EMPLOYMENT AGREEMENT
Agreement (this "Agreement"), dated as of June 20, 1999, by and between
VOICE MOBILITY INC., a British Columbia corporation, having its principal place
of business at 701- 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
Xxxxxx (the "Corporation"), and Xxxx Xxxxxxx, residing at 000 Xxxxxxx Xxx.,
Xxxxx Xxxxxxxxx, X0X 0X0 (the "Executive").
WHEREAS, the Corporation desires to employ the Executive as an executive
officer, and the Executive is willing to accept such employment, all subject to
the terms and conditions set forth herein:
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements set forth herein, the parties hereto (the "Parties") agree as
follows:
1. EMPLOYMENT AND TERM
Subject to the terms and conditions hereof, the Corporation hereby employs
the Executive, and the Executive hereby accepts employment by the Corporation,
for a period of three (2) years commencing on the date hereof.
2. DUTIES
The Executive shall serve the Corporation as its Vice President of
Operations and, in such capacity, subject to the direction of the Corporation's
President, Chief Executive Officer and Board of Directors, he shall be
responsible for the all duties as outlined in the attached job description.
3. COMPENSATION
(a) Base Salary. As base compensation for the services to be rendered by
the Executive hereunder, the Corporation agrees to pay the Executive
an annual base salary in the amount of $100,000, such salary to be
paid in bi-weekly installments.
(b) Additional compensation in the form of stock options will be available
to the Executive pursuant to the Stock Option Plan.
4. INITIAL GRANT OF OPTIONS.
As a signing bonus, the Corporation shall grant to the Executive as of the
date hereof and pursuant to a separate Stock Option Agreement, 250,000 stock
options. Availablity of said options will be subject to the option plan as
adopted by the Board of Directors. A further 250,000 will be made availbale
based upon an agreed to performance criteria.
5. EXPENSE REIMBURSEMENT.
The Executive shall be entitled, on a basis consistent with the
Corporation's policy applicable to its executives, to reimbursement for all
normal and reasonable travel, entertainment and other expenses necessarily
incurred by him in the performance of his obligations hereunder. The Corporation
shall reimburse the Executive for such expenses upon presentation to the
Corporation, within a reasonable time after such expenses are incurred, of an
itemized account of such expenses, together with such vouchers or receipts for
individual expense items as the Corporation may from time to time require under
its established policies and procedures.
6. OTHER BENEFITS.
(a) Car Allowance. The Corporation shall also pay the executive an
allowance to cover the cost of leasing an automobile of his choice,
with such allowance not to exceed $500 per month..
(b) Participation in Benefit Plans. The Executive shall be entitled to
participate in or benefit from, in accordance with the eligibility and
other provisions thereof, any such medical insurance, pension,
retirement, life insurance, bonus, profit-sharing, or other fringe
benefit plans or policies as the Corporation may make available to, or
have in effect for, its executive personnel from time to time,
including, without limitation, those plans set forth on Schedule "A".
Plans and benefits may be modified or eliminated by the Corporation
from time to time as it determines in its sole discretion.
(c) Vacation. The Executive shall be entitled to a minimum of three (3)
weeks of paid vacation each calendar year.
7. TERMINATION ON DISABILITY OR DEATH
(a) In the event that the Executive is unable to perform his services to
the Corporation by reason of physical or mental disability or
incapacity for a period of more than three successive months, the
Corporation may terminate this Agreement. Periods of disability shall
not be counted as successive if the Executive has returned to work for
at least one month between such periods of disability. To the extent
that the Corporation maintains disability insurance for the benefit of
the Executive, any compensation paid to the Executive by the
Corporation during the term of Executive's disability shall be repaid
to the Corporation to the extent that the Executive receives
disability benefits for the same time period. Once disability benefits
have begun, any compensation due under this Agreement shall be reduced
by the same amount received by the Executive. The Executive's
employment shall terminate immediately upon his death.
(b) Upon termination of the Executive's employment by reason of his death
or disability as aforesaid, the Executive, or in the case of the
Executive's death, the Executive's personal representatives, shall be
entitled to receive all base compensation earned or accrued to the
date of such termination and not theretofore paid.
