EXHIBIT: 10.9
AMENDING AGREEMENT executed at the City of Montreal, Province of Quebec, as of
the 1st day of January 2002.
BY AND BETWEEN: OPTIMAL ROBOTICS CORP., a body politic
and corporate, having its head office
and place of business at 4700 de la
Savane, Suite 101, Montreal, Quebec, H4P
1T7
(hereinafter called the "Company")
AND: HOLDEN L. OSTRIN, Executive, residing at
61 Aberdeen Avenue, Westmount, Quebec
H3Y 3A6
(hereinafter called the "Executive")
WHEREAS the parties entered into a formal employment agreement dated as of May
5, 1997, which agreement was amended as of January 5, 1999, pertaining to the
employment of the Executive by the Company (the agreement, as amended, being
hereinafter called the "Initial Agreement"); and
WHEREAS the parties desire to amend certain provisions of the Initial Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING, THE PARTIES HERETO COVENANT
AND AGREE AS FOLLOWS:
1. The preamble hereto shall form an integral part hereof as if herein set
forth at length.
2. The parties agree that the Initial Agreement is hereby amended as
follows:
2.1. The Executive's title set forth on the first page is replaced by
"Co-Chairman".
2.2. Section 10 is hereby deleted and replaced by the following:
"10. During the Term, the Company shall, in addition to any
other insurance coverage provided to the Executive in his
capacity as an officer of the Company, pay or reimburse to
the Executive the cost of the reasonable premiums
associated with a personal life and disability insurance
policy with a minimum coverage of US $5,000,000 (or the
Canadian dollar equivalent thereof), in term or whole life
insurance, which policy shall be owned by the Executive or
his designee."
2.3. Section 16 is hereby amended by deleting paragraph (iv) thereof
and replacing it by the following:
"(iv) the term insurance, if any, then owned by the Executive for which
the Company is responsible for the cost of the premiums in
accordance with section 10 shall forthwith thereafter be converted
to, or replaced by a whole life policy for the same insurance
amount, which policy shall be owned by the Executive or his
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designee, and the Company shall pay or reimburse to the Executive
the entire cost of the premium for such whole life insurance
policy."
2.4. The first paragraph of Section 17 is amended by deleting "and" at
the end of clause (i) of the first paragraph and replacing the
period at the end of clause (ii) of the first paragraph with a
semi-colon, and by adding the following thereafter:
"(iii) the term insurance, if any, then owned by the Executive for
which the Company is responsible for the cost of the
premiums in accordance with section 10 shall forthwith be
converted to, or replaced by a whole life policy for the
same insurance amount, which policy shall be owned by the
Executive or his designee, and the Company shall pay or
reimburse to the Executive the entire cost of the premium
for such whole life insurance policy; and
(iv) the Company shall forthwith acquire medical insurance
coverage for the Executive, which coverage shall provide
the Executive and his family with health, life, dental and
other insurance coverage in Canada and the United States
which is equivalent to the coverage theretofore maintained
by the Company for the benefit of its senior executives and
enjoyed by the Executive. Such coverage shall be for a term
of five years and shall commence forthwith following the
termination of the Executive's employment."
3. In accordance with Section 30 of the Initial Agreement the parties
acknowledge that the Executive's address for the giving of notices,
requests, consents or other communications shall be 61 Aberdeen,
Westmount, Quebec, H3Y 3A6, as reflected on the first page of Annex 1
hereto.
4. The parties hereby agree that the Initial Agreement, as amended hereby,
remains in full force and effect. This agreement is an amendment to the
Initial Agreement and the Initial Agreement and this agreement shall be
read together and have effect so far as practicable as though all the
provisions thereof and hereof were contained in one instrument, the
Initial Agreement as amended hereby having been restated and set forth in
Annex 1 hereto.
5. The parties declare that they have required that this agreement and all
documents relating hereto, either present or future, be drawn in the
English language; les parties declarent par les presentes qu'ils exigent
que cette entente et tous les documents y afferents, soient, pour le
present ou le future, rediges dans la langue anglaise.
IN WITNESS WHEREOF, the parties hereto have executed the present agreement on
the date first hereinabove mentioned.
OPTIMAL ROBOTICS CORP.
