Exhibit 10.12
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of October 16, 2000, between CellPoint
Europe Ltd., (the "Company"), and Xxxx Xxxxxx ("Executive").
W I T N E S S E T H:
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WHEREAS, the Company is engaged in the business of developing
and marketing products related to its cellular network tracking and telemetry
systems (as such business is from time to time conducted by the Company and its
affiliates during the term of this Agreement, the "Business");
WHEREAS, the Company wishes to assure itself of the
availability of the advice and services of Executive in connection with the
Business; and
WHEREAS, Executive wishes to be employed by the Company;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements set forth herein, the parties hereto agree as follows:
1. EMPLOYMENT AND TERM. Subject to the terms and conditions of
this Agreement, and unless terminated as set forth herein, the Company agrees to
employ Executive, and Executive hereby accepts employment by the Company.
(Referred to herein as the "Term").
2. DUTIES. During the Term, Executive shall serve the Company
as its Chief Financial Officer, and shall perform such executive and other
duties for the Company, or any division, subsidiary, affiliate or joint venture
of the Company, as are incident to such position and as may reasonably be
requested by the Board of Directors of the Company and under their direction.
During the Term, Executive shall (unless specifically agreed from time to time)
devote his entire business time, attention and energies, on a full-time basis,
to his duties under this Agreement.
3. COMPENSATION.
a. BASE SALARY. During the Term, the Company shall pay to
Executive, in equal installments no less frequently than twice per month (or at
such other intervals as are in effect from time to time for other executive
employees of the Company), a m onthly base salary of (pound)8,000 Pounds
Sterling (such amount, as the same may hereafter be modified by mutual agreement
of Executive and the Company, to be reviewed once per year, being referred to
herein as the "Base Salary"). In addition, Executive may be awarded, at the
Company's sole and exclusive discretion, bonus compensation. Any such bonus
compensation shall be payable at such times as the Company may determine, but
only if Executive is, as of the date of such payment, an employee in good
standing and not subject to any of the notices described in Section 4.
b. BENEFITS. Executive shall be entitled to participate in
such benefit plans, including stock option, medical, health, retirement and
other plans, as may be established and
maintained from time to time for executive employees of the Company. In
addition, reimbursement of reasonable moving costs from Sweden to the UK and
vice versa.
c. REIMBURSEMENT OF EXPENSES. Executive shall be entitled to
reimbursement for all normal and reasonable travel, entertainment and other
expenses necessarily incurred by him in the performance of his duties hereunder.
Executive shall submit on a timely basis such itemized accounts of such
expenses, together with such vouchers or receipts for individual expense items,
as the Company may from time to time require under its established policies and
procedures. The Company's payments hereunder shall be made within a reasonable
time following its receipt of such itemized accounts.
d. VACATION. Executive shall be entitled to 5 weeks' vacation
each calendar year during the Term (such period to be pro-rated based on the
actual number of working days for which Executive is employed during a calendar
year). Executive shall be entitled to additional compensation for any vacation
time not taken in respect of any calendar year, and Executive shall be entitled
to carry over into any succeeding year any unused vacation time.
e. DISABILITY. Except as hereinafter provided, the Company
shall pay Executive, for any period (up to a maximum of six months during the
Term) in which he is unable fully to perform his duties because of physical or
mental disability or incapacity, an amount equal to the Base Salary due him for
such period pursuant to Section 3(a), less the aggregate amount of all income
disability benefits which for such period he may receive by reason of (i) any
group health insurance plan, or disability insurance plan paid for by the
Company, in each case which is intended to function as a salary replacement
plan, (ii) any applicable compulsory state disability law, (iii) any Social
Security Act, (iv) any applicable workmen's compensation law or similar law and
(v) any plan towards which the Company or any subsidiary or affiliate of the
Company (including any predecessor of any thereof) has contributed or for which
it has made payroll deductions, such as group accident or health policies, other
than those that reimburse for actual medical expenses.
f. KEY MAN INSURANCE. Executive agrees that the Company may
obtain key man life insurance with respect to Executive, and in connection
therewith, agrees to submit to all reasonable and customary examinations by the
provider of such life insurance.
