EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT dated as of November 21st, 1999 ("Agreement Date") is between
SoftQuad Software Inc. (the "Company") and Xxxx Xxxxxxxx (the "Executive").
WHEREAS the Company wishes to employ the Executive on the terms and conditions
set out below and the Executive wishes to be so employed by the Company.
NOW THEREFORE for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
ARTICLE I : TERM
1.1 Employment. The Company shall employ the Executive and the Executive
shall perform services on behalf of the Company as its employee as
provided herein during the Term (as hereinafter defined).
1.2 Term. Subject to the terms and conditions hereinafter set forth, the
period of active employment (the "Employment Period") shall begin on
November 21st, 1999 (the "Employment Start Date") and shall be for an
indefinite period, subject to the first occurrence of the following:
(a) the termination of the Executive's employment by the Company for
cause as provided in Section 6.1 hereof;
(b) the resignation of employment by the Executive pursuant to Section
6.2 hereof; or,
(c) the termination of this Employment Agreement pursuant to either
Sections 6.3 or 6.4 hereof.
ARTICLE II : RESPONSIBILITIES
2.1 Title and Duties. Executive shall be employed as the General Manger -
U.K. and shall report to Xxxxxxx Xxxxxxxxxxx (C.E.O.). Executive's duties
shall include ____________________________________________(the "Duties").
2.2 Full Time and Attention. The Executive shall devote full time and
attention to the Executive's Duties hereunder, provided, however, that
the Executive may manage his/her own personal affairs and may serve as a
member of the board of directors of other companies and be compensated
accordingly, provided that such membership is not adverse to the
interests of the Company and in no way interferes with the Duties.
ARTICLE III : COMPENSATION AND BENEFITS
3.1 Base Salary Compensation. The base salary rate ("Base Salary") of the
Executive shall be Sixty thousand Pounds Sterling ((pound))$60,000 per
year for the first twelve months of this Agreement. The Base Salary shall
be payable monthly in arrears. The Company may withhold from any amounts
payable under this Agreement such federal, state or local taxes and other
statutory remittances as shall be required by law to be so withheld.
Executive shall be entitled to a performance review by Executive's
immediate superior on the twelfth (12) month anniversary of the
Employment Start Date and a determination will be made at that time by
Executive's immediate superior, acting reasonably, whether or not to
adjust the Base Salary; provided, however, that if the Executive is an
executive officer of the Company, such determination shall not take
effect until ratified by the Board of Directors of the Company.
3.2 Annual Bonus. In addition to your Base Salary, you may also be entitled
to an annual bonus up to a maximum amount (the "Maximum Bonus Amount")
and based on the attainment of certain performance goals, both of which
shall be established annually by the Compensation Committee of the Board
of Directors, with participation by you and your supervisor, and
identified in Schedule "B," attached and incorporated by reference to
this Agreement (the "Annual Bonus"). Performance goals for each calendar
year shall be established by no later than the end of the first quarter
of each fiscal year during the Employment Period. The Annual Bonus for a
given year shall be paid in a lump sum on November 15th following the
fiscal year in which it was earned. The Annual Bonus shall be prorated
for any partial calendar year of employment.
3.3 Stock Options. As soon as is practicable after the execution of this
Agreement, the Executive shall be granted Sixty thousand (60,000) options
to purchase Company common shares of at a purchase price of One dollar
and forty-four cents (U.S.$1.44) per share (the "Options") in accordance
with the terms and conditions of the Company's Stock Option Plan as the
same may exist from time to time and on terms and conditions outlined in
the attached Option Agreement.
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CONFIDENTIAL EXECUTIVE EMPLOYMENT AGREEMENT Page 1 of 8
3.4 Executive Employment Benefits. During the period of employment, Company
shall reimburse Executive for all reasonable expenses which are incurred
by Executive on behalf of Company or any affiliate or subsidiary thereof.
Expenses will only be reimbursed if proven by receipts submitted in
accordance with the Company's expense reimbursement policy, as the same
may exist from time to time In addition. Company shall also provide
Executive with any benefits which Company normally provides to other
employees at a comparable level as Executive, including medical, dental,
life, and disability insurance for the Executive during the Term and in
accordance with the employee benefit plans and policies maintained by the
Company and in force from time to time (collectively, the "Benefits").
