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EXHIBIT 10.10
1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
the 13th day of July 2000, by and between ImagicTV (US) Inc. (the "Company") and
Marjean Henderson (the "Employee").
THIS AGREEMENT WITNESSES that in consideration of the covenants and
agreements contained herein, the parties hereto agree as follows:
ARTICLE 1
EMPLOYMENT
On the terms and subject to the conditions contained in this Agreement, the
Company hereby employs the Employee, and the Employee hereby accepts employment,
to serve the Company and its parent corporation, ImagicTV Inc. ( "ImagicTV") in
the position described in Article 3.
ARTICLE 2
TERM
The term of the Employee's employment commences on Monday, July 31st, 2000
(the "Commencement Date"), and shall be for the period ending on the second
anniversary of the Commencement Date, unless sooner terminated pursuant to the
terms of the Agreement, or by reason of the bankruptcy or insolvency of the
Company, in which case this Agreement will be of no further effect. Such
employment shall be automatically renewed on the second anniversary of the
Commencement Date and each anniversary thereafter for a period ending
immediately prior to the following anniversary, unless terminated in accordance
with the terms of Article 6.
ARTICLE 3
DUTIES
3.1 Position
a) During the term of this Agreement, the Employee will serve as Vice
President and Chief Financial Officer of ImagicTV. The Employee will have the
usual and customary duties of Chief Financial Officer, which without limitation
include those responsibilities as set out in Schedule C hereto. Subject to the
direction and control of the President of ImagicTV, (the "President"), the
Employee will have such executive power and authority as is consistent with the
office of and as is necessary for her to discharge her duties as Chief Financial
Officer. The Employee shall also perform such other duties not inconsistent with
the duties of Vice President and Chief Financial Officer as may be assigned to
her from time to time by the President. Initially the Employee's primary office
location will be working from the Executive head office in Saint John, New
Brunswick, Canada.
b) The Employee agrees that it is expected that the Company will transfer her
to Raleigh, North Carolina during the term. While located in Saint John, New
Brunswick, the Company will pay for reasonable accommodations for the duration
of her stay in Canada. The Company will assume all reasonable costs and expenses
associated with respect to the Employee applying for and obtaining an
appropriate work-authorized temporary visa status for Canada.
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c) When the Company transfers the Employee to Raleigh, North Carolina, the
Company will pay the following reasonable and receipted relocation expenses to
the Employee, in $US dollars, in conjunction with the move including: moving
expenses ( packing, unpacking and shipping), real estate fees (selling); utility
disconnect and connect, travel, meals and accommodation.
d) The work schedule for the Employee shall be consistent with the ordinary
office hours of the Company at the Employee's place of employment, as may be
amended from time to time. The Employee agrees that as a management level
employee, she will from time to time be required to work beyond regular office
hours. The Employee acknowledges and agrees that no overtime payment shall be
made for such work beyond regular office hours.
3.2 Outside Activities
The Employee will devote her full time, energy, skill and best efforts to
the performance of her duties hereunder, in a manner which will faithfully and
diligently further the business and interests of the Company and ImagicTV,
including, but not limited to, attaining performance objectives such as revenue
and profit goals established by the Board of Directors for the Company and
ImagicTV, but she may make or manage personal investments of her choice and may
serve as a director of any business enterprise (not directly or indirectly in
competition with the Company and ImagicTV) or civic organization, provided that
such service does not materially interfere with the performance of her duties
hereunder.
3.3 Rules and Regulations
The Employee shall comply, while on the premises used by the Company and
ImagicTV, while conducting her duties under this Agreement, or when otherwise
applicable, with all the rules and regulations of the Company and ImagicTV from
time to time in force which are brought to her notice or of which she could
reasonably be aware.
ARTICLE 4
COMPENSATION
During the term of this Agreement, and during any severance or notice
periods, the Employee shall receive the following compensation and fringe
benefits:
4.1 Base Salary
The Employee shall receive a base salary (her "Base Salary") at an annual
rate of not less than $210,000 USD paid bi-weekly in equal installments. The
Employee's Base Salary rate shall be maintained at competitive market rates and
shall be subject to annual review of the Board of Directors.
