of household goods, purchase of household goods, and other such
expenses incurred by a move recommended by the Company. During the Consultancy
Period, the Company shall provide ▇▇▇▇ with an office and staff.
5. Compensation and Related Matters.
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(a) Base Salary. During the Consultancy Period, the Company shall pay
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Micro a base compensation at a monthly rate of at least US $20,000 (herein the
"Base Compensation"). The Base Compensation shall be reviewed annually and may
be increased at any time and from time to time by action of the Board of
Directors of the Company. Micro's Base Compensation shall be paid in 12 equal
installments on the 1st day of each and every month commencing January, 2003 and
if Micro chooses, shall be paid in cash or common shares of the Company. If
Micro elects to receive common shares the price the shares will be issued at the
closing price of the stock on the date the transaction takes place. If Micro's
Base Compensation is increased by an action of the Board of Directors, such
increased Base Compensation shall then constitute the Base Compensation for all
purposes of this Agreement. The Base Salary shall not be reduced.
(b) Signing Bonus. The Company shall issue to Micro a signing bonus of
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1,000,000 common shares of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ and an option to purchase 2,500,000
shares of ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s restricted common stock (the "Bonus Options"),
vesting immediately at an exercise price of $0.45 per share.
(c) Cash Bonus. For each full fiscal year beginning January 1, 2003,
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Micro shall be eligible to earn an annual cash bonus in such amount as shall be
determined by the Board of Directors (the "Annual Bonus") based on the
achievement by the Company of performance goals established by Management for
each such fiscal year, which may include targets related to the earnings before
interest, taxes, depreciation and amortization ("EBITDA") of the Company;
provided, that the Annual Bonus shall be no less than the annual base
compensation and at a participation level reflecting ▇▇▇▇'▇ duties and
responsibilities, and, in any event, at a level consistent with the President.
The Board of Directors may establish a Compensation Committee to set objective
criteria to be used to determine the extent to which performance goals have been
achieved. ▇▇▇▇'▇ eligibility for and participation in each of the Bonus Programs
shall be at a level and on terms and conditions which are as favorable than
those available to any other executive of the Company. If the bonus is not paid
it shall be accrued to the benefit of Micro and shall bear interest at current
market rates.
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(d) Automobiles. The Company shall compensate ▇▇▇▇ for all automobile
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expenses including but not limited to gas, mileage, repairs, maintenance, lease
payments, loan payments or any such payments.
(e) Business, Travel and Entertainment Expenses. The Company shall pay
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all business, travel and entertainment expenses consistent with ▇▇▇▇'▇ titles
and the practices of the Company including, without limitation, first class
transportation, hotel accommodation, food and beverage consumption, private
clubs, and other such expenses as deemed necessary by ▇▇▇▇.
(f) Vacation. ▇▇▇▇ shall be entitled to six weeks of consecutive
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vacation per year. Vacation not taken during the applicable fiscal year shall be
carried over to the next following fiscal year or will be compensated in the
form of 2 times the normal salary due for the period at the request of ▇▇▇▇.
(g) Incentive Benefit Plans. During the Consultancy Period, ▇▇▇▇ (and
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his eligible spouse) shall be entitled to participate in all the benefit plans
and programs maintained by the Company from time to time for the benefit of its
senior executives including, without limitation, all medical, hospitalization,
dental, disability, accidental death and dismemberment and travel accident
insurance plans and programs. In addition, during the Consultancy Period, ▇▇▇▇
shall be eligible to participate in all pension, retirement, savings and other
incentive benefit plans and programs maintained from time to time by the Company
for the benefit of its senior executives, other than any annual cash incentive
plan. If the Company does not have a benefit plan then the Company itself is
agreeing to pay any expenses incurred by ▇▇▇▇ for medical, hospitalization,
dental and any travel accident insurance plans and programs. In the event that
the Company has no benefit plan and ▇▇▇▇ is injured or disabled then Micro's
compensation shall continue uninterrupted for the duration of the injury or
disability. If ▇▇▇▇ dies and the Company has no benefit plan, then the
beneficiaries of ▇▇▇▇'▇ estate shall be entitled to a lump sum payment of 5
years compensation at the rate he was earning at the time of his death and all
the bonuses called for within that five year period and a one-time payment of
US$2 million.
