EXHIBIT 10.33
February 12, 2002
Xxxxxx Xxxxxx
0000 Xxxxxxx Xxx
Xxxxxxxx, XX
X0X 0X0
Dear Xxxxxx,
I am pleased to present you with the following employment offer, as contained in
this letter, and the attached employment agreement:
Title: Chief Financial Officer, reporting to the Chief Executive
Officer.
Start Date: March 1, 2002.
Base Compensation: $165,000 per year.
Option Shares: An option to purchase 150,000 common shares of the Company
exercisable at a price to be determined in compliance with
the policies of The Toronto Stock Exchange and which shall
vest (i.e. become exercisable) as to 1/4 of the options one
year from the date of commencement of employment, and at a
rate of 1/12th of the remaining options each three months
thereafter so that all such options will be vested over four
years. The grant of the option provided within this offer
letter is subject to regulatory, and, if necessary,
shareholder approval. The option granted within this offer
letter may not be exercised until all regulatory and
shareholder approvals have been obtained.
Change of Control: Should the company be sold, acquired and/or otherwise
merged, and the Employee is terminated without cause, the
Employee shall be entitled to severance equal to 6 months of
base salary and other benefits.
Should the company be sold, acquired and/or otherwise
merged, 50% of unvested options shall vest immediately. This
is subject to regulatory approval, at the time of such an
event.
Management by
Objectives: 25% of annual base salary, paid per quarter based on
achieving quarterly objectives, to be determined by the CEO
upon your start of employment.
Benefits: A "Summary of Benefits" sheet is enclosed for your review.
Vacation: You will accrue vacation at a rate of 1.67 days per month -
or 20 days per year.
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Confidentiality: You will appreciate that details of all components of your
compensation package will be held in strictest confidence.
Confidentiality concerning all salary issues is a condition
of your employment with Infowave.
Probationary
Period: Standard probationary period of 3 months. Performance
reviews are conducted 6 months from start date.
Policies and
Procedures: You agree at all times to be bound by the Company's policies
and procedures as they may be contained and viewed on our
intranet. You agree to promptly and without delay
familiarize yourself with such policies and procedures and
to maintain a current awareness of same.
You agree the Company may, and without further notice, set off against any
amounts owed by you to the Company or its affiliates, any amounts owed to you by
the Company.
If you have any questions about the details of this offer, please contact Xxxxx
Xx at 000-0000 or myself.
If you accept this job offer, please sign both copies of this letter and the
attached Employment Agreement in the designated spaces and return one copy of
each to Xxxxx Xx, Director of Human Resources by February 15, 2002. This
employment offer expires on February 15, 2002.
Xxxxxx, we are looking forward to the prospect of you joining Infowave. We
believe you will be an asset to Infowave and a key driver and participant in its
growth.
Best regards
Infowave Software, Inc.
Xxxxxx Xxxx
CEO
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Xxxxxx Xxxxxx
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Date
Xxxxxx Xxxxxx - Employment Agreement - February 11, 2002
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EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the _____ day of ______________ 200___.
BETWEEN Infowave Software, Inc., having an office at Xxxxx 000 - 0000 Xxxxxxxx
Xxxxxxx, Xxxxxxx, X.X., Xxxxxx, ("Employer") and Xxxxxx Xxxxxx ("Employee").
WHEREAS the Employer desires to secure the services of the Employee which are
considered by the Employer to be valuable to it;
AND WHEREAS the Employee desires to enter into the full and active employ of the
Employer in accordance with the terms and conditions herein set forth;
AND WHEREAS the Employee acknowledges that in the performance of the services
contemplated by this agreement he will create or be privy to Trade Secrets and
other confidential information, inventions, works, designs and other
intellectual property, all of which are valuable to the Employer;
AND WHEREAS there may exist previous agreements between the Employer and the
Employee;
NOW THEREFORE in consideration of the Employer employing or continuing the
employment of the Employee and for other good and valuable consideration, the
parties hereto hereby agree as follows:
1. Definitions
1.1. "Confidential Information" means information concerning the Employer's
scientific and business interests including the Technology which is not
generally available to third parties and which is treated by the Employer, in
accordance with its policies, as confidential information or a trade secret.
1.2 "Technology" means the research and development carried out by the Employer
during the term of this agreement, and the research and development that during
the term of this agreement the Employer comes to anticipate carrying out in the
future.
1.3 "Work Product" means any work, research or development produced or created
by the Employee of a technical, scientific, or business nature pertinent to the
Employer's scientific or business interests including that relating to the
Technology or Confidential Information.
