Exhibit 10.17: Employment Agreement of Xxxxxx X. X'Xxxxxxxx
EMPLOYMENT AGREEMENT
THIS AGREEMENT made and effective this 1st day of January, 2000 (the
"Effective Date") between VOICE MOBILITY INC., incorporated pursuant to the laws
of Canada, (herein called the "Corporation") and XXXXXX X. X'XXXXXXXX (herein
called the "Executive"), of 000 - 0000 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxxxxx, X.X.
X0X 0X0.
WHEREAS the Corporation wishes to employ the Executive and the Executive
wishes to be employed by the Corporation in accordance with the terms set out in
this agreement (this "Employment Agreement").
NOW THEREFORE in consideration of the mutual covenants contained herein and
for other good and valuable consideration, the parties agree as follows:
1. EMPLOYMENT
The Corporation hereby employs the Executive and the Executive hereby
accepts employment with the Corporation for the Term (as defined in section 2
below) in the position and with the duties, responsibilities and authority
described in section 3 below and as the board of directors of the Corporation
may, from time to time, reasonably assign to him, and upon all other terms and
conditions set forth in this Employment Agreement.
2. TERM
The term (the "Term") of the Executive's employment pursuant to this
Employment Agreement shall commence on the Effective Date and shall continue
until December 31, 2002, subject to those provisions of this Employment
Agreement providing for earlier termination of the Executive's employment in
certain circumstances. Thereafter, the Term may be extended for additional one
year periods from and after January 1, 2003 upon the agreement of the Executive
and the board of directors of the Corporation, subject always to the provisions
of section 9 hereof.
3. POSITION, RESPONSIBILITY
The Executive will serve the Corporation as president, working under the
direction of and reporting to the board of directors, and the Executive will
stand for election and, if elected by the shareholders of the Corporation, serve
as a director of the Corporation. The Executive will serve the Corporation in
good faith, to the best of his ability and with the objective of promoting the
best interests of the Corporation at all times.
4. REMUNERATION: CASH AND STOCK OPTIONS
(a) CASH - For services rendered by the Executive during the Term, the
Executive shall be entitled to receive aggregate annual base pay
remuneration in cash in the amount of $150,000, payable semi-monthly in
arrears. The Corporation shall withhold from the Executive's base pay
remuneration all deductions required by applicable law.
(b) STOCK OPTIONS - The Corporation will cause the Corporation's parent, Voice
Mobility International, Inc. ("VMII"), to grant the Executive the option to
acquire up to 500,000 common shares of VMII, vesting over 36 months
commencing as of the Effective Date, pursuant to a stock option agreement
to be provided by
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VMII to the Executive and in accordance with the general provisions of
VMII's employee stock option plan.
(c) BONUS - The Corporation and the Executive will on or before February 28,
2000 and annually thereafter jointly and in good faith establish management
objectives for the Executive for the ensuing 12 month period and, on
fulfilling such objectives, the Executive will be entitled to annual
bonuses consisting of up to $50,000 in addition to his remuneration under
clause (a) of this section 4 and the option to acquire up to an additional
125,000 common shares of VMII ("Additional Options") in addition to the
options referred to in clause (b) of this section 4. The cash component of
the annual bonus will be paid within two months of the end of the relevant
12 month period. The strike price for any Additional Options will be
settled in writing signed by the Corporation and the Executive at the
beginning of each 12 month period and the Annual Options will be fully
vested as of the commencement of the relevant 12 month period, and the
number and strike price of all Additional Options will be subject to
alteration reviewed at the beginning of each 12 month period.
5. PERQUISITES AND BUSINESS EXPENSES
The Executive will receive, in addition to remuneration referred to in
section 4, a car allowance of $500 per month and shall be reimbursed for all
reasonable expenses incurred by him in connection with the conduct of the
Corporation's business upon presentation of sufficient evidence of such
expenditures and provided the same are authorized expenditures pursuant to
policies adopted by the board of directors of the Corporation from time to time.
