EXHIBIT 10.22
EMPLOYMENT AGREEMENT
THIS AGREEMENT made to have effect the 12th day of September 2001.
BETWEEN:
MOBILE DATA SOLUTIONS INC., a Canadian corporation having offices at
00000 Xxxxxxxxxxx Xxx, Xxxxxxxx, X.X. X0X 0X0
(the "Company")
AND:
Xxxxxx X. Xxxxxxxx, a businessman, residing at 000 Xxxxxx Xxxxx, Xxx
Xxxxx, XX. 00000
(the "Executive")
WHEREAS the Company wishes to employ the Executive and the Executive is
willing to accept such employment upon the terms and conditions set forth in
this Agreement;
WHEREAS, the Company is in the business (the "Business") of developing,
marketing and implementing mobile workforce management systems.
NOW THEREFORE in consideration of the premises and the mutual covenants and
agreements herein set forth the parties hereto mutually covenant and agree as
follows:
1. EMPLOYMENT
1.1 The Company hereby employs the Executive to be the Senior Vice President
Worldwide Sales and Marketing of the Company and the Executive hereby accepts
such employment. The Executive shall report to the President and Chief Executive
Officer of the Company and shall perform all duties and have all authority
incident to the position of Senior Vice President of the Company, as further
described in the attached Schedule A, and such additional duties as he may from
time to time be reasonably required to perform, including without limitation
serving as the Senior Vice President Worldwide Sales and Marketing of other
companies within the MDSI group of companies, including MDSI Mobile Data
Solutions Inc., and such additional authority as he may from time to time be
given, by the President and Chief Executive Officer.
1.2 The Executive shall perform his duties out of the Richmond, British Columbia
office of the Company or out of such other offices in Lower Mainland area of
British Columbia which the Company shall establish and designate as its
Vancouver offices from time to time. The Executive's duties will involve
extensive domestic and international travel.
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2. EXCLUSIVE SERVICE
2.1 Except as expressly provided the Executive shall, during his employment with
the Company, devote his entire attention on a full-time basis to the business of
the Company. Provided he obtains the prior written approval of the President and
Chief Executive Officer the Executive may, during his employment with the
Company undertake work as a director or consultant to any other company, firm or
individual that is not in competition with the Company.
3. SALARY AND BONUSES
3.1 The Company shall pay the Executive an annual base salary ("Base Salary")
of C$220,000 gross payable bi-monthly.
3.2 An annual incentive plan details of which will be worked out between
yourself and the CEO that will provide additional earning potential based
upon the achievement of predetermined sales targets and/or corporate
earnings details to be worked out between yourself and the CEO prior to
July 1, 2002.
3.3 All payment of salary shall be subject to deduction of all applicable
deductions required at law or made pursuant to this Agreement.
4. EXPENSES
4.1 The Company shall provide to the Executive the following expenses, equipment
and allowances:
i) reimbursement for all reasonable and necessary expenses incurred by
the Executive in the conduct of the business of the Company in
accordance with travel and expense policies established by the Company
from time to time; and
ii) appropriate hardware/software, including cell phone and a portable
computer selected by the Company to permit the Executive to operate
effectively while away from the office or at home and associated
costs.
5. STOCK OPTIONS
5.1 The Executive shall be entitled to participate in the Employee Stock
Purchase Plan as established by the Company and amended from time to time. A
copy of that Plan has been supplied to the Executive who acknowledges its
receipt.
5.2 In addition, the Company will grant the Executive an option to purchase
15,000 common shares in the capital of the Company at an exercise price equal to
closing price of Company shares
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on the TSE on June 24, 2002. The option to purchase the first one-quarter of
these shares shall vest upon the first anniversary date of the date of the grant
and thereafter, the balance shall vest pro rata over a period of 36 months
commencing one month after the first anniversary date of the date of employment.
5.3 The stock options granted are made in accordance with the Company's Stock
Option Plan ("the Plan") as amended from time to time by the Company.