3.5 Vacation. The Executive is entitled to take Four (4) weeks paid vacation
per calendar year in accordance with the Company's policies and practices
in effect at the relevant time for senior executives and subject to the
needs of the Company.
ARTICLE IV : CONFIDENTIALITY AND NON-COMPETITION
4.1 Non-Solicitation. The Executive agrees that during the Employment Period
and for a period of one year thereafter, neither the Executive nor any
entity or person with whom the Executive is at the time associated,
related or affiliated shall, directly or indirectly, solicit, hire,
entice away or in any other manner persuade or attempt to persuade any
officer, employee, agent, supplier or customer of the business conducted
by the Company to discontinue or alter his, her or its relationship with
the Company. For greater certainty, the "Non-Solicitation Period" means a
period beginning on the Employment Start Date and ending one year after
the end of the Employment Period.
4.2 Non-Competition. The Executive agrees that during the Employment Period
and during any "Severance Period" thereafter (collectively known herein
as the "Non-Competition Period"), the Executive shall not directly or
indirectly, engage in or become associated with a Competitive Activity
(as hereinafter defined) or solicit, hire or take-away any employee of
Company for involvement in any Competitive Activity; or accept employment
with any Competitive Activity to perform work for a customer or partner
which is in competition with the services provided by Company. For
greater certainty, "Competitive Activity" shall mean any organization or
other endeavour which is engaged in the business of developing software
which (i) creates documents in extensible markup language (XML) format or
(ii) manages catalogues in XML format. Executive shall be considered to
have become associated with a Competitive Activity if the Executive
becomes an owner, employee, officer, director, independent contractor,
agent, partner, advisor, or in any other capacity calling for the
rendition of the Executive's personal services, with any individual,
partnership, corporation or other organization that is engaged in a
Competitive Activity. Notwithstanding the foregoing, the Executive may
(i) become an employee or independent contractor to a business, only part
of which is engaged in a Competitive Activity, so long as Executive's
services to be rendered in such employment or consultancy relationship
are performed for a discrete portion of the business that is not engaged
in the Competitive Activity and Executive's services are unrelated to the
Competitive Activity; and (ii) make and retain investments during the
Employment Period and thereafter in not more than two percent of the
equity of any entity engaged in a Competitive Activity, if such equity is
listed on a national securities exchange or regularly traded in an
over-the-counter market.
4.3 Confidentiality. Except in the normal and proper course of the
Executive's duties hereunder, the Executive will not use for the
Executive's own account or disclose to anyone else, during or after the
Employment Period, any confidential or proprietary information or
material relating to the Company's operations or business which the
Executive obtains from the Company or its officers or employees, agents,
suppliers or customers or otherwise by virtue of the Executive's
employment by the Company or by the Company's predecessor. Confidential
or proprietary information or material includes, without limitation, the
following types of information or material, both existing and
contemplated, regarding the Company or its parent, affiliated or
subsidiary companies: contractual licensing arrangements, plans,
strategies, tactics, policies, resolutions, patents, trade-marks and
trade names or applications thereof; information concerning suppliers;
marketing information, including sales, investment and product plans,
customer lists, strategies, methods, customers, prospects and market
research data; financial information, including cost and performance
data, debt arrangements, equity structure, investors and holdings;
operational and scientific information, including trade secrets;
technical information, including technical drawings and designs; and
personnel information, including personnel lists, resumes, personnel
data, organizational structure and performance evaluations (the
"Confidential Information").
4.4 Return of Property and Documents. The Executive agrees that all property
and documents (including, without limitation, hardware, software and
information in machine-readable form) of any nature pertaining to
activities of the Company and to any of its affiliated, related,
associated or subsidiary companies, including Confidential Information,
in the Executive's possession now or at any time during the Employment
Period, are and shall be the property of the Company and its affiliated,
related, associated or subsidiary companies, and that all such property
and documents and all copies of documents shall be surrendered to the
Company whenever requested by the Company.
4.5 Ownership of Inventions. The Executive agrees to execute and deliver to
the Company the assignment attached as Schedule A.