Per: /s/ NEIL WECHSLER
--------------------
Neil Wechsler
/s/ HOLDEN L. OSTRIN
--------------------
Holden L. Ostrin
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ANNEX 1
MEMORANDUM OF AGREEMENT executed at the City of Montreal, Province of Quebec, as
of the 5th day of May, 1997, as amended and restated as of January 1, 2002.
BETWEEN: OPTIMAL ROBOTICS CORP., a body politic
and corporate, having its head office
and place of business at 4700 de la
Savane, Suite 101, Montreal, Quebec, H4P
1T7
(hereinafter called the "Company")
AND: HOLDEN L. OSTRIN, Executive, residing at
61 Aberdeen, Westmount, Quebec H3Y 3A6;
(hereinafter called the "Executive")
WHEREAS the Executive is the Co-Chairman of the Company and is presently
performing his functions for the Company on a full-time basis; and
WHEREAS it is the mutual desire of the Company and the Executive that the
Executive continue to remain in the employ of the Company; and
WHEREAS the Company and the Executive desire to enter into a formal
employment agreement, the whole subject to the terms and conditions hereinafter
set forth.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING, THE PARTIES HERETO COVENANT
AND AGREE AS FOLLOWS:
1. The preamble hereto shall form an integral part hereof as if herein set forth
at length.
2. The Executive agrees to continue in the employ of the Company and to perform
those functions for which he is presently responsible, subject to such
modifications of said functions and to such directives as may be communicated to
the Executive from time to time by the Board of Directors of the Company (the
"Board").
The term of the Executive's employment with the Company (the "Term")
shall be for an indefinite duration and, subject to the provisions of sections
17, 18, 19 and 20 hereof, the Executive's employment with the Company may be
terminated by either party upon 120 days prior written notice to the other
party.
3. The Executive agrees to devote his full time, attention, skill and efforts to
the performance of his duties as they may from time to time be determined
pursuant to the terms of this agreement. The Executive further covenants that he
will faithfully perform those duties which are assigned to him to the best of
his ability and that he will not engage in any other act of business, subject
only to his right to engage in activities directly relating to passive
investments by the Executive which do not materially interfere with the
Executive's duties and responsibilities pursuant to this agreement.
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4. During the Term, the Executive shall be nominated by the Company, at each
annual general meeting of shareholders at which the Executive's then current
term of office as a director of the Company is to expire, to sit as a member of
the Board.
5. The Company agrees to pay to the Executive, during the Term, a minimum salary
of Cdn. $183,000 per annum, said amount to be payable in equal, bi-weekly
installments or otherwise as in accordance with the payroll policy of the
Company, from time to time, less such deductions or amounts to be withheld by
the Company as required by law.
6. In recognition of the significant contributions of the Executive to the
affairs of the Company, the Company shall pay to the Executive an annual bonus
(the "Recognition Bonus") in respect of each fiscal year of the Company,
commencing with the fiscal year ending December 31, 1997. The Recognition Bonus
shall not be less than twenty-five percent (25%) of the minimum salary paid or
payable to the Executive in respect of such fiscal year. The Recognition Bonus
in respect of each fiscal year shall be paid to the Executive on the next
following day on which an installment of his minimum salary is payable, after
the end of such fiscal year (the "Bonus Payment Date"). The amount of the
Recognition Bonus shall be paid to the Executive net of any deductions or
amounts to be withheld by the Company as required by law.
7. The Executive shall be paid an annual bonus in respect of each fiscal year
during the Term, in such amount, if any, and at such time(s) as shall be
determined at the sole discretion of the Board. The amount of such bonus shall
be paid to the Executive net of any deductions or amounts to be withheld by the
Company as required by law.
8. The parties agree that the Company shall, in each fiscal year within 30 days
following the approval by the Board of the audited financial statements of the
Company for the immediately preceding fiscal year, and may, at any time, review
and at its discretion adjust, the amounts of minimum salary and/or Recognition
Bonus which are payable to the Executive; provided, however, that the amount of
minimum salary payable to the Executive during any year of the Term shall in no
event be less than the minimum annual salary payable to the Executive during any
previous year of the Term and the amount of Recognition Bonus payable to the
Executive in respect of any fiscal year of the Company shall in no event be less
than the minimum amount provided for in section 6 hereof.
