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EXHIBIT 10.82
THIS AGREEMENT made effective the 3rd day of January, 2000.
BETWEEN:
FUTURELINK CORP., a corporation incorporated pursuant to the laws of
the State of Delaware, with its head office in Irvine, California
(hereinafter referred to as the "Company")
- and -
XXXXXXX X. XXXXX, an individual resident in Toronto, Ontario
(hereinafter referred to as the "Executive")
WHEREAS the Executive has agreed to serve as the Company's
Vice-President, Administration as of January 3, 2000;
AND WHEREAS the Company and the Executive have agreed that the
employment of the Executive by the Company will be in accordance with the
provisions of this Agreement;
NOW THEREFORE, for and in consideration of the sum of $10.00 now paid
by each party to the other party (the receipt and sufficiency of which is
hereby acknowledged by each of the parties hereto) and the mutual covenants and
agreements hereinafter contained, the parties hereto covenant and agree, each
with the other, as follows:
1. DEFINITIONS
1.1 In addition to the terms defined elsewhere in this Agreement, the
following terms shall have the following meanings:
"COMMON SHARES" means the shares of the Company's common stock
which are entitled to one vote per share at any meeting of the
shareholders of the Company;
"COMPENSATION" means the salary and all benefits which the
Executive is receiving or entitled to at the time of Change of
Control, including but not limited to bonuses, stock options,
pension benefits, medical plan benefits, vacation pay and any
insurance premiums paid by the Company for the Executive;
"PERSON" includes an individual, a partnership, a corporation
and any other entity or association;
"TERMINATION DATE" means:
(a) the effective date that the Executive's employment with the
Company is terminated by the Company without just cause; or
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(b) the date that the Executive provides to the Company written notice
of election to treat the Executive's employment as terminated; and
"THIS AGREEMENT" and the terms such as "HEREOF", "HEREIN" and similar
expressions mean this Agreement, as amended, supplemented or modified in
writing from time to time.
2. VICE-PRESIDENT, ADMINISTRATION
The Company agrees to employ the Executive during the term of the
Agreement as Vice President, Administration of the Company and its various North
American subsidiaries, with power and authority to oversee, develop and
implement processes the Administration and Facilities Management of the Company
and its affiliates and to undertake such other duties as may from time to time
be assigned to or vested in the Executive by the Board of Directors of the
Company, subject always to the control and direction of the Board of Directors
of the Company.
The Executive agrees, during the term of this Agreement, to devote the
majority of the Executive's working time, attention and abilities to the
business and affairs of the Company and to serve the Company faithfully and use
the Executive's best efforts to promote the interests of the Company. The
Executive shall be free to assume non-executive and non-management roles with
other organizations, but shall provide the Company with notice of such other
commitments.
3. REMUNERATION
(a) The Company agrees to pay the Executive a base salary of ONE
HUNDRED FORTY THOUSAND DOLLARS (US$140,000.00) per annum. The
Company agrees to review the Executive's base salary annually (such
review to be completed by January 31st of each year of this
Agreement) and agrees that following each such review, the then
current base salary may be increased to reflect the Executive's
performance, the Company's performance and other relevant factors;
(b) In addition to the foregoing, the Company shall pay to the
Executive an Annual Performance Bonus of up to FORTY PERCENT (40%)
to equal FIFTY-SIX THOUSAND DOLLARS (US$56,000.00) per annum. The
Annual Performance Bonus shall be based on the Executive's
performance, the Company's performance and other relevant factors,
and the Annual Performance Bonus shall be based on four separate
three month intervals (the "Bonus Intervals"), being January 1 to
March 31, April 1 to June 30, July 1 to September 30 and October 1
to December 31, hereafter;
(c) eligibility for stock options as may be granted from time to time
by the Company's publicly traded parent, FutureLink Corp, a
Delaware corporation;
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4. BENEFITS
4.1 The Executive shall be entitled to participate in the
Company's employee benefits plan as may be in effect at any given
time, subject to satisfying any insurability requirements
established by the carriers that provide the benefits.