4.6 Injunctive Relief. Executive acknowledges that the restrictions contained
in this Article IV are reasonable and necessary for the protection of the
business of Company and that Company would not have entered into this
Agreement without such restrictions being agreed to. Executive further
acknowledges that Executive's services are special, unique, unusual,
extraordinary and of an intellectual character giving them a peculiar
value, the loss of which cannot be reasonably or adequately compensated
in damages in an action at law. Accordingly, in the event of any breach
of Article IV of this Agreement by Executive, the Company shall be
entitled to equitable relief by way of injunction or otherwise in
addition to any damages which the Company may be entitled to recover. In
addition, the Company shall be entitled to reimbursement from Executive,
upon request, of any and all reasonable attorneys' fees and expenses
incurred by it in enforcing any term or provision of Article IV of this
Agreement.
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CONFIDENTIAL EXECUTIVE EMPLOYMENT AGREEMENT Page 2 of 8
ARTICLE V : REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties. The Executive represents and warrants to
the Company that the execution and performance of this Agreement will not
result in or constitute a default, breach, or violation, or an event
that, with notice or lapse of time or both, would be a default, breach,
or violation, of any understanding, agreement or commitment, written or
oral, express or implied, to which the Executive is a party or by which
the Executive or the Executive's property is bound. The Executive shall
defend, indemnify and hold the Company harmless from any liability,
expense or claim (including attorneys' fees incurred in respect thereof)
by any person in any way arising out of, relating to, or in connection
with any incorrectness of breach of the representations and warranties in
this Section 5.1. The Executive acknowledges that a breach of this
Article by the Executive shall entitle the Company to terminate the
Executive's employment and this Agreement for cause.
ARTICLE VI : TERMINATION AND RESIGNATION
6.1 Termination for Cause. The Company may immediately terminate this
Agreement at any time for cause by written notice to the Executive. If
the Company terminates this Agreement for cause under this Section 6.1,
the Company shall have no further obligations or responsibilities
hereunder to the Executive, except for (a) payment of any Base Salary due
and owing at the time of termination pursuant to Section 3.1; and (b)
payment of any unpaid and accrued vacation pay.
6.2 Resignation by Executive. The Executive shall give the Company not less
than 60 days written notice of the resignation of the Executive's
employment hereunder. If the Executive resigns and terminates this
Agreement for any reason, the Company shall have no further obligations
or responsibilities hereunder to the Executive, except for (a) payment of
any Base Salary due and owing at the time of termination pursuant to
Section 3.1; and (b) payment of any unpaid and accrued vacation pay.
Nothing herein contained shall be construed to limit or restrict in any
way the Company's ability to pursue any remedies it may have at law or
equity pursuant to the provisions of this Agreement.
6.3 Termination upon Disability or Death. The Company may terminate this
Agreement at any time upon a physical or mental disability rendering the
Executive unable to perform the essential functions of the job with
reasonable accommodation by Company upon: (a) notice of termination or
payment in lieu of such notice, both of which shall be in an amount equal
to three months Base Salary plus an additional one (1) month Base Salary
per year of completed employment hereunder; (b) payment of any unpaid and
accrued vacation pay; and (c) payment of any portion of earned, yet
unpaid Annual Bonus. Upon the death of the Executive, this Agreement
shall terminate. The Company shall pay the estate of the Executive (a) in
an amount equal to three months Base Salary plus an additional one (1)
month Base Salary per year of completed employment hereunder; (b) payment
of any unpaid and accrued vacation pay; and (c) payment of any portion of
earned, yet unpaid Annual Bonus. Any salary payments required hereunder
shall be based upon the Executive's Base Salary provided for in Section
3.1 hereof.
6.4 Termination Without Cause. The Company may terminate this Agreement at
any time without cause by providing the Executive with Three hundred and
Sixty-five (365) days notice of termination or continuation of payment of
Base Salary in lieu thereof for twelve (12) months (the "Severance
Period") plus payment of any accrued but unpaid vacation pay and prorated
earned Annual Bonus. Any salary payments required hereunder shall be
based upon the Executive's Base Salary provided for in Section 3.1
hereof. Upon termination of employment by the Company without cause,
unvested Options which have been granted by the Company to Executive,
pursuant to Section 3.3 herein which would otherwise vest within the
Severance Period shall immediately vest in Executive. Executive may
exercise any or all of such Options, plus any Options which had vested
prior to Termination without Cause within 90 days of the date of such
termination. All eligible Options which are not exercised within 90 days
of the date of termination shall expire and Executive shall have no
further rights with respect thereto.
