EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 11th day of JUNE, ▇▇▇▇
▇ ▇ ▇ ▇ ▇ ▇ ▇:
WAVERIDER COMMUNICATIONS (USA) INC., a corporation incorporated
pursuant to the laws of Nevada, in the United States of America
(herein called the "Corporation")
OF THE FIRST PART
and
▇▇▇▇▇ ▇▇▇▇, residing in the City of Strongsville, in the State of
Ohio
(herein called the "the Executive")
OF THE SECOND PART
WHEREAS the Corporation desires to employ the Executive and to
enter into an agreement (the "Employment Agreement") embodying the terms of such
employment;
AND WHEREAS the Executive has accepted such employment on the
basis of the terms and conditions set forth herein;
IN CONSIDERATION of the recitals and mutual covenants contained
herein and for other good and valuable consideration, the parties agree as
follows:
1. EMPLOYMENT
The Corporation hereby employs the Executive and the Executive
hereby accepts employment with the Corporation for the term of this Employment
Agreement set forth in Section 2 below, in a position and with the duties,
responsibilities and authority as the Corporation may from time to time assign
to him including, without limitation, those duties, responsibilities and
authority more particularly set forth in Section 3 below, and upon all other
terms and conditions in this Employment Agreement set forth herein.
2. TERM
This agreement shall be for an initial term of twelve months for
the date herein. After the initial term, until terminated, this agreement shall
be deemed to be automatically renewed from month to month without any action
required on behalf of either party.
3. POSITION, RESPONSIBILITY
It is intended that the Executive shall serve as the General
Manager of the Corporation with responsibility for performing such duties for
the Corporation as the Executive shall reasonably be directed to perform by the
President and Chief Executive Officer of the Corporation.
Throughout the term of this Employment Agreement, the Executive
shall devote his full business time and undivided attention during normal
business hours to the business and affairs of the Corporation, except for
vacations and except for illness or incapacity, but, subject to Section 9 and
subject to the approval of the board of directors of the Corporation, which will
not be unreasonably withheld, nothing in this Employment Agreement shall
preclude the Executive from devoting reasonable periods required for serving, as
appropriate, on boards of directors of other corporations, from engaging in
charitable and public service activities, and from managing his personal
investments, provided such activities do not materially interfere with the
performance of his duties and responsibilities under this Employment Agreement
and do not constitute a conflict of interest with respect to his employment
herein.
4. SALARY, CASH AND STOCK COMPENSATION PLAN
For services rendered by the Executive during the term of this
Agreement, the Executive shall be entitled to receive a compensation package
consisting of: (i) an annual salary; (ii) a commission package; (iii) a
commission override package; and, (iv) a stock option award.
The Executive's salary and commission package shall be reviewed
at a minimum annually and may be adjusted to take into account, among other
things, individual performance and general business conditions.
i) The Executive's annual salary shall be $120,000, which shall be
paid as to the sum of $10,000 (before deductions) per month.
ii) The Executive shall receive a commission package calculated based
on 3% of the Corporation's U.S. sales, payable quarterly. The
commission calculation will be subject to a performance
multiplier, of at least a factor of 1, based on achievement of
certain performance objectives mutually agreed upon by the
Executive and the President of the Corporation and ratified by
the board of directors of the Corporation.
iii) For the three-year period commencing the date herein, the
Executive shall receive a commission override on all sales of
products based on the current "MAC technology" (as further
defined in Schedule A hereto). The commission override shall be
calculated, at $10.00 per unit sold by the Corporation and 3% of
licensing revenue received by the Corporation, related to the MAC
technology. The first $150,000 in commission override shall not
be payable by the Corporation. Any amounts in excess of the
initial $150,000 shall be payable quarterly.
