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Exhibit 10.42
THIS AGREEMENT made the ____ day of _____, 20__.
BETWEEN:
OF THE FIRST PART;
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C Me Run Corp.,
a corporation incorporated pursuant to the
laws of the State of Delaware, (hereinafter
referred to as the "Corporation")
AND WHEREAS the Corporation wishes to retain the services of the Board Member to
provide Services to the Corporation, as and when requested by the Director of
the Corporation;
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the mutual
covenants and conditions hereinafter contained, the parties agree as follows:
ARTICLE 1.00 - APPOINTMENT AND TERM
1.1 APPOINTMENT The Corporation hereby retains the Board Member to act as a
director of the Corporation effective __________. The Corporation will make
press releases and other appropriate announcements upon this appointment upon
written consent by the Board Member. This appointment is subject to approval by
the shareholders of the Corporation. The Board Member agrees to perform the
duties and exercise such powers consistent with the Board Member's position and
such additional powers as may from time to time be assigned or vested in the
Board Member by the by-laws of the Corporation or by the resolutions of the
Board of Directors of the Corporation. In particular, the Board Member shall,
without limiting the foregoing:
(a) assist in the development of the profile of the Corporation with
the general public and with the financial community; and
(b) introduce the Corporation and its executive officers to contacts of
the Board Member who would be of assistance to the Corporation in
obtaining funds or achieving other objectives of the Corporation;
all such duties being hereinafter referred to as the "Services". The Board
Member shall perform the Services faithfully and to the best of his abilities.
While the role off external director is not a full-time position, the Board
Member agrees to devote such time and attention as is reasonably necessary for
the fulfillment of the Services and is consistent with standards for external
directors.
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1.2 TERM The Board Member is retained hereunder for a term commencing on the
date hereof and continuing until a successor has been duly chosen and has been
qualified as provided in the By-laws of the Corporation (the "Term").
1.3 INDEMNIFICATION The Corporation hereby indemnifies the Board Member in
accordance with (i) the By-laws of the Corporation, (ii) the General Corporation
Law of the State of Delaware and (iii) in an indemnification Agreement to be
signed by the Board Member and the Corporation is specific reference to the
FutureLink litigation, which commenced on January 20, 2000.
ARTICLE 2.00 - COMPENSATION
2.1 BOARD MEETING FEE The Board Member shall also be compensated as a director
of the Corporation in the same manner as other members of the Board of Directors
for attending board meetings. The Board Member acknowledges that, as of the date
hereof, no compensation has been determines by the Compensation Committee of the
Board of Directors.
2.2 EXPENSES The Board Member shall also be entitled to be reimbursed for any of
his expenses incurred while performing the Services on behalf of the Corporation
that fall within the parameters of the Corporation's expense policy including
entertainment, meals, travel and accommodation expenses. All expenses must be
presented to the Corporation on an Expenses Report accompanied by receipts.
2.3 STOCK The Corporation shall issue to the Board Member, in consideration of
acceptance of the position or fulfillment of the duties hereunder, 50,000
restricted common shares of the Corporation.
ARTICLE 3.00 - TERMINATION
3.1 TERMINATION BY CORPORATION This Agreement may be terminated by the
Corporation for any reason prior to the expiration of the Term. If the Board
Member is in default in the performance of the Services and such default
continues for a period of thirty (30) days after notice thereof, hereinafter
referred to as "cause", or upon the death or disability of the Board Member.
Disability shall occur if the Board Member is unable to attend to his duties due
to medical reasons for a continuous period of 30 days during the Term.
3.2 TERMINATION BY THE BOARD MEMBER This Agreement may only be terminated by the
Board Member, by resignation, prior to the expiration of the Term if the
Corporation is in default in the performance of any of its covenants,
obligations or agreements herein contained and such default shall continue for a
period of thirty (30) days following notice thereof.
3.3 TERMINATION BY MUTUAL AGREEMENT It is acknowledged that this Agreement may
be terminated at any time upon the mutual agreement of the parties hereto.
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ARTICLE 4.00 - STOCK OPTION
4.1 OPTION ISSUANCE The Corporation hereby grants to the Board Member options to
purchase a total of 50,000 common shares of the Corporation at a strike price of
US $_____ per share 16,666 options shall vest on ___________, 16,667 options
shall vest on ______________ and 16, 667 options shall vest on
_________________. Any unexercised options will expire on _________________.
4.2 CHANGE OF CONTROL Should a Change of Control occur in the Corporation, all
unvested options shall vest immediately upon written notice given of the Change
of Control. All vested options must be exercised within 3 months of the date of
notice. To the extent possible, options will be in registered stock.