9. Intentionally deleted.
10. During the Term, the Company shall, in addition to any other insurance
coverage provided to the Executive in his capacity as an officer of the Company,
pay or reimburse to the Executive the cost of the reasonable premiums associated
with a personal life and disability insurance policy with a minimum coverage of
U.S. $5,000,000 (or the Canadian dollar equivalent thereof) in term or whole
life insurance, which policy shall be owned by the Executive or his designee.
11. The Executive shall be entitled to twenty-five (25) business days of
vacation per fiscal year, to be taken at such times and intervals as shall be
determined by the Executive, subject to the reasonable business needs of the
Company. The vacation days not used during any fiscal year, may, at the
Executive's option, be accumulated and carried forward to be used during any
subsequent fiscal year; provided, however, that the Executive may not use more
than forty (40) business days of vacation in any one fiscal year. Upon
termination of the Executive's employment hereunder, or upon the request of the
Executive at any time, the Company shall pay to the Executive an amount equal to
the number of vacation days accumulated, multiplied with respect to each such
day by the annual minimum salary which was in effect for the year to which such
vacation day relates; the parties hereby agreeing that any vacation days used
during a fiscal year shall be applied first against vacation days accumulated in
respect of the earliest fiscal year in regard to which vacation days are
accumulated and shall thereafter be applied against the next following fiscal
years in regard to which vacation days are accumulated.
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12. Subject to the receipt by the Company of all necessary regulatory approvals,
the Company hereby grants to the Executive an irrevocable option (the "Option")
to purchase from treasury a total of four hundred thousand (400,000) Class "A"
shares of the capital of the Company ("Optimal Shares") at an option exercise
price of three United States dollars (U.S. $3.00) per share. Additional terms
and conditions pertaining to the Option are as follows:
(i) the Option shall expire on May 5, 2002;
(ii) prior to its expiration or earlier termination in accordance with
the terms hereof, the Option shall be exercisable from time to
time in cumulative installments as to all or any of the optioned
Optimal Shares subject thereto as follows;
(A) as and from the date hereof, the Option may be exercised as
to fifty percent (50%) of the optioned Optimal Shares;
(B) after May 5, 1998, the Option may be exercised as to an
additional twenty-five percent (25%) of the optioned
Optimal Shares; and
(C) after May 5, 1999, the Option may be exercised as to the
balance of the optioned Optimal Shares;
provided, however, that in the event of the termination by the
Company of the Executive's employment, otherwise than by reason of
termination for cause (as hereinafter in section 16 defined), the
Option shall thereupon become exercisable as to all of the
optioned Optimal Shares in respect of which the Option has not
already become exercisable in accordance with clauses (B) and (C)
of this paragraph (iii), and the provisions of paragraphs (ix) and
(x) of this section 12 shall have application;
(iii) Intentionally deleted;
(iv) in the event of any subdivision or consolidation of the
outstanding Optimal Shares at any time after the date hereof and
prior to the expiration or cancellation of the Option, the Company
shall deliver to the Executive at the time of any subsequent
exercise of the Option in accordance with the terms hereof, in
lieu of the number of Optimal Shares to which the Executive was
theretofore entitled upon such exercise, but for the same
aggregate consideration payable therefor, such number of Optimal
Shares as the Executive would have held as a result of such
subdivision or consolidation if on the record date thereof the
Executive had been the registered holder of the number of Optimal
Shares to which the Executive was theretofore entitled upon such
exercise;
(v) if at any time after the date hereof and prior to the expiration
or cancellation of the Option, the outstanding Optimal Shares
shall be reclassified, reorganized or otherwise changed, otherwise
than pursuant to a subdivision or a consolidation of such shares,
or the Company shall consolidate, merge or amalgamate with or into
another corporation (the corporation resulting or continuing from
such consolidation, merger or amalgamation being in this section
12 called the "Successor Corporation"), the Executive shall be
entitled to receive upon such exercise of the Option and in
accordance with the terms hereof, and shall accept in lieu of the
number of Optimal Shares then subscribed for, but for the same
aggregate consideration payable therefor, the aggregate number of
shares of the appropriate class and/or other securities of the
Company or the Successor Corporation (as the case may be) and/or
other consideration from the Company or the Successor Corporation
(as the case may be) that the Executive would have been entitled
to receive as a result of such reclassification, reorganization or
other change of shares or as a result of such consolidation,
merger or amalgamation, if on the record date of such
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reclassification, reorganization or other change of shares or the
