Exhibit 99.1
EXECUTIVE EMPLOYMENT AGREEMENT
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THIS AGREEMENT made as of the 30th day of December, 2005.
B E T W E E N :
WIRELESS AGE COMMUNICATIONS INC., a corporation
incorporated pursuant to the laws of Nevada
hereinafter known as (the "Corporation")
OF THE FIRST PART
and
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hereinafter known as (the "Employee")
OF THE SECOND PART
WHEREAS the Corporation desires to hire the Employee in the
employment capacity set out hereinafter;
AND WHEREAS the Employee agrees to accept such employment on the
terms and conditions hereinafter set forth;
NOW THEREFORE in consideration of the offer of employment, the
mutual covenants herein contained, and other good and valuable consideration
(the receipt and sufficiency of which is hereby acknowledged by both of the
parties hereto), the parties hereto agree as follows:
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1. EMPLOYMENT AND ACCEPTANCE OF DUTIES:
(A) During the Period of Active Employment, as defined in section 1(c)
hereunder, the Corporation shall employ the Employee and the
Employee shall serve the Corporation in the position of Chief
Financial Officer. The Employee shall discharge the duties and
services appertaining to such position as determined by the
Corporation, acting reasonably, as well as such additional duties
and services appropriate to such position as described in Schedule
A, and as same may be altered and modified by the Corporation,
acting reasonably, from time to time. The Employee agrees that he
shall, during the period of his employment hereunder, well and
faithfully serve the Corporation and shall exercise the powers and
authorities and fulfil the duties conferred upon him honestly,
diligently, in good faith and in the best interests of the
Corporation and its customers.
(B) During the Period of Active Employment, the Employee shall devote
his full time, attention and ability to performing the services
prescribed pursuant to Section 1(a) hereof. The Employee understands
that the hours of work involved will vary and be irregular and are
those hours required to meet the responsibilities of the Employee as
provided herein.
(C) For the purposes of this Agreement, "Period of Active Employment"
shall mean the period beginning on October 1, 2005, and terminating
on the date on which the first of the following occurs:
(i) the termination of the Employee's Employment by the
Corporation pursuant to Sections 5 or 6 of this Agreement;
(ii) the termination of this Agreement by the Employee pursuant to
Section 7 hereof; ,
(iii) the death of the Employee; or
(iv) if the Employee becomes Totally Disabled, as defined herein,
during the Period of Active Employment, subject to the
requirements of the Ontario Human Rights Code. For the
purposes of this Agreement, the Employee shall be deemed to be
Totally Disabled if he becomes physically or mentally
incapable of discharging all of his full-time duties hereunder
and is eligible to receive long-term disability payments under
any corporate disability insurance contract in effect at that
time.
Employee Initials and Date: __________________
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(D) The Employee shall report directly to the CEO of the Corporation,
and shall have the responsibility and accountability for legal,
regulatory and financial matters of the Corporation.
(E) The parties agree that Schedules "A", "B", and C attached to this
Agreement form part of this Agreement. The Employee agrees that he
shall be bound by the terms and conditions contained therein.
2. REMUNERATION AND BENEFITS:
(A) In consideration of the Employee's undertaking and the performance
of the obligations contained hereunder, the Corporation shall pay
and grant to the Employee the following.
(i) A base salary of not less than $160,000.00 (CDN) (one hundred
and sixty thousand dollars) per annum, payable in equal
bi-weekly instalments and subject to applicable statutory
deductions retroactive in effectiveness to October 1, 2005.
Beginning January 1, 2006 the base salary shall be increased
to $175,000 (CDN) (one hundred and seventy-five thousand
dollars).
(ii) For the fiscal year beginning January 1, 2006, the Employee
shall be eligible to earn a short-term bonus incentive,
payable within 30 days of the issuance of the Corporation's
audited financial statements, (subject to all applicable
deductions) of up to $50,000 (CDN) (fifty-thousand dollars)
provided the Employee meets the objectives as agreed to
between the CEO of the Corporation and the Employee.