iv) In addition, the Executive shall be eligible to participate in
WaveRider Communications Inc.'s ("WaveRider") 1999 Incentive and
Noncompensatory Stock Option Plan (the "Stock Option Plan") and
any successor plans thereto established by WaveRider for the
general benefit of employees. Pursuant to the Stock Option Plan,
the Executive shall be awarded options to acquire 50,000 common
shares ("Common Shares") in the capital of WaveRider at an
exercise price of US$1.59 per share, being the closing price of
the Common Shares on the OTC Bulletin Board on June 10th, 1999.
v) In consideration of signing this agreement, the Executive shall
be awarded shares from WaveRider's Employee Stock Compensation
(1997) Plan. The total award shall be equal to $450,000 based on
the average closing price of the WaveRider shares for the five
consecutive trading days prior to June 10th, 1999. Sale of the
shares shall be subject to a lockup letter as agreed between the
Executive and the President of the Corporation.
5. PERQUISITES AND BUSINESS EXPENSES
The Executive will be reimbursed for all reasonable expenses
incurred by him or her in connection with the conduct of the Corporation's
business upon presentation of sufficient evidence that such expenditures are
authorized expenditures pursuant to policies adopted by the board of directors
of the Corporation from time to time.
6. BENEFIT PROGRAMS
The Executive will be entitled to participate in the benefit
programs of the Corporation from time to time in effect under the terms and
conditions of such programs, including, but not limited to, pension and other
retirement plans, group life insurance, hospitalization and surgical and major
medical coverages, dental insurance, sick leave, including salary continuation
arrangements, vacations and holidays, long-term disability, and such other
fringe benefits as are or may be available from time to time to other employees
of the Corporation.
7. VACATION
The Executive shall be entitled to all usual public holidays and,
in addition, to twenty (20) days paid vacation, during each year of the
Executive's employment hereunder. Such vacation shall be utilized by the
Executive at such time or times as do not materially interfere with the ongoing
conduct of the Corporation's business and operations.
8. TERMINATION OF EMPLOYMENT
(a) Death - In the event of the death of the Executive during the
term of this Employment Agreement, the Executive's salary will be
paid to the Executive's designated beneficiary, and in the
absence of such designation, to the estate or other legal
representatives of the Executive, through the end of the month in
which death occurs. Rights and benefits of the Executive under
the Executive benefit plans and programs of the Corporation,
including life insurance, will be determined in accordance with
the terms and conditions of such plans and programs.
(b) Disability - The Executive's employment shall terminate
automatically upon written notice from the Corporation in the
event of the Executive's absence or inability to render the
services required hereunder due to disability, illness,
incapacity or otherwise for an aggregate of one hundred and
eighty days during any 12 month period during the term. In the
event of any such absence or inability, the Executive shall be
entitled to receive the compensation provided for herein for such
period, and thereafter the Executive shall be entitled to receive
compensation in accordance with the Corporation's long-term
disability plan, if any, together with such compensation, if any,
as may be determined by the board of directors of the
Corporation.
(c) Termination by the Corporation for Cause - In the event of a
termination for cause, there will be no continued salary payments
by the Corporation to the Executive and any rights and benefits
of the Executive under the Executive benefit plans and programs
of the Corporation will be determined in accordance with the
terms of such plans and programs. For the purposes of this
Section 8(c) and of the Executive's employment with the
Corporation, "cause" shall mean that:
(i) The Executive has committed a felony or indictable
offence or has improperly enriched himself at the
expense of the Corporation or has committed an act
evidencing dishonesty or moral turpitude,
including without limitation an act of theft;
(ii) The Executive, in carrying out his duties
hereunder, (A) has been wilfully or grossly
negligent, or (B) has committed wilful and gross
misconduct or, (C) has failed to comply with a
clear instructions or directives from the board of
directors of the Corporation after having been
informed of a failure to so comply;
(iii) The Executive has breached a material term of this
Employment Agreement;
(iv) The Executive becomes bankrupt or in the event a
receiving order (or any analogous order under any
applicable law) is made against the Executive or
in the event the Executive makes any general
disposition or assignment for the benefit of his
creditors; or
(v) The Executive commits any other act giving the
Corporation cause to terminate the Executive's
employment, including, but not limited to chronic
alcoholism or drug addiction, material malfeasance
or non-feasance with respect to the Executive's
duties hereunder.