4.2 Incentive Compensation
Beginning with the Fiscal year 2001, the Employee shall be eligible to
receive additional compensation by way of a bonus ( the "Bonus") in respect of
each fiscal year of the Company during the term of this Agreement no later than
120 days following the end of each period or fiscal year. The Bonus will be in
the form of a cash payment in the amount of 0-50% of Base Salary with a target
of 35% of the Employee's Base Salary if the Company and ImagicTV achieve certain
targeted profit and revenue performance levels as set forth in the chart below
(the "Plan"). In the event that the Company and ImagicTV do not achieve the
targeted gross revenues as set forth in the Plan, the amount of the Bonus shall
be in an amount as set by the Board based on the Employee's performance and also
based on
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principles of reasonableness considering the actual gross revenue earned by the
Company and ImagicTV. For the Fiscal year 2001 only, the cash Bonus shall be
pro-rated for the number of months the Employee has been employed (ex: 7/12 for
start date of July 31).
The Boards of Directors of the Company and ImagicTV, with the consent of the
Employee, have the authority to amend these figures.
<TABLE>
<CAPTION>
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Earnings Before
---------------
Interest, Tax, Depreciation
---------------------------
and Amortisation
---------------------------
Period ("EBITDA") Gross Revenue
------ ---------- -------------
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<S> <C> <C>
$US Millions
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Fiscal year ending February
28th, 2001 10 Million USD$
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Fiscal year ending February 100% of duly authorised 100% of duly authorised
28th, 2002 business plan as approved by business plan as approved by
the Board the Board
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Fiscal year ending February 100% of duly authorised 100% of duly authorised
28th, 2003 business plan as approved by business plan as approved by
the Board the Board
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</TABLE>
4.3 Benefits
For the term of this Agreement, and during any severance or notice
periods, the Company agrees:
a) to provide to the Employee a car allowance of $1090.00 USD per
month
b) to provide, under the ImagicTV Savings Incentive Plan, a
contribution that matches the contribution of the employee up to a
maximum of 6% of your annual salary
4.4 Company Benefit Plans
The Employee shall also participate in a medical, dental, prescription,
life, short-term and long-term disability, accidental death and dismemberment
and travel plan to be approved by the Board of Directors, as it may be modified
from time to time in the Company's sole discretion. Initially the payroll and
benefits package will be administered through Alcatel (NNI) in Herndon,
Virginia, US. The Employee agrees to accept a change in the administration of
such plan as required by the Company.
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4.5 Vacation; Holidays
The Employee shall be entitled to four weeks of annual vacation time at
such times that do not unreasonably interfere with the Company's business. Such
vacation time shall not be carried into subsequent years, without prior written
consent of the President. The Employee shall be entitled to all statutory
holidays regularly observed by the Company.
4.6 Options
The Employee shall participate in the Company's ESOP Employee share
option plan as established by the Boards of Directors of the Company and
ImagicTV, subject to execution by the Employee of an option agreement in the
form prescribed by the Company and ImagicTV from time to time. The Employee's
entitlements under such plans will be determined from time to time by the Board
of Directors of ImagicTV. To this intent, the Company will ensure that ImagicTV
grants to the Employee the options to purchase shares of ImagicTV described
herein, and subject to the terms and conditions set out in the Management
Employment Option Agreement attached as Schedule A hereto. The Employee
acknowledges and agrees that such options and the underlying shares shall be
subject to the terms and conditions of the Unanimous Shareholders' Agreement, as
amended or superseded, dated December 17th, 1999 among the ImagicTV and its
shareholders.
ARTICLE 5
REIMBURSEMENT OF EXPENSES
During the term of the Agreement, the Company shall promptly reimburse
the Employee for all reasonable and necessary business expenses incurred by her
in promoting the business of the Company and ImagicTV, upon receipt of itemised
vouchers therefor and in accordance with the policies and procedures of the
Company and ImagicTV as in effect from time to time for its officers. In
addition, the Company shall promptly reimburse the Employee for her professional
training and education as well as membership fees, required to maintain her good
standing with relevant professional associations.
ARTICLE 6
TERMINATION
6.1 Death or Disability
(a) Death
The Employee's employment by the Company shall terminate automatically
upon the death of the Employee, in which event the Company shall remain liable
to the Employee's estate/heirs/devises only for the then accrued but unpaid
compensation and benefits (including, for greater certainty, options granted
under Section 4.6 which have vested in accordance with their terms) vested at
the time of death, payable to the Employee under Article 4. All payments shall
be made to the Employee's estate, payable to the named beneficiary under the
terms of the plan, or otherwise in accordance with the Company's policies and
applicable plans the current version of which have been made available to the
Employee for her inspection and review.