(h) Dues. During the Consultancy Period, the Company shall pay or
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promptly reimburse ▇▇▇▇ for any annual dues for membership in clubs and business
organizations.
(i) Bonus Stock Options. In addition to the monthly base salary and any
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other benefits available to all employees and consultants, including standard
incentive qualified stock options, the Company will grant to Micro bonus stock
options to purchase 5,000,000 common shares of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ restricted common
shares (the "Bonus Stock Options"), vesting 2,000,000 common shares on March 31,
2003, 2,000,000 common shares on March 31, 2004 and 1,000,000 common shares on
March 31, 2005. The Bonus Stock Options carry an anti-dilution provision and are
not subject to a reverse split. For all purposes related to the Grant for these
options, the Board of Directors of the Company determined that the date of such
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grant is January 8, 2003 and the Fair Market Value per share as of the date of
such grant is US $0.45. The termination of this Agreement will not cause the
forfeiture of any of the Bonus Stock Options. In the event of ▇▇▇▇'▇ death or
disability all unvested options shall immediately vest and be exercisable by
Micro, ▇▇▇▇'▇ representative or executor, as applicable.
(j) Stock Bonus. Micro will be issued a restricted stock bonus of
2,000,000 common shares annually by March 31st of each year of the agreement
beginning March 31, 2003. Micro may elect to have the shares issued on a
quarterly or annual basis at its sole discretion absolutely. The restricted
stock bonus carry an anti-dilution provision and are not subject to a reverse
split.
(k) Home Mortgage Expenses: Micro's home mortgage expenses incurred on
behalf of ▇▇▇▇ will be borne by the company and paid directly.
(l) Collateral. The Company will indemnify and save harmless Micro and
▇▇▇▇ from any and all loss whatsoever from Micro or ▇▇▇▇ pledging personal
assets, cash, or common stock on behalf of the Company and will comply with a
demand for payment within seven (7) days of demand by Micro or ▇▇▇▇.
(m) Directors and Officers Insurance. The Company will acquire
Directors and Officers insurance or if the Company has no insurance, then it
agrees to save harmless ▇▇▇▇ from any litigation from his position as Chief
Executive Officer and Director of the Company.
6. Certain Additional Payments by ▇▇▇▇▇▇▇▇▇▇.▇▇▇
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6.1 In the event that any payment or distribution by the Company to or for the
benefit of Micro (whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise, but determined without
regard to any additional payments required under this Article 6.2) ("Payment")
is determined to be subject to the excise tax imposed by Section 4999 of the
U.S. Code or any pertinent revenue tax from other jurisdictions, interest or
penalties are incurred by Micro with respect to such excise tax (such excise
tax, together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then, the Company shall pay to Micro an
additional payment (a "Gross-Up Payment") in an amount such that after payment
by Micro of all taxes (including any interest or penalties imposed with respect
to such taxes), including, without limitation, any income taxes and Excise Tax
(including any interest and penalties imposed with respect thereto) imposed upon
the Payments, Micro shall be restored to its position prior to the imposition of
the Excise Tax or other Taxes.
6.2 Subject to the provisions of Article 6.4, all determinations required to be
made under this Article 6, including whether and when a Gross-Up payment is
required and the amount of such Gross-Up payment and the assumptions to be
utilized in arriving at such determination, shall be made by the Company's
Certified Public Accountant or such other certified public accounting firm as
may be designated by Micro and which is satisfactory to the Company (the
"Accounting Firm"), which shall provide detailed supporting calculations both to
the Company and Micro within 15 business days of the receipt of request from
Micro or the Company. All fees and expenses of the Accounting Firm shall be
borne solely by the Company. Any Gross-Up Payment, as determined pursuant to
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this Article 6.2, shall be paid by the Company to Micro within five days of the
receipt of the Accounting Firm's determination. No such determination that a
Gross-Up Payment is required shall be made unless the Accounting Firm furnishes
the Company with a written opinion that there is no reasonable basis for not
paying the Excise Tax. As a result of the uncertainty in the application of
Section 4999 of the code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event that the
Company exhausts its remedies pursuant to Section 6.3 and Micro thereafter is
required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of
Micro.
