EXHIBIT 10.13
MEMORANDUM OF AGREEMENT executed at the City of Montreal, Province of Quebec, as
of the 18th day of July, 2000.
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: LEON P. GARFINKLE, Attorney, residing at 5616
Edgemore, Cote Saint-Luc, Quebec, H4W 1V5
(hereinafter called the "Executive")
WHEREAS the Executive has agreed to serve the Company as its Senior
Vice-President, General Counsel and Secretary; 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 serve the Company as its Senior Vice-President,
General Counsel and Secretary and to perform those functions, 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 7, 8, 9
and 10 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.
4. The Company agrees to pay to the Executive, during the Term, a minimum salary
of Cdn. $180,000 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.
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5. The Company shall also 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, 2000. The Recognition Bonus shall not be less
than fifteen percent (15%) 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.
6. The Executive shall be entitled to an annual vacation period which is in
keeping with the vacation policy of the Company, to be taken at such times and
intervals as shall be determined by the Executive, subject to the reasonable
business needs of the Company.
7. 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 Company shall
forthwith pay to the Executive an amount (the "Termination Payment") equal to
three times, the aggregate of (i) the then current annual minimum salary payable
to the Executive, pursuant to section 4 hereof; and (ii) the most recent
Recognition Bonus paid to the Executive, pursuant to section 5 hereof.
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 2000 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 7 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.
8. 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.
9. If the Executive shall die or shall voluntarily resign from his employment
with the Company (other than in the circumstances provided in section 7 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.
10. 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, 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:
(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
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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.
11. For the purposes of sections 9 and 10 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) accrued but unpaid minimum annual salary, payable in accordance with
section 9 hereof, shall be paid forthwith following the termination
of the Executive's employment with the Company; and
(iv) minimum annual salary payable in accordance with section 10 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.
12. 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.
13. 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.
14. 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 has acquired knowledge or 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 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.
15. 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
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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.
16. 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.
17. 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 17 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 will be paid
partially in consideration of his undertakings as contained in this section 17.
The Executive expressly acknowledges that the restrictions set forth in this
section 17 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.
18. 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 14, 15, 16 or 17 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 and provisions thereof by means of compelling
specific performance and/or by means of interim and final injunctive relief and
without limiting the generality of the foregoing, the Executive hereby expressly
consents to the granting of an interim and final injunction by a court of
competent jurisdiction for the purposes of enforcing the provisions of the said
sections 14, 15, 16 or 17 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.
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19. 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.
20. 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.
21. 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.
22. This agreement shall enure to the benefit of and shall be binding upon the
parties and their respective heirs, legal representatives, successors and
assigns.
23. 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.
24. 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.
25. 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: /s/ Holden L. Ostrin
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HOLDEN L. OSTRIN
/s/ Leon P. Garfinkle
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LEON P. GARFINKLE
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