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(b) Disability
The Company may terminate the Employee's employment with the Company if
the Employee becomes unable to perform the duties to be performed by her
hereunder due to a physical, mental or other disability for a period of at least
6 consecutive months upon at least 60 days' prior written notice to the
Employee, in which event the Company shall remain liable to the Employee only
for the then accrued but unpaid compensation and benefits vested at the date of
termination payable to the Employee under Section 4 and all payments shall be
made to the Employee, her legal representative or otherwise in accordance with
the Company's policies and applicable plans, the current version of which have
been made available to the Employee for her inspection and review.
Notwithstanding the above, in such a case the Employee shall continue to be
eligible for short term and long term disability benefits, subject to the terms
of such plans and continued availability subject to the carriers acceptance of
the claim.
6.2 Termination by the Company
(a) Termination for Cause
The Company may at any time terminate the Employee's employment for just
cause, the notice of which shall specifically set forth the nature of the breach
that is the reason for such termination. For purposes of this Agreement, "just
cause" shall include the following: (i) dishonesty or fraud; (ii) conviction of
a felony or an indictable offence; and (iii) gross negligent performance of
duties as set out herein which remain unsatisfactorily remedied, notwithstanding
a previous written notice given to the Employee, or (iv) an act of material
insubordination or against the best interest of the Company and ImagicTV or in a
manner that has or could have a material impact on the financial condition of
the Company and ImagicTV.
Upon termination under this Section 6.2(a), the Employee shall be
entitled to no further compensation or benefits whatsoever except for Base
Salary due and payable for services performed and benefits vested pursuant to
Section 4 before such termination under the policies of the Company as in effect
at that time.
No prior notice will be required for termination with cause.
(b) Termination without Cause
The Board of Directors of the Company may terminate the Employee's
employment without cause at any time. In such event, the Employee shall be
entitled to monthly severance payments equal to one-twelfth of the Base Salary
for one year plus coverage for any benefits and Bonus to which the Employee may
be entitled pursuant to Article 4, determined in accordance with Section 6.6.
6.3 Termination by the Employee
If the Employee terminates her employment with the Company following a
substantial breach (as defined below), the Employee shall be entitled to the
severance payment and benefits as provided in Section 6.2(b). As used in this
Section, "substantial breach" shall mean either (i) the Employee's demotion,
without her consent to a position or duties materially inconsistent with or
inferior to those specified in Section 3; or (ii) the failure by the Company to
provide compensation and other vested benefits to the Employee in accordance
with Section 4, and the failure of the Company to correct such breach within
thirty days after written notice from the Employee of its occurrence.
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6.4 Change of Control
The Company may terminate the Employee's employment in the event of a
change in control of ImagicTV Such action shall constitute termination without
cause. The Employee shall also have the right to terminate her employment in the
event of a change in control, but shall not in such event be entitled to
severance pay except for the Base Salary and Bonus in accordance with sections
4.1 and 4.2 respectively and the Options under section 6.7.
For purposes of Article 6, change in control shall mean the acquisition
by a person of 51% or more of the issued and outstanding voting shares of the
Company or ImagicTV Inc.
6.5 Resignation
On any termination, the Employee will tender her resignation as an
officer of ImagicTV and any subsidiaries if requested by the Company.
6.6 Bonus and Options on Termination
(a) Bonus on Termination
The amount of the Bonus to which the Employee shall be entitled pursuant
to Section 4.2 for the portion of the period specified therein up to the time of
termination of the Employee's employment, shall be equal to the pro-rated
portion of the Employee's earned Bonus in such fiscal year, except that in the
event the employment is terminated for cause, the Employee shall not be entitled
to any Bonus.
(b) Options on Termination
In the event of termination of the Employee's employment:
(i) because of death, disability or any other reason except (A)
termination with or without cause or (B) as a result of a change of
control, the Employee or her estate, as the case may be, shall have 90
days from termination to exercise those options which are already vested
in accordance with the vesting schedule set out in the applicable option
agreement (the "Vested Options"), after which all options will lapse;
(ii) by the Company without cause, the Employee shall be entitled,
during the 90 days following termination, to exercise the Vested Options
and those unvested options held by the Employee which otherwise would
have vested at the end of the then current fiscal year, whether or not
such options have otherwise vested, after which all options will lapse;
or,
(iii) by the Company with cause, the Employee shall have no right to
exercise any options, whether vested or not, except for those vested
options for which a Notice of Exercise was received by the Company prior
to the notice of termination.