1.4 "Compete" means to research, develop, manufacture, distribute, or market,
other than as instructed by the Employer a product or service which performs a
similar function to a product or service (a) which during the term of this
agreement the Employer researches, develops, manufactures, distributes, or
markets, or (b) which during the term of this agreement the Employer comes to
anticipate researching, developing, manufacturing, distributing, or marketing in
the future.
Xxxxxx Xxxxxx - Employment Agreement - February 11, 2002
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1.5 "Homework" means either and both of the following: (a) information or
material which was legally in the possession of the Employee prior to this
agreement; (b) information or material which the Employee develops or obtains
during the term of this agreement without using the Technology, Confidential
Information, Work Product, or equipment, materials, or facilities belonging to
or provided by the Employer, and which the Employee intends to use, though not
necessarily exclusively, in a way that does not relate to the Work Product and
that does not Compete.
1.6 "Office" means any of the Employer's normal places of business.
1.7 "Termination" means the termination of the Employee's employment with the
Employer.
1.8 "Layoff" means a temporary suspension of the Employee's employment with the
Employer which is affected by the Employer.
2. Replacement of previous agreements
2.1 This agreement completely replaces any and all previous agreements between
the Employer and the Employee relating to the employment of the Employee with
the Employer.
3. Duration of Agreement
3.1 This agreement shall be deemed to come into effect (a) on the day and year
first above written.
3.2 This agreement shall remain in effect until Termination.
3.3 Termination may be affected by either party at any time provided that any
legal requirements of notice before Termination and/or compensation after
Termination are met by the parties.
3.4 In the event of a Layoff, this agreement shall remain in effect during the
Layoff.
3.5 In the event of a Layoff, the Employee shall have the right during the
Layoff to affect Termination effective immediately upon notifying the Employer.
4. Employment, Renumeration and Benefits
4.1 The Employer hereby employs the Employee as Chief Financial Officer.
4.2 The Employer shall pay and the Employee agrees to accept as compensation
for all of the services to be rendered hereunder a base salary to be determined
by the Employer and the Employee and set out in a separate letter of engagement.
Such base salary shall commence on the date established in the aforesaid letter
and shall be adjusted for merit from time to time thereafter during the
continuation of this agreement.
4.3 Overtime is not recognized by the company. In addition to the salary set
forth above, the Employee may participate in any incentive or bonus plan
established for the employees of the Employer.
Xxxxxx Xxxxxx - Employment Agreement - February 11, 2002
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4.4 The Employee may participate in and be entitled to all benefits payable
under the Employer's group term life insurance, medical and dental plans, long
term disability coverages, pensions and/or profit sharing plan (if any) and any
other benefit plans that the Employer may establish on the same terms and
conditions as apply to all other employees of the Employer.
4.5 The Employee shall be entitled to vacation periods in line with the
policies of the Employer applicable to all employees, provided however that the
Employee shall in any event be entitled after one year of employment to a
minimum paid vacation of two weeks in any calendar year during the term of this
agreement.
5. Work Product and Homework of Employee
5.1 The Employee has expended or will expend time and effort, and may have
expended or may expend money in the research and development relating to the
Technology resulting in Work Product being created on behalf of the Employer.
The parties wish to acknowledge that any and all Work Product has been carried
out on behalf of the Employer and all proprietary right, title, and interest in
and to the Work Product and the Technology remains that of the Employer.
5.2 The Employer recognizes the right of the Employee to create Homework.
6. Ownership of Work Product and Homework
6.1 The Employee agrees that any Work Product created by the Employee in
furtherance of any identifiable project carried out by the Employer either
developed solely or jointly with any other party will be the sole and exclusive
property of the Employer. The Employer is and will be the sole owner of all
copyrights, patents, and other intellectual property rights in the Work Product
and the Technology.
6.2 The Employee hereby assigns to the Employer any rights the Employee may
have or acquire in the Work Product, excepting any rights the Employee may
obtain from the Employer in a separate written agreement. At any and all times,
either during or after termination of the Employee's employment with the
Employer the Employee will promptly, on the request of the Employer, perform all
such acts and execute and deliver all such documents that may be necessary to
vest in the Employer the entire right, title, and interest in and to any such
Work Product. Should any such services be rendered after termination of
employment with the Employer a reasonable compensation will be paid to the
Employee by the Employer upon a per diem basis in addition to reasonable
traveling and accommodation expenses incurred as a result of rendering such
services.
6.3 If the Employee removes any Work Product from the Office, and makes
modifications to the Work Product using either his or her own equipment or the
Employer's equipment, the Employee agrees that all modifications done to the
Work Product are owned by the Employer.
6.4 The Employer agrees that any and all Homework is the sole property of the
Employee unless the Homework becomes part of any Work Product. When Homework
becomes part of the Work Product the Employer retains exclusive rights and
ownership.
