Exhibit 10.4
THIS AGREEMENT made as of the 1st day of January, 1999.
BETWEEN:
NETJEWELS.COM INC., a corporation incorporated
under the laws of the State of Delaware
(hereinafter called the "CORPORATION")
OF THE FIRST PART
- and -
JACK BERKOVITS, of the City of Toronto,
in the Province of Ontario
(hereinafter called the "EXECUTIVE")
OF THE SECOND PART
WITNESSETH that in consideration of the sum of Two Dollars ($2.00) now
paid by each of the parties hereto to the other (the receipt of which is hereby
acknowledged by each of them) and the mutual covenants and agreement herein set
forth, the parties hereto hereby agree as follows:
1. DUTIES
The Corporation appoints the Executive to undertake the duties and
exercise the powers as chairman of the Corporation as may be requested of the
Executive by the Board of Directors of the Corporation, and in the other offices
to which he may be appointed by the subsidiary companies of the Corporation, and
the Executive accepts the office, on the terms and conditions set forth in this
agreement.
2. TERM
The appointment shall commence with effect the 1st day of January,
1999, and shall continue until terminated in accordance with the provisions of
this agreement.
3. COMPENSATION
(1) The fixed remuneration of the Executive for his or her services shall
be at the rate of One Hundred Thousand Dollars ($100,000.00) for the
first year of employment pursuant to this contract commencing the 1st
day of January, 1999. The fixed remuneration shall be reviewed on each
anniversary of employment pursuant to this contract. The review will be
undertaken by assessing the Executive's achievement of the over-all
objectives established by the Corporation and by having regard to the
market rates of remuneration paid in Canada for similar duties and
responsibilities.
(2) In addition to the fixed remuneration, the Executive may, in the
absolute discretion of the Corporation, receive from the Corporation,
from time to time a bonus payment for his/her services for each year
during the period of his/her employment under this contract.
4. BENEFITS
It is understood and agreed that the Executive will incur expenses in
connection with his or her duties under this agreement. The Corporation will
reimburse the Executive for any expenses provided that the Executive provides to
the Corporation an itemized written account and receipts acceptable to the
Corporation within [thirty] days after they have been incurred. The Executive
will not be reimbursed for any item in excess of $ unless approved in
advance by the Board of Directors.
5. AUTHORITY
(1) The Executive shall have, subject always to the general or specific
instructions and directions of the Board of Directors of the
Corporation, full power and authority to assist in the management and
business and affairs of the Corporation (except only the matters and
duties as by law must be transacted or performed by the Board of
Directors or by the shareholders of the Corporation in general
meeting), including power and authority to enter into contracts,
engagements or commitments of every nature or kind in the name of and
on behalf of the Corporation and to engage and employ and to dismiss
all managers and other employees and agents of the Corporation other
than officers of the Corporation.
(2) The Executive shall conform to all lawful instructions and directions
given to him or her by the Board of Directors of the Corporation, and
obey and carry out the by-laws of the Corporation.
6. SERVICE
The Executive shall well and faithfully serve the Corporation and its
subsidiaries and use his or her best efforts to promote the interests thereof
and shall not disclose the private affairs or trade secrets of the Corporation
and its subsidiaries to any person other than the Directors of the Corporation
or for any purposes other than those of the Corporation any information the
Executive may acquire in relation to the Corporation's business.
7. CONFIDENTIAL INFORMATION
(1) The Executive acknowledges that as the chairman and in any other
position as the Executive may hold, the Executive will acquire
information about certain matters and things which are confidential to
the Corporation, and which information is the exclusive property of the
Corporation, including:
(a) product design and manufacturing information;
(b) names and addresses, buying habits and preferences of present
customers of the Corporation, as well as prospective
customers;
(c) pricing and sales policies, techniques and concepts;
(d) trade secrets, and
(e) other confidential information concerning the business
operations or financing of the Corporation.
(2) The Executive acknowledges the information as referred to in paragraph
7(1) could be used to the detriment of the Corporation. Accordingly,
the Executive undertakes not to disclose same to any third party
either during the term of the Executive's employment except as may be
necessary in the proper discharge of his or her employment under this
agreement, or after the term of his or her employment, however caused,
except with the written permission of an officer of the Corporation.
The Executive also agrees that the unauthorized disclosure of any such
information during the life of this agreement shall justify the
immediate termination of this agreement by the Corporation.
(3) The Executive acknowledges that in addition to any and all rights of
the Corporation, the Corporation shall be entitled to injunctive
relief in order to protect the Corporation's rights and property as
set out in paragraphs 1 and 2 of this section.
(4) The Executive understands and agrees that the Corporation has a
material interest in preserving the relationship it has developed with
its customers against impairment by competitive activities of a former
employee. Accordingly, the Executive agrees that the restrictions and
covenants contained in paragraph 7 of this agreement and the
Executive's agreement to them by his execution of this agreement, are
of the essence to this agreement and constitute a material inducement
to the Executive to enter into this agreement and to employ the
Executive, and that the Corporation would not enter into this
agreement absent such an inducement. Furthermore, the existence of any
claim or cause of action by the Executive against the Corporation
whether predicated on this agreement or otherwise, shall not
constitute a defence to the enforcement by the Corporation of the
covenants or restrictions provided in paragraph 7, provided, however,
that if any provision shall be held to be illegal, invalid or
unenforceable in any jurisdiction, the decision shall not affect any
other covenant or provision of this agreement or the application of
any other covenant or provision.