5. EXPENSES
5.1 The Company agrees that during the term of this Agreement the
Executive shall be reimbursed by the Company for all travelling and
other expenses actually and properly incurred by the Executive in
connection with the Executive's duties hereunder. The Executive
shall furnish to the Company statements and vouchers for all such
expenses in accordance with the Company's reimbursement policy as
established from time to time; and
5.2 Relocation of Employee. The Company and Executive acknowledge and
agree that Executive was initially hired to work for the Company's
wholly-owned Canadian subsidiary, FutureLink Distribution Corp., in
Xxxxxxx, Xxxxxxx, Xxxxxx and has subsequently agreed to relocate to
the Company's offices in Irvine, California. In connection with
Executive's relocation to Irvine, California, the Company has
agreed to reimburse Executive for his relocation expenses for up to
$39,200 in after-tax U.S. dollars (as determined by the Company),
following Company's receipt of documentation of such expenses that
is satisfactory to Company. Notwithstanding the foregoing, if
Executive is terminated by Company without just cause prior to
January 31, 2002, then Company shall reimburse Executive for up to
$39,200 in after-tax U.S. dollars for any expenses incurred by
Executive to relocate back to Canada, following Company's receipt
of documentation of such expenses that is satisfactory to Company.
6. VACATION
6.1 During each year of the term of this Agreement the Executive shall
be entitled to four (4) weeks vacation provided that the timing of
such vacation in any year is subject to the reasonable direction of
the Board of Directors of the Company.
7. CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION
7.1 The Executive agrees as a condition of the Executive's employment
hereunder to execute the Confidentiality and Non-Competition
Agreement which is attached hereto as Schedule "A".
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8. TERM AND TERMINATION OF AGREEMENT
8.1 Subject to the provisions of Section 12 hereof pertaining to a
termination for just cause, this Agreement shall continue and remain
in full force until terminated by either the Company or the Executive
in accordance with the provisions outlined below.
8.2 The Executive has the right to terminate this Agreement and the
Executive's employment hereunder by providing the Company with
written notice which shall provide for a termination date which is
effective one month after the giving of the notice. The Executive
shall receive the remuneration, benefits and expenses contemplated by
this Agreement and any options to acquire Common Stock which may have
vested up to and including the effective termination date and the
Executive will not be entitled to any other remuneration,
reimbursement or payment whatsoever.
8.3 The Company has the right to terminate this Agreement and the
Executive's employment hereunder at any time without just cause by
providing the Executive with written notice setting forth the
Termination Date and the Company shall, at the same time, do the
following:
(a) pay to the Executive within one month following the
Termination Date, or at such other time as is mutually
agreed upon between the Company and the Executive, a
settlement payment equal to the total of:
(i) an amount equal to the product of the monthly base
salary to which the Executive was entitled at the
Termination Date multiplied by the number of months
within the Notice Period (as defined in Section 8.3(b)
and (c) below); plus
(ii) an amount equal to the product of the Company's
monthly premium contributions paid on behalf of the
Executive immediately prior to the Termination Date
relating to the Company's employee benefits plan
multiplied by the number of months within the Notice
Period; plus
(iii) an amount equal to the most recent Annual Performance
Bonus paid by the Company to the Executive prior to
the Termination Date conditional upon the said
payment of the most recent bonus having been made
within the period of twelve (12) months immediately
prior to the Termination Date;
(b) In the event the Company terminates the Executive's
employment without just cause, in the first year of
Executive's employment, the Company will give Executive 12
months notice (the "Notice Period") of the termination of
Executive's employment, or the Company shall pay a
Severance Payment as defined above in lieu of such notice;
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The Executive acknowledges that other than the foregoing notice
or Severance Payment, Executive will not be entitled to any
further compensation or notice arising out of the termination
without just cause by the Company of Executive's employment;
(c) Just Cause for the termination of employment means that should
Executive commit improper acts as defined by law such as
non-performance of duties, dishonesty, theft or breach of
confidentiality, the Company will be able to terminate
Executive's employment without notice or severance in lieu of
notice;
(d) In the event that the Company pays severance in lieu of notice
any stock options held by Executive that would have vested during
the period beginning on the Termination Date and ending on the
date which falls at the end of the Notice Period (the "Severance
Date") shall automatically vest and become exercisable until the
expiration of a period of time after the Severance Date that is
equal to the period of time after the date of a termination
during which such options would be exercisable under the
applicable Stock Option Agreement (the "Option Agreement"). The
Company hereby agrees that it will amend the terms of the Option
Agreement, if necessary or required, in order to allow for the
foregoing. The Company agrees that it make all reasonable efforts