6.7 Options on Change of Control
In the event of a change of control of the Company or ImagicTV , the
Employee shall be entitled, during the 90 days following change for control to
exercise the Vested Options and all other options held
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by the Employee at such time, whether or not such options have otherwise vested,
after which time all options will lapse.
ARTICLE 7
RESTRICTIVE COVENANTS
7.1 Non-Disclosure
The Employee recognises that the Company, ImagicTV and their affiliates
are engaged in a continuous program of software research and development and the
marketing of software products and related services. The Employee also
recognises the importance of protecting the trade secrets, confidential
information, partner and customer relationships of ImagicTV and the Company and
other proprietary information and related rights acquired through the
expenditure of time, effort and money by ImagicTV and the Company. In
consideration of the foregoing and the salary and benefits contemplated by this
Agreement, the Employee shall comply with the Proprietary Rights Protection
Provisions set out as Schedule "B" to this Agreement.
7.2 Non-Competition
The Employee recognises that, in light of her position with the Company
and ImagicTV under this Agreement, her employment with or investment in an
enterprise in the business of designing, manufacturing, marketing, selling
and/or servicing equipment or products, including hardware, software and
firmware, that competes with currently offered equipment or products of the
Company and ImagicTV, those under development, or those contemplated in any
business plan duly approved by the Company and ImagicTV, being the development,
delivery and sale of software for digital interactive television services over a
broadband network (the "Business"), would cause irreparable harm to the Company
and ImagicTV; therefore, the Employee agrees that during the period of her
employment hereunder and for 12 months thereafter;
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(a) neither she nor any spouse, including a common law spouse, will be
interested, directly or indirectly, as an investor in any other business
or enterprise substantially similar to the Business (except as an
investor in securities listed on a national securities exchange or
actively traded over the counter so long as such investments are in
amounts not significant as compared to her total investments or to the
aggregate of the outstanding securities of the issuer of the same class
of issue) in Canada, the United States, Europe and other markets in
which the Company or ImagicTV conducts a material amount of Business
from time to time in the future;
(b) she will not, directly or indirectly, for her own account or as the
Employee, officer, director, partner, consultant, shareholder, joint
venturer or in any other manner whatsoever, engage within Canada, the
United States, Europe and other markets in which the Company or ImagicTV
conducts its Business from time to time during the aforementioned
limitation period under this clause 7.2, in any business or enterprise
materially similar to the Business; and
(c) she will not directly or indirectly solicit, interfere with or endeavour
to direct or entice away from the Company or ImagicTV any customer,
client or any person, firm or corporation in the habit of dealing with
the Company or ImagicTV or interfere with, entice away or otherwise
attempt to obtain the withdrawal of or hire any Employee of the Company
or ImagicTV.
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7.3 Equitable Relief
The Employee confirms that all restrictions in Article 7 are reasonable
and valid and all defences to the strict enforcement thereof by the Company and
ImagicTV are waived by the Employee. The Employee expressly acknowledges that
her covenants and agreements in this Article 7 are fundamental to the Company
and ImagicTV and her engagement by the Company and damages alone will be an
inadequate remedy for any breach or violation of any of the provisions of this
Article 7, and that the Company and ImagicTV, in addition to all other remedies,
shall be entitled as a matter of right to equitable relief, including
injunctions and specific performance, in any court of competent jurisdiction.
ARTICLE 8
INSURANCE
The Employee acknowledges that the Company and ImagicTV shall have the
right to take out insurance on the life of the Employee and designate the
Company and ImagicTV as beneficiary and agrees for such purposes to submit to
all required medical examinations, at the Company's expense. Notwithstanding the
right of the Company and ImagicTV to take out insurance on the life of the
Employee, all of the Employee's medical records shall be confidential to the
Employee and the insurance company and the Company and ImagicTV shall have no
right of access thereto.
ARTICLE 9
MISCELLANEOUS
9.1 Notices
Any notice or other communication required or permitted hereunder shall
be in writing and shall be deemed to have been given on the date of delivery if
delivered personally or by overnight courier, or three days after mailing if
mailed by first class certified mail, postage prepaid and return receipt
requested, addressed as follows, providing the postal services are working
normally:
to the Company: ImagicTV (US) Inc.
