EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into, as of
this 15thday of November, 2006 ("Effective Date"), by and between Declan A.
French an individual resident of the City of Toronto in the Province of Ontario
("Executive"), and Thinkpath Inc., a corporation formed under the laws of the
Province of Ontario ("Employer") with its principal place of business at 201
Westcreek Blvd., Brampton, Ontario, Canada, L6T 5S6.
W I T N E S S E T H
WHEREAS, Employer desires to continue the employ of Executive,
and Executive desires to continue to be so employed by Employer, on the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements contained herein, the parties hereto, intending
to be legally bound, hereby agree as follows:
SECTION 1. EMPLOYMENT.
1.1 Subject to the terms hereof, Employer hereby employs
Executive, and Executive hereby accepts such employment. Executive will serve in
the capacity of Chief Executive Officer of Employer and will have duties and
responsibilities customarily assigned to a person with such title. Executive
hereby agrees that, throughout his period of employment, he shall devote his
business time, attention, knowledge and skills, diligently in the furtherance of
the business of the Employer and of its subsidiaries and affiliates, shall
perform his duties consistent with his position with Employer and shall observe
and carry out such rules and regulations, policies and directions as Employer
may from time to time establish to the extent consistent herewith. Throughout
the duration of this Agreement, Executive shall do such traveling as may be
reasonably required of him in the performance of his duties on behalf of
Employer.
SECTION 2. TERM OF EMPLOYMENT.
2.1 The term of Executive's employment hereunder (the "Initial
Term") shall be from the Effective Date and expire at the earlier of (a) the
second anniversary of the date of this Agreement or (b) the occurrence of any of
the following events:
(i) The death or total disability of Executive (total
disability meaning the failure to substantially perform
his normal required services hereunder for a period of
three (3) consecutive months during any consecutive
twelve (12) month period during the term hereof, as
determined by an independent medical doctor jointly
chosen by the Executive and the Employer, by reason of
mental or physical disability); or
(ii) The termination by Employer of Executive's employment
hereunder for "Cause" as determined by the Board of
Directors of Employer. For purposes of this Agreement,
"Cause" for termination of Executive's employment shall
include (i) if Executive is convicted of, pleads guilty
to, or confesses to any felony or indictable offence or
any act of fraud, or misappropriation or embezzlement
with regard to Employer, (ii) if Executive has engaged
in a dishonest act to the material damage or prejudice
of Employer or an affiliate of Employer, or in conduct
or activities materially damaging to the property,
business, or reputation of Employer or an affiliate of
Employer, (iii) if Executive violates any of the
provisions contained in Section 4 of this Agreement and
does not, within thirty (30) days after receiving
written notice from Employer specifically outlining the
alleged violation(s) by the Executive, cure the
violation(s); (iv) Executive willfully breaches or
habitually and recklessly neglects the duties he is
required to perform hereunder, or performs such duties
in a grossly negligent manner, and does not, within
thirty (30) days after receiving written notice from
Employer specifically outlining the alleged violation(s)
by the Executive, cure the violation(s).
2.2 SUCCESSIVE TERMS. After the Initial Term, this Agreement
shall continue on a year-to-year basis (the "Successive Terms"; together with
the Initial Term, the "Term") unless terminated by either the Employer or the
Executive upon ninety (90) days written notice to the other prior to the end of
the Initial Term or a Successive Term.
SECTION 3. COMPENSATION.
3.1 TERM OF EMPLOYMENT. Employer will provide Executive with
the following salary, expense reimbursement and additional Executive benefits
during the term of employment hereunder:
(a) SALARY. During the Initial Term, Executive will be paid
a salary (the "Salary"), that shall be two hundred
thousand United States dollars (US$200,000.00) per
annum, less deductions and withholdings required by
applicable law. Thereafter, and during the Successive
Terms, Executive will be paid a salary to be determined
by good faith negotiations between Employer and
Executive, but in no event shall such salary be less
than two hundred thousand United States dollars
(US$200,000.00) (the "Successive Terms Salary"). The
Salary and Successive Terms Salary shall be paid to
Executive in bi-weekly installments (or on such more
frequent basis as other executives of Employer are
compensated).
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(b) PERFORMANCE BONUS.
(i) Employer shall pay to Executive a performance
bonus based on Employer's EBITDA (which is defined
as Employer's earnings before the deduction of
interest, taxes, depreciation and amortization as
calculated in accordance with United States
generally accepted accounting principles) at the
end of each calendar year during the Term or then
Successive Term, in accordance with the following
schedule:
EBITDA AS A PERCENTAGE
GROSS REVENUE (US DOLLARS) BONUS (US DOLLARS)
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7% US$200,000.00
8% US$300,000.00
9% US$400,000.00
10% US$500,000.00
(ii) The determination of whether Employer has achieved
a certain level of EBITDA in any year for the
purposes of this section shall be made by the
certified chartered accountant regularly retained
or employed by Employer within ninety (90) days
after the end of each calendar year, and shall be
binding on Employer and Executive.