6.3 Micro shall notify the Company in writing of any claim by any Internal
Revenue Service that, if successful, would require the payment by the Company of
the Gross-Up Payment. Such notification shall be given as soon as practicable
but no later than ten business days after Micro is informed in writing of such
claim and shall apprise the Company of the nature of such claim and the date on
which such claim is requested to be paid. Micro shall not pay such claim prior
to the expiration of the 30-day period following the date on which notice is
given to the Company (or such shorter period ending on the date that any payment
of taxes with respect to such claim is due). If the Company notifies Micro in
writing prior to the expiration of such period that it desires to contest such
claim, Micro shall:
6.3.1 Give the Company any information reasonably requested
by the Company relating to such claim;
6.3.2 Take such action in connection with contesting such
claim as the Company shall reasonably request in writing from
time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney
reasonably selected by the Company;
6.3.3. Cooperate with the Company in good faith in order to
contest such claim effectively, and;
6.3.4 Permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold Micro harmless, on an after-tax
basis, for any Excise Tax or income tax (including interest and penalties with
respect thereto) imposed as a result of such representation and payment of costs
and expenses. Without limitation on the foregoing provisions of this Article
6.3, the Company shall control all proceedings taken in connection with such
contest and, at its sole option, may pursue or forgo any and all administrative
appeals, proceedings, hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either direct Micro to pay
the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible
manner, and Micro agrees to prosecute such contest to a determination before any
administration tribunal, in a court of initial jurisdiction and in one or more
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appellate courts, as the Company shall determine; provided, however, that if the
Company directs Micro to pay such claim and ▇▇▇ for a refund, the Company shall
advance the amount of such payment to Micro, on an interest-free basis and shall
indemnify and hold Micro harmless, on an after-tax basis, from any Excise Tax or
income tax (including interest or penalties with respect thereto) imposed with
respect to such advance or with respect to any imputed income with respect to
such advance; and further provided that any extension of the statute of
limitations relating to payment of taxes for the taxable year of Micro with
respect to which such contested amount is claimed to be due is limited solely to
such contested amount. Furthermore, the Company's control of the contest shall
be limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and Micro shall be entitled to settle or contest, as the case may be,
any other issue raised by the Internal Revenue Service or any other taxing
authority.
6.4 If, after the receipt by Micro of an amount advanced by the Company pursuant
to Article 6.3, Micro becomes entitled to receive any refund with respect to
such claim, Micro shall (subject to the Company's complying with the
requirements of Article 6.3) promptly pay to the Company the amount of such
refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by Micro of an amount advanced by the
Company pursuant to Article 6.3, a determination is made that Micro shall not be
entitled to any refund with respect to such claim and the Company does not
notify Micro in writing of its intent to contest such denial of refund prior to
the expiration of 30 days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up Payment required to
be paid.
7. Termination. Micro's Consultancy hereunder may be terminated during the
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Consultancy Period under the following circumstances:
(a) Death. Micro's consultancy hereunder shall terminate upon ▇▇▇▇'▇
death and if the Company has no benefit plan in place the Beneficiaries of
▇▇▇▇'▇ estate are entitled to receive the following: 5 years of full salary at
the rate he was earning at his death, any accrued and unpaid compensation and
bonuses, all bonuses due within the 5 year period and a cash payment of US$2
million. All unpaid stock options shall be paid by the Company shall be issued
in favor of his named beneficiaries as per his estate. All of these payments are
due within 90 days of receipt of notice of ▇▇▇▇'▇ death certificate.
(b) Disability. If during the term of this agreement, ▇▇▇▇ is unable to
work due to physical injury or mental illness and the Company does not have a
Benefit plan, the Company shall be responsible for any and all expenses relating
to medical, hospital, treatments, dental, any special medical needs and any
other costs associated with the injury or mental illness. In addition, the
Company shall be responsible for paying ▇▇▇▇'▇ compensation at the current rate
for as long as ▇▇▇▇ has the disability or the illness. ▇▇▇▇'▇ position of Chief
Executive Officer can be terminated however, the Company shall remain
responsible for any payments to Micro or ▇▇▇▇ as outlined above and upon the
injury being fixed, the Company shall re-instate the title and duties of Chief
Executive Officer and Vice-Chairman to ▇▇▇▇.