4. TERMINATION OF EMPLOYMENT.
a. CAUSE. The Company shall have the right, at any time
effective upon notice to Executive, to terminate Executive's employment for
"Cause," defined, for purposes hereof, as (i) malfeasance, gross neglect or
willful misconduct in the performance of Executive's duties hereunder; (ii)
conviction of a felony; (iii) failure to perform any of Executive's material
obligations under this Agreement (other than by reason of death or disability
contemplated by Section 3(e) or 4); (iv) fraud, dishonesty or unlawful conduct
against the Company or any of its or its affiliates' employees; or (v) a
material breach of this Agreement by Executive; PROVIDED, in the case of any
default under clause (iii), (iv) or (v) that is susceptible to cure, that such
default continues uncured 30 days after written notice thereof from the
Company to Executive.
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b. DISABILITY; DEATH. In the event that Executive, due to
physical or mental disability or incapacity, is unable to substantially perform
his duties hereunder for a period of more than six months during the Term, the
Company or Executive shall have the right to terminate this Agreement and
Executive's employment hereunder upon 30 days' prior written notice and
termination shall be effective on the 30th day after receipt of such notice by
the other party. In the event that Executive is able to and recommences
rendering services and performing his duties hereunder within such 30-day notice
period, Executive shall be reinstated and such notice shall be without further
force or effect. If Executive dies during the Term, this Agreement shall
terminate immediately upon his death.
c. TERMINATION BY EXECUTIVE FOR GOOD REASON. Executive may
terminate his employment hereunder, such termination to be effective on written
notice to the Company, for any of the following reasons:
(i) the assignment to Executive of any duties inconsistent in
any material respect with Executive's position (including status,
office, titles and reporting requirements), authority, duties or
responsibilities as contemplated by this Agreement, or any other action
by the Company which results in a material diminution in such position,
authority, duties or responsibilities; or
(ii) the Company materially breaches its obligations under
this Agreement; PROVIDED that any such action or default shall not have
been remedied by the Company within 15 days after receipt of notice
thereof given by Executive.
d. VOLUNTARY TERMINATION BY EXECUTIVE. Executive may terminate
his employment under this Agreement on six months' written notice to the Company
at any time.
5. EFFECTS OF TERMINATION.
a. In the event that Executive's employment is terminated
pursuant to Section 4(a) hereof, (i) Executive's employment hereunder shall
immediately cease, (ii) the Company shall pay to Executive his accrued and
unpaid salary, accrued vacation time and expense reimbursement through the date
of termination in accordance with the Company's usual procedures, and (iii) all
then non-exercisable stock options shall immediately and automatically
terminate. Once the amounts referred to in clause (ii) are paid, however, the
Corporation shall have no further obligation to Executive.
b. In the event that Executive's employment is terminated
pursuant to Section 4(b) hereof as a result of Executive's death, (i)
Executive's employment hereunder shall cease in accordance with Section 4(b),
(ii) the Company shall pay to Executive his accrued and unpaid salary, accrued
vacation time and expense reimbursement through the date of termination in
accordance with the Company's usual procedures, (iii) all then non-exercisable
stock options shall immediately and automatically terminate, and (iv) any vested
options shall be transferred in accordance with Executive's will; PROVIDED that
nothing in this paragraph (b) shall alter any right of Executive (or his legal
representative) to receive death benefits provided in accordance with the terms
of a benefit plan in which Executive participates if Executive's employment is
terminated pursuant to Section 4(b) hereof.
