SENIOR EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the day of December 6, 1999 (the "Effective
Date").
B E T W E E N:
INFOCAST CORPORATION, a corporation
incorporated under the laws of the State of Nevada,
in the United States of America
(hereinafter referred to as the "Employer")
OF THE FIRST PART
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HERVE SEGUIN, of the City of Toronto, in the Province
of Ontario (hereinafter referred to as the "Employee")
OF THE SECOND PART
WHEREAS the Employer wishes to employ the Employee in the
capacity of Chief Financial Officer effective January 4, 2000 (the "Start
Date");
AND WHEREAS the Employer recognizes that the Employee will render
and provide to the Employer special skills which are essential to the continued
growth of the Employer's business and the Employer believes that it is
reasonable and fair to the Employer that the Employee receive fair incentive and
security of employment and compensation terms;
AND WHEREAS the Employer and the Employee have agreed to enter
into this Employment Agreement to formalize in writing the terms and conditions
reached between them governing the Employee's employment;
NOW THEREFORE in consideration of the mutual covenants and
agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties, the
parties hereto agree as follows:
Article 1
RETENTION, DUTIES AND POWERS OF THE EMPLOYEE
1.1 Employment of Employee.
The Employer hereby employs the Employee effective the Start Date
as its Chief Financial Officer, reporting to the Employer's President, to
perform the duties and responsibilities incident to such position and as
otherwise assigned by the Employer's President. Such employment shall continue,
unless and until terminated in accordance with Article 4 of this Agreement.
1.2 Acceptance of Employment; Time and Attention.
The Employee hereby accepts such employment and agrees that
throughout the period of his employment hereunder he will devote substantially
all his time, attention, knowledge and skills, faithfully, diligently and to the
best of his ability, in furtherance of the business of the Employer, and will
perform the duties and responsibilities assigned to him pursuant to Section 1,
subject, at all times, to the direction and control of the Employer's President.
As an executive officer, the Employee shall perform such specific duties and
shall exercise such specific authority related to the management of the
day-to-day operations of the Employer consistent with his position as Chief
Financial Officer as may be assigned to the Employee from time to time by the
Employer's President. The Employee shall at all times be subject to, observe and
carry out such rules, regulations, policies, directions and restrictions as the
Employer shall from time to time establish. During the period of his employment
hereunder, the Employee shall not, directly or indirectly, accept employment or
compensation from, or perform services of any nature for, any business
enterprise other than the Employer. The Employee shall be elected to such
offices of the Employer as may from time to time be determined by the Board.
During the period of the Employee's employment hereunder, he shall not be
entitled to additional compensation for serving in any offices of the Employer
to which he is elected or appointed.
Article 2
COMPENSATION AND BENEFITS
2.1 Remuneration.
For the performance of his services hereunder, the Employee shall
be paid a salary (the "Base Salary") of Cdn$200,000 per annum, payable twice
monthly in arrears. The Employee's Base Salary shall be reviewed annually by the
Employer's Board of Directors (the "Board") based on recommendation from the
Employer's President and, from time to time during the term of this Agreement,
may be increased in the sole discretion of the Board. The first such review
shall take place 30 days following release of the Employer's March 31, 2001
audited financial statements.
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2.2 Benefits and Perquisites
Provided the Employee is otherwise eligible, the Employee will be
entitled to participate in all benefit plans and to receive all perquisites
enjoyed by the senior employees of the Employer. The Employer will pay the costs
of the Employee's existing disability insurance with annual premiums of
approximately Cdn.$4,000. All benefit plans will be governed and interpreted by
their written terms, if applicable.
2.3 Incentive Plans.
The Employee will be entitled to participate in all incentive
plans (including, without limitation, a Bonus Plan to be created for the fiscal
year commencing April 1, 2000, which includes an entitlement to an annual target
bonus of 50 percent of Base Salary to be paid within 90 days following the
Employer's fiscal year end, and the Share Option Plan) made available to any
employee of the Employer. Except as provided for herein, all incentive plans
will be governed and interpreted by their written terms, if applicable.
It is agreed that, effective the Start Date, the Employer shall
grant the Employee 350,000 options to purchase common shares on terms
substantially the same as those set forth in the Infocast Corporation 1999 Share
Option Plan (a copy of which is attached as Schedule A hereto) except as
otherwise provided herein. These options will be issued with an exercise price
equal to the trading price of the shares on the Start Date. The terms of these
options will provide that their exercise period shall be five years from the
Start Date and that they vest as to 116,666 options upon the Employee assuming
the position of the Employer's Chief Financial Officer, 116,666 on the first
anniversary thereof and the remaining 116,667 on the second anniversary thereof.