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(c) Cause. The Company shall have the right to terminate Micro's
agreement for "Cause." For purposes of this Agreement, the Company shall have
"Cause" to terminate Micro's agreement only upon ▇▇▇▇'▇:
(i) conviction of a felony or willful gross misconduct that,
in either case, results in material and demonstrable damage to the business or
reputation of the Company; or
For purposes of this Section 6(c), no act or failure to act by
▇▇▇▇ shall be considered "willful" if such act is done by ▇▇▇▇ in the good faith
belief that such act is or was to be beneficial to the Company or one or more of
its businesses, or such failure to act is due to ▇▇▇▇'▇ good faith belief that
such action would be materially harmful to the Company or one of its businesses.
Cause shall not exist unless and until the Company has delivered to ▇▇▇▇ a copy
of a resolution duly adopted by a majority of the Board (excluding ▇▇▇▇ for
purposes of determining such majority) at a meeting of the Board called and held
for such purpose after reasonable (but in no event less than thirty days')
notice to ▇▇▇▇ and an opportunity for ▇▇▇▇, together with his counsel, to be
heard before the Board, finding that in the good faith opinion of the Board that
"Cause" exists, and specifying the particulars thereof in detail. This Section
6(c) shall not prevent ▇▇▇▇ from challenging in any court of competent
jurisdiction the Board's determination that Cause exists or that ▇▇▇▇ has failed
to cure any act (or failure to act) that purportedly formed the basis for the
Board's determination.
(d) Good Reason. ▇▇▇▇ may terminate his employment for "Good Reason"
after giving the Company detailed written notice thereof, if the Company shall
have failed to cure the event or circumstance constituting "Good Reason" within
ten business days after receiving such notice. Good Reason shall mean the
occurrence of any of the following without the written consent of ▇▇▇▇ or his
approval in his capacity as the Chief Executive Officer and Vice-Chairman:
(i) assignment to ▇▇▇▇ of duties inconsistent with this
Agreement or a change in his titles or authority;
(ii) any failure by the Company to comply with Section 5
hereof in any material way;
(iii) the requirement of ▇▇▇▇ to relocate to locations other
than those agreed to by him;
(iv) the failure of the Company to comply with and satisfy
Section 12(a) of this Agreement; or
(v) any material breach of this Agreement by the Company.
Micro's right to terminate it's consultancy hereunder for Good Reason shall not
be affected by ▇▇▇▇'▇ incapacity due to physical or mental illness. Micro's
continued consultancy shall not constitute consent to, or a waiver of rights
with respect to, any act or failure to act constituting Good Reason hereunder.
(e) Without Good Reason. Micro shall have the right to terminate the
consultancy hereunder without Good Reason by providing the Company with a Notice
of Termination.
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8. Arbitration
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8.1 The Board of Directors of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ (the "Administrator") shall
administer this Agreement. The Administrator (either directly or through its
designees) will have power and authority to interpret, construe, and administer
this Agreement; provided that the Administrator's authority to interpret this
Agreement shall not cause the Administrator's decisions in this regard to be
entitled to a deferential standard of review in the event that Executive seeks
review of the Administrator's decision as described below.
8.2 Neither the Administrator nor its designee, shall be liable to any person
for any action taken or omitted in connection with the interpretation and
administration of this Agreement.
8.3 Because it is agreed that time will be of the essence in determining whether
any payments are due to Micro under this Agreement, Micro may, if it desires,
submit any claim for payment under this Agreement or dispute regarding the
interpretation of this Agreement to arbitration. This right to select
arbitration shall be solely that of Micro, and Micro may decide whether or not
to arbitrate in it's discretion. The "right to select arbitration" is not
mandatory on Micro, and Micro may choose in lieu thereof to bring an action in
an appropriate civil court. Once an arbitration is commenced, however, it may
not be discontinued without the mutual consent of both parties to the
arbitration procedure set forth in this Article.
8.4 Any claim for arbitration may be submitted as follows: If Micro disagrees
with the Administrator regarding the interpretation of this Agreement and the
claim is finally denied by the Administrator in whole or in part, such claim may
be filed in writing with an arbitrator of Micro's choice who is selected by the
method described in the next three sentences. The first step of the selection
shall consist of Micro's submitting a list of three potential arbitrators to the
Administrator. The potential arbitrators will be selected in accordance with the
applicable rules of the American Arbitration Association. Within one week after
receipt of the list, the Administrator shall select one of the three arbitrators
as the arbitrator for the dispute in question. If the Administrator fails to
select an arbitrator in a timely manner, Micro shall then designate one of the
three arbitrators as the arbitrator for the dispute in question.