8. TERMINATION OF APPOINTMENT
(1) Notwithstanding anything herein contained to the contrary, the
Executive's employment hereunder shall, unless otherwise directed by
the board of directors of the Corporation, cease forthwith upon the
happening of the following events:
(a) if the Executive dies or shall be adjudicated bankrupt or
suspends payment or compounds with his creditors or makes
unauthorized assignment or is declared insolvent;
(b) if the Executive shall be guilty of any gross default or gross
misconduct or any breach or non-observance of any of the
provisions contained in this Agreement, if any of the
foregoing are not remedied within fifteen (15) days after
receipt of notice in writing from the Corporation of any such
conduct;
(c) if the Executive shall become an alcoholic or drug addict;
(d) if the Executive shall absent himself from the business and
affairs of the Corporation without leave;
(e) if the Executive shall disobey or refuse to respond to any of
the reasonable orders or directions of the directors of the
Corporation, if the Executive shall not explain to the
reasonable satisfaction of the Corporation the reasons for any
disobedience or refusal to follow any of the orders or
directions, within five (5) days after receipt of notice in
writing from the Corporation of its intention to terminate
pursuant to this subparagraph;
(f) by a written resolution of the board of directors of the
Corporation terminating the appointment of the executive or
the position of chairman;
(g) if the Executive shall do or cause to be done any action
detrimental to the welfare of the Corporation or injurious to
its reputation, which is not remedied within fifteen (15) days
after receipt of notice in writing from the Corporation of any
such conduct.
All of the foregoing are acknowledged to be without prejudice to any of
the Corporation's rights to terminate the appointment of the Executive
for any cause that would in law permit an employer to terminate such
appointment/employment without notice of termination.
(2) The Corporation shall have the right to terminate the Executive's
appointment forthwith at any time following the expiry of ninety (90)
consecutive days of illness on the part of the Executive rendering the
Executive unable to perform his duties and obligations pursuant to this
Agreement. For the purposes of this Agreement, once any period of
consecutive days of illness on the part of the Executive has occurred,
no new consecutive period of illness on the Executive's part shall be
deemed to have commenced unless the Executive shall have returned to
the performance of his duties and obligations pursuant to this
Agreement for thirty (30) consecutive days following any previous
consecutive period of illness.
(3) On termination of appointment the Executive shall immediately resign
all offices held (including directorships) in the company and save as
provided in this agreement, the Executive shall not be entitled to
receive any severance payment or compensation for loss of office or
otherwise by reason of the resignation. If the Executive fails to
resign as mentioned the Corporation is irrevocably authorized to
appoint some person in his or her name and on the Executive's behalf to
sign any documents or do any things necessary or requisite to give
effect to it.
9. CORPORATION'S PROPERTY
The Executive acknowledges that all items of any and every nature or
kind created or used by the Executive pursuant to the Executive's appointment
under this agreement, or furnished by the Corporation to the Executive, and all
equipment, automobiles, credit cards, books, records, reports, files, diskettes,
manuals, literature, confidential information or other materials shall remain
and be considered the exclusive property of the Corporation at all times and
shall be surrendered to the Corporation, in good condition, promptly at the
request of the Corporation, or in the absence of a request, on the termination
of the Executive's employment with the Corporation.
10. GENERAL TERMS
(1) The parties specifically acknowledge and agree that any change or
changes in any terms of this Agreement shall not operate as the
cancellation of this Agreement, but rather will operate as an amendment
hereto, and all other unarnended terms, provisions and conditions of
this Agreement shall remain as herein provided.
(2) If during the term of this Agreement, the Executive shall violate any
of the provisions contained herein, the Corporation shall be entitled
to apply for a restraining order and for an injunction to be issued by
any competent court having jurisdiction, restraining the Executive and
each and every other person, firm, partnership, corporation or
association concerned therein from continuance of any such violation,
in addition to any other remedies available to the Corporation.
(3) This Agreement is personal to the Executive and shall not be assignable
by him, but shall accrue to the Corporation's successors and assigns.
(4) The failure of the Corporation to insist upon the punctual performance
of any of the covenants or obligations of the Executive hereunder, or
the failure of the Corporation to exercise any right or H remedy
available to the Corporation under this Agreement, or any forbearance
on the part of the Corporation, shall not constitute a waiver by the
Corporation of any subsequent default-or breach by the Executive
hereunder. All demands for performance and all notice of default
hereunder are hereby waived by the Executive.
(5) Any notice, direction or other instrument required or permitted to be
given by one party to the other hereunder shall be in writing and may
be given by mailing to the same postage prepaid or delivering the same
addressed:
to the Corporation at: 1001 Petrolia Road
Toronto, Ontario
M3J 2X7
to the Executive at: 1001 Petrolia Road
Toronto, Ontario
M3J 2X7
Any notice, direction or other instrument aforesaid if delivered shall
be deemed to have been given or made on the date on which it was
delivered or if mailed, except in the event of an intervening postal
disruption, shall be deemed to have been given or made on the 3rd
business day following the day on which it was mailed.
The Corporation or the Executive may change its or his address for
service from time to time by notice given in accordance with the
foregoing.
(6) This Agreement and the terms hereof shall constitute the entire
Agreement between the parties hereto with respect to all the matters
herein, and its execution has not been induced by, nor do any of the
parties hereto rely upon or regard as material any representations or
writings whatsoever not incorporated herein and made a part hereof, and
this Agreement shall not be amended, altered or qualified except by a
memorandum in writing signed by all of the parties hereto, and any
amendment, alteration or in qualification hereof shall be null and void
and shall not be binding upon any party who has not given its or his
written confirmation thereof.
IN WITNESS WHEREOF the parties have hereto executed this Agreement.
NETJEWELS.COM INC.
Per: /s/ Daniel Berkovits
----------------------------
Name: Daniel Berkovits
Title: CEO
I have the authority to bind the Corporation
/s/ Jack Berkovits
-------------------------
JACK BERKOVITS