effective date of such consolidation, merger or amalgamation, as
the case may be, the Executive had been the registered holder of
the number of Optimal Shares to which the Executive was
immediately theretofore entitled upon such exercise;
(vi) the Option is personal to the Executive and shall not be
assignable or transferrable, whether voluntarily or by operation
of law, except by will or by the applicable laws of succession,
nor shall the Option be pledged, hypothecated, charged,
transferred, or otherwise encumbered or disposed of, the whole on
pain of nullity;
(vii) the granting of the Option shall not impose upon the Company any
obligation to retain the Executive in its employ or as a director
of the Company;
(viii) upon the Executive's employment being terminated for cause, the
Option or the unexercised portion thereof shall terminate
forthwith;
(ix) upon the Executive's employment with the Company being terminated,
otherwise than by reason of death or termination for cause, the
Option or unexercised part thereof shall be exercisable only
within one hundred and eighty (180) days after such termination or
prior to the expiration of the term of the Option, whichever
occurs earlier;
(x) if the Executive dies while employed by the Company, the Option or
unexercised part thereof may be exercised by the person to whom
the Option is transferred by will or the applicable laws of
descent and distribution and shall be exercisable only within one
hundred and eighty (180) days after the Executive's death or prior
to the expiration of the term of the Option, whichever occurs
earlier; and
(xi) the Executive (or his personal representatives or legatees) shall
have no rights whatsoever as a shareholder in respect of any of
the Optimal Shares covered by the Option until the date of
issuance of a share certificate to him (or his personal
representatives or legatees) for such shares. Without in any way
limiting the generality of the foregoing, no adjustment shall be
made for dividends or other rights for which the record date is
prior to the date such share certificate is issued.
13. Intentionally deleted.
14. Intentionally deleted.
15. Intentionally deleted.
16. In addition to any other provisions contained herein, in the event that, at
any time during the Term or within 12 months following the termination of the
Executive's employment for any reason other than for cause, an arm's length
third party shall make a bone fide offer to acquire, directly or indirectly, by
way of take-over bid (within the meaning ascribed to such term in the Securities
Act (Ontario)), merger (by way of arrangement, amalgamation or otherwise) or
other similar procedure, outstanding shares of the Company representing more
than fifty percent (50%) of the votes attaching to all outstanding voting shares
of the Company (such offer being hereinafter called an "Offer"), the exercise
price of all Optimal Share purchase options, warrants and rights, if any, held
by the Executive, shall, subject to regulatory approval, be reduced to Cdn.
$1.00 in the aggregate and all of such options, warrants and rights shall become
immediately exercisable notwithstanding any terms to the contrary set forth in
any agreement or plan pursuant to which any of such options, warrants and rights
have been granted; provided, however, that:
(i) in the event that the Offer is a take-over bid:
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(a) the effectiveness of such reduction in such aggregate
exercise price and of the exercise of any such options,
warrants and rights at such reduced aggregate exercise
price, shall be conditional upon such number of securities
of the Company having been tendered in response to the
Offer, such that the offeror shall be obligated to take up
and pay for such securities in accordance with the terms of
the Offer;
(b) in the event that such exercise of options, warrants and
rights at such reduced exercise price has become effective
in accordance with the preceding paragraph (i)(a), the
Company shall forthwith thereafter cause certificates in
respect of the Optimal Shares which are to be issued upon
such exercise of options, warrants and rights to be
delivered to the Executive in order that such Optimal
Shares can be tendered for sale pursuant to and in
accordance with the terms of the Offer, the parties hereby
agreeing to execute all such additional instruments and
take all such additional steps as may be reasonably
required in connection with the tendering of such Optimal
Shares pursuant to the Offer; and
(c) in the event that such reduction in such aggregate exercise
price and such exercise of options, warrants and rights at
such reduced exercise price, do not become effective in
accordance with the provisions of the preceding paragraph
(i)(a), such exercise of such options, warrants and rights
shall be deemed not to have occurred, the aggregate
exercise price of Cdn. $1.00 shall be reimbursed to the
Executive and any Optimal Shares which were to have been
issued upon such exercise of options, warrants and rights
shall be deemed not to have been issued and any
certificates in respect thereof shall be cancelled; and
(ii) in the event that the Offer is not a take-over bid:
(a) the effectiveness of such reduction in such aggregate
exercise price and of the exercise of such options,
warrants and rights at the reduced exercise price of Cdn.