One Brunswick Square
14th Floor, P.O. Box 303
Saint John, New Brunswick
E2L 3Y2
Attention: Marcel Le Brun, President & CEO
to the Employee: Marjean Henderson
9352 Stratford
Dallas, Texas
75220
or to such address (or to such other person's attention) as either party may
specify in a notice to the other given in accordance with this Section.
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9.2 Assignment
This Agreement shall be binding upon and shall inure to the benefit of
the respective heirs, executors, administrators, successors, and assigns of the
parties, provided however that the Employee may not assign any obligations
hereunder without the prior written consent of the Company. The Company may
assign its rights and obligations hereunder only to an affiliate or successor
without the consent of the Employee, provided such assignment is not to an
unfriendly or hostile successor or will not materially affect the Employee's
rights or obligations hereunder.
9.3 Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the Province of New Brunswick, Canada applicable to contracts entered
into and performed within the Province of New Brunswick, Canada.
9.4 Cumulation of Benefits
Any payment made by the Company to the Employee in accordance with the
present agreement shall be added to any amount owing to the Employee or that may
be paid to her under any pension plan, annuity, insurance or any other
employment benefit plan.
9.5 Best Efforts
The Company will use its best efforts to take such corporate action as is
necessary or appropriate with respect to this Agreement, particularly as it
relates to the plans of the Company and ImagicTV.
9.6 Dollar Amounts
All dollar amounts hereunder are in $US dollars unless otherwise
specifically stated.
9.7 Entire Agreement
This Agreement (including any Schedules) constitutes the entire agreement
of the parties with respect to the subject matter hereof and supersedes any and
all prior oral or written negotiations, correspondence, understandings, and
agreements.
9.8 Severability
The provisions of this Agreement shall be deemed severable. If any
provision of this Agreement shall be held unenforceable by any court of
competent jurisdiction, the remaining provisions shall remain in full force and
effect.
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9.9 Modifications
All modifications to the Agreement must be made in writing and signed by
both parties.
9.10 Counterparts
The Agreement may be signed in two counterparts (delivered by facsimile
transmission or otherwise), each of which shall be deemed an original and both
of which shall together constitute the same instrument.
9.11 Legal Advice
The Employee acknowledges having had the opportunity to seek independent
legal advice in connection with the negotiation and execution of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
ImagicTV (US) INC.
by: ________________________
Marcel LeBrun, President and CEO
SIGNED, SEALED AND DELIVERED )
in the presence of: )
)
)
)
) _______________________
Witness ) Marjean Henderson
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SCHEDULE "B"
Proprietary Rights Protection Provisions
1. Definitions: For the purposes of this Schedule:
(a) "Company" means ImagicTV (US) Inc. , its parent corporation, ImagicTV
Inc.and their affiliated and associated corporations and subsidiaries ;
(b) "Confidential Information" includes any of the following: a) any and all
versions of the software and related documentation owned or marketed or
developed by the Company, including all related algorithms, concepts, data,
designs, flowcharts, ideas, programming techniques, specifications and
source code listings; b) all Developments (as defined below); c) information
regarding the Company's business operations, methods and practices,
including marketing strategies, product pricing, margins and hourly rates
for staff, and information regarding the financial affairs of the Company;
d) the names of the Company's clients and the names of the Company's
business partners and suppliers of computer services and software to the
Company, and the nature of the Company's relationships with these clients,
partners and suppliers; e) technical and business information of or
regarding the clients of the Company obtained in order for the Company to
provide such clients with software products and services, including
information regarding the requirements and the business operations, methods
and practices and products and plans of such clients; and f) any other trade
secret or confidential or proprietary information in the possession or
control of the Company; but Confidential Information does not include
information which is or becomes generally available to the public without
the Employee's fault or which the Employee can establish, through written
records, was in her possession prior to its disclosure to the Employee as a
result of her work for the Company; and
(c) "Developments" include all a) software, documentation, data, designs,
reports, flowcharts, training materials, trade-marks, specifications and
source code listings, and any related works, including any enhancements,
modifications, or additions to the software products owned, marketed or used
by the Company; and b) inventions, devices, discoveries, concepts, ideas,
algorithms, formulae, know-how, processes, techniques, systems and
improvements, whether patentable or not; developed, created, generated or
reduced to practice by the Employee, alone or jointly with others, during
her engagement with the Company or which result from tasks assigned to the
Employee by the Company or which result from the use of the premises or
property (including without limitation equipment, supplies or Confidential
Information) owned, leased or licensed by the Company.