Notwithstanding the provisions in the Plan regarding accelerated vesting in the
event of a Change of Control (as defined in the Plan) or Terminating Event (as
defined in the Plan), in the event that a Change of Control or Terminating Event
occurs only those Stock Options that would have ordinarily vested to the
Executive over the next twelve months had such change or event not occurred
shall become immediately vested and exercisable in accordance with Section 11 of
the Plan. Further in the event of a Change of Control or Terminating Event and
the successor entity or new control person(s) of the Company does not:
i) grant substitute stock options under an existing plan which replaces
or assumes the remaining balance of the unvested Stock Options
previously granted; or
ii) establish a new or successor stock option plan and issue new options
under such plan to replace the remaining balance of the unvested Stock
Options previously granted;
then the remaining balance of such Stock Options shall immediately vest and
become exercisable.
The terms of granting of these options and the terms and conditions of
exercising are set forth in the Stock Option Plan itself.
5.4 Stock options which have vested may be exercised at any time up to five
years from the date of grant. Those stock options which have not vested by the
date of termination of the Executive's employment with the Company shall expire
automatically as of that date. Upon termination of his employment by
resignation, the Executive shall have a period of thirty (30) days in which to
exercise vested share purchase options, failing which those options shall expire
automatically.
6. VACATION
6.1 The Executive shall be entitled to four (4) weeks vacation per annum
commencing 2003 and prorated for the year 2002.
7. BENEFITS
7.1 The Executive shall receive those benefits (including medical, extended
health, dental, short and long term disability, life insurance and family
assistance) that are provided to Canadian based
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employees in the Company Employee Benefit Program (the "Program") in effect upon
the Executive's employment date as that Program may be modified from time to
time. A copy of the Program has been supplied to the Executive who acknowledges
its receipt.
8. SICK LEAVE
8.1 If the Executive shall, at any time, by reason of illness or mental or
physical disability, be incapacitated from carrying out the terms of this
Agreement, he shall furnish the Company with medical evidence to prove such
incapacity and the cause thereof, and shall receive his full salary until short
and long term disability benefits begin.
9. CONFIDENTIAL INFORMATION
9.1 The Executive acknowledges that as an officer of the Company, he holds a
fiduciary position and owes to the Company a duty of utmost loyalty and good
faith. The Executive agrees to serve the Company well and faithfully and to the
best of his ability, and to use his best efforts to promote its interests.
9.2 The Executive recognizes that the Company's Business and continued success
depend upon the use and protection of proprietary and confidential business
information and that in the exercise of his duties with the Company he will
develop and receive information which is proprietary and/or confidential to the
Company and its current or future subsidiaries and affiliates which information
may include but shall not be limited to: intellectual property; know-how; trade
secrets and processes; product specifications; methods of doing business;
information with respect to the Company's organization; information with respect
to the Company's financial affairs and business plans; information with respect
to the Company's pricing policies; sales and marketing plans; information
concerning the development of new products and services; information concerning
any personnel of the Company (including, without limitation, skills and
compensation information); information with respect to the identity and special
needs of the Company's customers; and technical and non-technical data related
to software programs, designs, specifications, compilations, inventions,
improvements, methods, processes, procedures and techniques (the "Confidential
Information").
9.3 The Executive agrees that he shall not disclose the Confidential Information
(either during the continuance of his employment hereunder or any time
thereafter) to any third parties except as required in the normal course of
business and shall not use the Confidential Information (either during the
continuance of his employment hereunder or any time thereafter) for his own
purposes, or any purposes other than those of the Company. Executive's
obligation under this Agreement is in addition to any obligations Executive has
under provincial or federal law. The Executive further agrees in consideration
for his continued employment by the Company to execute such further and other
agreements concerning the secrecy of the affairs of the Company or any companies
with which the Company is affiliated or associated as the Company shall
reasonably request. Executive
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agrees to deliver to the Company immediately upon termination of Executive's
employment, or at any time the Company so requests, all tangible items
containing any Confidential Information (including, without limitation, all
memoranda, photographs, records, reports, manuals, drawings, blueprints,
prototypes, notes taken by or provided to Executive, and any other documents or
items of a confidential nature belonging to the Company), together with all
copies of such material in Executive's possession or control. Executive agrees
that in the course of his employment with the Company, Executive will not
violate in any way the rights that any entity has with regard to trade secrets
or proprietary or confidential information. Executive's obligations under this
Section 9 are indefinite in term and shall survive the termination of this
Agreement.