6. BENEFIT PROGRAMS
The Executive and his family will be entitled to participate in all
Executive benefit programs of the Corporation from time to time in effect under
the terms and conditions of such programs, including, but not limited to,
pension, share incentive and other benefit plans, group life insurance,
hospitalization and surgical and major medical coverages, dental insurance, sick
leave, including salary continuation arrangements, vacations and holidays,
long-term disability, and such other fringe benefits as are or may be available
from time to time to other executives of the Corporation.
7. VACATION
The Executive shall be entitled to all usual public holidays and, in
addition, three weeks annual vacation during each year of employment hereunder.
Such vacation time shall be utilized by the Executive at mutually reasonably
acceptable times.
8. TERMINATION OF EMPLOYMENT
For the full term of this Employment Agreement the Executive cannot be
terminated by the Corporation without cause.
(a) DEATH - In the event of the death of the Executive during the Term, the
Executive's salary will be paid to the Executive's designated beneficiary,
and in the absence of such designation, to the estate or other legal
representatives of the Executive, through the end of the month in which
death occurs, and all rights and benefits of the Executive under the
Executive benefit plans and programs of the Corporation, including life
insurance, will be determined in accordance with the terms and conditions
of such plans and programs.
(b) DISABILITY - The Executive's employment shall terminate automatically upon
written notice from the Corporation in the event of the Executive's absence
or inability to render the services required hereunder
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due to disability, illness, incapacity or otherwise for an aggregate of 90
days during any 12 month period during the Term or any extension thereof.
In the event of any such absence or inability, the Executive shall be
entitled to receive the compensation provided for herein for such period,
and thereafter the Executive shall be entitled to receive compensation in
accordance with the Corporation's long-term disability plan, if any,
together with such compensation, if any, as may be determined by the board
of directors of the Corporation. If the Executive ceases employment for
reason of disability before he would be covered by the Corporation's long
term disability plan then the Corporation will continue to pay the
Executive at his then current rate until he is so covered. If the Executive
ceases employment for reason of disability then the amount of any bonus
payable pursuant to clause 4(c) in respect of the year in which the
disability occurs will be determined on a pro rata basis, taking into
account all relevant factors, and paid by the Corporation.
(c) TERMINATION BY THE CORPORATION FOR CAUSE - In the event of a termination
for cause, there will be no continued salary payments by the Corporation to
the Executive and any rights and benefits of the Executive under the
Executive benefit plans and programs of the Corporation will be determined
in accordance with the terms of such plans and programs. For the purposes
of this Employment Agreement, "cause" shall mean that the Executive:
(i) has committed a felony or indictable offence or has improperly
enriched himself at the expense of the Corporation or has
committed an act evidencing dishonesty or moral turpitude,
including without limitation an act of theft or use of
property of the Corporation for his personal benefit;
(ii) in carrying out his duties hereunder, (A) has been willfully
or grossly negligent, or (B) has committed willful and gross
misconduct or, (C) has failed to comply with clear and
reasonable, instructions or directives from the board of
directors of the Corporation after having been informed in
writing of a failure to so comply having been given reasonable
opportunity to comply or correct a matter;
(iii) has breached a material term of this Employment Agreement and
such breach is either not promptly remedied upon notice or is
incapable of remedy;
(iv) becomes bankrupt or in the event a receiving order (or any
analogous order under any applicable law) is made against the
Executive or in the event the Executive makes any general
disposition or assignment for the benefit of his creditors
which materially interferes with his ability to render
services hereunder; or
(v) commits any other act giving the Corporation cause to
terminate the Executive's employment, including, but not
limited to chronic alcoholism or drug addiction, material
malfeasance or nonfeasance with respect to the Executive's
duties hereunder.