$1.00, shall be conditional upon the Offer having been
approved by all necessary corporate, regulatory and, if
required, shareholder approvals;
(b) the Company shall forthwith following the effectiveness of
the acceptance of the Offer (which, by way of example, in
the case of an arrangement between the offeror and the
Company, would be immediately following the filing of
articles of arrangement), cause certificates in respect of
the Optimal Shares which are to be issued upon such
exercise of options, warrants and rights to be issued to
the Executive; and
(c) in the event that such reduction in such aggregate exercise
price and such exercise of options, warrants and rights at
such reduced exercise price, do not become effective in
accordance with the provisions of the preceding paragraph
(ii)(a), such exercise of such options, warrants and rights
shall be deemed not to have occurred, the aggregate
exercise price of Cdn. $1.00 shall be reimbursed to the
Executive and any Optimal Shares which were to have been
issued upon such exercise of options, warrants and rights
shall be deemed not to have been issued and any
certificates in respect thereof shall be cancelled.
Provided that the Offer shall have been accepted in accordance with its
terms, if the Offer is a take-over bid, or that the proposed transaction is
concluded, in the event that the Offer is a merger or other similar procedure,
the following additional provisions shall apply:
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(iii) the Company shall forthwith thereafter declare and pay to the
Executive a bonus in an amount not less than the aggregate of the
minimum annual salary then being paid to the Executive plus an
amount (being twenty-five percent (25%) of the amount of such
annual salary) equal to the Recognition Bonus corresponding to
such minimum annual salary. The amount of such bonus shall be paid
to the Executive net of any deductions or amounts to be withheld
by the Company as required by law but shall not in any way limit
the amounts of minimum annual salary and Recognition Bonus
otherwise payable to the Executive for such fiscal year pursuant
to sections 5 and 6 hereof; and
(iv) the term insurance, if any, then owned by the Executive for which
the Company is responsible for the cost of the premiums in
accordance with section 10 shall forthwith thereafter be converted
to, or replaced by a whole life policy for the same insurance
amount, which policy shall be owned by the Executive or his
designee, and the Company shall pay or reimburse to the Executive
the entire cost of the premium for such whole life insurance
policy.
For the purposes of this agreement, "cause" shall include:
(A) the habitual neglect or failure to fulfil conscientiously and
diligently obligations assigned by the Board or to carry out
lawful orders relating to employment with the Company;
(B) habitual inability to carry out functions of employment due to
alcohol or drug-related causes; or
(C) any materially dishonest or fraudulent act relating directly or
indirectly to the course of employment.