8.5 The arbitration hearing shall be held within seven days (or as soon
thereafter as possible) after the picking of the arbitrator. No continuance of
said hearing shall be allowed without the mutual consent of Micro and
Administrator. Absence from or nonparticipation at the hearing by either party
shall not prevent the issuance of an award. Hearing procedures which will
expedite the hearing may be ordered at the arbitrator's discretion, and the
arbitrator may close the hearing in his or her sole discretion when he or she
decides he or she has heard sufficient evidence to satisfy issuance of an award.
8.6 The arbitrator's award shall be rendered as expeditiously as possible and in
no event later than one week after the close of the hearing. In the event the
arbitrator finds that ▇▇▇▇▇▇▇▇▇▇.▇▇▇ has breached this Agreement, he or she
shall order ▇▇▇▇▇▇▇▇▇▇.▇▇▇ to immediately take the necessary steps to remedy the
breach. In addition, he or she shall order ▇▇▇▇▇▇▇▇▇▇.▇▇▇ to pay Micro an
additional amount equal to 10% of the amount actually in dispute. This
additional amount shall constitute damages and not a penalty. The award of the
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arbitrator shall be final and binding upon the parties. The award may be
enforced in any appropriate court as soon as possible after its rendition. If an
action is brought to confirm the award, both the Company and Micro agree that no
appeal shall be taken by either party from any decision rendered in such action.
8.7 The Administrator will be considered the prevailing party in a dispute if
the arbitrator determines (1) that the Company has not breached this Agreement
and (2) the claim by Micro was not made in good faith. Otherwise, Micro will be
considered the prevailing party. In the event that ▇▇▇▇▇▇▇▇▇▇.▇▇▇ is the
prevailing party, the fee of the arbitrator and all necessary expenses of the
hearing (excluding any attorney's fees incurred by the Company) including
stenographic reporter, if employed, shall be paid by Micro. In the event that
Micro is the prevailing party, the fee of the arbitrator and all necessary
expenses of the hearing (including all attorneys' fees incurred by the Micro in
pursuing his claim), including the fees of a stenographic reporter if employed,
shall be paid by ▇▇▇▇▇▇▇▇▇▇.▇▇▇.
9. Termination Procedure.
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(a) Notice of Termination. Any termination of Micro's consultancy by
the Company or by ▇▇▇▇ during the Consultancy Period (other than pursuant to
Section 6(a)) shall be communicated by written Notice of Termination to the
other party. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice indicating the specific termination provision in this Agreement
relied upon and setting forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Micro's consultancy under that
provision.
(b) Date of Termination. "Date of Termination" shall mean (i) if
Micro's consultancy is terminated by ▇▇▇▇'▇ death, the date of his death, (ii)
if Micro's consultancy is terminated pursuant to Section 6(b), thirty (30) days
after the date of receipt of the Notice of Termination (provided that ▇▇▇▇ does
not return to the substantial performance of his duties on a full-time basis
during such thirty (30) day period), and (iii) if Micro's consultancy is
terminated for any other reason, the date on which a Notice of Termination is
given or any later date (within thirty (30) days after the giving of such
notice) set forth in such Notice of Termination.
10. Compensation Upon Termination or During Disability. In the event ▇▇▇▇ is
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disabled or Micro's consultancy terminates during the Consultancy Period, the
Company shall provide Micro with the payments and benefits set forth below.
Micro acknowledges and agrees that the payments set forth in this Section 8
constitute liquidated damages for termination of it's consultancy during the
Consultancy Period.
(a) Termination By Company without Cause or By Executive for Good
Reason. If Micro's consultancy is terminated by the Company without Cause (other
than Disability) or by Micro for Good Reason:
(i) the Company shall pay to Micro, on or before the Date of
Termination, a lump sum payment equal to the sum of (A) the Base Salary and
accrued vacation through the remaining term of the Agreement, and (B) three
times the annual Base Salary and (C) the higher of $10,000,000 or three times
the highest Annual Bonus paid with respect to any fiscal year beginning during
the Consultancy Period and (D) all outstanding Bonus Stock Options will
immediately vest and the exercise price paid by the Company.
