EXHIBIT 4.29
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SECOND AMENDING AGREEMENT
TO THE EMPLOYMENT AGREEMENT
This Second Amending Agreement dated as of September 1, 2002, is entered into by
and between EXFO Electro-Optical Engineering Inc., a corporation having its
principal place of business at 000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxx, X0X 0X0, Xxxxxx
(the "Corporation") and Xxxxx Xxxxxx (the "Employee").
WHEREAS the Corporation and the Employee entered into an Employment Agreement
dated September 1, 2000 providing for the terms of employment of the Employee
which was amended by a First Amending Agreement dated September 1, 2001
(collectively, the "Agreement");
WHEREAS the parties hereto have agreed to amend the Agreement to modify certain
terms of employment;
THEREFORE the parties agree as follows:
1. AMENDMENTS
Schedule A and Schedule D to the Agreement are each hereby replaced in
their entirety with the Schedule A and the Schedule D attached hereto
and forming an integral part hereof.
2. MISCELLANEOUS
2.1 In all respects, except for those changes required to give
meaning and effect to the amendments provided for in the
foregoing sections hereof, the Agreement, as amended hereby,
remains in full force and effect, is hereby ratified and
confirmed in all respects, and is binding upon the parties
hereto. The Agreement constitutes the whole and entire
agreement between the parties hereto with respect to the
subject matter thereof and cancels and supersedes any prior
written agreements, declarations, commitments, representations
and undertakings, written or oral, in respect thereof.
2.2 This Second Amending Agreement shall be construed in
accordance with and governed for all purposes by the laws
applicable in the state of Texas U.S.A. Service of process in
any dispute shall be effective (a) upon the Corporation, if
service is made on any officer of the Corporation other than
the Employee; (b) upon the Employee, if served at Employee's
residence last known to the Corporation with an information
copy to the
1.
Employee at any other residence, or care of a subsequent
employer, of which the Corporation may be aware.
2.3 This Agreement has been written in English at the express
request of the parties. Cette entente a ete redigee en anglais
a demande expresse des parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
EXFO ELECTRO-OPTICAL
ENGINEERING INC.
BY: /s/ XXXXXXX XXXXXXX /s/ XXXXX XXXXXX
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XXXXXXX XXXXXXX XXXXX XXXXXX
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SECOND AMENDING AGREEMENT
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TO THE EMPLOYMENT AGREEMENT
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XXXXX XXXXXX
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SCHEDULE A
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REMUNERATION, VACATION, PLACE OF WORK
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1. REMUNERATION
From September 1, 2002 to August 31, 2003:
(i) Base salary of US$150,000 per annum.
(ii) Commission on Total Billings (as defined in Schedule D,
attached hereto):
During the period from September 1, 2002 to October 31, 2002,
commissions will be payable to Employee on a monthly basis in
amounts equal to the following percentages of Total Billings
made in North America by all companies in the Corporation's
group of companies as of September 1, 2002, but excluding EXFO
Gnubi Products Group Inc., EXFO Burleigh Life Science products
and EXFO Photonics X-Cite products:
For Total Billings from US$0 to US$38,400,000 - 0.2266% of
the Total Billings figure is payable;
For Total Billings exceeding US$38,400,000 and up to
US$51,200,000 - 0.4531% of the Total Billings figure is
payable; and
For Total Billings exceeding US$51,200,000 - 0.6797% of the
Total Billings figure is payable.
During the period from November 1, 2002 to August 31, 2003,
commissions will be payable to Employee on a monthly basis in
amounts equal to the following percentages of Total Billings
made in North America by all companies in the Corporation's
group of companies as of September 1, 2002, but excluding EXFO
Gnubi Products Group Inc., EXFO Burleigh Life Science products
and EXFO Photonics non-photonics and X-Cite products
(collectively, the "Defined Exceptions"):
For Total Billings from US$0 to US$32,690,000 - 0.2661% of
the Total Billings figure is payable;
For Total Billings exceeding US$32,690,000 and up to
US$46,700,000 - 0.4140% of the Total Billings figure is
payable; and
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For Total Billings exceeding US$46,700,000 - 0.6210% of the
Total Billings figure is payable.
It is noted that the rule of 60% of commission remuneration
for 70% of Total Billings (1st level) will continue to be used
by the parties for future financial years.
(iii) Quarterly bonus: After the end of each of the Corporation's
financial quarters, the Employee shall be paid a bonus of
US$2,500 if the following Total Billings objectives by the
North American Sales department for each such quarter are
attained for sales of products of all companies in the
Corporation's group of companies as of September 1, 2002, but
excluding the Defined Exceptions:
1st Quarter: US$9,800,000 3rd Quarter: US$12,550,000
2nd Quarter: US$10,100,000 4th Quarter: US$14,750,000.