6.5 Benefits on Termination.
(a) If this Agreement is terminated in accordance with Sections 6.3 and
6.4, the Benefits provided to the Executive pursuant to Section 3.4
shall continue following such termination of this Agreement for the
Severance Period or until the Executive commences comparable
employment with another employer, whichever should first occur.
(b) COBRA. The continuation and/or conversion privileges which are
available to former employees under the law, including without
limitation Section 4980B of the Internal Revenue Code of 1986, as
amended (commonly referred to as "COBRA"), and the terms of the
Employer's employee welfare benefit plans ("plans") shall be
available to Employee as of the date of termination of Executive's
employment and must be exercised by Executive, if at all, within the
time period(s) established by law and the plans as measured from
that date. If Executive exercises Executive's COBRA rights, the
Company shall pay the cost of such continued insurance coverage for
Executive and Executive's family during the Severance Period, but in
no event for a term greater than eighteen (18) months after
termination of employment.
6.6 Results of Termination. Upon termination or resignation of the
Executive's employment pursuant to this Section 6, this Agreement and the
employment of the Executive shall be wholly terminated with the exception
of the clauses specifically contemplated to continue in full force and
effect beyond the termination of this Agreement, including those set out
in Article 4.
ARTICLE VII : ARBITRATION
7.1 Arbitrable Claims. To the fullest extent permitted by law and except as
otherwise permitted by Section 4.6, all disputes between Executive (and
his attorneys, successors, and assigns) and Company (and its affiliates,
shareholders, directors, officers, employees, agents, successors,
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CONFIDENTIAL EXECUTIVE EMPLOYMENT AGREEMENT Page 3 of 8
attorneys, and assigns) relating in any manner whatsoever to the
employment or termination of Executive, including, without limitation,
all disputes arising out of or related to this Agreement, ("Arbitrable
Claims") shall be resolved by arbitration. All persons and entities
specified in the preceding sentence (other than Company and Executive)
shall be considered third-party beneficiaries of the rights and
obligations created by this Section on Arbitration. Arbitrable Claims
shall include, but are not limited to, contract (express or implied) and
tort claims of all kinds, as well as all claims based on any federal,
state, or local law, statute, or regulation, excepting only claims under
applicable workers' compensation law and unemployment insurance claims.
By way of example and not in limitation of the foregoing, Arbitrable
Claims shall include (to the fullest extent permitted by law) any claims
arising under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act and the Americans with Disabilities Act,
as well as any claims asserting wrongful termination, harassment, breach
of contract, breach of the covenant of good faith and fair dealing,
negligent or intentional infliction of emotional distress, negligent or
intentional misrepresentation, negligent or intentional interference with
contract or prospective economic advantage, defamation, invasion of
privacy, and claims related to disability.
7.2 Procedure. Arbitration of Arbitrable Claims shall be in accordance with
the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association, as amended ("AAA Employment Rules"), as
augmented in this Agreement. Arbitration shall be initiated as provided
by the AAA Employment Rules, although the written notice to the other
party initiating arbitration shall also include a statement of the
claim(s) asserted and the facts upon which the claim(s) are based.
Arbitration shall result in a written decision setting forth the
essential findings and conclusions. Such a written arbitration award
shall be final and binding upon the parties and shall be the exclusive
remedy for all Arbitrable Claims, subject to the limited judicial review,
if any, required by law to be permitted. Either party may bring an action
in court to compel arbitration under this Agreement and to enforce an
arbitration award. Otherwise, neither party shall initiate or prosecute
any lawsuit or administrative action in any way related to any Arbitrable
Claim. All arbitration hearings under this Agreement shall be conducted
in Xxxxxxx, Xxxxxxx. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO
TRIAL BY JURY IN REGARD TO ARBITRABLE OR NON-ARBITRABLE CLAIMS, INCLUDING
WITHOUT LIMITATION ANY RIGHT TO TRIAL BY JURY AS TO THE MAKING,
EXISTENCE, VALIDITY, OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE.
7.3 Arbitrator Selection and Authority. All disputes involving Arbitrable
Claims shall be decided by a single arbitrator. The arbitrator shall be
selected by mutual agreement of the parties within thirty (30) days of
the effective date of the notice initiating the arbitration. If the
parties cannot agree on an arbitrator, then the complaining party shall
notify the AAA and request selection of an arbitrator in accordance with
the AAA Employment Rules. The arbitrator shall have only such authority
to award equitable relief, damages, costs, and fees as a court would have
for the particular claim(s) asserted. The fees of the arbitrator and any
other fees or costs unique to arbitration shall be paid by the Company.