(iii) Vacation according to the policies of the Corporation but in
no event less than three (3) weeks of vacation per year. The
time for such vacation shall be approved by the Corporation,
acting reasonably.
(iv) The Employee will participate in the Corporation's stock
options (if and when a Stock Option Plan is instituted)
available to the directors, officers and employees of the
Corporation on terms and conditions at least as favourable as
those provided to other employees of similar level and
responsibility, and that no provision herein shall in any way
prejudice or limit the Employee's entitlement to participate
in such future Stock Option Plan.
Employee Initials and Date: __________________
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(v) The Employee may at his discretion participate in the
Corporation's group insurance plans and benefit plans
applicable to the Employee during employment with the
Corporation. Such benefit plans, and programs may include
without limitation medical, health, and dental care, life
insurance, short term and long term disability protection and
qualified retirement plans. The Employee shall be subject to
all applicable terms and conditions of such plans. The
Corporation shall have the right to make reasonable amendments
to any such benefit plan or arrangement made available
hereunder.
(B) The Corporation will reimburse the Employee in accordance with its
normal policies and practices for travel and other expenses or
disbursements reasonably and necessarily incurred or made by him in
connection with the Corporation's business, including but not
limited to professional dues and subscriptions, and memberships in
professional and business associations.
(C) The Corporation will provide an automobile to the Employee
appropriate to the position and responsibility of the Employee.
(D) The Corporation shall withhold from any amounts payable under this
Agreement such federal or provincial taxes and required statutory
remittances pursuant to any applicable law or regulation.
3. LOYALTY AND CONFIDENTIALITY:
In consideration of the employment provided by this Agreement, the
Employee agrees with the Corporation as follows:
Employee Initials and Date: __________________
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(A) Confidentiality: Except in the normal and proper course of his/her
duties hereunder the Employee will not publish, communicate, use for
his/her own account, or disclose to any other Person without the
prior consent of the Corporation, during or after the Period of
Active Employment, any confidential or proprietary information or
material ("Confidential Information") relating to the Corporation's
operations, business, customers, and services which he/she may
obtain from the Corporation or its officers, directors, or
employees, or otherwise by virtue of the Employee's employment by
the Corporation. The parties agree that such Confidential
Information is deemed proprietary to the Corporation, and all
intellectual property rights contained therein, or derived
therefrom, shall at all times remain the exclusive property of the
Corporation. "Confidential Information" includes, without
limitation, the following types of information or material, both
existing and contemplated, regarding the Corporation or its parent,
affiliated or subsidiary corporations ("Related Companies"), and
third party vendors, corporate information, including contractual
arrangements, plans, strategies, tactics, policies, supply
agreements, and any litigation or negotiations; sales, strategies,
methods, customer, and customer lists, educational and training
materials, reports, disks, tapes, prospects and market research
data; financial information, including cost and performance data,
debt arrangements; personnel information, including personnel lists,
resumes, personnel data, organizational structure and performance
evaluations; and, technical information, including programs, and
source codes. Notwithstanding the above, any part of the foregoing
Confidential Information shall not be considered confidential or
proprietary information to the extent that it: (I) is in the public
domain through no wrongful act or breach on the part of the Employee
or any third party, or (II) was approved for release by written
authorisation of the Corporation, or (III) is already known by the
Employee at the time of disclosure by the Corporation without
similar confidentiality restrictions as shown by prior written
evidence, or (IV) is or is directly related to a Prior Invention or
has been or is independently developed by the Employee as shown by
prior written evidence, or (V) is required to be disclosed by the
Employee pursuant to a court or administrative order (and the
Employee shall promptly inform the Company of any such order to
allow the Company, at its expense, to oppose any such order).