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c. In the event that Executive's employment is terminated
pursuant to Section 4(b) hereof as a result of Executive's disability, (i) the
Company shall pay to Executive his accrued and unpaid salary, accrued vacation
time and expense reimbursement through the date of termination in accordance
with the Company's usual procedures, (ii) the Company shall continue to pay to
Executive his Base Salary, and all associated benefits, for a period of six
months following such date of termination, in accordance with the Company's
usual procedures; (iii) any non-exercisable stock options which would otherwise
have become vested in accordance with their terms within such six-month period
if Executive's employment shall have continued shall be vested; and (iv) any
stock options which are not vested at the end of such six-month period shall
automatically terminate at the end of such six-month period; PROVIDED that
nothing in this paragraph (c) shall alter any right of Executive (or his legal
representative) to receive disability benefits provided in accordance with the
terms of a benefit plan in which Executive participates if Executive's
employment is terminated pursuant to Section 4(b) hereof.
d. In the event that Executive's employment hereunder is
terminated by the Company other than pursuant to Section 4(a) or (b) or if
Executive's employment is terminated pursuant to Section 4(c), then: (i)
Executive shall be entitled to receive, and the Company shall continue to pay to
Executive, the Base Salary specified in Section 3(a) for one year following the
effective date of such termination, (ii) Executive shall be entitled, during the
period during which such severance payment is being paid, to receive all
benefits under the Company's medical insurance, disability insurance, life
insurance and other benefit plans as are then in effect for executives of the
Company, (iii) any non-exercisable stock options which would otherwise have
become vested in accordance with their terms within such one-year period if
Executive's employment shall have continued shall be cancelled pursuant to the
Company's Stock Option agreement with the Executive; and (iv) any stock options
which are not vested at the end of such one-year period shall also be cancelled
automatically pursuant to the Company's Stock Option agreement with the
Executive.
e. Executive's obligations pursuant to Sections 6 and 7 hereof
shall survive any termination of this Agreement for any reason whatsoever.
6. CONFIDENTIALITY.
a. Executive understands and acknowledges that, as a result of
Executive's employment with the Company, he shall necessarily become informed
of, and shall have access to, confidential information of the Company,
including, without limitation, the contents of this Agreement, inventions, trade
secrets, technical information, know-how, plans, marketing plans and
information, pricing information, identity of providers and their patients and
prospective providers and their patients and identity of suppliers, and that
such information, even though it may be developed or otherwise acquired by
Executive, is the exclusive property of the Company to be held by Executive in a
fiduciary capacity and solely for the Company's benefit. Executive shall not at
any time, either during or subsequent to his employment hereunder, reveal,
report, publish, transfer or otherwise disclose to any person, company or other
entity, or use for his own benefit, any of the Company's confidential
information which Executive, in the exercise of reasonable diligence, knows or
should know to be confidential, without the written consent of the Company,
except for use on behalf of the Company in connection with the
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Business, and except for such information which is or becomes of general public
knowledge from authorized sources other than Executive.
b. Upon the termination of his employment with the Company for
any reason, Executive shall promptly deliver to the Company all manuals,
letters, notes, notebooks, reports, documents and copies thereof and all other
materials, containing secret or confidential information, relating to the
Business that are in Executive's possession or control. For purposes of this
Section 6, the term "Company" includes the Company, any predecessor company, and
any of their respective affiliates.