In the event that the Company is unable to obtain all necessary
regulatory approvals for the reduction to Cdn. $1.00 of the aggregate exercise
price of all Optimal Share purchase options, warrants and rights held by the
Executive, the Company shall declare a bonus payable to the Executive in an
amount equal to the aggregate exercise price of all such options, warrants and
rights and shall apply the amount of such bonus against the payment of such
aggregate exercise price; provided, however, that the effectiveness of the
declaration of such bonus shall be subject to the same conditions as the
proposed reduction of such aggregate exercise price, in accordance with the
foregoing paragraph (i)(a) or (ii)(a), as the case may be, and in the event that
such bonus declaration does not become effective, any such exercise of such
options, warrants and rights shall be deemed not to have occurred, any Optimal
Shares which were to have been issued upon such exercise of options, warrants
and rights shall be deemed not to have been issued and any certificates in
respect thereof shall be cancelled. 17. In the event that the Company shall
terminate the employment of the Executive, other than for cause or due to the
death or Disability of the Executive, or in the event that the Executive
terminates his employment with the Company for Good Reason (as hereinafter
defined) within six months following a Change of Control (as hereinafter
defined) of the Company, the following provisions shall apply:
(i) the Company shall forthwith pay to the Executive an amount (the
"Termination Payment") equal to five times the aggregate of (i)
the highest annual minimum salary paid or payable to the
Executive, pursuant to section 5 hereof, during the Term, (ii) the
highest annual Recognition Bonus paid or payable to the Executive,
pursuant to section 6 hereof, during the Term and (iii) the
highest annual bonus paid or payable to the Executive, pursuant to
section 7 hereof, during the Term;
(ii) the exercise price of all Optimal Share purchase options, warrants
and rights, if any, held by the Executive shall, subject to
regulatory approval, be reduced to $1.00 in the aggregate and all
of such options, warrants and rights shall become immediately
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exercisable notwithstanding any terms to the contrary set forth in
any agreement or plan pursuant to which any of such options,
warrants and rights have been granted; provided, however, that
such share purchase options (but not such share purchase warrants
or rights) shall no longer be exercisable ninety (90) days after
the termination of the Executive's employment with the Company;
(iii) the term insurance, if any, then owned by the Executive for which
the Company is responsible for the cost of the premiums in
accordance with section 10 shall forthwith be converted to, or
replaced by a whole life policy for the same insurance amount,
which policy shall be owned by the Executive or his designee, and
the Company shall pay or reimburse to the Executive the entire
cost of the premium for such whole life insurance policy; and
(iv) the Company shall forthwith acquire medical insurance coverage for
the Executive, which coverage shall provide the Executive and his
family with health, life, dental and other insurance coverage in
Canada and the United States which is equivalent to the coverage
theretofore maintained by the Company for the benefit of its
senior executives and enjoyed by the Executive. Such coverage
shall be for a term of five years and shall commence forthwith
following the termination of the Executive's employment.
For the purposes hereof, "Good Reason" shall mean the express or
constructive demotion of the Executive, the diminishment of his authority or
responsibility as a senior executive of the Company or a change in the
Executive's duties or the scope of such duties, and "Change of Control" shall
mean the occurrence of either (a) the acquisition by an arm's length third
party, directly or indirectly, by way of take-over bid, merger or other similar
procedure, of outstanding shares of the Company representing more than thirty
percent (30%) of the votes attaching to all outstanding voting shares of the
Company, or (b) one- third or more of the members of the Board consisting of
persons other than Current Directors (and for these purposes a "Current
Director" shall mean any member of the Board elected at or continuing in office
after, the 1997 annual meeting of shareholders of the Company, any successor of
a Current Director who has been approved by a majority of the Current Directors
then on the Board, and any other person who has been approved by a majority of
the Current Directors then on the Board). The parties agree that in the event
that the Company shall fail to pay or otherwise perform its obligations in
favour of the Executive pursuant to this section 17 and such obligations are
successfully enforced by the Executive following the institution of legal
proceedings, the Company shall reimburse to the Executive all of his costs and
expenses (including legal fees and disbursements) which have been incurred by
the Executive in order to enforce such obligations.
18. In the event that the Company shall terminate the employment of the
Executive for cause, the Executive shall not be entitled to a notice period or
to any compensation, payment or damages in lieu of notice.
19. If the Executive shall die or shall voluntarily resign from his employment
with the Company (other than in the circumstances provided in section 17
hereof), the Company shall have no further obligation hereunder except to pay to
the Executive (or his succession, as the case may be) any accrued but unpaid
minimum salary, Recognition Bonus and statutory vacation pay, and any bonus
declared (pursuant to section 7) and then unpaid.
20. In the event that the Company shall terminate the employment of the
Executive due to the Disability of the Executive, the Executive shall be
entitled to payment of any accrued but unpaid minimum annual salary, Recognition
Bonus and statutory vacation pay, and any bonus declared (pursuant to section 7)
and then unpaid, as well as his minimum annual salary for a period of 12 months
from the date of notice for termination.
For the purposes of this agreement, the Executive shall be deemed to have
suffered a Disability when:
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(i) he has, by reason of physical or mental disability, been unable
for a continuous period of twelve (12) months to carry on, on a
full-time basis, substantially all business duties and
responsibilities for which he was employed in the same manner and
to the same extent as such duties and responsibilities were
carried on by the Executive prior to the occurrence of the
disability; or
(ii) a medical doctor shall have certified in writing that, by reason
of mental or physical disability, it is unlikely that he will be
able, within twelve (12) months, to resume carrying on, on a
full-time basis, substantially all business duties and
responsibilities for which he was employed.