(B) Return of Documents: The Employee agrees that any and all documents
or other data, sound or image recordings, fixed in any material
form, and property of any nature pertaining to activities and
services of the Corporation or to its Related Companies, including
the information or materials covered by section 3(a) hereof, in his
possession now or at any time during the Period of Active
Employment, are and shall be the property of the Corporation and its
Related Companies, and that all such documents and all copies of
them shall be surrendered forthwith to the Corporation whenever
requested by the Corporation. Upon termination of Employee's
employment with Employer, Employee agrees to return to Employer all
copies and originals of all documents generated by or belonging to
Employer or any other documents which may have come into the
possession of Employee from Employer as a result of Employee's
employment with Employer, including documents containing customer
information. Nothing herein shall affect or impair Employee's right
to retain personal documents, including without limitation address
books, diaries, Rolodex cards, and telephone directories, provided
such documents do not contain confidential information.
Employee Initials and Date: __________________
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(C) Intellectual Property: The Employee agrees that all rights and title
to materials produced by Employee under this Agreement whether in
written form, pictorial or other documentary or reproducible form,
and in any medium whatsoever, belong exclusively to Corporation and
shall be considered works made for hire. Any and all copyrights and
other "Intellectual Property Rights" in and to such works are and
shall be the sole property of the Corporation. "Intellectual
Property Rights" for the purposes of this Agreement include
copyright, patents, trade-marks, industrial designs, design marks,
electronic icons, computer code, software architecture, programming
methods, system configurations, business methods, business plans,
system flowcharts, system designs, technologies, drawings, technical
information, know-how, processes, or trade secrets, or any
modifications, enhancements, or improvements of any of the
foregoing. To the extent that any materials or works of authorship
may not, by operation of law, be works made for hire, this Agreement
will constitute an irrevocable assignment by the Employee to the
Corporation of the ownership of, and all intellectual property
rights in such items, and Corporation will have the right to obtain
and hold in its own name all registrations which may be available in
the works. The Employee agrees to execute all documents reasonably
requested by Corporation and to render, at Corporation's sole
expense, whatever reasonable assistance the Corporation may request
to enable the Corporation to perfect its security interest in and to
such intellectual property rights whether in Canada, or elsewhere in
the world.
(D) If the Corporation is unable for any reason, after reasonable and
documented effort, to obtain the Employee's signature on any
document needed in connection with the actions described in this
Section 3, the Employee hereby irrevocably designates and appoints
the Corporation and its duly authorized officers and agents as the
Employee's agent and attorney in fact to act for and in Employee's
behalf to execute and file any document and to do all other lawfully
permitted acts to further the foregoing with the same legal force
and effect as if executed by Employee.
(E) Employee and Employer acknowledge that any breach or threatened
breach by Employee of the provisions of this Section 3 may cause
irreparable harm to Employer, which harm may not be fully redressed
by the payment of damages to Employer. In addition, Employee and
Employer acknowledge that Employer may be entitled, in addition to
any other right and remedy it may have, at law or in equity, to an
injunction, enjoining or restraining Employee from any violation or
threatened violations of this Section 3.
Employee Initials and Date: __________________
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4. EMPLOYMENT RESTRICTIONS:
In consideration of the employment provided by this Agreement, the
Employee agrees with the Corporation as follows:
(A) Definitions: For the purposes of sections 4(b) through 4(d), the
words "Business", "Customer", "Person", "Prohibited Area",
"Prospective Customer" and "Restricted Period" shall have the
meanings set out below:
(i) "Business" means the provision of or development of wireless
communications solutions.
(ii) "Customer" shall mean any Person to whom the Employee has
supplied goods or services, either directly, or indirectly on
behalf of the Corporation, at any time during the term of this
Agreement;
(iii) "Person" includes, without limitation, an individual,
corporation, partnership, joint venture, association, trust,
firm, unincorporated organization or other legal or business
entity;
(iv) Prohibited Area shall mean Canada.
(v) "Prospective Customer" shall mean any Person to whom the
Corporation or the Related Companies has (I) directly or
indirectly and specifically offered, through written proposal
or other written instrument, to supply goods or services; or
(II) targeted, as evidenced by written memorandum or otherwise
documented in sales forecasts, business plans or similar
document, as a possible purchaser of the Corporation's goods
or services, at any time during the 12 months prior to the
termination of this Agreement, howsoever arising and the
Employee, acting reasonably, would have knowledge of such
Persons;
(vi) "Restricted Period" shall mean the period beginning on the
date of this Agreement and ending twenty-four (24) months
following the termination of this Agreement, howsoever
arising.