In the event the annual Total Billings objective for the North
American Sales department of US$47,200,000 (based on all
companies in the Corporation's group of companies as of
September 1, 2002, but excluding the Defined Exceptions) (the
"Annual Objective") is attained, notwithstanding the
non-attainment of some of the above-noted quarterly
objectives, the Employee shall be paid a bonus for the year
totalling US$10,000, taking into account any quarterly
payments that may have been made for attainment of the
quarterly objectives.
(iv) Margin Improvement Bonus: A bonus of US$4,000 shall be paid to
Employee upon evaluation by Employee's superior that, during
the financial year ending on August 31, 2003, he attained the
objective of implementing strategies and controls to increase
the margin of the products of the Corporate Companies on sales
in North America by: (i) defining and commencing the
implementation of a plan to improve the cost per order dollar
("CPOD") over that of the financial year ended August 31, 2002
and to attain 10% CPOD annual improvement until 2005; (ii)
maintaining or decreasing the average discount rate as
compared to the level of the financial year ended August 31,
2002 and defining and implementing a price increase plan for
future years; and (iii) attaining a growth rate of sales of
Category A Products (as defined in Schedule D) superior to the
average sales growth rate for all products.
(v) Demo Management Bonus: A bonus of US$2,000 shall be paid to
Employee upon evaluation by Employee's superior that, during
the financial year ending on August 31, 2003, he attained the
objective of improving demo management by: (i) reducing demo
levels on North American Sales territory to less than
US$3,000,000 book value (i.e. less than 6% of Total Billings
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objective); and (ii) reducing demo losses to less than
US$30,000 book value (i.e. less than 1% of demo pool).
(vi) Opportunity Bonus: A bonus of US$2,000 shall be paid to
Employee upon evaluation by Employee's superior that, during
the financial year ending on August 31, 2003, he attained the
following objectives: (i) reducing to less than 5%
opportunities with "no closing date" or "passed closing date";
and (ii) successful and efficient deployment of Lost Business
Report and use thereof by North American sales team,
commencing upon availability of such tool.
(vii) Support Bonus: A bonus of US$2,000 shall be paid to Employee
upon evaluation by the Vice President of EXFO Gnubi Products
Group Inc. that, during the financial year ending on August
31, 2003, the North American sales team has adequately
supported the sales efforts and activities relating to EXFO
Gnubi products.
(viii) The Employee shall receive a monthly car expense allowance of
US$700.00.
(ix) The provisions governing the payment of commission and the
reimbursement of expenses are set forth in Schedule D attached
hereto.
(x) An annual review of remuneration shall occur on or about
September 1, 2003.
2. PLACE OF WORK
The Employee shall exercise his functions out of the office of EXFO
America Inc. located in Richardson, Texas, U.S.A.
3. VACATION
Four (4) weeks of paid vacation annually.
4. DEFINITIONS
For the purposes of this Agreement, the meaning of the term
"Corporation" shall be deemed to include EXFO America Inc.
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SECOND AMENDING AGREEMENT
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TO THE EMPLOYMENT AGREEMENT
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SCHEDULE D
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TERMS RELATING TO THE PAYMENT OF COMMISSION AND BONUSES
1. DEFINITIONS - For the purposes of the Agreement, the following terms
shall have the meanings set forth hereinbelow:
"Billings" shall mean the amount, based on the Net Invoice Price,
invoiced to a customer for an Order.
"Net Invoice Price" shall mean the total price at which an Order is
invoiced to the customer including any increase or decrease in the
amount of the Order, but excluding commissions payable to distributors,
shipping costs, mailing costs, taxes, custom duties, transportation,
insurance, duties and any allowances or discounts granted to the
customer by EXFO.
"Order" shall mean any commitment received from the defined territory
to purchase products that EXFO is in a position to manufacture or that
is subject to split commission in accordance with Section 3 of this
Attachment D.
"Category A Products" shall mean the following products: FTB-400
Universal Test System; FTB-5800 Chromatic Dispersion Analyzer; FTB-5500
PMD Analyzer; IQS Intelligent Test System; OWA-9500 Optical Waveguide
Analyzer; IQS-12001B Cable Assembly Test System.
"Total Billings" shall mean the total amount of Billings invoiced in
any defined territory or credited to Employee pursuant to a commission
split for any specified period.
2. COMPUTATION AND PAYMENT OF COMMISSION AND BONUSES
2.1 All quarterly bonuses are payable at the end of the month
following the end of the quarter in which the applicable bonus
was earned and annual bonuses are payable within 60 days of
the end of the financial year.
2.2 At the time of payment of commission to Employee, the Employer
will provide to Employee a monthly commission statement
showing
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commissions and bonuses earned during the month, or the
quarter as applicable, with invoice numbers, copy of invoices
and customer names.
2.3 Commission and bonuses are not payable on amounts received in
payment for compliance testing, repairs and reworks, research
and development, engineering, special tooling and
non-recurring start-up costs.