The option agreement will also specify that all of the Employee's options
outstanding at the time of a Change of Control (as defined in Section 4.4) shall
vest and be fully exercisable.
2.4 Out-of-Pocket Expenses.
The Employee shall, upon production of supporting statements and
vouchers, be reimbursed forthwith by the Employer in accordance with applicable
policies of the Employer for all reasonable out-of-pocket expenses actually
incurred by the Employee in the performance of his duties under this Agreement.
2.5 Vacation.
The Employee is entitled to a minimum of four weeks paid vacation
in respect of each 12 month period of his employment hereunder. To the extent
that the Employee does not utilize his full vacation entitlement in any given
year, the Employee
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shall be entitled to carry forward his vacation entitlement to the next year
provided that the Employee shall not be entitled to accumulate more than five
weeks vacation.
Article 3
EMPLOYEE'S NEGATIVE COVENANTS
3.1 Confidential Information.
The Employee acknowledges that, in the course of carrying out,
performing and fulfilling his obligations to the Employer under this Agreement,
the Employee will have access to and will be entrusted with information that
would reasonably be considered confidential to the Employer and its affiliates,
clients or suppliers, the disclosure of any of which to competitors of the
Employer or any of its affiliates, clients or suppliers, or the general public,
would be highly detrimental to the best interests of the Employer. Except as may
be required in the course of carrying out his duties under this Agreement, the
Employee therefore covenants and agrees that he will not disclose or directly or
indirectly cause to be disclosed, during his employment or any time thereafter,
any of such information to any person, other than the directors, officers or
employees of the Employer or any of its affiliates that have a need to know such
information, nor shall the Employee use or exploit, directly or indirectly, the
same for any purpose other than the purposes of the Employer. This provision
will not apply to any confidential information which is publicly available
through no fault of the Employee or which the Employee is required by law to
disclose.
3.2 Corporate Opportunities.
Any business opportunities related to the business of the
Employer or any of its affiliates which become known to the Employee during the
period of his employment hereunder must be fully disclosed and made available to
the Employer by the Employee and the Employee agrees not to take or omit to take
any action if the result would be to divert from the Employer or any of its
affiliates any opportunity which is within the scope of its business as known to
the Employee from time to time.
3.3 Proprietary Information.
The Employee acknowledges and agrees that all right, title and
interest in and to any information, trade secrets, inventions, discoveries,
improvements, research materials and databases, including but not limited to
patents, copyright, design and moral rights in the results thereof, made or
conceived by the Employee during his employment with the Employer relating to
the business or affairs of the Employer or any of its affiliates shall belong to
the Employer and the Employee hereby waives any and all moral rights he may have
in connection thereto. The Employee shall promptly communicate to the Employer
all information concerning such proprietary information and, if requested by the
Employer, the Employee shall provide, at the expense of the Employer, all such
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assistance as the Employer considers necessary to secure the vesting of such
rights in the Employer. The Employee hereby, for the term of this Agreement,
irrevocably appoints the Employer as the Employee's attorney with full power in
Employee's name to execute and deliver documents and do any things which the
Employer may consider necessary or desirable for the purposes of giving effect
to this Section 3.3. The Employee hereby agrees to ratify and confirm whatever
the Employer may lawfully do as the Employee's attorney.
3.4 Non-Competition.
(a) In consideration of his employment hereunder, the Employee shall
not, during the Employee's term of employment (as set forth in
Section 1.1) and during the 6 month period following the date
that the Employee ceases to be an employee of the Employer or
other termination of this Agreement (regardless of who initiated
the termination and whether with or without cause), either
individually or in partnership or in conjunction in any way with
any person or persons, corporation, partnership or other entity,
whether as principal, agent, director, member, officer,
consultant, shareholder, guarantor, creditor in or any other
manner whatsoever, directly or indirectly:
(i) solicit, interfere with, endeavour to entice away from
the Employer or any of its affiliates, accept any
business related to the Restricted Business from, or
sell any product or render any service related to the
Restricted Business to, any person, firm, or
corporation who is or was a client, customer or
supplier of the Employer or any of its affiliates with
whom the Employer or its affiliate has or has had any
dealing during the 6 month period immediately preceding
the date upon which the Employee ceases to be an
employee of the Employer;
(ii) offer employment to (unless previously terminated by
the Employer) or endeavour to entice away from the
Employer or any of its affiliates, any person employed
by the Employer or its affiliates at the date upon
which the Employee ceases to be an employee of the
Employer or interfere in any way with the employment
relationship between such employee and the Employer or
its affiliate, as the case may be or induce, influence
or seek to induce or influence any person engaged as an
employee, representative, agent, independent contractor
or otherwise by the Employer, to terminate his or her
relationship with the Employer;
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(iii) engage in, carry on or otherwise be concerned with or
have any interest in, or advise, lend money to,
guarantee the debts or obligations of, or permit the
Employer's name or any part thereof to be used or
employed by, and person, firm, association, syndicate
or corporation engaged in or concerned with, a
Restricted Business in North America; or
(iv) own, manage, operate, join, control, participate in,
invest in, or otherwise be connected with, in any
manner, whether as an officer, director, employee,
partner, investor or otherwise, any business entity
engaged in or concerned with, a Restricted Business in
North America.