7. NON-COMPETITION.
a. Subject to the provisions of paragraph (b) hereof,
Executive agrees that, for the period commencing on the date hereof and ending
two years after the termination of his employment with the Company for any
reason, he shall not, in any country in the world in which the Company then
engages in the Business (or in such lesser area or for such lesser period as may
be determined by a court of competent jurisdiction to be a reasonable limitation
on the competitive activity of Executive), directly or indirectly:
(i) engage, as an employee, officer, independent contractor or
in any other capacity, in any activity for or on behalf of any person or
entity (other than the Company) in a line of business competitive with
the Business or any aspect thereof or engage in any manner in the
Business;
(ii) except for the benefit of the Company, solicit or attempt
to solicit business of entities who were providers for, or customers of,
the Company at any time within the prior two years (including
prospective providers or customers solicited by the Company) for
products or services the same or similar to those offered, sold,
produced or under development by the Company, or dealt in by Executive,
during his employment therewith;
(iii) interfere with the Company, the Business or the conduct
thereof by the Company, or otherwise divert or attempt to divert from
the Company any business whatsoever;
(iv) hire, solicit or attempt to solicit for participation or
employment in any business endeavor any employee of the Company;
(v) use the name of the Company or any name used by the
Company, or any name similar to any thereof, whether or not registered;
or
(vi) render any services as an officer, director, employee,
partner, consultant or otherwise to, or have any interest as a member,
stockholder, partner, lender or otherwise in, any person or entity that
is engaged in activities which, if performed by Executive, would violate
this Section 7.
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The foregoing shall not prevent Executive from purchasing up to five percent of
the voting securities of any other entity, the securities of which are
publicly-traded, during the time which the Executive is actively employed by the
Company.
b. In the event Executive's employment is terminated under the
circumstances contemplated by paragraphs (c) or (d) of Section 5, the
obligations of Executive set forth under this Section 7 shall only continue in
effect so long as the Company continues to pay to Executive his Base Salary (in
the intervals set forth in Section 3(a)) during the one-year period following
termination of such employment.
c. Executive agrees that the restrictions on competition set
forth in this Section 7 are reasonable and are properly required for the
adequate protection of the Business of the Company. Executive represents that
his experience, capabilities and circumstances are such that the provisions
of this Section 7 will not prevent him from earning an appropriate livelihood.
8. REMEDIES AND SURVIVAL. The provisions of Sections 5 through
8 of this Agreement shall survive any termination of Executive's employment with
the Company.
9. ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding of the parties hereto with respect to its subject matter, merges
and supersedes any prior or contemporaneous agreements or understandings with
respect to its subject matter and shall not be modified or terminated except by
another agreement in writing executed by the Company and Executive.
10. SEVERABILITY. If any provision of this Agreement is held
to be invalid or unenforceable by any court or tribunal of competent
jurisdiction, the remainder of this Agreement shall not be affected by such
judgment, and such provision shall be carried out as nearly as possible
according to its original terms and intent to eliminate such invalidity or
un-enforceability.
11. SUCCESSORS AND ASSIGNS. Neither party shall have the right
to assign this personal Agreement, or any rights or obligations hereunder,
without the consent of the other party; provided, however, that upon the sale or
transfer of all or substantially all of the assets and business of the Company
to another party, or upon the merger or consolidation of the Company with
another Company, this Agreement shall inure to the benefit of, and be binding
upon, both Executive and the party purchasing or acquiring such assets, business
and goodwill, or surviving such merger or consolidation, as the case may be, in
the same manner and to the same extent as though such other party were the
Company. Subject to the foregoing, this Agreement shall inure to the benefit of,
and bind, the parties hereto and their legal representatives, heirs, successors
and permitted assigns.
12. CONSTRUCTION; COUNTERPARTS. The headings contained in this
Agreement are for convenience only and shall in no way restrict or otherwise
affect the construction of the provisions hereof. This Agreement may be executed
in multiple counterparts, each of which shall be an original and all of which
together shall constitute one and the same instrument.
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13. GOVERNING LAW/DISPUTES. This Agreement shall be governed
by the laws of England applicable to agreements made and fully to be performed
therein by residents thereof. Any dispute arising out of or in connection with
this Agreement, including, without limitation, disputes over the nature of any
termination hereof, shall be finally determined by the British court system.
Each of the parties hereby waives any and all objections he or it may have with
respect to the jurisdiction of such legal forum or the inconvenience of its
venue.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first set forth above.
CellPoint Europe Ltd.
By:
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Name: Xxxxx Xxxxxxxxxx
Title: Chairman
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Xxxx Xxxxxx
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