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(ii) the Company shall continue to provide ▇▇▇▇ and his
eligible spouse and dependents for a period equal to the greater of (A) the
remaining term of the Consultancy Period, or (B) three (3)years following the
Date of Termination, the medical, hospitalization, dental and life insurance
programs provided for in Section 5(f), as if he had remained as Chief Executive
Officer; provided, that if ▇▇▇▇, his spouse or his eligible dependents cannot
continue to participate in the Company programs providing such benefits, the
Company shall arrange to provide ▇▇▇▇ and his spouse and dependents with the
economic equivalent of the benefits they otherwise would have been entitled to
receive under such plans and programs; and provided, further, that such benefits
shall terminate on the date or dates ▇▇▇▇ becomes eligible to receive equivalent
coverage and benefits under the plans and programs of a subsequent employer at
an equivalent cost to ▇▇▇▇ (such coverage and benefits to be determined on a
coverage-by-coverage, or benefit-by-benefit, basis);
(iii) the Company shall, consistent with past practice,
reimburse Micro pursuant to Section 5(d) for business expenses incurred but not
paid prior to such termination of employment;
(iv) until the third anniversary of the Date of Termination,
the Company shall continue to provide Micro and ▇▇▇▇ with (A) the benefits set
forth in Sections 5(c) and 5(g) hereof and (B) an office and an assistant in
Vancouver and any other location of his choice at the sole direction and
discretion of ▇▇▇▇; and
(v) ▇▇▇▇ shall be entitled to any other rights, compensation
and/or benefits as may be due to ▇▇▇▇ in accordance with the terms and
provisions of any agreements, plans or programs of the Company (other than any
severance-based plan or program).
The payments and benefits provided for as sub clause (A) of clause (i) above and
in clause (iii) above are hereinafter referred to as the "Accrued Obligations".
(b) Cause or By Executive Without Good Reason. If Micro's consultancy
is terminated by the Company for Cause or by Micro other than for Good Reason,
then the Company shall provide Micro with all Accrued Obligations including all
stock options and shall have no further obligation to Micro hereunder.
(c) Disability. During any period that ▇▇▇▇ fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness
("Disability Period"), Micro shall continue to receive it's full Base Salary set
forth in Section 5(a) until ▇▇▇▇ returns to work and all his expenses will be
covered by the Company. If Micro's consultancy is terminated pursuant to Section
6(b), the Company shall provide Micro with the excess, if any, of it's full Base
Salary over the amount of any long-term disability benefits that it receives
under the Company's incentive benefit plans and programs, payable in accordance
with the normal practices of the Company, for the remainder of the Consultancy
Period and shall have no further obligations to Micro hereunder. If however, the
Company does not have any benefit plan, Micro will be entitled to receive full
salary at the rate when ▇▇▇▇'▇ disability or illness occurred until ▇▇▇▇ returns
to work or as long as ▇▇▇▇ has his disability or illness no matter how long and
all expenses associated with his illness or disability.
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(d) Death. If Micro's consultancy is terminated by ▇▇▇▇'▇ death and the
Company has no benefit plan, the Company shall provide to ▇▇▇▇'▇ beneficiaries,
legal representatives or estate, as the case may be, the following: a lump sum
payment of 5 years annual salary at the rate he was earning at the time of his
death, all the bonuses called for within that five year period and a payment of
US$2 million. After this payment is made, the Company shall have no further
obligations hereunder.
(e) Mitigation. Micro shall not be required to mitigate damages with
respect to the termination of it's Consultancy under this Agreement by seeking
other consulting agreements or otherwise, and there shall be no offset against
amounts due Micro under this Agreement on account of subsequent consulting
agreements except as specifically provided in this Section 8. Additionally,
amounts owed to Micro under this Agreement shall not be offset by any claims the
Company may have against Micro, and the Company's obligation to make the
payments provided for in this Agreement, and otherwise to perform its
obligations hereunder, shall not be affected by any other circumstances,
including, without limitation, any counterclaim, recoupment, defense or other
right which the Company may have against Micro or others.