The arbitrator shall have exclusive authority to resolve all Arbitrable
Claims.
7.4 Confidentiality. All proceedings and all documents prepared in connection
with any Arbitrable Claim shall be confidential and, unless otherwise
required by law, the subject matter thereof shall not be disclosed to any
person other than the parties to the proceedings, their counsel,
witnesses and experts, the arbitrator, and, if involved, the court and
court staff. All documents filed with the arbitrator or with a court
shall be filed under seal. The parties shall stipulate to all arbitration
and court orders necessary to effectuate fully the provisions of this
subsection concerning confidentiality.
7.5 Continuing Obligations. The rights and obligations of Executive and
Company set forth in this Section on Arbitration shall survive the
termination of Executive's employment and/or the termination of this
Agreement.
7.6 Attorneys' Fees. In any legal action, arbitration, or other proceeding
brought to enforce or interpret the terms of this Agreement, the losing
party shall bear reasonable attorneys' fees and costs of the prevailing
party, unless another apportionment of such fees and/or costs is required
by law or ordered by the arbitrator.
7.7 Enforcement of Arbitration Award. The decree or judgment of an award
entered by the arbitrator may be entered in any Court having jurisdiction
thereof.
ARTICLE VIII : CHANGE IN CONTROL
8.1 Accelerated Vesting of Options. In the event of a Change in Control of
the Company as defined in Article XII of Company's 2000 Stock, all
unvested Options granted by the Company to Executive pursuant to Section
3.3 herein shall immediately become vested and Executive may exercise any
or all of such Options in accordance with the terms and conditions of
such Stock Option Plan.
ARTICLE IX : MISCELLANEOUS COVENANTS
9.1 Rights and Waivers. All rights and remedies of the parties are separate
and cumulative, and none of them, whether exercised or not, shall be
deemed to be to the exclusion of any other rights or remedies or shall be
deemed to limit or prejudice any other legal or equitable rights or
remedies which either of the parties may have.
9.2 Waiver. Any purported waiver of any default, breach or non-compliance
under this Agreement is not effective unless in writing and signed by the
party to be bound by the waiver. No waiver shall be inferred from or
implied by any failure to act or delay in acting by a party in respect of
any default, breach or non-observance or by anything done or omitted to
be done by the other party. The waiver by a party of any default, breach
or non-compliance under this Agreement shall not operate as a waiver of
that party's rights under this Agreement in respect of any continuing or
subsequent default, breach or non-observance (whether of the same or any
other nature).
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CONFIDENTIAL EXECUTIVE EMPLOYMENT AGREEMENT Page 4 of 8
9.3 Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of the prohibition or unenforceability and
shall be severed from the balance of this Agreement, all without
affecting the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
9.4 Notices.
(1) Any notice, certificate, consent, determination or other
communication required or permitted to be given or made under this
Agreement shall be in writing and shall be effectively given and
made if (i) delivered personally, (ii) sent by prepaid same day
courier service, or (iii) sent prepaid by fax or other similar means
of electronic communication, in each case to the applicable address
set out below:
(a) if to the Company, to:
SoftQuad Software Inc.
000 Xxxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Chief Financial Officer
Fax:(000) 000-0000
(b) if to the Executive, to:
the last address in the Company's personnel records
(2) Any such communication so given or made shall be deemed to have been
given or made and to have been received on the day of delivery if
delivered personally or by courier service, or on the day of faxing
or sending by other means of recorded electronic communication,
provided that the day in either event is a Business Day and the
communication is so delivered, faxed or sent prior to 4:30 p.m.
(local time of recipient) on that day. Otherwise, the communication
shall be deemed to have been given and made and to have been
received on the next following Business Day. Any such communication
sent by mail shall be deemed to have been given and made and to have
been received on the fifth business day following the mailing
thereof; provided however that no such communication shall be mailed
during any actual or apprehended disruption of postal services. Any
such communication given or made in any other manner shall be deemed
to have been given or made and to have been received only upon
actual receipt.
(3) Any party may from time to time change its address under this
Section 9.4 by notice to the other party given in the manner
provided by this Section.