(iii) The performance bonus shall, in the sole
discretion of Employer, be payable in cash or
shares of Employer's common stock.
(iv) The performance bonus shall be due and payable
within one-hundred-twenty (120) days after the end
of each calendar year.
(v) Notwithstanding anything to the contrary herein,
Executive shall be entitled to a minimum
performance bonus per calendar year equal to one
hundred thousand United States dollars
($100,000.00).
(vi) Upon written notice from Executive (the "Demand
Notice") Employer agrees to register on one
occasion all or any portion of the common stock
issued at Employer's discretion for the
performance bonus, provided that Larus Master Fund
Ltd. or any subsequent party with similar rights
to Larus Master Fund Ltd., has no objection to
such registration. Employer will file a new
registration statement within 60 days after
receipt of the Demand Notice and use its best
efforts to have such registration statement
declared effective as soon as possible thereafter.
(c) VACATION. Executive shall be entitled to receive six
(6) weeks paid vacation during each year of
employment to be taken at such times and in such
periods as shall not interfere with the duties
required to be rendered by Executive hereunder.
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(d) EXPENSES. Employer shall reimburse Executive within
thirty (30) days of its receipt of a reimbursement
report with supporting receipts from the Executive, for
all reasonable and necessary expenses incurred by
Executive in performing services hereunder, including
without limitation, all expenses of travel and living
expenses when away from home on business at the request
of or in the service of Employer.
(e) BENEFIT PLANS. Executive shall have the option of
participating in such medical, dental, disability,
hospitalization, life insurance, stock option and other
benefit plans (such as pension and profit sharing plans)
as Employer maintains from time to time for the benefit
of other full-time Executives of Employer, on the terms
and subject to the conditions set forth in such plans.
(f) CHANGE IN CONTROL.
(i) In the event of a "Change in Control" whereby:
(1) A person (other than a person who is an
officer or Director of Employer on the
Effective Date), including a "group" as
defined in Section 13(d)(3) of the SECURITIES
EXCHANGE ACT of 1934, as amended, becomes, or
obtains the right to become, the beneficial
owner of Employer's securities having fifty
percent (50%) or more of the combined voting
power of then outstanding securities of
Employer; or
(2) Employer consummates a merger in which it is
not the surviving entity; or
(3) All or substantially all of Employer's assets
are sold; or
(4) Employer's shareholders approve the
dissolution or liquidation of Employer; then
(ii) All stock options and warrants granted by Employer
to Executive under any plan or otherwise prior to
the effective date of the Change in Control, shall
become vested, accelerate and become immediately
exercisable, at the stated exercise price, with
the number of shares and exercise price adjusted
for any stock splits and capital reorganizations
that occur subsequent to the Effective Date; and
(iii) Employer shall, upon the effective date of the
Change in Control, issue to Executive such number
of shares of Employer's common stock as equal to
the lesser of:
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(1) Nineteen percent (19%) of the issued and
outstanding shares of Employer's common stock
as of the effective date of the Change in
Control; or
(2) Such number of shares as is calculated by
dividing Five-hundred-thousand United States
dollars (US$500,000.00) by the average of the
closing bid prices (as reported on the NASDAQ
OTC Bulletin Board or the pink sheets) for
the fifteen (15) trading days immediately
preceding the effective date of the Change in
Control.
(iv) Upon written notice from Executive (the "Demand
Notice") Employer agrees to register on one
occasion all or any portion of the shares of the
Employer's common stock issued to Executive by
Employer upon the effective date of the Change in
Control, provided that Larus Master Fund Ltd. or
any subsequent party with similar rights to Larus
Master Fund Ltd., has no objection to such
registration. Employer will file a new
registration statement within 60 days after
receipt of the Demand Notice and use its best
efforts to have such registration statement
declared effective as soon as possible thereafter.
(g) AUTOMOBILE ALLOWANCE. During the Term, Employer shall pay
Executive the equivalent of one-thousand-four-hundred United Stated
dollars (US$1,400.00) per month as an allowance for the use of
Executive's automobile.
3.2 EFFECT OF TERMINATION. Upon the termination of the
employment of Executive hereunder for any reason other than for Cause, Executive
shall be entitled to all compensation and benefits earned or accrued under
Section 3.1 as of the effective date of termination. In addition, upon the
termination of this Agreement for any reason other than for Cause, Executive
shall be entitled to receive an amount equal to three (3) years Salary. The said
three (3) years of Salary shall be payable to Executive by Employer as a lump
sum amount or by continuing bi-weekly payments (as per paragraph 3.1(a) herein)
or by a combination of lump sum payment and continuing bi-weekly payments at the
sole discretion of Employer.