A Change of Control shall occur upon the occurrence of any one of the following
events following the effective date of this Agreement:
(a) Any person, association or company acquires or becomes the
beneficial owner of either directly or indirectly, more than forty
percent (40%) of the voting shares of the Corporation, or
(b) Any resolution is passed or any action or proceeding is taken with
respect to the liquidation, dissolution or winding-up of the
Corporation.
4.3 TERMINATION Should the Corporation terminate the Board Member or the Board
Member terminate his position on the Board for any reason other than change of
control, all options will be governed by the terms and conditions of the Stock
Incentive Plan.
ARTICLE 5.00 - CONFIDENTIALITY AND NON-DISCLOSURE
5.1 In this Article, the following words have the following meanings:
(a) "Business Secrets" means confidential or sensitive business
information, including without limitation, data, business
strategies, plans, contracts, financial records and budgets,
marketing techniques, pricing policies, costing information, and
information relating to or pertaining to targeted acquisitions of
the Corporation.
(b) "Contractors" of the Corporation means customers, suppliers,
partners, co-venturers and other contractors of the Corporation and
also includes potential customers of the Corporation in respect of
whom access to Business Secrets has been obtained for the purpose
of evaluating proposed projects or for submitting of tenders, bids
or proposals.
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(c) "Corporation", in this Article 5.00 only, shall mean the
Corporation and any and all affiliated or related corporations.
(d) "Documentation" means all materials constituting or containing
Technology or Business Secrets, including electronic storage media.
(e) "Technology" means all computer programs, protocols, product
technical specifications including installation, performance and
maintenance specifications, patents, designs, drawings, manuals and
generally all knowledge, know-how, expertise and information of a
technical nature, whether or not protected under patent, design,
copyright or other intellectual property laws, and includes any and
all future changes, modification, additions, improvements and
enhancements thereof.
5.2 The Board Member will not divulge Technology or Business Secrets belonging
to the Corporation or Contractors of the Corporation to any persons whatsoever,
other than to:
(a) employees of Corporation;
(b) persons to whom the Board Member is authorized and directed to
release such Technology or Business Secrets, and only then to the
extent of such authorization.
5.3 The Board Member shall always:
(a) exercise reasonable care and diligence to protect the
confidentiality and integrity or Technology or Business Secrets
belonging to the Corporation or its Contractors; and
(b) strictly adhere to all policies, procedures and directions of the
Corporation relating to the protection and custody of Technology
and Business Secrets of the Corporation or its Contractors.
5.4 All Technology and Business Secrets belonging to the Corporation will be
assumed by the Board Member to be confidential.
5.5 The Board Member will only use Technology and Business Secrets belonging to
the Corporation in performance of the Board Member's duties hereunder and for no
other use whatsoever.
5.6 The obligation of confidentiality in this Article shall apply unless the
Board Member can establish that such Technology or Business Secrets were
generally known in the industry.
5.7 Upon any termination of this agreement for any reason, the Board Member
shall forthwith return to the Corporation all Documentation relating to the
Technology and Business Secret's of either the Corporation or its Contractors,
and if any such information is electronically copied and stored by the Board
Member, upon request he shall destroy such electronically stored copies.
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5.8 The obligations of the Board Member set out in this Article shall continue
in full force and effect after termination of this agreement regardless of the
reason or cause of such termination.