11. Indemnification.
---------------
(a) General. The Company agrees that if Micro or ▇▇▇▇ is made a party
or is threatened to be made a party to any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "Proceeding"), by reason of
the fact that ▇▇▇▇ is or was a trustee, director or officer of the Company,
▇▇▇▇▇▇▇▇▇▇.▇▇▇, or any predecessor to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ (including any sole
proprietorship owned by Micro or ▇▇▇▇) or any of their affiliates or is or was
serving at the request of the Company, ▇▇▇▇▇▇▇▇▇▇.▇▇▇, any predecessor to
▇▇▇▇▇▇▇▇▇▇.▇▇▇ (including any sole proprietorship owned by Micro or ▇▇▇▇), or
any of their affiliates as a trustee, director, officer, member, employee or
agent of another corporation or a partnership, joint venture, limited liability
company, trust or other enterprise, including, without limitation, service with
respect to employee benefit plans, whether or not the basis of such Proceeding
is alleged action in an official capacity as a trustee, director, officer,
member, employee or agent while serving as a trustee, director, officer, member,
employee or agent, Micro and ▇▇▇▇ shall be indemnified and held harmless by the
Company to the fullest extent authorized by Nevada law, as the same exists or
may hereafter be amended, against all Expenses incurred or suffered by Micro or
▇▇▇▇ in connection therewith, and such indemnification shall continue as to
Micro and ▇▇▇▇ even if ▇▇▇▇ has ceased to be an officer, director, trustee or
agent, or is no longer an officer or director of the Company and shall inure to
the benefit of his heirs, executors and administrators.
(b) Expenses. As used in this Agreement, the term "Expenses" shall
include, without limitation, damages, losses, judgments, liabilities, fines,
penalties, excise taxes, settlements, and costs, attorneys' fees, accountants'
fees, and disbursements and costs of attachment or similar bonds,
investigations, and any expenses of establishing a right to indemnification
under this Agreement.
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(c) Enforcement. If a claim or request under this Section 9 is not paid
by the Company or on its behalf, within thirty (30) days after a written claim
or request has been received by the Company, Micro or ▇▇▇▇ may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim or request and if successful in whole or in part, Micro or ▇▇▇▇ shall be
entitled to be paid also the expenses of prosecuting such suit. All obligations
for indemnification hereunder shall be subject to, and paid in accordance with,
applicable Nevada law.
(d) Partial Indemnification. If Micro or ▇▇▇▇ is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of any Expenses, but not, however, for the total amount thereof, the
Company shall nevertheless indemnify Micro and ▇▇▇▇ for the portion of such
Expenses to which Micro or ▇▇▇▇ is entitled.
(e) Advances of Expenses. Expenses incurred by Micro or ▇▇▇▇ in
connection with any Proceeding shall be paid by the Company in advance upon
request by Micro or ▇▇▇▇ that the Company pay such Expenses, but only in the
event that Micro or ▇▇▇▇ shall have delivered in writing to the Company (i) an
undertaking to reimburse the Company for Expenses with respect to which Micro or
▇▇▇▇ is not entitled to indemnification and (ii) a statement of good faith
belief that the standard of conduct necessary for indemnification by the Company
has been met.
(f) Notice of Claim. Micro or ▇▇▇▇ shall give to the Company notice of
any claim made against ▇▇▇▇ for which indemnification will or could be sought
under this Agreement. In addition, ▇▇▇▇ shall give the Company such information
and cooperation as it may reasonably require and as shall be within ▇▇▇▇'▇ power
and at such times and places as are convenient for her.
(g) Defense of Claim. With respect to any Proceeding as to which Micro
or ▇▇▇▇ notifies the Company of the commencement thereof:
(i) The Company will be entitled to participate therein at its
own expense;
(ii) Except as otherwise provided below, to the extent that it
may wish, the Company will be entitled to assume the defense thereof, with
counsel reasonably satisfactory to Micro and ▇▇▇▇, which in the Company's sole
discretion may be regular counsel to the Company and may be counsel to other
officers and directors of the Company or any subsidiary. Micro and ▇▇▇▇ also
shall have the right to employ their own counsel in such action, suit or
proceeding if they reasonably conclude that failure to do so would involve a
conflict of interest between the Company and Micro and ▇▇▇▇, and under such
circumstances the fees and expenses of such counsel shall be at the expense of
the Company.
(iii) The Company shall not be liable to indemnify Micro or
▇▇▇▇ under this Agreement for any amounts paid in settlement of any action or
claim effected without its written consent. The Company shall not settle any
action or claim in any manner which would impose any penalty that would not be
paid directly or indirectly by the Company or limitation on Micro and ▇▇▇▇
without Micro and ▇▇▇▇'▇ written consent. Neither the Company nor Micro and ▇▇▇▇
will unreasonably withhold or delay their consent to any proposed settlement.