(B) Non-Solicitation of Customers: The Employee hereby agrees that he
shall not during the Restricted Period within the Prohibited Area,
whether on his own behalf or in conjunction with or on behalf of any
other Person, directly or indirectly, except on behalf of the
Corporation, (i) solicit, (ii) assist in soliciting, (iii) accept,
(iv) facilitate the acceptance of, or (v) deal with any Customer or
Prospective Customer of the Corporation, as an employee, director,
shareholder, principal, agent, consultant or in any other capacity
whatsoever, for the purpose of providing or selling to such Customer
or Prospective Customer products or services which are the same as,
similar to, or competitive with the Business.
Employee Initials and Date: __________________
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(C) Non-Solicitation of Employees: The Employee hereby agrees that he
will not during the Restricted Period, either on his own behalf or
in conjunction with or on behalf of any other Person, directly or
indirectly, except on behalf of or with the prior written consent of
the Corporation induce, solicit, entice or procure any employee or
consultant of the Corporation to leave such employment or
relationship, as the case may be.
5. TERMINATION FOR JUST CAUSE:
The Corporation shall be entitled, in its sole discretion, to forthwith
terminate the employment of the Employee hereunder, without advance notice, for
just cause as determined by statute or common law by so advising the Employee in
writing. For the purpose of this Agreement, the following constitutes just
cause, provided, however, "Just Cause" within the meaning of this Section shall
in any event not include any act done or committed by Employee in the exercise
of business judgment which is not unreasonable under all the facts and
circumstances involved:
(A) if the Employee is in material breach of any of the provisions of
this Agreement, including without limitation the conditions outlined
in section 1 of this Agreement, provided the Employee receives three
(3) business days prior written notice of the breach detailing the
complained of breach and fails to remedy such breach within said
three (3) day period;
(B) if the Employee has been convicted of an indictable offence or a
felony involving moral turpitude, including, without limitation,
theft, fraud, embezzlement, forgery, misappropriation or wilful
misapplication by a court of final and competent jurisdiction;
(C) if the Employee is found in any civil, administrative or regulatory
proceeding of competent jurisdiction to have breached a fiduciary
duty to the shareholders of the Corporation; or
(D) if the Employee has during the term of this Agreement or in the six
(6) months immediately preceding the term of this Agreement, engaged
in conduct that is intentionally and materially detrimental to the
best interests of the Corporation.
Employee Initials and Date: __________________
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If the Corporation terminates this Agreement for just cause under this
Section, the Corporation shall not be obligated to make any further payments
under this Agreement except amounts due and remaining unpaid at the time the
Employee receives notice of such termination.
6. TERMINATION ON NOTICE:
(A) The Corporation shall be entitled, in its sole discretion, at any
time to terminate the employment of the Employee hereunder without
just cause for any reason whatsoever by so advising the Employee in
writing. If the Corporation terminates the employment of the
Employee pursuant to this section, the Corporation shall provide to
the Employee a lump sum payment in lieu of notice equalling the
greater of: two hundred percent (200%) of the Employee's annual
salary (referenced with respect to the rate of such annual salary as
in effect at the date of the Employee's termination of employment);
or (ii) notice in accordance with the Employment Standards Act of
Ontario.. The Corporation shall provide the Employee such payment in
a lump sum no later than 60 days following the date of the
Employee's active termination of employment. This payment will be
inclusive of any and all termination, severance and vacation
entitlements under the Employment Standards Act of Ontario. The
Employee hereby agrees that if the Corporation terminates in
accordance with this provision, the Employee's entitlements in
accordance with this section shall constitute his full and final
entitlements, and he shall have no additional claims for bonus,
salary, other compensation, notice or pay in lieu of notice at
common law or otherwise against the Corporation.
(B) In the event of termination pursuant to section 6(a), the
Corporation's medical and health benefit plans in which the Employee
is enrolled shall cease twenty-four (24) months from the date of the
Employee's termination of employment if, except long term and short
term disability which shall cease effective the date the Employee
receives notice of termination.