For the purposes of this Section 3.4(a), "Restricted Business"
means any business carried on by the Employer or any of its
affiliates at the date upon which the Employee ceases to be an
employee of the Employer.
(b) The foregoing covenants are given by the Employee acknowledging
that the Employee either has or will have specific knowledge of
the affairs of the Employer and its business. Therefore, the
Employee hereby acknowledges and agrees that all covenants,
provisions and restrictions contained in this Article 3 are
reasonable and valid in the circumstances of this Agreement, and
all defenses to the strict enforcement thereof by the Employer
are hereby waived by the Employee. The Employee acknowledges and
agrees that any breach by the Employee of the covenants,
provisions and restrictions contained in this Article 3 during
the term of his employment under this Agreement shall constitute
cause for termination.
(c) The Employee further acknowledges and agrees that in the event of
a breach of the covenants, provisions and restrictions in this
Article 3, the Employer's remedy in the form of monetary damages
may be inadequate and that the Employer shall be and is hereby
authorized and entitled, in addition to all other rights and
remedies available to the Employer, to apply for and obtain from
any court of competent jurisdiction interim and permanent
injunctive relief and an accounting of all profits and benefits
arising out of such breach. The Employee also acknowledges that
the operation of the foregoing covenants may seriously constrain
his freedom to seek other remunerative employment.
3.5 Investments.
Nothing in this Agreement shall be deemed to prevent or prohibit
the Employee from owning shares in a public company as an investment, so long as
the Employee does not own more than 5 percent of the outstanding voting shares
thereof.
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3.6 Survival.
Neither the termination of this Agreement, nor of the Employee's
employment hereunder, shall terminate or affect in any manner any provision of
this Article 3 that is intended by its terms to survive such termination.
3.7 Qualification of Non-Competition.
If the provisions of Section 3.4 are ever adjudicated to exceed
the limitations on time or geographic scope permitted by applicable law, then
such provisions shall be deemed to be amended to the maximum time or geographic
scope permitted by applicable law.
Article 4
TERMINATION
4.1 Termination for Cause, Disability, Etc.
(a) The Employer may terminate this Agreement and the Employee's
employment hereunder without payment of any compensation either
by way of anticipated earnings or damages of any kind for any of
the following reasons:
(i) cause which, for the purposes of this Agreement, means
any act which would constitute "cause" at law, any
violation by the Employee of any material instructions,
rules and practices of the Employer, a failure on the
part of the Employee to comply with any provision of
this Agreement (including the withholding of services
thereunder), any breach of his fiduciary duties to the
Employer likely to cause harm to the Employer, fraud or
any conviction of a felony or indictable offence or any
crime involving moral turpitude or any of theft or
dishonesty relating to a matter material to the
Employer;
(ii) disability which, for the purposes of this Agreement,
means the eligibility of the Employee for long term
disability benefits under the disability insurance
referred to in Section 2.2 of this Agreement; or
(iii) death of the Employee.
(b) In the event of termination pursuant to Section 4.1(a)(i), the
Employee's sole entitlement shall be his Base Salary to and
including the date of
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termination, all benefits accrued to the date of termination and
all rights pursuant to any Share Option Plan governing options
issued to the Employee. For greater certainty, the Employee shall
not be entitled to any part or pro rata payment for any unpaid
bonus or payments pursuant to any incentive plans except to the
extent earned but not yet paid for the fiscal year immediately
preceding the date of termination.
(c) In the event of termination pursuant to Section 4.1(a)(ii) or
(iii) above, the Employee's sole entitlement shall be his Base
Salary to and including the date of termination, all benefits
accrued to the date of termination, all rights pursuant to any
Share Option Plan governing options issued to the Employee
(provided that all such options shall immediately accelerate and
vest in the Employee or the legal representative of his estate,
as applicable) and a pro rata payment for all bonuses (calculated
at 50% of annual Base Salary) and payments pursuant to any
incentive plans up to the date on which the Employee's active
employment ceased.