to obtain the agreement required by any exchange or regulatory
authorities to amend the term of the Option Agreement if such
agreement requires, to allow for the foregoing. In the event that
the Company is unable to obtain the required regulatory or
exchange approval as aforesaid, then the Company agrees to
compensate the Executive for the value of the said unvested share
options based on the difference between the exercise price of
such options and the market value of the Company's shares on the
Termination Date, (based on the closing trading price on the date
prior to the Termination Date), such payment to be made in cash
in conjunction with all other payments due under this subsection
8.3;
(e) If such current market price does not exceed the exercise price,
no compensation is payable by either party with respect to the
Option Agreement; and
(F) The Company shall provide, at the Company's expense, relocation
and financial counseling to the Executive at a cost not to exceed
$10,000.00 with the Executive having the right, in the
Executive's sole and absolute discretion, to receive payment of
$10,000.00 in lieu of the said relocation and financial
counseling services.
8.4 The employment of the Executive by the Company shall be deemed to be
terminated by the Company pursuant to subsection 8.3 hereof if the
Company unilaterally changes the terms of the employment relationship
such that the Executive does not continue to be employed by the
Company at a level of responsibility or a level of
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Compensation at least commensurate with the Executive's existing level of
responsibility and Compensation immediately prior to the said change and
the Executive elects in a written notice to the Company to treat the
Executive's employment as being terminated as a result of either such
reduction with the said termination being effective as at the date of the
said written notice.
8.5 Change of Control. In the event that a Change of Control (defined as
meaning any of the following events: (i) consummation of any merger or
consolidation of the Company in which the Company is not the continuing or
surviving corporation and the shareholders of the Company immediately prior
to such merger or consolidation own less than 51% of the surviving company;
or (ii) consummation of any sale, lease, exchange, or other transfer, in
one transaction or a series of related transactions, of all or
substantially all of the Company's assets, other than a transfer of the
Company's assets to a majority-owned subsidiary corporation; or (iii) a
change in ownership of 60% or more of the Company's then outstanding
capital stock, in one or more of a series of related transactions occurring
within a period of four (4) months, in which one or more persons acting
acquires 60% or more of the Company's then outstanding capital stock,
occurs and in the further event that:
(a) The Executive's employment with the Company is terminated by the
Company other than for "just cause" as that term is defined under this
agreement within six (6) months of the date of a Change of Control; or
(b) The Executive does not continue to be employed by the Company at a
level of responsibility or a level of compensation at least
commensurate with the Executive's existing level of responsibility and
compensation immediately prior to the Change of Control and the
Executive elects in a written notice to the Company within six (6)
months of the date of a Change of Control to treat the Executive's
employment as being terminated as a result of either such reduction
with the termination of Executive's employment being effective as of
the date such written notice is delivered to the Company, then the
Company agrees to:
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(i) Accelerate the vesting dates pursuant to any and all stock
option agreements outstanding between the Executive and the
Company (the "Option Agreements") granting Executive right for a
period of ninety (90) days commencing on the Voluntary
Termination Date to purchase that number of shares for which
options have been granted which are not yet vested or
exercised, irrespective of whether or not the vesting
requirements set forth in the Company's Stock Option Plan or the
Option Agreement have been satisfied. The "Voluntary Termination
Date" shall be the date upon which Executive provides the notice
described in Section 8.5(b) of this Agreement. Any Option
Agreement and any and all rights the Executive has or may have
pursuant to any Option Agreement shall terminate and otherwise
be extinguished on the date 90 days following the Voluntary
Termination Date. In the event that any of the terms of such
option are not ascertainable or in the event that applicable
securities legislation precludes the acceleration of the vesting
dates in the manner described herein, the Company agrees to
compensate the Executive by way of a cash payment with that
amount of money which the Executive would have been entitled to
if he had exercised any such option on the Voluntary Termination
Date at the price pursuant to the Option Agreement and sold the
securities on The Nasdaq Stock Market or other markets on which
the Company's common stock is listed for trading. The price used
to determine such cash payment shall be based upon the weighted
average trading price of the Company's common stock during the
last five days preceding the Voluntary Termination Date. In the
event the foregoing cannot be determined, then the market price
shall be established by a qualified independent valuator
approved by the independent members of the Board of Directors of
the Company. In the further event that such weighted average
trading price or current market price does not exceed the
exercise price, no amount shall be payable by the Company under
this Section.