21. For the purposes of sections 19 and 20 hereof:
(i) accrued but unpaid vacation pay shall be paid to the Executive
forthwith following termination of his employment with the
Company;
(ii) Recognition Bonus in respect of the fiscal year in which the
Executive's employment is terminated shall be deemed to accrue on
a daily basis and shall be paid to the Executive on the next
following Bonus Payment Date;
(iii) any bonus declared (pursuant to section 7) and then unpaid, which
is payable in accordance with section 19 or 20 hereof, shall be
paid forthwith following the termination of the Executive's
employment with the Company;
(iv) accrued but unpaid minimum annual salary, payable in accordance
with section 19 hereof, shall be paid forthwith following the
termination of the Executive's employment with the Company; and
(v) minimum annual salary payable in accordance with section 20 hereof
shall be paid to the Executive in accordance with the normal
payroll practices of the Company,
all such amounts to be paid to the Executive (or his succession, as the case may
be) net of any deductions or amounts to be withheld by the Company as required
by law.
22. In the event of the termination of the employment of the Executive for any
reason, all indebtedness still owing by the Executive to the Company at the time
of such termination will be forgiven and extinguished and the Company will pay
or reimburse to the Executive the amount of any taxes incurred by him in
connection with any such forgiveness.
23. The Executive shall be entitled to participate in all health, life, dental
and other insurance plans, if any, as may be maintained by the Company from time
to time for the benefit of its senior executives.
24. The Company shall reimburse to the Executive all reasonable out-of-pocket
expenses actually and properly incurred by him in the performance of his duties
hereunder upon presentation of expense statements or vouchers or such other
supporting information that the Company may reasonably require.
25. The Executive hereby acknowledges and agrees that, during the Term and at
all times thereafter, the Executive will hold in confidence all matters and
things relating to the business of the Company or any of its subsidiaries or
affiliates of which the Executive may acquire knowledge during his employment
with the Company including, without limitation, all records, papers, documents,
budgets, sketches, drawings, specifications, formulae, correspondence, cost
data, estimates, market surveys, suppliers' lists and prices, manufacturers'
lists and prices, customers' lists and prices, sales, production, purchasing or
financial information of any kind or description or any trade secrets or any
proprietary information of the Company, its subsidiaries and affiliates (all of
the foregoing being herein collectively called the "Materials"); and the
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Executive will not, without the written consent of the Company, except as may be
required in the fulfillment of his duties as an employee of the Company, use any
Materials for any purpose other than the business purposes of the Company and/or
its subsidiaries or affiliates. Without limiting the generality of the
foregoing, the Executive will not, without the written consent of the Company,
disclose or authorize anyone else to disclose to any person any confidential
information or trade secrets relating to the business of the Company and/or any
of its subsidiaries or affiliates, including, without limitation, any Materials.
26. The Executive hereby acknowledges that the Company has all rights to
possession of and title to all Materials and any copies, extracts and summaries
thereof and other confidential information originating during the Term or which
may come into his possession in any way during the Term which relates to the
business of the Company or any of its subsidiaries or affiliates, and the
Executive further agrees to deliver all of the foregoing promptly to the Company
on the date on which he ceases to be employed hereunder or at any other time the
Company may request, and not to make or permit to be made, except for the sole
use or benefit of the Company and its subsidiaries and affiliates, any copies,
abstracts or summaries thereof.
27. The Executive hereby covenants and agrees that, during the Term, or at any
time until the expiry of two years from the termination of his employment with
the Company for any reason, the Executive will not engage the services of nor
solicit, interfere with or endeavor to entice away any employee of the Company
or its subsidiaries or affiliates.