9.4 Information shall not be considered as confidential if at the time of
disclosure by the Executive it is generally known to the public or after
disclosure by the Executive it becomes known to the public through no violation
of this Agreement or is disclosed to the Executive by a third party that it is
not under an obligation to maintain the confidentiality of the information.
10. NON COMPETITION
10.1 The Company and the Executive specifically agree that during Executive's
employment by the Company and for a period expiring two (2) years after the
termination of Executive's employment for any reason, Executive covenants and
agrees the he will not:
i) Directly, indirectly, or otherwise, own, manage, operate, control, serve
as a consultant to, be employed by, participate in, or be connected, in any
manner, with the ownership, management, operation or control of any business
that competes with the Business or that competes with the Company or any of its
affiliates or that is engaged in any type of business which, at any time during
Executive's employment with the Company, the Company or any of its affiliates
planned to develop.
ii) Hire, offer to hire, entice away or in any other manner persuade or
attempt to persuade any officer, Executive or agent of the Company or any of its
affiliates to alter or discontinue a relationship with the Company or to do any
act that is inconsistent with the interests of the Company or any of its
affiliates;
iii) Directly or indirectly solicit, divert, take away or attempt to
solicit, divert or take away any customers of the Company or any of its
affiliates; or
iv) Directly or indirectly solicit, divert, or in any other manner persuade
or attempt to persuade any supplier of the Company or any of its affiliates to
alter or discontinue its relationship with the Company or any of its affiliates.
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10.2 For the purposes of this Section 10, businesses that are deemed to compete
with the Company include, without limitation, businesses engaged in the
developing, marketing and implementing mobile workforce management systems. Due
to the nature and extent of the Business of the Company, the market for the
Company's products, the technologies with which the Company is involved and the
fact that the Company does business on a global basis, the Executive
acknowledges and agrees the geographic scope of the prohibitions in this Section
10 shall be the World. Notwithstanding Executive's obligations under this
Section 10, Executive will be entitled to own, as a passive investor, up to five
percent (5%) of any publicly traded company without violating this provision.
10.3 The Executive and the Company agree that: Section 10 does not impose an
undue hardship on the Executive and is not injurious to the public; that this
provision is necessary to protect the business of the Company and its
affiliates; the nature of the Executive's responsibilities with the Company
under this Agreement require the Executive to have access to confidential
information which is valuable and confidential to all of the Business; the scope
of this Section 10 is reasonable in terms of length of time and geographic
scope; and adequate consideration supports this Section 10, including
consideration herein.
11. OWNERSHIP AND USE OF WORK PRODUCTS
11.1 The Executive agrees that any work products produced by the Executive in
the course of his employment with the Company whether developed solely by the
Executive or jointly with any other party (the "Work Product") shall be the sole
and exclusive property of the Company.
11.2 The Company acknowledges that general knowledge and experience including
general techniques, algorithms, methods and formulae not developed for the
Company's specific application or work gained by the Executive prior to or in
the course of his association with the Company, may be used by the Executive at
any time prior to, during or subsequent to his association with the Company,
unless a specific agreement to the contrary is entered into by the Executive and
the Company, as long as the Executive is not in breach of his covenants of
non-competition contained herein.
11.3 At any and all times, either during or after termination of the Executive's
employment with the Company, the Executive will promptly, on the request of the
Company, perform all such acts and execute and deliver all such documents that
may be necessary to vest in the Company the entire right, title and interest in
and to any such Work Product. Should any services be rendered after termination
of his association with the Company a reasonable compensation will be paid to
the Executive upon a per diem basis in addition to reasonable travelling and
accommodation expenses incurred as a result of rendering such services.
11.4 The Executive hereby assigns to the Company any rights the Executive may
have or acquire in the Work Product and waives all claims whatsoever with
respect to the Work Product including
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any moral rights which he may have or acquire in the Work Product or to its use,
including the right to restrain or claim damages for any distortion, mutilation
or other modification of the Work Product or any part thereof whatsoever, or to
restrain use or reproduction of the Work Product in any context, or in
connection with any product or service.