5.9 The Board Member agrees that during the term of this agreement and for a
period of two (2) years immediately following the termination of this Agreement:
(a) within Canada or the United States, directly or indirectly, own,
manage, operate, control, be employed by, participate in, or be
connected in any manner with the ownership management, operation,
or control of any business which is directly competitive with the
Corporation or any business which they plan to engage in which the
Board Member has received Business Secrets with respect thereto
(determined, in the case of termination, as of the date thereof),
it being specifically recognized by the Board Member that due to
the nature of the internet and web related businesses of the
Corporation that such geographical restriction is reasonable and
necessary to protect the Corporation;
(b) the Board Member will not induce any executive or employee of the
Corporation or any of its affiliates to leave the service of the
Corporation, nor will it employ, in any business competitive with
the Corporation, such executive or employee for a period of (6)
months following such executive or employee's employment with the
Corporation;
(c) the Board Member agrees not to divert or attempt to divert (by
solicitation or other means) the customers or Prospective customers
of the Corporation who are or were customers or prospective
Customers of the Corporation at any time throughout the duration of
this Agreement (Prospective Customers being defined as entities
with which the Corporation is then in formal negotiations or
discussions, as evidenced by correspondence or other
documentation);
Should the Board Member breach this covenant, in addition to other relief to
which the Corporation may be entitled, the Employee agrees that the Corporation
shall, in addition to all other remedies, also be entitled to injunctive relief
from a court of competent jurisdiction, enjoining the Board Member, his or her
agents, attorneys, and all others acting on his or her behalf from any further
actions in breach of this Agreement.
ARTICLE 6.00 - GENERAL PROVISIONS
6.1 NOTICES All notices, requests, demands, or other communications required or
designed to be given or made by one party to another shall be given in writing
by personal delivery or prepaid registered mail or by facsimile transmission or
other means of instantaneous transmission in regular commercial usage at such
time, verified by a transmission report, as follows:
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to the Corporation: C Me Run Corp.
One Cabot Road
Hudson, MA 01749
Attention: Chairman of the Board
Facsimile: 978-567-6899
to the Board Member:
or at such other address as may be given by any of them to the others. Any
notice or other communication so given or made shall be conclusively deemed to
have been given and received when delivered personally, if delivered personally,
provided that if it is delivered on an day which is not a Business Day then the
notice or communication shall be deemed to have been given and received on the
next Business Day following such date, or on the fifth (5th) business day
following the date of mailing, if mailed by prepaid registered mail, except in
the event of disruption of mail services in which event any notice shall be
delivered personally,
6.2 TIME OF THE ESSENCE Time is of the essence of this Agreement and every part
of this Agreement and no extension or variation of this Agreement shall operate
as a waiver of this provision.
6.3 CHOICE OF LAW This Agreement shall be governed by and construes in
accordance with the laws of the State of Delaware and the laws of the united
States of America applicable therein, and the parties hereto attorn to the
non-exclusive jurisdiction of the courts of such State.
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6.4 ENTIRE AGREEMENT This Agreement and the terms hereof constitute the entire
agreement between the parties hereto with respect to all of the matters herein
and it execution has not been induced by, nor do any of the parties hereto rely
upon or regard as material, any representations or writings not incorporation
herein and made a part hereof and this Agreement shall not be amended or altered
or qualified except by memorandum in writing signed by both of the parties.
6.5 SEVERABILITY If any of the provisions contained in this Agreement are, for
any reason, held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement, but this Agreement shall be construed as if such invalid,
illegal or unenforceable provision or provisions had never been contained in
this Agreement unless the deletion of such provision or provisions would result
in such a material change as to cause the completion of the transactions
contemplated in this Agreement to be unreasonable.
6.6 FURTHER ASSURANCES The parties convenant and agree to execute such further
and other documents and undertake such other actions as may be reasonably
required to give effect to the terms and intent of the transactions contemplated
in this Agreement.
6.7 ENUREMENT The provisions hereof, where the context permits, shall enure to
the benefit of and be binding upon the heirs, executors, administrators or other
legal representatives of the Board Member and the successors and assigns of the
Corporation. With respect to the Board Member, this Agreement, being personal
may not be assigned.
6.8 TIME PERIODS When calculating the period of time within which or following
which any act is to be done or step taken pursuant to this Agreement, the date
which is the reference day in calculating such period shall be excluded.
6.9 EXTENDED MEANINGS In this Agreement, where the context requires, the
singular number includes the plural and vice versa, the masculine gender
includes the feminine and neuter genders and vice versa and the word person in
not limited to an individual but includes any entity recognized by law.
6.10 HEADINGS All headings are included solely for convenience of reference and
are not intended to be full or accurate descriptions of the contents thereof.
6.11 RECITALS Each of the parties acknowledges that the recitals of this
Agreement, so far as they relate to such party, are true and correct in
substance and in fact.
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6.12 COUNTERPARTS This agreement may be extended in separate counterparts, each
of which shall serve as an original for all purposes and all of which together
shall constitute one and the same agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first above written.
C ME RUN CORP.
Per:
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Per:
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WITNESS