3.3 INDEMNITY BY EXECUTIVE. Employer and Executive acknowledge
that all amounts owing to Executive pursuant to this Agreement whilst it is
still in force are paid to Executive's Family Trust. In the event that any
government determines that this method of payment is not acceptable and levies a
fine, penalty, interest or other payment requirement, including but not limited
to Income Tax, Canada Pension Plan, Employment Insurance, Employer Health Tax,
Goods and Services Tax or any United States equivalent, Executive agrees to be
personally responsible for any and all such amounts that he and/or Employer are
obliged to pay and agrees to indemnify and save harmless Employer from any
claims made against it with respect to the foregoing.
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SECTION 4. COVENANTS OF EXECUTIVE
4.1 DEFINITIONS. For the purposes of this Section 4, the
following definitions shall apply.
(a) "Confidential Information" means any confidential,
proprietary business information or data belonging to or
pertaining to Employer that does not constitute a "Trade
Secret" (as hereinafter defined) and that is not
generally known by or available through legal means to
the public, including, but not limited to, information
regarding the Employer's customers or actively sought
prospective customers, acquisition targets, suppliers,
manufacturers and distributors gained by Executive as a
result of his employment with Employer.
(b) "Customer" means actual customers or actively sought
prospective customers of Employer.
(c) "Trade Secrets" means information or data of or about
Employer, including but not limited to technical or
non-technical data, formulas, patterns, compilations,
programs, devices, methods, techniques, drawings,
processes, financial data, financial plans, products
plans, or lists of actual or potential customers,
clients, distributees or licensees, information
concerning or Employer's finances, services, staff,
contemplated acquisitions, marketing investigations and
surveys, that are not generally known to, and/or are not
readily ascertainable by proper means by, other persons.
(d) "Work Product" means any and all work product property,
data documentation or information of any kind prepared,
conceived, discovered, developed or created by Executive
for Employer or its affiliates' clients or customers for
utilization in Employer's business, not generally known
by or not readily ascertainable by proper means by other
persons who can obtain economic value from their
disclosure or use.
4.2 TRADE NAME AND CONFIDENTIAL INFORMATION.
(a) Executive hereby agrees that at all times during the
Term, Successive Terms and thereafter:
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(i) Executive shall not, directly or by assisting others
own, manage, operate, join, control or participate in
the ownership, management, operation or control of, or
be connected in any manner with, any business conducted
under any corporate or trade name of Employer or name
confusingly similar thereto, without the prior written
consent of Employer;
(ii) Executive shall hold in confidence all Trade Secrets and
all Confidential Information and will not, either
directly or indirectly, use, sell, lend, lease,
distribute, license, give, transfer, assign, show,
disclose, disseminate, reproduce, copy, appropriate or
otherwise communicate any Trade Secrets or Confidential
Information, without the prior written consent of
Employer; and
(iii) During the Term Executive and Successive Terms shall
immediately notify Employer of any unauthorized
disclosure or use of any Trade Secrets or Confidential
Information of which Executive becomes aware, Executive
shall assist Employer, to the extent necessary, in the
procurement or any protection of Employer's rights to or
in any of the Trade Secrets or Confidential Information.
(b) Upon the request of Employer, Executive shall deliver to
Employer all memoranda, notes, records, manuals and other
documents, including all copies of such materials and all
documentation prepared or produced in connection therewith,
pertaining to the performance of Executive's services
hereunder or Employer's business or containing Trade Secrets
or Confidential Information, whether made or complied by
Executive or furnished to Executive from another source by
virtue of Executive's employment with Employer.
(c) To the greatest extent possible, all Work Product shall be
deemed to be "work made for hire" (as defined in the COPYRIGHT
ACT, 17 U.S.C.A. Section 101 et seq., as amended) and work
"made in the course of employment" (as defined in the
COPYRIGHT ACT, R.S., 1985, c. C-42) and owned exclusively by
Employer. Executive hereby unconditionally and irrevocably
transfers and assigns to Employer all rights, title and
interest Executive may have in or to any and all Work Product,
including, without limitation, all patents, copyrights,
trademarks, service marks and other intellectual property
rights arising out of the Work Product. Executive agrees to
execute and deliver to Employer any transfers, assignments,
documents or other instruments which Employer may deem
necessary or appropriate to vest complete title and ownership
of any and all such Work Product, and all rights therein,
exclusively in Employer.