12. INVENTIONS AND PATENTS
12.1 For purposes of this Agreement, "Inventions" includes, without limitation,
information, inventions, contributions, improvements, ideas, or discoveries,
whether protectable or not, and whether or not conceived or made during work
hours. The Executive agrees that all Inventions conceived or made by the
Executive during the period of employment with the Company belong to the
Company, provided they grow out of Executive's work with the Company or are
related in some manner to the Business, including, without limitation, research
and product development, and projected business of the Company or its affiliated
companies. Accordingly, the Executive will:
(i) Make adequate written records of such Inventions, which records will be
the Company's property;
(ii) Assign to the Company, at its request, any rights the Executive may
have to such Inventions for the U.S. and all foreign countries;
(iii) Waive and agree not to assert any moral rights the Executive may have
or acquire in any Inventions and agree to provide written waivers from time to
time as requested by the Company; and
(iv) Assist the Company (at the Company's expense) in obtaining and
maintaining patents or copyright registrations with respect to such Inventions.
12.2 The Executive understands and agrees that the Company or its designee will
determine, in its sole and absolute discretion, whether an application for
patent will be filed on any Invention that is the exclusive property of the
Company, as set forth above, and whether such an application will be abandoned
prior to issuance of a patent.
12.3 The Executive further agrees that he will promptly disclose in writing to
the Company during the term of Executive's employment and for one (1) year
thereafter, all Inventions whether developed during the time of such employment
or thereafter (whether or not the Company has rights in such Inventions) so that
the Executive's rights and the Company's rights in such Inventions can be
determined. Except as set forth on the initialed Schedule B (List of Inventions)
to this Agreement, if any, the Executive represents and warrants that the
Executive has no Inventions, software, writings or other works of authorship
useful to the Company in the normal course of the Business, which were
conceived, made or written prior to the date of this Agreement and which are
excluded from the operation of this Agreement
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13. REMEDIES
13.1 The Executive agrees that Executive's violation of any of Sections 9, 10,
11 or 12 of this Agreement would cause the Company irreparable harm which would
not be adequately compensated by monetary damages and that an injunction may be
granted by any court or courts having jurisdiction, restraining the Executive
from violation of the terms of this Agreement, upon any breach or threatened
breach of the Executive of the obligations set forth in any of Sections 9, 10,
11 or 12. The preceding sentence shall not be construed to limit the Company
from any other relief or damages to which it may be entitled as a result of the
Executive's breach of any provision of this Agreement, including Sections 9, 10,
11 or 12. The Executive also agrees that a violation of any of Sections 9, 10,
11 or 12 would entitle the Company, in addition to all other remedies available
at law or equity, to recover from the Executive any and all funds, including,
without limitation, wages and salary, which will be held by the Executive in
constructive trust for the Company, received by the Executive in connection with
such violation.
14. TERMINATION OF EMPLOYMENT
14.1 The Executive's employment may be terminated at any time by the Company
without previous notice and without payment in lieu of notice for cause which,
for the purposes of this agreement shall include but not be limited to:
i) dishonesty in the course of the discharge of his duties as an
employee;
ii) gross negligence or repetitive negligence committed without regard to
corrective direction in the course of the discharge of his duties as
an employee;
iii) conviction of any criminal offence other than an offence which, in the
reasonable opinion of the Company does not affect the reputation of
the Company or the Executive's position as a representative of the
Company;
iv) becoming bankrupt or insolvent;
v) any incapacity, other than an illness or disability, which renders the
Executive incapable of continuing his employment for a period of three
(3) months or longer.
14.2 The Executive shall be entitled to terminate his employment with the
Company, at will, at any time by giving notice in writing to the Company of not
less than four weeks unless otherwise agreed to in writing by the parties. In
the event the Executive terminates his employment within the first 12 months, he
will not be entitled to any additional vacation pay and thereafter, the
Executive
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shall be entitled to receive an amount equal to his annual accrued vacation pay,
less any vacation days actual taken by the Executive during the then-current
year.
14.3 The Company may terminate the employment of the Executive at will and
without cause at any time upon giving notice in writing to the Executive of not
less than twelve (12) months or payment in lieu thereof. The Executive
acknowledges and agrees that he shall not be entitled to any other severance or
termination package in connection with his employment whatsoever. In the event
the Executive is terminated in accordance with this Section 14.3, the Company
shall also pay to him any current year accrued vacation standing to his credit.