4.2 Other Termination by Employer without Cause.
Notwithstanding anything contained in this Agreement, where the
provisions of Section 4.1 do not apply, this Agreement and the Employee's
employment under this Agreement may be terminated at any time by the Employer
during the term set out in Section 1.1 as follows:
(a) the Employer shall pay to the Employee his Base Salary to and
including the date of termination, together with a lump sum
amount equal to his annual Base Salary (the "Base Severance");
and
(b) all options for shares of the Employer issued to the Employee
shall immediately accelerate and vest in the Employee and the
exercise period for all options for shares of the Employer issued
to the Employee shall be 12 months from the date of the
termination;
4.3 Other Termination by Employee.
Notwithstanding anything contained in this Agreement, where the
provisions of Section 4.1 do not apply, this Agreement and the Employee's
employment under this Agreement may be terminated at any time by the Employee
during the term set out in Section 1.1 upon three (3) months' notice in the case
of termination before the second anniversary of the Start Date, and one (1)
months' notice in the case of termination on or after the second anniversary of
the Start Date, in writing by the Employee to the Employer. In that event, the
following shall apply:
(a) the Employer shall pay to the Employee his Base Salary to the
effective date of resignation; and
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(b) the exercise period for all options for shares of the Employer
issued to the Employee shall be as provided pursuant to the Share
Option Plans under which they were issued.
4.4 Other Termination By Reason of Change in Control.
(a) In the event of termination by the Employer of the Employee at
any time within 24 months following the occurrence of a "Change
of Control" (as hereinafter defined), then the provisions of
Sections 4.1, 4.2 and 4.3 shall not apply. Rather,
notwithstanding anything contained in this Agreement, the
following shall apply:
(i) the Employer shall pay to the Employee his Base Salary
to and including the date of termination, together
with a lump sum amount equal to 1.5 times his annual
Base Salary (the "Enhanced Severance"); and
(ii) all options for shares of the Employer issued to the
Employee shall immediately accelerate and vest in the
Employee and the exercise period for all options for
shares of the Employer issued to the Employee shall be
the earlier of their original expiry date or 18 months
from the date of the termination;
(b) For the purposes of this Agreement, "Change of Control" shall
mean the occurrence, at any time, of any of the following events:
(i) the acquisition by any person, entity or group of
persons or entities acting jointly or in concert, of
voting securities of the Employer or rights or options
to acquire voting securities of the Employer or
securities convertible into or exchangeable for voting
securities of the Employer or any combination thereof
such that after the completion of the acquisition such
person, entity or group would be entitled to exercise
50.1% or more of the total number of votes entitled to
be cast at a meeting of shareholders of the Employer;
or
(ii) the sale by the Employer of all or substantially all
of the property or assets of the Employer; or
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(iii) a reorganization, plan of arrangement or merger
resulting in the circumstances set out in (i) or (ii)
above.
4.5 General Termination Provisions.
(a) Upon any termination of this Agreement for any reason, the
Employee shall at once deliver or caused to be delivered to the
Employer all books, documents, effects, money, securities or
other property belonging to the Employer or for which the
Employer is liable to others, which are in the possession,
charge, control or custody of the Employee.
(b) All amounts referred to in this Agreement, specifically
including the Employer's payment obligations pursuant to this
Article 4, shall constitute when due a debt owed by the Employer
to the Employee. The Employee shall not be required to mitigate
damages by seeking other employment or otherwise, nor shall the
amount provided for under this Agreement be reduced in any
respect in the event that the Employee shall secure alternative
employment, or not reasonably pursue alternative employment,
following the termination of the Employee's employment with the
Employer. Notwithstanding the foregoing, should the Employee
replace any life, health or accident plan, at an equivalent
level, upon obtaining alternate employment or otherwise, the
Employer shall not be required to continue such benefits.
(c) As a condition to any payment pursuant to this Article 4, the
Employee agrees to deliver to the Employer at the time of payment
a full and final release from all actions or claims, such release
to be in a form reasonably satisfactory to the Employer and to be
for the benefit of the Employer, its affiliates, directors,
officers and employees.
Article 5
DIRECTORS AND OFFICERS
5.1 Resignation.
If the Employee is a director or officer at the relevant time,
the Employee agrees that, after termination of his employment with the Employer
for any reason, he will tender his resignation from any position he may hold as
an officer or director of the Employer or any of its affiliated or associated
companies. If the Employee fails to resign, the Employer is irrevocably
authorized to appoint another person to act in his name and on his behalf to
sign any documents necessary to give effect to the resignation.
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5.3 Indemnity.