9.5 Time of Essence. Time shall be of the essence of this Agreement in all
respects.
9.6 Successors and Assigns. This Agreement shall inure to the benefit of, and
be binding on, the parties and their respective heirs, administrators,
executors, successors and permitted assigns. The Company shall have the
right to assign this Agreement to any successor (whether direct or
indirect, by purchase, amalgamation, arrangement, merger, consolidation
or otherwise) to all or substantially all of the business and/or assets
of the Company provided only that the Company must first require the
successor to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. The Executive by the
Executive's signature hereto expressly consents to such assignment. The
Executive shall not assign or transfer, whether absolutely, by way of
security or otherwise, all or any part of the Executive's rights or
obligations under this Agreement without the prior consent of the
Company, such consent to not be unreasonably withheld.
9.7 Amendment. No amendment of this Agreement will be effective unless made
in writing and signed by both parties.
9.8 Entire Agreement. This Agreement constitutes the entire agreement between
the parties pertaining to the subject matter of this Agreement and
supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written. There are no conditions,
warranties, representations or other agreements between the parties in
connection with the subject matter of this Agreement (whether oral or
written, express or implied, statutory or otherwise) except as
specifically set out in this Agreement.
9.9 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware (United States) without
giving effect to the conflict of laws provisions therein.
9.10 Headings. The division of this Agreement into Sections and the insertion
of headings are for convenience of reference only and shall not affect
the construction or interpretation of this Agreement.
9.11 Business Day. For the purpose of this Agreement, Business Day means a day
other than Saturday, Sunday or statutory holiday in the UK.
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CONFIDENTIAL EXECUTIVE EMPLOYMENT AGREEMENT Page 5 of 8
ARTICLE X : EXECUTIVE ACKNOWLEDGEMENT
10.1 Acknowledgement.
The Executive acknowledges that:
(a) the Executive has had sufficient time to review this Agreement
thoroughly;
(b) the Executive has read and understands the terms of this Agreement
and the obligations hereunder;
(c) the Executive has been given an opportunity to obtain independent
legal advice concerning the interpretation and effect of this
Agreement; and,
(d) the Executive has received a fully executed counterpart copy of this
Agreement.
IN WITNESS WHEREOF the parties have executed counterpart copies of this
Agreement.
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EXECUTIVE Witness
SOFTQUAD SOFTWARE INC.
By:
--------------------------------------------
Name: Xxxxxxx Xxxxxxxxxxx
--------------------------------------------
Title: Chief Executive Officer (C.E.O.)
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CONFIDENTIAL EXECUTIVE EMPLOYMENT AGREEMENT Page 6 of 8
SCHEDULE "A"
Ownership of Inventions & Moral Rights
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I hereby assign to Company, unconditionally and in perpetuity, all Intellectual
Property and all Inventions made during the course of my employment with Company
and agree that all Inventions and improvements made to such Inventions which I
may conceive or make during my employment with Company and all adaptations and
improvements to such Inventions made during or after termination of my
employment with Company relating to or connected with the nature and/or
character of the Company's business, shall be the sole and exclusive property of
Company and I will, whenever requested to do so by Company whether during or
after my employment, execute any and all applications, assignments and other
instruments which Company shall, in its reasonable discretion, deem necessary in
order to protect its proprietary interest in such Inventions or improvements
and/or in order to apply for and obtain patent rights in North America and other
countries for such Inventions or improvements, and to register copyright and
industrial designs in any country throughout the world. The foregoing
obligations shall be binding upon my heirs, executors, legal representatives,
successors, and assigns.
I hereby irrevocably waive all moral rights in all Developments and transfer all
my interest (including but not limited to copyright, patent and trade secret
rights) in all Developments exclusively to SoftQuad on a wholesale, royalty-free
basis and, as required by SoftQuad, will protect SoftQuad's interests in such
Developments. For greater certainty, "Developments" shall include, without
limitation, every computer program, marketing program, design, improvement,
documentation, process, technique or procedure which is in any way related to
SoftQuad's business and which is developed, invented or written by me alone or
together with others, during the course of my employment.
INVENTIONS FOR THE PURPOSES OF THIS AGREEMENT SHALL INCLUDE:
Processes, developments, discoveries, concepts and ideas, whether patentable or
not, or whether or not protected by copyright, relating to any present or
prospective activities of Company in the fields of proprietary software and
implementation, software ideas and research, graphics creation, internet
technology and the marketing and/or sale of internet products or services.