7. RESIGNATION OR CESSATION OF SERVICES BY EMPLOYEE:
(a) Resignation. The Employee shall be entitled, in his sole discretion,
to forthwith terminate his employment hereunder upon sixty (60) days prior
written notice to the Corporation. The Corporation may waive the notice, in
whole or in part, in which event it will pay to the Employee what the Employee
would otherwise have earned during the sixty (60) day (or part thereof if such
Company waiver is during the notice period) notice period aforesaid and the
Employee shall be entitled to his benefits during the balance of the sixty (60)
day period.
Employee Initials and Date: __________________
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If the Employee terminates his employment for any reason, the Corporation
shall have no further obligations or responsibilities to the Employee after the
expiry of the above-noted sixty (60) day period. In the event of a buyout,
merger, or any other event that results in a Change of Control, as defined
herein, the Employee may elect to resign within sixty (60) days of the
completion of such event, with all of the rights, entitlements, and obligations
outlined in Section 6 (a) and (b) herein.
For purposes of this Agreement, "Change of Control" means any of:
(i) the acquisition, directly or indirectly and by any means
whatsoever (including, without limitation, through an
acquisition of the voting shares of the Corporation or of any
company which is in a position to exercise effective control
of the Corporation), by any person, or by a group of persons
acting jointly, or in concert, that, in the opinion of the
Board of Directors of the Company results in a de facto change
of control;
(ii) any transaction or series of transactions, whether by way of
reconstruction, reorganization, consolidation, amalgamation,
arrangement, merger, transfer, sale or otherwise, whereby
assets of the Corporation become the property of any other
person (other than an affiliate of the Corporation) if such
assets which become the property of any other person have a
fair market value (net of the fair market value of any
liabilities which become obligations of such other person as
part of the same transaction) equal to one-half or more of the
net worth of the Corporation immediately before such
transaction;
(iii) the completion of any transaction or the first of a series of
transactions which would have the same or similar effect as
any transaction or series of transactions referred to in
paragraph (i) to (ii) above; or
(iv) a determination by the Board of Directors of the Corporation
that there has been a change, whether by way of a change in
the holding of the Voting Shares, in the ownership of the
Corporation's assets, the composition of the Board of
Directors or by any other means, as a result of which there is
a change in any person, or any group of persons acting jointly
or in concert, who is in a position to exercise effective
control of the Corporation.
Employee Initials and Date: __________________
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(b) Cessation of Services Due to Death or Total Disability.
In the event of Employee's death or becoming Totally Disabled, as defined
herein, during the term of this Agreement, Employee's employment hereunder shall
terminate as of Employee's date of death or upon becoming Totally Disabled.
In the event of Employee becoming Totally Disabled, as defined herein,
during the term of this Agreement, the Corporation shall be required to pay to
Employee his termination and severance entitlements as outlined under Sections
6(a) and 6(b) herein. The termination of the Employee in accordance with this
section is not intended to prejudice the Employee's eligibility for long-term
disability benefits under the Corporation's policy, and if necessary to protect
the Employee's eligibility, the Corporation at its sole discretion shall have
the option to terminate hereunder at the expiry of the long-term disability
period only.
8. RESULTS OF TERMINATION:
Upon termination or resignation of the Employee's employment pursuant to
Sections 5, 6 or 7 of this Agreement, the employment of the Employee shall be
wholly terminated, with the exception of clauses specifically contemplated to
continue in full force and effect beyond the termination of this Agreement,
including those set out in Sections 3 and 4.
9. ASSIGNMENT:
This Agreement shall enure to the benefit of and be binding upon the
parties and their respective heirs, executors, administrators, the legal
personal representatives of the Employee and the successors and assigns of the
Corporation. The rights of the Employee under this Agreement are not assignable
or transferable in any manner. Employee recognizes that this Agreement is
personal to Employee and that none of Employee's obligations under this
Agreement may be assigned or delegated by Employee. The Corporation may assign
all of its rights and obligations under this Agreement by operation of law or
upon the bona fide sale or other transfer of all or substantially all of its
assets and business and it shall be made a condition of any such assignment that
the purchaser or transferee agrees to assume all the rights and obligations of
the Corporation under this Agreement.