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(h) Non-exclusivity. The right to indemnification and the payment of
expenses incurred in defending a Proceeding in advance of its final disposition
conferred in this Section 9 shall not be exclusive of any other right which
Micro and ▇▇▇▇ may have or hereafter may acquire under any statute or
certificate of incorporation or by-laws of the Company or any subsidiary,
agreement, vote of shareholders or disinterested directors or trustees or
otherwise.
12. Legal Fees and Expenses. If any contest or dispute shall arise between
-----------------------
the Company and Micro and ▇▇▇▇ regarding any provision of this Agreement, the
Company shall reimburse Micro and ▇▇▇▇ for all legal fees and expenses
reasonably incurred by Micro and ▇▇▇▇ in connection with such contest or
dispute, but only if Micro and ▇▇▇▇ prevails to a substantial extent with
respect to the their claims brought and pursued in connection with such contest
or dispute. Such reimbursement shall be made as soon as practicable following
the resolution of such contest or dispute (whether or not appealed) to the
extent the Company receives reasonable written evidence of such fees and
expenses.
13. Successors; Binding Agreement.
-----------------------------
(a) Company's Successors. No rights or obligations of the Company under
this Agreement may be assigned or transferred, except that the Company shall
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company 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. As used in this Agreement,
"Company" shall include any successor to its business and/or assets (by merger,
purchase or otherwise) which executes and delivers the agreement provided for in
this Section 11 or which otherwise becomes bound by all the terms and provisions
of this Agreement by operation of law.
(b) Consultant's Successors. No rights or obligations of Micro under
this Agreement may be assigned or transferred by Micro other than it's rights to
payments or benefits hereunder, which may be transferred only by will or the
laws of descent and distribution. Upon ▇▇▇▇'▇ death, this Agreement and all
rights of Micro and ▇▇▇▇ hereunder shall inure to the benefit of and be
enforceable by ▇▇▇▇'▇ beneficiary or beneficiaries, personal or legal
representatives, or estate, to the extent any such person succeeds to ▇▇▇▇'▇
interests under this Agreement. If ▇▇▇▇ should die following his Date of
Termination while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts unless otherwise provided herein shall be
paid in accordance with the terms of this Agreement to such person or persons so
appointed in writing by ▇▇▇▇, or otherwise to his legal representatives or
estate.
14. Notice. For the purposes of this Agreement, notices, demands and all other
------
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered either personally or by certified
or registered mail, return receipt requested, postage prepaid, addressed as
follows:
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If to Micro:
▇.▇. ▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
If to ▇▇▇▇:
At his residence address most recently filed with the Company.
If to the Company:
▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇
Attention: General Counsel
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
15. Miscellaneous. No provisions of this Agreement may be amended, modified,
-------------
or waived unless such amendment or modification is agreed to in writing signed
by Micro and by a duly authorized officer of the Company, and such waiver is set
forth in writing and signed by the party to be charged. No waiver by either
party hereto at any time of any breach by the other party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement. The respective rights and obligations of the parties hereunder of
this Agreement shall survive Micro's termination of consultancy and the
termination of this Agreement to the extent necessary for the intended
preservation of such rights and obligations. Except or otherwise provided in
Section 9 hereof, the validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of Nevada without
regard to its conflicts of law principles.
16. Validity. The invalidity or unenforceability of any provision or
--------
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
17. Counterparts. This Agreement may be executed in one or more counterparts,
------------
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
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18. Entire Agreement. This Agreement sets forth the entire agreement of the
----------------
parties hereto in respect of the subject matter contained herein and supersedes
all prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer, employee
or representative of any party hereto in respect of such subject matter.
19. Section Headings. The section headings in this Consultancy Agreement are
----------------
for convenience of reference only, and they form no part of this Agreement and
shall not affect its interpretation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
CONSULTANT: COMPANY:
MICRO AMERICAN INC. ▇▇▇▇▇▇▇▇▇▇.▇▇▇
BY: /s/ ▇▇▇▇▇ ▇▇▇▇ BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Its Authorized Officer Its Authorized Officer
The Signature of ▇▇▇▇▇▇ ▇▇▇▇ was hereunto Affixed in the presence of:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇
Witness
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