INTELLECTUAL PROPERTY MEANS:
All patents, copyright, industrial designs, trade secrets, know how and other
intangible rights in the Inventions now known or hereafter created, as exist in
any jurisdiction in which ownership of Intellectual Property and the Inventions
may be assessed.
I agree that I will promptly disclose in writing to Company each and every
Invention made or conceived by me either solely or jointly with others, during
the period of my employment with Company. I hereby waive my moral rights in the
said Inventions.
Date:
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EXECUTIVE
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CONFIDENTIAL EXECUTIVE EMPLOYMENT AGREEMENT Page 7 of 8
SCHEDULE "B"
------------
Annual Bonus
Maximum Bonus Amount: Thirty Thousand Pounds ((pound)30,000)
PERFORMANCE CRITERIA:
The Performance Criteria shall be reviewed and adjusted on a semi-annual basis
to reflect potential changes in corporate objectives.
The Bonus amount of (pound)30,000 shall be split as follows and shall be earned
and payable according to the conditions set out below:
QUARTERLY BONUS BASED ON MEETING TARGET REVENUE PERFORMANCE
Bonus amount: (pound)10,000 (33 1/3% of Maximum Bonus Amount)
Criteria: (Actual Revenue shall mean all revenue amounts recognized in the
North America Business Unit). If Actual Revenue is in excess of
60% of the Target Revenue for North America, the bonus paid shall
be the North America Actual Revenue divided by North America
Target Revenue multiplied by the Bonus amount up to a maximum of
(pound)10,000. Payable: within thirty days after quarter-end-
payable in arrears. At the end of each subsequent quarter, the
bonus amount shall be calculated on a cumulative basis to allow
the opportunity to make up earlier shortfalls and so achieve the
higher rates of bonus. The cumulative calculation shall not extend
beyond any financial year-end.
QUARTERLY BONUS BASED ON MEETING TARGET EXPENSE CONTROL PERFORMANCE
Bonus amount: (pound)10,000 (33 1/3% of Maximum Bonus Amount)
Criteria: (Actual Expenses shall include all expenses for the North America
Business Unit, excluding inter-company charges)
If Actual expenses are below budget then 100% of the Bonus amount
is due
If Actual Expenses are 15% over-budget or less, then 75% of the
bonus amount is due
If Actual Expenses are greater than 15% over-budget, then no bonus
amount is due
Payable: within thirty days after quarter-end - payable in arrears
ANNUAL BONUS BASED ON UK BUSINESS UNIT MEETING PROFITABILITY TARGETS
Bonus amount: (pound)10,000 (33 1/3% of Maximum Bonus Amount)
Criteria: The full Bonus amount is paid if the UK Business Unit achieves an
operating profit (including all inter-company charges) for the
fiscal year. If the inter-company charge allocation is materially
altered during the bonus term, the parties agree to review this
clause as part of the semi-annual review mentioned above.
Payable: Annually in arrears
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In addition to the Maximum Bonus amount, the following Special Bonus shall be
paid based on the attainment of extra-ordinary results
Bonusamount: up to 2.5% of individual sales over threshold amounts
Criteria: Provided Quarterly Revenue Targets below are met or exceeded by
the UK Business Unit, the bonus is to be paid as a commission on
sales over threshold amounts to individual customers during fiscal
2001 and up to a maximum commission of US$75,000. Threshold
amounts are as follows:
Commission of 1% on sales over US$250,000 to individual customers
during fiscal 2001
Commission of 2% on sales over US$500,000 to individual customers
during fiscal 2001
Commission of 2.5% on sales over US$750,000 to individual
customers during fiscal 2001
Payable: within forty-five days after quarter-end - payable in arrears
Quarterly North American Revenue Targets
2001 Q1: N/A
2001 Q2: N/A
2001 Q3: U.S. $580,000
2001 Q4: U.S. $1,575,000
AGREED TO AND ACKNOWLEDGED:
EXECUTIVE Date
SOFTQUAD SOFTWARE INC.
By:
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Name: Xxxxxxx Xxxxxxxxxxx
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Title: Chief Executive Officer (C.E.O.)
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CONFIDENTIAL EXECUTIVE EMPLOYMENT AGREEMENT Page 8 of 8