10. SEVERABILITY:
Any article, section, subsection or other subdivision of this Agreement or
any other provision of this Agreement which is, or becomes, illegal, invalid or
unenforceable shall be severed here from and ineffective to the extent of such
illegality, invalidity or unenforceability and shall not affect or impair the
remaining provisions hereof, which provisions shall be severed from any illegal,
invalid or unenforceable article, section, subsection or other subdivision of
this Agreement. The parties also agree that if any covenant or provision in this
Agreement is determined to be void or unenforceable at law due to a period of
time, geographical area or otherwise, then such covenant or provision of this
Agreement, shall be reduced in scope or amended, as to term, geographical area
or otherwise to the extent required so that the covenant or provision, as so
reduced or amended, is enforceable at law and the unenforceable portion shall be
deemed to be severed from the balance of the provision or this Agreement, which
balance shall survive and be of full force and effect.
Employee Initials and Date: __________________
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11. WAIVER:
Failure of either party to this Agreement to rely on any provision
contained herein shall not constitute a precedent or be deemed a waiver of such
provision on any subsequent occasion or in regard to any other provision of this
Agreement.
12. ENTIRE AGREEMENT:
This Agreement together with the attached schedules constitute the entire
agreement between the parties with respect to the employment of the Employee and
any and all previous agreements or representations, written or oral, express or
implied between the parties or on their behalf relating to the employment of the
Employee by the Corporation are terminated and cancelled.
13. GOVERNING LAW:
This Agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario and the laws of Canada applicable therein. The
parties attorn to the exclusive jurisdiction of the courts of Ontario.
14. HEADINGS:
The headings utilised in this Agreement are for convenience only and are
not to be construed in any way as additions or limitations of the covenants and
agreements contained in this Agreement.
Employee Initials and Date: __________________
15. NOTICES:
Any notice required or permitted to be given to the Employee shall be
sufficiently given if delivered to the Employee personally, including without
limitation if mailed by registered mail to the Employee's address last known to
the Corporation.
Any notice required or permitted to be given to the Corporation shall be
sufficiently given if delivered to:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇
Attention: Corporate Secretary
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
personally, including without limitation if mailed by registered mail to the
Corporation.
16. LEGAL ADVICE:
The Employee hereby represents and warrants to the Corporation that he has
had sufficient opportunity to seek and obtain legal advice with respect to this
Agreement and that he fully understands the nature and effect of this Agreement
and that he is entering into it freely and voluntarily.
17. DOLLAR AMOUNTS:
Unless specifically stated otherwise, all references herein to dollar
amounts refer to Canadian funds.
18. AMENDMENTS:
It is recognized that there may be amendments to this Agreement. No
significant amendment to this Agreement shall be valid or binding unless set
forth in writing and duly executed by both of the parties hereto.
This Agreement may be executed in counterparts.
IN WITNESS WHEREOF the parties have duly executed this Agreement as
of the date first above written in this City of Mississauga, in the Province of
Ontario. Each page of this Agreement, and the attached Schedules, is initialled
and dated by the Employee.
Employee Initials and Date: __________________
WIRELESS AGE COMMUNICATIONS INC.
Per: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Employee Initials and Date: __________________
SCHEDULE "A": JOB DESCRIPTION AND DUTIES
The Employee shall report directly to the CEO of Wireless Age, and shall have
the responsibility and accountability for the day to day financial, legal,
regulatory and compliance activities of the Corporation.
Employee Initials and Date: __________________
SCHEDULE "B": SHORT TERM BONUS / INCENTIVE PLAN
No objectives have been set at the time of execution of this agreement. The
parties agree to act reasonably with respect to setting objectives for the
fiscal year January 1, 2006 to December 31, 2006.
Employee Initials and Date: __________________