Prior to any termination of the Executive for cause due to the
first only of any occurrence described in clauses (ii), (iii), and (v)
above, the Corporation shall notify the Executive in writing of the
particulars of the occurrence upon which termination would be based and
shall in such notice advise the Executive as to whether, in the
Corporation's reasonable opinion, the default of the Executive occasioned
by such occurrence is capable of being cured or rectified in full without
material loss or damage to the Corporation, in which case the Corporation
shall afford the Executive a reasonable period of not less than five
business days in which to cure or rectify such default. In such event and
provided the Executive cures or rectifies such default in full without
material loss or damage to the Corporation, the Executive's employment
shall not be terminated on the basis of such occurrence.
(a) TERMINATION BY THE EXECUTIVE - The Executive shall be entitled to terminate
this Employment Agreement at any time upon giving the Corporation three
months written notice.
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9. NON-COMPETITION
(a) The Executive agrees that during the period of the Executive's employment
with the Corporation and for a period of 12 months from the last payment of
monthly compensation to the Executive by the Corporation, the Executive
shall not engage in or participate in any business activity that competes,
directly in the market worldwide, with the business of the Corporation, or
that of any parent, subsidiary or affiliate companies, organizations or
entities. For purposes of this section the business of the Corporation
means that area of telecommunications presently engaged in by the
Corporation and includes all future activities as may be described in the
business plan of the company as approved by the board of directors from
time to time. The Executive acknowledges and agrees that the restrictions
herein and in section 10 are reasonable and are intended to protect the
legitimate business of the Corporation. If the Executive is in breach or is
anticipated by the Corporation, acting reasonably, to be in breach of such
restrictions then the Corporation shall be entitled to apply for any
equitable remedies including an injunction to prevent or terminate such
breach and the Executive will not oppose such application.
(b) For the purposes of this section, the Executive shall be deemed to "engage
in or participate in any business activity that competes, directly in the
market worldwide, with the business of the Corporation, or that of any
parent, subsidiary or affiliate companies, organizations or entities" if
the Executive is or becomes engaged, otherwise than at the request of the
Corporation, as an officer, director or employee of, or is or becomes
associated in a management, employee, ownership, consultancy or agency
capacity with any corporation, partnership or other enterprise or venture
whose business includes the distribution of competing services or products.
(c) It is the desire and intent of the parties that the provisions of this
section shall be enforceable to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement
is sought. Accordingly, if any particular portion of this section is
adjudicated unenforceable in any jurisdiction such adjudication shall apply
only to that particular portion in the particular jurisdiction in which
such adjudication is made.
10. NON-SOLICITATION
The Executive agrees that for a period of one year following the
termination of the Executive's employment with the Corporation for any reason
whatsoever, the Executive will not, whether as principal, agent, executive,
employer, director, officer, shareholder or in any other individual or
representative capacity, solicit or attempt to retain in any way whatsoever any
employees or agents of either the Corporation or its parent, subsidiary or
affiliate companies, organizations or entities.
11. CONFIDENTIAL INFORMATION
All confidential records, material and information and copies thereof and
any and all trade secrets concerning the business or affairs of the Corporation
or any of its parent, subsidiary, or affiliate companies, organizations or
entities, obtained by the Executive in the course and by the reason of his
employment shall remain the exclusive property of the Corporation, and the
Executive acknowledges that they are all valuable proprietary property of the
Corporation. During the Executive's employment or at any time thereafter, the
Executive shall protect and maintain the confidentiality of all such information
and not divulge the contents of such confidential records or any of such
confidential information or trade secrets to any person other than to the
Corporation, or to the Corporation's qualified officers or executives, and the
Executive shall not, following the termination of his employment hereunder for
any reason, use the contents of such confidential records or other confidential
information or trade secrets for any purpose whatsoever. On termination of the
Executive's employment with the Corporation for any reason, the Executive will
immediately return to the Corporation all files, tools, records, media for data
storage, documents, papers and other property of any description whatsoever that
belongs to the Corporation and permanently delete all electronic files and data
that he may have on any of his own computers or other data storage systems of
any kind and, if requested to do so by the Corporation, verify in writing that
he has done so.