2.4 The following amounts shall be deducted from any amounts of
commission and bonuses due to Employee:
(i) an amount equal to commissions or bonuses previously
paid or credited relating to products which have
since been returned by the customer or on allowances
credited to the customer for any reason by EXFO; and
(ii) an amount equal to commission previously paid or
credited on a sale for which EXFO shall not have been
fully paid by the customer whether by reason of the
customer's bankruptcy, insolvency, or any other
reason which EXFO considers, in its sole judgement to
have rendered the account uncollectible. If EXFO
eventually collects any such uncollectible accounts,
the Employer shall pay Employee the percentage of
commission applicable at the time of the original
sale upon the net proceeds of such collection.
2.5 In the case of the termination of the Agreement, the Employer
may withhold payment of commission and bonuses in accordance
with the terms set forth in Section 5 of this Attachment D.
3. COMMISSION SPLIT
3.1 When engineering processes, the execution or shipping of an
Order involves both territories not part of the territory
covered by the North American Sales
department and the territory covered by the North American
Sales department, unless otherwise agreed by the affected
parties, EXFO will split the amount of the Billing accounted
for in the Total Billings between the territories involved as
follows, with the exception of Billings credited to the NSP
U.S.A. team:
(i) 40% of the amount of the Billing shall be credited to
the department in whose territory the product is
engineered or specifications were prepared;
(ii) 40% of the amount of the Billing shall be credited to
the department to whose territory the product is
shipped;
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(iii) 20% of the amount of the Billing shall be credited to
the department in whose territory the Order is
executed.
3.2 In the event the Billing is credited to the NSP U.S.A. team,
unless otherwise agreed by the affected parties, EXFO will
split the amount of the Billing accounted for in the Total
Billings between the territories involved as follows:
(i) For the Category A companies listed below, 50% of the
amount of the Billing shall be credited to the
department in whose territory the end-user is located
and 50% of the amount of the Billing shall be
credited to the department in whose territory the
product is engineered or the specifications were
prepared. This category is used for companies who
have a highly centralized standardization selection
process.
(ii) For the Category B companies listed below, 70% of the
amount of the Billing shall be credited to the
department in whose territory the end-user is located
and 30% of the amount of the Billing shall be
credited to the department in whose territory the
product is engineered or the specifications were
prepared. This category is used for companies with a
semi-diverse standardization selection process.
(iii) For the Category C companies listed below, 100% of
the amount of the Billing shall be credited to the
department in whose territory the end-user is
located. This category is used for companies who have
a very diverse and multi-location standardization
selection process.
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Category A Category B Category C
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AT&T Long Distance QWEST SBC
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AT&T Local Services WorldCom/MCI Verizon
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Sprint Long Distance Time Warner Telecom Xxx Cable
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Dominion GSA
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BellSouth
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3.3 EXFO will make the determination as to commission splits and
advise the interested parties, usually at the time the Order
is accepted by EXFO. The amount payable as commission in such
a case shall never exceed the amount of commission which would
have been payable if only one territory had been involved.
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4. ACCEPTANCE OF ORDERS - The following conditions shall be fulfilled
before acceptance by EXFO of an Order: (i) all Orders shall be
confirmed to EXFO by the purchaser/buyer with a purchase order number,
(ii) EXFO shall have received confirmation of the "ship to" and "xxxx
to" addresses and the telephone number of the purchaser/buyer and of
the end user, (iii) an authorized representative of EXFO shall have
accepted the Order, and (iv) the credit department of EXFO
Electro-Optical Engineering Inc. shall have accepted the Order.
5. PAYMENT OF COMMISSION AND BONUSES AND ADMISSIBLE BUSINESS EXPENSES IN
CASE OF TERMINATION - In the event of the termination of the Agreement,
payment of commission and bonuses and reimbursement of Admissible
Business Expenses will be made by Employer as follows:
5.1 Commission and bonuses: any commission and bonuses that may
still be payable at the date of termination shall be withheld
by Employer until the occurrence of the latest of the
following events:
(i) all samples or demonstrators of products and all
documentation and equipment, including hardware and
software, belonging to EXFO that may be in the
Employee's possession have been returned to EXFO;
(ii) the expiration of a 90 day period following the date
of termination.
5.2 Reimbursement of Admissible Business Expenses: any
reimbursement of Admissible Business Expenses incurred before
the date of the termination that may be payable shall be
withheld by Employer until the occurrence of the latest of the
following events:
(i) all samples or demonstrators of any EXFO products and
all documentation and equipment, including hardware
and software, belonging to EXFO that may be in the
Employee's possession have been returned to EXFO;
(ii) the expiration of a 90 day period following the date
of termination.
It is understood that reimbursement of Admissible Business
Expenses is not payable by EXFO until it has received a duly
completed expense report and full supporting documents and has
had a reasonable period of time to review the expense report
and the supporting documents and process the reimbursement.
9.