Prior to any termination of the Executive for cause due to any occurrence
described in subparagraphs 8(c)(ii), (iii), (iv) and (v) above, the Corporation
shall notify the Executive in writing of the particulars of the occurrence upon
which termination would be based and shall in such notice advise the Executive
as to whether, in the Corporation's sole discretion, the default of the
Executive occasioned by such occurrence is capable of being cured or rectified
in full without loss or damage to the Corporation, in which case the Corporation
shall afford the Executive a reasonable period of not less than five business
days in which to cure or rectify such default. In such event and provided the
Executive cures or rectifies such default in full without loss or damage to the
Corporation, the Executive's employment shall not be terminated on the basis of
such occurrence.
(d) Resignation or Termination by the Corporation without Cause -
Either party may terminate this agreement upon three month's
written notice to the other.
In the event of resignation by the Executive, there will be no
continued salary payments by the Corporation to the Executive
after the last day actually worked and any rights and benefits
of the Executive under the Executive benefit plans and
programs of the Corporation will be determined in accordance
with the terms of such plans and programs.
9. NON-COMPETITION
The Executive agrees that during the period of the Executive's
employment with the Corporation and for any period of continued compensation
(with the exception of any commission override payable under Section 4 iii) to
the Executive by the Corporation, as outlined in Section 8(d), the Executive
shall not engage in or participate in any business activity that competes,
directly or indirectly, in the North American market, with the businesses of the
Corporation, or its subsidiaries or affiliates.
For the purposes of this Section 9, the Executive shall be
deemed to "compete, directly or indirectly, with the business of the
Corporation, or its subsidiaries or affiliates" if the Executive is or becomes
engaged, otherwise than at the request of the Corporation, as an officer,
director or the Executive of, or is or becomes associated in a management or
ownership, consultant or agent, capacity with any corporation, partnership or
other enterprise or venture whose business includes the distribution of
competing products (other than as the beneficial owner or registered holder of
not more than 5% of a company's issued and outstanding shares of the relevant
class in the capital stock of any such company listed on any recognized stock
exchange).
It is the desire and intent of the parties that the provisions
of this Section 9 shall be enforceable to the fullest extent permissible under
the laws and public policies applied in each jurisdiction in which enforcement
is sought. Accordingly, if any particular portion of this Section 9 is
adjudicated unenforceable in any jurisdiction such adjudication shall apply only
in that particular jurisdiction in which such adjudication is made.
10. NON-SOLICITATION
The Executive agrees that for a period of one year following
the termination of the Executive's employment with the Corporation for any
reason whatsoever, the Executive will not, whether as principal, agent,
employee, employer, director, officer, shareholder or in any other individual or
representative capacity, solicit or induce employees, consultants, suppliers or
customers of the Corporation, either directly or indirectly, to leave their
employment or engagement with the Corporation or otherwise sever or alter their
association with the Corporation or its respective subsidiaries or affiliates.
11. CONFIDENTIAL INFORMATION
All confidential records, material and information and copies
thereof and any and all trade secrets concerning the business or affairs of the
Corporation or any of its affiliates obtained by the Executive in the course and
by the reason of his employment shall remain the exclusive property of the
Corporation. During the Executive's employment or at any time thereafter, the
Executive shall not divulge the contents of such confidential records or any of
such confidential information or trade secrets to any person or persons, and the
Executive shall not, following the termination of his employment hereunder, for
any reason use the contents of such confidential records or other confidential
information or trade secrets for any purpose whatsoever.
12. ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS
During the term of this agreement the Executive shall disclose
promptly to the Corporation in writing:
a) All inventions, developments and discoveries; and,
b) All writings or other artistic or creative visual
expressions or integrated circuit layouts or
topographies;
that can be protected by patent, copyright, mask work or trademark laws, which
during the period of the Executive's engagement by the Corporation the Executive
has or may make, conceive or contribute to, either solely or jointly with
others, that:
i) relate to matters which the Executive's work for
the Corporation may be concerned; or,
ii) relate to or are connected with the business,
products, or projects of the Corporation; or,
iii) involve the use of the Corporation's inventions,
concepts, trade secrets, time, material or
facilities.
The Executive hereby assigns and agrees to assign to the
Corporation and its nominees all rights to such inventions, developments,
discoveries, writings or other artistic or creative visual expressions or
integrated circuit layouts or topographies discovered or developed during the
Executive's engagement with the Corporation, and any copyrights, patents or mask
work rights therein and any applications therefor.
At all times during and after the Executive's engagement by the
Corporation, and at no expense to the Executive, but without entitlement to
further compensation beyond the payment of the Executive's usual hourly, daily
or other rate for time reasonably spent, upon request, the Executive will
execute and deliver such assignments, declarations, and other documents, and to
perform such other acts, (including appearance as a witness in any contest), as
may be requested by the Corporation to obtain or uphold, for the benefit of the
Corporation, patents in any and all countries, for inventions, developments and
discoveries within the categories defined above. Such inventions, developments
and discoveries, and any writings or other artistic or creative visual
expressions and integrated circuit layouts and topographies, as well as any
copyrights or mask work rights therein, are to be and remain the property of the
Corporation or its nominees.
The Executive represents that the Executive has no agreement with
or obligation to any third party that conflicts with this Section 12.
13. WITHHOLDING
Anything to the contrary notwithstanding, all payments required
to be made by the Corporation hereunder to the Executive or his estate or
beneficiaries, shall be subject to the withholding of such amounts relating to
taxes as the Corporation may reasonably determine, after consultation with the
Executive, it should withhold pursuant to any applicable law or regulation. In
lieu of withholding such amounts, in whole or in part, the Corporation may, in
its sole discretion, accept other provisions for payment of taxes and
withholdings as required by law, provided the Corporation is satisfied that all
requirements of law affecting the Corporation's responsibilities to withhold
have been complied with.
14. ENTIRE AGREEMENT
This Employment Agreement contains the entire agreement between
the parties hereto with respect to matters herein and supersedes all prior
agreements and understandings, oral or written, between the parties hereto
relating to such matters.
15. ASSIGNMENT
Except as herein expressly provided, the respective rights and
obligations of the Executive and the Corporation under this Employment Agreement
shall not be assignable by either party without the written consent of the other
party and shall enure to the benefit of and be binding upon the Executive and
the Corporation and their permitted successors or assigns, including, in the
case of the Corporation, any other corporation or entity with which the
Corporation may be merged or otherwise combined or which may acquire the
Corporation or its assets in whole or in substantial part, and, in the case of
the Executive, his estate or other legal representatives. Nothing herein
expressed or implied is intended to confer on any person other than the parties
hereto any rights, remedies, obligations or liabilities under or by reason of
this Employment Agreement.
16. APPLICABLE LAW
This Employment Agreement shall be deemed a contract under, and
for all purposes shall be governed by and construed in accordance with, the laws
of the State of Ohio without regard to the conflicts of laws rules thereof. The
Corporation and the Executive hereby each irrevocably consent and attorn to the
jurisdiction of the courts of the State of Ohio with respect to any dispute or
proceeding arising in connection with this Employment Agreement.