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12. WITHHOLDING
Anything to the contrary notwithstanding, all payments required to be made
by the Corporation hereunder to the Executive or his estate or beneficiaries
shall be subject to the withholding of such amounts relating to taxes or other
deductions as the Corporation may reasonably determine it is required to
withhold pursuant to any applicable law or regulation, after consultation with
the Executive. In lieu of withholding such amounts, in whole or in part, the
Corporation may, in its sole discretion, accept other provisions for payment of
taxes and withholdings as required by law, provided that the Corporation is
satisfied that all requirements of law affecting the Corporation's
responsibilities to withhold have been complied with.
13. ENTIRE AGREEMENT
This Employment Agreement and any other agreements referred to herein
contain the entire agreement between the parties hereto with respect to matters
herein and supersedes all prior agreements and understandings, oral or written,
between the parties hereto relating to such matters.
14. ASSIGNMENT
Except as herein expressly provided, the respective rights and obligations
of the Executive and the Corporation under this Employment Agreement shall not
be assignable by either party without the written consent of the other party and
shall enure to the benefit of and be binding upon the Executive and the
Corporation and their permitted successors or assigns, including, in the case of
the Corporation, any other corporation or entity with which the Corporation may
be merged or otherwise combined or which may acquire the Corporation or its
assets in whole or in substantial part, and, in the case of the Executive, his
estate or other legal representatives. Nothing herein expressed or implied is
intended to confer on any person other than the parties hereto any rights,
remedies, obligations or liabilities under or by reason of this Employment
Agreement.
15. APPLICABLE LAW
This Employment Agreement shall be deemed a contract under, and for all
purposes shall be governed by and construed in accordance with, the laws of the
Province of British Columbia without regard to the conflict of laws rules
thereof. The Corporation and the Executive hereby irrevocably consent and affirm
to the jurisdiction of the courts of the Province of British Columbia with
respect to any dispute or proceeding arising in connection with this Employment
Agreement.
16. AMENDMENT OR MODIFICATION: WAIVER
No provision of this Employment Agreement may be amended or waived unless
such amendment or waiver is authorized by the Corporation (including any
authorized officer or committee of the board of directors) and is in writing
signed by the Executive and by a duly authorized officer of the Corporation.
Except as otherwise specifically provided in this Employment Agreement, no
waiver by any party hereto of any breach by the other party of any condition or
provision of this Employment Agreement to be performed by such other party shall
be deemed a waiver of a similar or dissimilar breach, condition or provision at
the same time or at any prior or subsequent time.
17. PROVISIONS SURVIVING TERMINATION
It is expressly agreed that notwithstanding termination of the Executive's
employment with and by the Corporation for any reason or cause or in any
circumstances whatsoever, such termination shall be without prejudice to the
rights and obligations of the Executive and the Corporation, in relation or
arising up to the time up to and
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including the date of termination; and the provisions of Sections 9 through 12
inclusive, shall all remain and continue in full force and effect.
18. SEVERABILITY
In the event that any provision or portion of this Employment Agreement
shall be determined to be invalid or unenforceable for any reason, the remaining
provisions and portions of this Employment Agreement shall be unaffected thereby
and shall remain in full force and effect to the fullest extent permitted by
law.
19. COUNTERPARTS
This Employment Agreement may be executed in counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
20. REFERENCES
In the event of the Executive's death or a judicial determination of his
incompetency, reference in this Employment Agreement to the Executive shall be
deemed, where appropriate, to refer to his beneficiary or beneficiaries.
21. CAPTIONS
Captions to the sections of this Employment Agreement are solely for
convenience and no provision hereof is to be construed by reference to the
captions of that section.
IN WITNESS WHEREOF the Corporation and the Executive herewith execute this
Employment Agreement as of the Effective Date.
VOICE MOBILITY INC.
Per:
----------------------------- ---------------------------
XXXXXX X. X'XXXXXXXX Authorized Signatory
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