28. The Executive agrees that, except as an employee of the Company, he shall
not, during the Term or at any time during the Non-Competition Period (as
hereinafter defined), either individually or as an employee or director of or
consultant to, or in partnership or otherwise in connection with, any person,
firm, association, syndicate, company or corporation, directly or indirectly,
carry on or be engaged in or concerned with or interested in, or advise, lend
money to, guarantee the debts or obligations of, or permit his name or any part
thereof to be used or employed by or associated with any person, firm,
association, syndicate, company or corporation engaged in or concerned with or
interested in, any business which is the same as or similar to or in competition
in a material way with any of the businesses which are carried on by the
Company, its subsidiaries or affiliates during the Term or at the date of
termination of the Executive's employment with the Company, the whole in any
Restricted Area (as hereinafter defined); provided, however, that the foregoing
prohibition shall not preclude the passive investment by the Executive in a
maximum of five percent (5%) of the outstanding securities of any corporation
listed on a recognized stock exchange or traded on an over-the-counter market.
The Executive acknowledges that he has been engaged by the Company
hereunder for the express purpose of promoting and developing the business of
the Company and that the restrictions set forth in this section 28 are essential
conditions to the execution of this agreement by the Company, without which the
Company would not have entered into this agreement. The Executive furthermore
acknowledges that the compensation provided to him hereunder, and the
undertakings of the Company to issue shares to him, have been made partially in
consideration of his undertakings as contained in this section 28. The Executive
expressly acknowledges that the restrictions set forth in this section 28 are
reasonable and valid.
For the purposes hereof:
(a) the "Non-Competition Period" means the period commencing on the
date hereof and expiring on the second anniversary of the date
upon which the Executive ceases to be employed by the Company; and
(b) "Restricted Area" means Canada and the United States of America.
29. The Executive agrees that, in the event that a court determines that there
exists any actual or threatened breach by the Executive of any of the covenants
or agreements contained in sections 25, 26, 27 or 28 hereof, such breach shall
cause the Company irreparable damage and, accordingly, without prejudice to any
and all other rights and recourses of the Company, the Company shall have the
right to enforce the terms
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and provisions thereof by means of compelling specific performance and/or by
means of injunction and without limiting the generality of the foregoing, the
Executive hereby expressly consents to the granting of an injunction by a court
of competent jurisdiction for the purposes of enforcing the provisions of the
said sections 25, 26, 27 and 28 hereof.
In the event this agreement is breached, the parties shall, except as
otherwise provided herein, be entitled to all rights and remedies available at
law.
30. Any notice, demand, request, consent or other communication given or
required to be given to a party hereunder shall be in writing and shall be
delivered in person or sent by registered mail, postage prepaid, and shall be
addressed to such party at its address set forth on the first page hereof.
Any such notice, demand, request, consent or other communication shall be
conclusively deemed to have been given or made on the day upon which the same is
received, if delivered, or on the third business day after the deposit thereof
in the mail, if mailed as aforesaid. A party may at any time give notice in
writing in the manner aforesaid to the other party of any change of address of
the party giving such notice.
31. This agreement shall be construed and interpreted in accordance with the
laws in force in the Province of Quebec, as such laws may be in effect from time
to time.
32. If any provision of this agreement shall be held invalid or unenforceable in
whole or in part, such invalidity or unenforceability shall attach only to such
provision and all other provisions hereof shall continue in full force and
effect.
33. This agreement shall enure to the benefit of and shall be binding upon the
parties and their respective heirs, legal representatives, successors and
assigns.
34. No failure or delay on the part of a party in exercising any power or right
hereunder shall operate as waiver thereof nor shall any single or partial
exercise of any such right or power preclude any other or future exercise
thereof, nor the exercise of any other right or power hereunder. No modification
or waiver of any provision of this agreement nor consent to any departure by
either party herefrom shall in any event be effective unless the same shall be
in writing.
35. This agreement embodies the entire agreement and understanding of the
parties hereto in respect of the subject matter hereof. This agreement
supersedes all prior agreements and understandings with respect to the subject
matter hereof.
36. The parties declare that they have required that this agreement and all
documents relating hereto, either present or future, be drawn in the English
language; les parties declarent par les presentes qu'ils exigent que cette
entente et tous les documents y afferents, soient, pour le present ou le futur,
rediges dans la langue anglaise.
IN WITNESS WHEREOF, the parties hereto have executed the present agreement on
the date first hereinabove mentioned.
OPTIMAL ROBOTICS CORP.
PER:______________________________
Neil Wechsler
______________________________
Holden L. Ostrin
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