17. AMENDMENT OR MODIFICATION: WAIVER
No provision of this Employment Agreement may be amended or
waived unless such amendment or waiver is authorized by the Corporation
(including any authorized officer or committee of the board of directors) and is
in writing signed by the Executive and by a duly authorized officer of the
Corporation. Except as otherwise specifically provided in this Employment
Agreement, no waiver by either party hereto of any breach by the other party of
any condition or provision of this Employment Agreement to be performed by such
other party shall be deemed a waiver of a similar or dissimilar breach,
condition or provision at the same time or at any prior or subsequent time.
18. RESIGNATIONS
The Executive hereby agrees that, upon termination of this
employment for any reason whatsoever, the Executive shall thereupon be deemed,
upon the request of the Corporation, to have immediately resigned any position
the Executive may have as an officer and/or director of the Corporation,
together with any other office, position or directorship which the Executive may
hold with any of the Corporation's subsidiaries or related entities in
connection with or arising from the performance of the Executive duties of
employment under this Employment Agreement. In such event, the Executive shall,
at the reasonable request of the Corporation, forthwith execute any and all
documents appropriate to evidence such resignations which are consistent with
the terms of this Employment Agreement.
19. PROVISIONS SURVIVING TERMINATION
It is expressly agreed that notwithstanding termination of the
Executive's employment with and by the Corporation for any reason or cause or in
any circumstances whatsoever, such termination shall be without prejudice to the
rights and obligations of the Executive and the Corporation, respectively, in
relation or arising up to the time up to and including the date of termination;
and the provisions of Sections 4 (iii), 8(d), 9, 10, 11, 12, 13, 17, 18, 19 and
20 of this Employment Agreement, all of which shall remain and continue in full
force and effect unless and until the board of directors of the Corporation at
its absolute discretion resolves otherwise and so notifies the Executive in
writing.
20. SEVERABILITY
In the event that any provision or portion of this Employment
Agreement shall be determined to be invalid or unenforceable for any reason, the
remaining provisions and portions of this Employment Agreement shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
21. COUNTERPARTS
This Employment Agreement may be executed in counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
22. REFERENCES
In the event of the Executive's death or a judicial determination
of his incompetency, reference in this Employment Agreement to the Executive
shall be deemed, where appropriate, to refer to his beneficiary or
beneficiaries.
23. CAPTIONS
Captions to the Sections of this Employment Agreement are solely
for convenience and no provision of this Agreement is to be construed by
reference to the captions of that Section.
24. CURRENCY
Unless otherwise specified herein, all dollar amounts referred to
herein shall mean United States dollars.
IN WITNESS WHEREOF this Employment Agreement has been executed by a
duly authorized officer of the Corporation and the Executive as of the day first
above written.
WAVERIDER COMMUNICATIONS (USA) INC.
By: /s/
--------------------------------------
D. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President and Chief Executive Officer
SIGNED, SEALED and )
DELIVERED in the presence of: )
)
)
)
)
/s/ ) /S/
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Witness ▇▇▇▇▇ ▇▇▇▇
SCHEDULE A
MAC TECHNOLOGY
The Media Access Controller (the "MAC") physically exists as firmware.
The MAC was conceived in 1997 by ▇. ▇▇▇▇ due to the need to develop products
that were more specifically designed for the outdoor wireless market. Prior
systems were built with spread spectrum radios that utilized MAC's designed for
an indoor environment and, therefore, produced poor results outdoors. In
addition the industry was moving to an IEEE based standard (802.11) that was
based even more on indoor requirements and would perform even more poorly
outdoors.
The MAC was designed to maximize throughput and be optimized for longer distance
operation than products being designed for the indoor market. Approximately 2000
engineering hours were spent simulating, writing and testing the HDL code that
is the MAC. The engineer hired to write the HDL code is ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. The
code was finished in August of 1998. ▇▇. ▇▇▇▇▇▇▇▇ was and is a full time
employee of Transformation Techniques, Inc.
For the purpose of this agreement, MAC Technology shall be defined as the MAC,
as defined above, and any modification, refinement or adaptation of the MAC for
use in 2.4 MHz wireless bridging products.