(a) Subject to the provisions of applicable law, the Employer agrees
to indemnify and save the Employee harmless from and against all
demands, claims, costs, charges and expenses, including an amount
paid to settle an action or satisfy a judgment, reasonably
incurred by him in respect of any civil, criminal or
administrative action or proceeding to which the Employee is made
a party by reason of being or having been a director or officer
of the Employer or of any affiliated company, whether before or
after any termination if:
(i) the Employee acted honestly and good faith with a view
to the best interests of the Employer; and
(ii) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, the
Employee had reasonable grounds for believing that his
conduct was lawful.
(b) Subject to the provisions of applicable law, the Employer agrees,
with the approval of the court, to indemnify and save the
Employee harmless from and against all demands, claims, costs,
charges and expenses reasonably incurred by him in connection
with an action by or on behalf of the Employer to procure a
judgment in the Employer's favour to which the Employee is made a
party by reason of being or having been a director or officer of
the Employer or of any affiliated company, whether before or
after any termination, if:
(i) the Employee acted honestly and in good faith with a
view to the best interest of the Employer; and
(ii) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, the
Employee had reasonable grounds for believing that his
conduct was lawful.
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Article 6
GENERAL CONTRACT PROVISIONS
6.1 Notices.
Any notice or other document ("Notice") required or permitted to
be given hereunder shall be in writing and shall be given by hand delivery,
responsible over night delivery service, or facsimile transmission (with
confirmation of receipt), to be addressed to:
(a) the Employer or the Board of Directors at:
1 Richmond St. West, Suite #901
Toronto, Ontario
M5H 3W4
Telephone: 416-867-9087
Facsimile: 416-867-9320
with a copy to:
Olshan Grundman Frome Rosenzweig & Wolosky LLP
505 Park Avenue
New York, New York 10022
Attention: Jeffrey S. Spindler, Esq.
or to such other person as the Employer may designate;
(b) the Employee at:
44 Dane Avenue
Toronto, Ontario
M6A 1G5
Telephone: (416) 783-3027
Any Notice hand delivered personally or by delivery service or
transmitted by facsimile shall be deemed to have been received by and given to
the addressee on the day of delivery or transmission, provided that if the date
of transmission is not a business day, or the transmission occurs after normal
business hours, on the business day next following the date of transmission.
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6.2 Currency.
All dollar amounts set forth or referred to in this Agreement and
all uses of the dollar sign ($) used herein refer to currency of the United
States of America, except as otherwise indicated.
6.3 Counterparts.
This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
6.4 Governing Law.
This Agreement shall be governed by and construed in accordance
with the laws of the Province of Ontario and the laws of the Canada applicable
therein. The parties hereto attorn to the jurisdiction of the courts of the
Province of Ontario.
6.5 Interpretation not Affected by Headings, etc.
Any headings preceding the text and paragraphs in this Agreement
hereof have been inserted for convenience and reference only and shall not be
construed to affect the meaning, construction, or effect of this Agreement.
6.6 Deemed Amendments.
If any paragraph or provision of this Agreement is adjudicated to
be invalid or unenforceable, in whole or in part then such paragraph or
provision, or part thereof, shall be deemed amended to delete therefrom the
objectionable portion and the remaining portions of this Agreement shall
continue to remain in full force and effect.
6.7 Non-Assignability.
Neither this Agreement, nor the right to receive any payments
hereunder, may be assigned by the Employee without the prior written consent of
the Employer.
6.8 Time of the Essence.
Time shall be of the essence of this Agreement.
6.9 Binding Effect.
This Agreement shall be binding upon and shall enure to the
benefits of each of the parties and their respective heirs, executors,
administrators, successors and permitted assigns.
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6.10 Entire Agreement.
This Agreement (together with the plans and documents referred to
herein) supersedes and replaces all prior negotiations and/or agreements made
between the parties, whether oral or written, and shall constitute the entire
Agreement between the parties with respect to all matters relating to the
Employee's employment and the execution of this Agreement has not been induced
by, nor do any of the parties hereto rely upon or regard as material any
representations or writings whatsoever not incorporated into and made a part of
this Agreement. This Agreement shall not be amended, altered or modified except
in writing signed by the parties hereto.
6.11 Taxes.
All payments under this Agreement shall be subject to withholding
of such amounts, if any relating to tax or other payroll deduction as the
Employer may reasonably determine should be withheld pursuant to any applicable
law or regulation.
IN WITNESS WHEREOF the parties hereto have duly executed this
Agreement as of the Effective Date.
INFOCAST CORPORATION
Per:/s/ James Leech
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Per:__________________________________
)
)
)
)/s/Herve Seguin
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Witness Herve Seguin