15. RESIGNATION AND INDEMNITY
15.1 Upon termination of this Agreement, the Executive will tender to the
Company, and their associated companies, his resignation as an officer and if
applicable, his resignation as a director.
15.2 Subject to the Canada Business Corporations Act, as amended from time to
time (the "Act"), the Company hereby indemnifies the Executive, his heirs,
executors administrators and personal representatives (collectively, the
"Indemnitees") and save the Indemnitees harmless against all costs, charges and
expenses actually and reasonably incurred by the Indemnities in law, in equity
or under any statute or regulation, in connection with any civil, criminal, or
administrative claim, action, proceeding or investigation to which the
Indemnitees are made a party or in which they are otherwise involved as a
witness or other participant by reason of the Executive being or having been a
Director or officer of the Company or its affiliated or associated companies,
including any action brought by the Company or companies, if:
i) the Executive acted honestly and in good faith with a view to the best
interests of the Company or companies; and
ii) in the case of a criminal or administrative claim, action, proceeding
or investigation, the Executive had reasonable grounds for believing
that his conduct was lawful.
15.3 Without limiting the generality of the foregoing of Section 15.2 the costs,
charges and expenses against which the Company will indemnify the Indemnitees
include:
i) any and all fees, costs and expenses actually and reasonably incurred
by the Indemnitees in investigating, preparing for, defending against,
providing evidence in, producing documents or taking any other action
in connection with any commenced or threatened action, proceeding or
investigation, including reasonable legal fees and disbursements,
travel, and lodging costs;
ii) any amounts reasonably paid in settlement of any action, proceeding or
investigation;
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iii) any amounts paid to satisfy a judgement or penalty, including interest
and costs; and
iv) all costs charges and expenses reasonably incurred by the Indemnitees
in establishing their right to be indemnified pursuant to this
Agreement.
15.4 If the Indemnitees or any one of them are required to include in their
income, or in the income of the estate of the Executive, any payment made under
this Section 15 for the purpose of determining income tax payable by the
Indemnitees or any of them or the estate, the Company shall pay an amount by way
of indemnity that will fully indemnify the Indemnitees or estate for the amount
of all liabilities described in Section 15.2 and Section 15.3 and all income
taxes payable as a result of the receipt of the indemnity payment.
15.5 Upon receipt of a written request by the Indemnitees for indemnification
under this Agreement (an "Indemnification Notice"), the Company will forthwith
apply to the Supreme Court of British Columbia for approval of the requested
indemnification, will diligently proceed to obtain such approval and will take
all other steps necessary to provide the requested indemnification as soon as
practicable following receipt of the Indemnification Notice.
15.6 Any failure by the Executive in his capacity as a director or officer of
the Company to comply with the provisions of the Act or the Memorandum, Articles
or Bylaws of the Company will not invalidate any indemnity to which he is
entitled under this Agreement.
16. RETURN OF PROPERTY
16.1 In the event of termination of this Agreement, the Company agrees to pay
the Executive all arrears of compensation, and all out of pocket expenses owing,
up to and including the effective date of termination, upon receipt from the
Executive of (and the Executive agrees to deliver to the Company);
i) any property of the Company which may be in the possession or control
of the Executive; and
ii) the repayment of any sums owed by the Executive to the Company.
17. SURVIVAL
17.1 Notwithstanding the termination of this Agreement for any reason whatsoever
the provisions of Sections 9, 10, 11, 12 and 15 hereof and any other provisions
of this Agreement necessary to give efficacy thereto shall continue in full
force and effect following such termination.
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18. NOTICE
18.1 Any notice or other communication (each a "Communication") to be given in
connection with this Agreement shall be given in writing and may be given by
personal delivery, by registered mail or by telecopier, addressed as follows:
TO: Mobile Data Solutions Inc.
Xxxxx 0000
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxx, 00000
Attn: President and COO
Phone: 000-000-0000
Fax: 000-000-0000
AND TO: Xxxxxx X. Xxxxxxxx
000 Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: ___________
or at such other address or telecopier number as shall have been designated by
Communication by either party to the other. Any Communication shall be
conclusively deemed to be received, if given by personal delivery, on the date
and at the time of actual delivery thereof and, if given by registered mail, on
the fifth day following the date of mailing, if given by telecopier, on the
business day following the transmittal thereof. If the party giving any
Communication knows or ought reasonably to know of any actual or threatened
interruptions of the mails, such Communication shall not be sent by mail but
shall be given by personal delivery or telecopier.