2. Non-Disclosure of Confidential Information: At all times during and
------------------------------------------
subsequent to the termination of her engagement with the Company, the Employee
shall keep in strictest confidence and trust the Confidential Information, the
Employee shall take all necessary precautions against unauthorised disclosure of
the Confidential Information, and the Employee shall not directly or indirectly
disclose, allow access to, transmit or transfer the Confidential Information to
a third party, nor shall the Employee copy or reproduce the Confidential
Information except as may be reasonably required for the Employee to fulfil her
consulting or other obligations to the Company from time to time.
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3. Restricted Use of Confidential Information:
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(a) At all times during and subsequent to the termination of her engagement
with the Company, the Employee shall not use the Confidential Information
in any manner except as reasonably required for the Employee to fulfil her
consulting or other obligations to the Company from time to time.
(b) Without limiting her obligations under subsection 3(a) of this Schedule,
the Employee agrees that at all times during and subsequent to the
termination of her engagement with the Company, the Employee shall not use
or take advantage of the Confidential Information for creating, maintaining
or marketing, or aiding in the creation, maintenance or marketing, of any
software or services which are competitive with any software, hardware,
documentation or services developed, owned or marketed by the Company or
for providing any products and services competitive with the products and
services provided by the Company.
(c) Upon the request of the Company, and in any event upon the termination of
her engagement with the Company, the Employee shall immediately return to
the Company all materials, including all copies in whatever form,
containing the Confidential Information which are in her possession or
under her control and destroy any electronic copies of Confidential
Information which may be in her possession or control.
4. Ownership of Confidential Information:
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(a) The Employee acknowledges and agrees that she shall not acquire any
right, title or interest in or to the Confidential Information.
(b) The Employee agrees to make full disclosure to the Company of each
Development promptly after its creation. The Employee hereby assigns and
transfers to the Company, and agrees that the Company shall be the
exclusive owner of, all of her right, title and interest to each
Development throughout the world, including all trade secrets, patent
rights, copyrights and all other intellectual property rights therein. The
Employee further agrees to cooperate fully at all times during and
subsequent to her engagement with respect to signing further documents and
doing such acts and other things reasonably requested by the Company to
confirm such transfer of ownership of rights, including intellectual
property rights, effective at or after the time the Development is created
and to obtain patents or copyrights or the like covering the Developments.
The Employee agrees that the obligations in this clause (b) shall continue
beyond the termination of her engagement with the Company with respect to
Developments created during her engagement with the Company. In the event
that the Employee refuses or neglects to so execute any assignments,
transfers, consents, or other documents as required herein, the Employee
hereby irrevocably appoints the Chief Executive Officer of the Company as
her true and lawful attorney to execute any such documentation.
(c) The Employee acknowledges the validity of any patents, industrial
designs, copyrights, software, algorithms, trademarks and other
intellectual property rights related to the Confidential Information, which
may now or in the future be owned by the Company. The Employee undertakes
not to contest or to procure or induce others to contest the validity of
the title of the Company to any patents, industrial designs, copyrights,
trademarks and other intellectual property rights related to the
Confidential Information, which may now or in the future be owned by the
Company. The Employee undertakes not to contest or to procure or induce
others to contest the confidential nature of the Confidential Information.
The Employee undertakes not to infringe or to procure or induce
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others to infringe any patents, industrial designs, copyrights, trademarks
or other intellectual property rights related to the Confidential
Information, which may now or in the future be owned by the Company, or to
engage in any activity which might undermine the validity or strength
thereof.
(d) The Employee agrees that if her work involves any photographic, visual
or audio recording of her, the Employee hereby grants to the Company the
royalty-free right to record her likeness and/or voice and/or performance
on film, tape or other medium, to edit, alter or modify in any way such
film, tape or other medium, to use any portion thereof in a CD-based
product, in an on-line format or in any other media (now or hereafter
known) including video and television, throughout the world in perpetuity
and to use her name, likeness and voice in relevant publicity. The Employee
hereby releases the Company and anyone using such film, tape or other
material from any and all claims, damages, liabilities, costs and expenses
which the Employee has now or may hereafter have by reason of any use
thereof.