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4.3 NON-SOLICITATION AND NON-COMPETITION. Executive hereby
agrees that Executive will not, during the Term and Successive Terms and for a
period of eighteen (18) months following the termination of this agreement for
any reason, either directly or indirectly, alone or in conjunction with any
other party, on the North American continent:
(a) solicit, divert or appropriate or attempt to solicit, divert
or appropriate, any Customer for the purpose of providing the
Customer with services or products competitive with those
offered by Employer during the Term; or
(b) solicit or attempt to solicit any officer, director,
executive, consultant, contractor, agent, lessor, lessee,
licensor, licensee, supplier or any shareholder of Employer or
other personnel of Employer or any of its affiliates or
subsidiaries to terminate, alter or lessen that party's
affiliation with Employer or such affiliate or subsidiary or
to violate the terms of any agreement or understanding between
such Executive, consultant, contractor or other person and
Employer; or
(c) engage in, as owner, stockholder, executive, partner, agent,
representative or otherwise, or have an interest in (except
for ownership of publicly trade securities representing not
more than five percent (5%) of the outstanding voting shares),
any business, firm, corporation or other entity in direct
competition with the business of Employer.
Nothing contained in this Section 4 shall prohibit Executive
from acquiring not more than five percent (5%) of any competitor of Employer
whose common stock is publicly traded on a national securities exchange or in
the over-the-counter market or from acquiring any percentage of any company
which is non-competitive with Employer.
SECTION 5. MISCELLANEOUS.
5.1 SEVERABILITY. The covenants in this Agreement shall be
construed as covenants independent of one another and as obligations distinct
from any other contract between Executive and Employer. Any claim that Executive
may have against Employer shall not constitute a defense to enforcement by
Employer of this Agreement.
5.2 SURVIVAL OF OBLIGATIONS. The covenants in Section 4 of
this Agreement shall survive termination of Executive's employment for the
period set forth therein.
5.3 NOTICES. Any notice or other document to be given
hereunder by any party hereto to any other party hereto shall be in writing and
delivered in person or by courier, by telecopy transmission or sent by any
express mail service, postage or fees prepaid at the following addresses:
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EMPLOYER: Thinkpath Inc.
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201 Westcreek Blvd.
Brampton, Ontario, Canada, L6T 5S6
Telephone: (905) 460-3042
Facsimile: (905) 460-3050
Attention: Secretary
WITH A
COPY TO: Heifetz, Crozier, Law
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Barristers & Solicitors
10 King Street East, Sixth Floor
Toronto, Ontario, M5C 1C3
Telephone: (416) 863-1717 ext. 312
Facsimile: (416) 368-3133
Attention: Timothy J. Law
EXECUTIVE: Declan A. French
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2045 Lakeshore Boulevard West
Toronto, Ontario, Canada M8V 2Z6
Telephone: (416) 255-1277
or at such other address or number for a party as shall be specified by like
notice. Any notice which is delivered in the manner provided herein shall be
deemed to have been duly given to the party to whom it is directed upon actual
receipt by such party or its agent.
5.4 BINDING EFFECT. This Agreement inures to the benefit of,
and is binding upon, Employer and its respective successors and assigns, and
Executive, and Executive's executors, administrators, personal representatives,
heirs, and legatees.
5.5 ENTIRE AGREEMENT. This Agreement is intended by the
parties hereto to be the final expression of their agreement with respect to the
subject matter hereof and is the complete and exclusive statement of the terms
thereof, notwithstanding any representations, statements or agreements to the
contrary heretofore made. This Agreement supersedes and terminates all prior
employment and compensation agreements, arrangements and understandings between
or among Employer and Executive. This Agreement may be modified only by a
written instrument signed by all of the parties hereto.
5.6 GOVERNING LAW. This Agreement shall be deemed to be made
in, and in all respects shall be interpreted, construed, and governed by and in
accordance with, the laws of the Province of Ontario. No provision of this
Agreement shall be construed against or interpreted to the disadvantage of any
party hereto by any court or other governmental or judicial authority or by any
arbitrator(s) by reason of such party or its counsel having or being deemed to
have structured or drafted such provision.
5.7 ATTACHMENT. Except as required by law, the right to
receive payments under this Agreement shall not be subject to attachment, sale,
pledge, encumbrance, charge, levy or similar process or assignment, and any
attempt to do so shall be null and void.
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5.8 HEADINGS. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
5.9 SPECIFIC PERFORMANCE. Each party hereto hereby agrees that
any remedy at law for any breach of the provisions contained in this Agreement
shall be inadequate and that the other parties hereto shall be entitled to
specific performance and any other appropriate injunctive relief in addition to
any other remedy such party might have under this Agreement or at law or in
equity.
5.10 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the 15th day of November, 2006
THINKPATH INC.
/s/ Kelly Hankinson
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I have the authority to bind the corporation
Name: Kelly Hankinson
Title: Chief Financial Officer and Secretary
/s/ Tracy McKay /s/ Declan French
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Witness Declan A. French
Name: Tracy McKay
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