19. ENTIRE AGREEMENT
19.1 Any other previous agreements, written or oral, between the parties hereto
relating to the employment of the Executive by the Company are hereby terminated
and cancelled and each of the parties hereto hereby releases and forever
discharges the other party hereto of and from all manner of actions, causes and
demands whatsoever under or in respect of any such agreement. This Agreement,
together with the Plans and Programmes which are by reference expressly
incorporated into it, constitutes and expresses the whole agreement of the
parties hereto with reference to the employment of the Executive by the Company,
and with reference to any of the matters or things herein provided for, or
herein before discussed or mentioned with reference to such employment; all
promises, representations, and understandings relative thereto being merged
herein.
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20. AMENDMENTS AND WAIVERS
20.1 No amendment to this Agreement shall be valid or binding unless set forth
in writing and duly executed by both of the parties hereto. No waiver or any
breach of any by the party purporting to give the same and, unless otherwise
provided in the written and signed waiver, shall be limited to the specific
breach waived.
21. BENEFITS OF AGREEMENT
21.1 The provisions of this Agreement shall enure to the benefit of and be
binding upon the legal representatives of the Executive and the successors and
assigns of the Company respectively.
22. SEVERABILITY
22.1 If any provision of this Agreement or compliance by any of the parties with
any provision of this Agreement constitutes a violation of any law, or is or
becomes unenforceable or void, then such provision, to the extent only that it
is in violation of law, unenforceable or void, shall be deemed modified to the
extent necessary so that it is no longer in violation of law, unenforceable or
void, and such provision will be enforced to the fullest extent permitted by
law. If such modification is not possible, said provision, to the extent that it
is in violation of law, unenforceable or void, shall be deemed severable from
the remaining provisions of this Agreement, which provisions will remain binding
on the parties. The Executive hereby agrees that all restrictions herein are
reasonable and valid and all defenses to the strict enforcement thereof by the
Company are hereby waived by the Executive.
23. GOVERNING LAW
23.1 This Agreement shall be governed by and construed in accordance with the
laws of the Province of British Columbia. The Company and the Executive hereby
irrevocably attorn to the jurisdiction of the courts of the Province of British
Columbia, exclusively.
24. COPY OF AGREEMENT
24.1 The Executive hereby acknowledges receipt of a copy of this Agreement duly
signed by the Company.
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IN WITNESS WHEREOF the parties have executed this Agreement as of the day and
year first above written:
SIGNED, SEALED AND DELIVERED by )
Xxxxxx X. Xxxxxxxx )
in the presence of: )
)
---------------------------- ) /s/ Xxxxxx X. Xxxxxxxx
Witness ---------------------------------------
) Xxxxxx X. Xxxxxxxx
---------------------------- )
Address )
)
---------------------------- )
Occupation )
MOBILE DATA SOLUTIONS INC.
Per: /s/ Xxx Xxxxxxx
---------------------------
Authorized Signatory
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Schedule "A"
Job Description: Sr. Vice President Worldwide Sales and Marketing
Purpose:
To establish short-term and long-range objectives, plans and policies subject to
the approval of the President and Chief Executive Officer. To direct all aspect
of the Company's Sales and Marketing strategies.
Duties and Responsibilities:
Develop corporate goals, objectives and strategies for the Company's Sales and
Marketing strategies in accordance with direction from the Company. Directs and
coordinates Company's Sales and Marketing staff so that their activities are
carried out in an integrated manner consistent with the overall corporate
objective.
Assist in the development of corporate policies in conjunction with Company's
executive team.
Establishes accountability and authority for subordinate executives and monitors
their performance in execution of business plans, financial results and
organizational objectives. Take corrective action as required.
Implements on a continuous basis an organizational structure and staffing plan
that meets the on-going needs of the Company.
Represents the Company in important external business relationships with major
clients, strategic partners and financial community as directed by the Company
from time to time.
The above outlines essential responsibilities and activities and is not intended
to be an exhaustive list. Depending on Company's requirements other duties may
be assigned.
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Schedule "B"
LIST OF INVENTIONS
None