(e) The Employee agrees that the Company, its assignees and their licensees
are not required to designate the Employee as the author of any
Developments. The Employee hereby waives in whole all moral rights which
the Employee may have in the Developments, including the right to the
integrity of the Developments, the right to be associated with the
Developments, the right to restrain or claim damages for any distortion,
mutilation or other modification of the Developments, and the right to
restrain use or reproduction of the Developments in any context and in
connection with any product, service, cause or institution.
5. No Conflicting Obligations:
(a) The Employee acknowledges and represents to the Company that her
performance of her obligations hereunder and as an Employee of the Company
shall not breach any agreement or other obligation to keep confidential the
proprietary information of any prior employer of the Employee or any other
third party. The Employee further acknowledges and represents that the
Employee is not bound by any agreement or obligation with any third party
which conflicts with any of her obligations under this Agreement.
(b) The Employee represents and agrees that she will not bring to the
Company, and shall not use in the fulfilment of her obligations for the
Company, any Employee's Inventions (as defined below), any trade secrets,
confidential information and other proprietary information of any prior
employer of the Employee or any other third party. "Employee's Inventions"
as used herein shall mean any work or invention created by the Employee
alone or jointly with others, prior to, or outside of, her engagement by
the Company. To the extent that any Employee's Inventions are incorporated
into the Confidential Information of the Company by the Employee, Employee
hereby grants to the Company a perpetual, irrevocable, world-wide, royalty-
free licence to use such Employee's Inventions for any and all purposes in
the Company's discretion. The Employee represents and agrees that in her
work creating Developments the Employee will not knowingly infringe the
intellectual property rights, including copyright, of any third party.
(c) The Employee acknowledges and agrees that, in the event that the
Employee should become aware of any potentially conflicting obligation,
immediate notice shall be given to the Corporation of the existence, and to
the extent known, nature of such conflict. The Employee also agrees that no
further action will be taken until the written consent of the Company to
proceed has been obtained.
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4
SCHEDULE "C"
CUSTOMARY DUTIES OF CHIEF FINANCIAL OFFICER
-------------------------------------------
Key Role
--------
. Oversees accounting, taxation, financial planning/controls and reporting, as
well as corporate-level administration and operation review
. Acts as key leader in planning and executing the financial plan to observers
inside and outside the company
. Acts as senior financial advisor on acquisitions, joint ventures, financing,
etc.
. Member of Executive Committee
. Co-ordinates external financing activities, shareholder and investor
relations
Major Responsibilities:
-----------------------
1. Strategic-Financial Planning
As part of Executive Committee, assists in helping formulate strategic plans
. In conjunction with the President, develops fiscal requirements and financing
strategy (with outside advisors)
2. Accounting/Financial Control/Operation Review
. Oversees financial controls and systems
. Liaisons with auditors on annual statements and special issues
. Ensures timely and accurate reporting of all divisional activities
. Analyses results with divisional executives and summarizes monthly and
quarterly financial results for Board
. Completes and files all Governmental Reports (R&D grants, etc.)
. Reviews emerging financial information needs of the business and ensures
effective integration of overall MIS systems
. Establishes needs for improved management information, reporting, controls
and related management processes and implements changes required
. Develops improved reporting formats for Executive Committee/Board
. Furthers development of billing system
. Plays an integral role in ensuring the financial success of the business
3. Banking/Treasury/Corporate Finance
. Develops recommended plan for private or public issuance of stock, liaisons
with outside investors/lawyers, etc.
. Develops and maintains monthly and annual cash flow forecasts, including
variance analyses
. Co-ordinates banking negotiations and acquisitions financing
. Further develops alternative financing avenues (leasing, bank financing,
etc.)
. Advises on a plan for Employee stock ownership
4. Acquisitions/Corporate Development
. Assists in evaluation of new business opportunities with management and
outside advisors
. Assists in negotiation of major contracts
. Acts as project manager on special projects
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5
5. Taxation
. Initiates and/or co-ordinates domestic and international tax planning
. Ensures tax compliance filings in all domestic and international transactions
6. Investor Relations
. Co-ordinates all investor communications and ongoing dialogue with major
strategic partners
7. Corporate Administration
. Oversees corporate benefit plans, payroll, insurance, premises, etc.
. Become familiar with corporate policies including harassment and employment
discrimination issues and coordinate with Human Resources when issues arise
8. General Counsel
. Oversees the relationship with external General Counsel.