9. RELEASE
9.1 In the event of termination; in consideration of the above payments
to the Executive and the additional provisions of this Agreement, the
Executive agrees to tender the Executive's immediate resignation in a
form satisfactory to the Company acting reasonably and forever
release and discharge the Company from any and all obligations to pay
any further amounts or benefits to the Executive with respect to the
Executive's employment or the termination thereof.
10 TIME OF ESSENCE
10.1 Time shall be of the essence in this Agreement and all amendments
hereto.
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11 SUBSEQUENT EMPLOYMENT
11.1 The Executive shall not be bound in any manner whatsoever to
rebate to the Company nor to forgive any claim against the
Company with respect to any amounts or benefits payable
hereunder in the event of the Executive's subsequent
reemployment in any manner whatsoever.
12 TERMINATION FOR CAUSE
12.1 Notwithstanding the other provisions of this Agreement, the
Company shall be entitled to terminate this Agreement and
Executive's employment hereunder forthwith for just cause
without any further notice or payment in lieu of notice. In the
event of such termination for just cause, the other provisions
of this Agreement shall not apply.
13 PRIOR AGREEMENTS/ENTIRE AGREEMENT
13.5 It is acknowledged and agreed by the Company and the Executive
that this Agreement, including the attached Schedule,
constitutes the entire agreement between the parties and that
any and all prior agreements, written or verbal, express or
implied, between the parties relating to or in any way
connected with the employment of the Executive by the Company
are hereby rendered null and void and are superseded by the
terms of this Agreement.
13.6 In the event of a conflict between this Agreement and any
agreement between the Executive and Company concerning the
Company's grant of stock options to the Executive, the
provisions of this Agreement shall prevail.
14 APPLICABLE LAWS
14.1 This Agreement shall be construed in accordance with the laws in
effect in the Province of Ontario and the parties hereto hereby
attorn to the Courts of the Province of Ontario and, if
applicable, the Federal Courts of Canada.
15 FURTHER ASSURANCES
15.1 Each of the parties shall from time to time and at all times do
all such further acts and execute and deliver all such further
deeds and documents as shall be reasonably required in order to
fully perform the terms of this Agreement.
16 ENUREMENT
16.1 This Agreement shall enure to the benefit of and be binding upon
the parties and their respective heirs, executors,
administrators, successors and assigns.
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17 NOTICE
17.1 Any notice or other instrument which may be required or permitted to
be delivered or served on the other party hereto shall be
sufficiently given to or served on such party if in writing and
delivered by hand in a sealed envelope addressed to such party and
left, during normal business hours, at the following addresses:
(a) if to the Executive:
Xxxxxxx X. Xxxxx
00 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
(b) if to the Company:
FutureLink Corp. and
FutureLink Distribution Corp.
000, 000-0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxx X. Xxxxxxxxx, C.E.O.
Either the Company or the Executive may, by notice delivered in
accordance with this section, change the address for notices set out above.
IN WITNESS WHEREOF the parties hereto have executed this Agreement
as of the day and year first above written.
FUTURELINK CORP.
Per: /s/ XXXXXX X. XXXXXXXXX
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Xxxxxx X. Xxxxxxxxx
Chief Executive Officer
SIGNED, SEALED AND DELIVERED
in the presence of:
/s/ XXXX X. XXXXX /s/ XXXXXXX X. XXXXX
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Witness XXXXXXX X. XXXXX