8. TERMINATION FOR CERTAIN CAUSES.
In the event of (i) the conviction of the Executive of any criminal code
offence under federal or provincial law, or (ii) willful gross misconduct of the
Executive in the performance of his duties hereunder; (iii) a material breach of
any of the provisions of this Agreement, where such breach has not been cured by
the Executive within a period of ten days of receipt of written notice from the
Corporation of proposed termination specifying the particular breach; (iv) the
Executive's abuse of alcohol or illegal drugs, unless, in the sole discretion of
the Corporation, the Executive shall successfully complete a qualified
rehabilitation program; (v) any act of theft or fraud by the Executive against
the Corporation.
Termination without cause entitles the Executive to three months' salary
and benefits.
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9. DISCLOSURE AND ASSIGNMENT OF DISCOVERIES
(a) The Executive hereby covenants and agrees to disclose promptly and
fully, in writing, whenever possible, to the Corporation and its
attorneys and designated representatives, without additional
compensation, all ideas, formulae, programs, systems, devices,
inventions, processes, business concepts, discoveries, improvements,
developments, works of authorship, product marks and designations,
technical information and know-how, whether or not patentable,
copyrightable or otherwise protectable relating to the business and
products of the Corporation (together, the "Developments"), which he
may conceive, develop, reduce to practice, acquire or make, along or
jointly with others:
(i) during the term of his employment with the Corporation, whether
during or outside of the usual hours of work;
(ii) within a period of two years after termination of his employment
with the Corporation; and
(iii)at any time after termination of his employment with the
Corporation, if such Developments arise out of any work done or
concepts developed by the Executive, alone or with others, during
his employment by the Corporation.
The Executive hereby agrees that all of his right, title, and interest in
and to such Developments shall be deemed as held by him in a fiduciary capacity
solely for the benefit of the Corporation, shall be the sole and exclusive
property of the Corporation and shall be subject to the confidentiality
provisions of Paragraph 11 as confidential information of the Corporation.
(b) The Executive, when required to do so, either during or after the term
of his employment with the Corporation, shall:
(i) assign and convey to the Corporation his entire right, title and
interest in and to the Developments to the extent not owned by
the Corporation as a matter of law from the time of their
creation and execute, acknowledge and deliver all such further
instruments and documents, in form and substance satisfactory to
the Corporation, as it shall deem reasonably necessary or
advisable to evidence the vesting in the Corporation of all
right, title and interest of the Executive in and to the
Developments;
(ii) assist the Corporation and its agents in preparing patent
applications, domestic and foreign, covering the Developments;
(iii)sign and deliver all such applications and assignments of the
same to the Corporation; and
(iv) generally give all information and testimony, sign all papers and
do all things which may be needed or requested by the Corporation
to the end that the Corporation may obtain, extend, reissue,
maintain and enforce United States and foreign patents covering
the Developments.
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(c) The Executive hereby irrevocably nominates and appoints the
Corporation his attorney-in-fact to sign and deliver all such papers,
and perform all such acts, mentioned in Paragraph 9(b), in the event
of the Executive's absence, unavailability, refusal, or death, such
nomination and appoint hereby being granted with full authority in the
premises, and such authority to be deemed coupled with an interest
vested in the Corporation.
(d) The Corporation agrees to bear all expenses which it causes to be
incurred in obtaining, extending, issuing, maintaining and enforcing
such patents and in investing and perfecting title thereto in the
Corporation, and agrees further to pay the Executive for any time
which it may require of him therefore, and for any services that may
be required of him pursuant to Paragraph 9(b), subsequent to the
termination of his employment with the Corporation, such payment to be
at an hourly rate equivalent to that at which the Executive is paid at
the time of the termination of his employment by the Corporation.
(e) In the event of the unenforceability of all or part of the foregoing
provisions in this Paragraph 9, as determined by a court of competent
jurisdiction, the Executive hereby transfers and assigns to the
Corporation such lesser interests in the Developments, including
without limitation, any and all United States and foreign patent
rights therein and renewals thereof, as may be determined by such a
court to be a reasonable grant of interests under the circumstances,
but, in any event, and without limitation, the Executive shall be
deemed to have granted to the Corporation not less than an
irrevocable, non-exclusive license, with the right to sublicense
others, to manufacture, use, lease and sell the Developments which
have not been assigned to the Corporation under the provisions of
Paragraph 9(b), without payment of any royalty.