Xxxxxx Xxxxxx - Employment Agreement - February 11, 2002
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6.5 The Employer grants to the Employee the right to use its equipment and
facilities for the purpose of obtaining computer software or information which
is in the public domain, or which is distributed by the copyright holder free of
charge or as shareware, provided that these activities do not impede or delay
the creation of Work Product. Any information or materials developed by the
Employee with the aid of computer software or information obtained by the
Employee in this way shall be deemed to be Homework if it would have been
Homework had it been developed without the aid of said computer software or
information.
7. Confidential Information and Non-Disclosure
7.1 The Employee will not, either during the term of his or her employment or
at any time thereafter, disclose to any person other than to the Employer or
make use of other than as directed by the Employer any Confidential Information
which the Employee may receive or create as a result of his or her employment or
retainer, unless the Employee can clearly prove that the information (a) is or
has become readily available to the public in the same form, other than through
a breach of this agreement, (b) was lawfully obtained in the same form by the
Employee from an independent third party without breach of this agreement and
which did not originate from the Employer, or (c) was in the Employee's
possession in the same form prior to the Employee's disclosure of such
information and did not originate from the Employer.
7.2 The Employee hereby certifies that he or she has not brought and will not
bring with the Employee to the Employer or use while performing his or her
employment duties for the Employer or incorporate into any Work Product any
materials or documents of a former employer or a third party which are not
generally available to the public. The Employee understands that while employed
by the Employer, the Employee is not to breach any obligation of confidence or
duty that the Employee may have to a former employer or third parties and the
Employee agrees that he or she will fulfill all such obligations during his or
her retainer or employment with the Employer.
7.3 The Employee will not remove any Confidential Information from the Office
unless permitted by the Employer.
8. Conflict of Interest and Non-Competition
8.1 The Employee agrees that during the term of this agreement and for a period
of one year after Termination the Employee will neither Compete, assist a third
party to Compete, nor manage or operate an organization that Competes.
8.2 The Employee acknowledges and agrees that there can be no geographical
limit to his or her covenant not to Compete due to the nature of the business of
the Employer and the technologies with which the Employer is involved.
8.3 In the event that a dispute arises concerning whether or not the research,
development, manufacture, distribution or marketing of a product of service was,
during the term of this agreement, anticipated by the Employer, such
anticipation shall be presumed to not have occurred unless the Employer can
clearly show otherwise.
9. General Provisions
9.1 This agreement applies to all Work Product whether created by the Employee
prior or subsequent to the date of this agreement.
Xxxxxx Xxxxxx - Employment Agreement - February 11, 2002
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9.2 All obligations of confidence and non-disclosure of the Work Product, all
provisions of assistance by the Employee in obtaining intellectual property
protection, and all provisions of avoidance of previous agreements contained in
this agreement will survive termination of this agreement.
9.3 The Employee hereby covenants that he is not a party to any existing
employment agreement which could limit the scope of the work to be performed by
the Employee pursuant to this Agreement.
9.4 This agreement will be binding upon and enure the benefit of the parties
hereto and their respective heirs, executors, administrators, successors and
assigns. This agreement will not be assignable by the Employee.
9.5 The Employee hereby acknowledges and agrees that the Employer's trade
secrets and other confidential information constitute extremely valuable
proprietary property of the Employer and that the Employer and its licensees
will suffer irreparable harm if unauthorized parties gain access to the
Employer's secrets. The Employee accordingly agrees that if any of the
Employer's secrets are disclosed, copied, or used in violation hereof, then the
Employer shall have, in addition to any other remedies available to it, the
right to injunctive relief (including interlocutory injunctive relief) enjoining
such action and the Employee hereby acknowledges and agrees that other remedies
and inadequate to fully protect the Employer's proprietary rights.
9.6 The parties will execute and deliver all such further documents, do or
cause to be done all such further acts and things, and give all such further
assurances as may be necessary to give full effect to the intent and meaning of
this agreement.
9.7 If any term, covenant, or condition of this agreement or the application
thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this agreement or the application of such term,
covenant, or condition to persons or circumstance other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and each
term, covenant or condition of this agreement shall be valid and enforced to the
full extent permitted by law.
9.8 All references to a party whether a party to this agreement or not, will be
read with such changes in number and gender as the context or reference
requires.
9.9 This agreement shall be governed by and construed in accordance with the
laws of the Province of British Columbia and the parties hereby attorn to the
jurisdiction of the Courts of the Province of British Columbia.
IN WITNESS WHEREOF, the parties have executed this agreement as of the day and
year first above written.
Infowave Software, Inc.
Per: ____________________________________
Xxxxxx Xxxx
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Xxxxxx Xxxxxx
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Date