10. CONFIDENTIALITY
(a) The Executive understands and hereby acknowledges that as a result of
his employment with the Corporation, he will necessarily become
informed of, and have access to, certain valuable and confidential
information of the Corporation and its subsidiaries, joint ventures
and affiliates, including, without limitation, inventions, trade
secrets, technical information, know-how, plans, specifications,
identity of customers and suppliers, and that such information, even
though it may be developed or otherwise acquired by the Executive, is
the exclusive property of the Corporation to be held by the Executive
in trust and solely for the Corporation's benefit. Accordingly, the
Executive hereby agrees that he shall not, at any time, either during
or subsequent to his employment hereunder, use, reveal, report,
publish, transfer or otherwise disclose to any person, corporation or
other entity, any of the Corporation's confidential information
without the prior written consent of the Corporation, except to
responsible officers and employees of the Corporation and other
responsible persons who are in contractual or fiduciary relationship
with the Corporation or who have a need for such information for
purposes in the interest of the Corporation, and except for such
information for purposes in the interest of the Corporation, and
except for such information which legally and legitimately is or
becomes of general public knowledge from authorized sources other than
the Executive.
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(b) Upon the termination of his employment with the Corporation for any
reason whatsoever, the Executive shall promptly deliver to the
Corporation all drawings, manuals, letters, notes, notebooks, reports
and copies thereof, and all other materials, including, without
limitation, those of a secret and confidential nature, relating to the
Corporation's business which are in the Executive's possession or
control.
11. NON-COMPETITION.
The Executive agrees that, during the term of this Agreement and for a
period of one year after the expiration or termination of his employment with
the Corporation, he shall not, anywhere in the United States of America or
elsewhere in the world (or in such small 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 the Executive), directly or indirectly:
(i) engage in a competitive line of business to the business carried
on by the Corporation, either for his own account or with or for
anyone else;
(ii) solicit or attempt to solicit business of any customers of the
Corporation for products or services the same or similar to those
offered, sold, produced or under development by the Corporation;
(iii)otherwise divert or attempt to divert from the Corporation any
business whatsoever;
(iv) solicit or attempt to solicit for any business endeavor any
employee of the Corporation;
(v) interfere with any business relationship between the Corporation
and any other person; or
(vi) render any services as an officer, director, employee, partner,
consultant or otherwise to, or have any interest as a partner,
lender or otherwise in, any person which is so engaged.
For purposes of subparagraph 11(i) and (ii) it shall not be deemed a
violation of these subparagraphs if after the expiration or termination of this
Agreement, the Executive, either for his own account or with or for anyone else,
engages in the sale, manufacture, distribution or marketing of products or
services that are not at that time sold, manufactured distributed or marketed by
the Corporation.
12. REMEDIES
Because the Corporation does not have an adequate remedy at law to protect
its business from the Executive's competition or to protect its interests in its
trade secrets, privileged, proprietary or confidential information and similar
commercial assets, the Corporation shall be entitled to injunctive relief, in
addition to such other remedies and relief that would, in the event of a breach
of the provisions of Paragraphs 9, 10, and 11, be available to the Corporation.
In the event of such a breach, in addition to any other remedies, the
Corporation shall be entitled to receive from the Executive payment of, or
reimbursement for, its reasonable attorneys' fees and disbursements incurred in
enforcing any such provision.
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13. SURVIVAL
The provisions of Paragraphs 9, 10, and 11 shall survive termination of
this Agreement for any reason.
14. ENTIRE AGREEMENT
This Agreement sets forth the entire understanding of the Parties and
merges and supersedes any prior or contemporaneous agreements between the
Parties pertaining to the subject matter hereof. This Agreement may not be
changed or terminated orally, and no change, termination or attempted waiver of
any of the provisions hereof shall be binding unless in writing and signed by
the Party against whom the same is sought to be enforced; provided, however,
that the Executive's compensation may be increased at any time by the
Corporation without in any way affecting any of the other terms and conditions
of this Agreement, which in all other respects shall remain in full force and
effect. Failure of a Party to enforce one or more of the provisions of this
Agreement or to require at any time performance of any of the obligations hereof
shall not be construed to be a waiver of such provisions by such Party nor to in
any way affect the validity of this Agreement of such Party's right thereafter
to enforce any provision of this Agreement, nor to preclude such party from
taking any other action at any time which it would legally be entitled to take.
15. SUCCESSORS AND ASSIGNS
Neither Party shall have the right to assign this Agreement, or any rights
or obligations hereunder, without the consent of the other Party; provided,
however, that upon the sale of all or substantially all of the assets, business
and goodwill of the Corporation to another corporation, or upon the merger or
consolidation of the Corporation with another corporation, this Agreement shall
inure to the benefit of, and be binding upon, both the Executive and the
corporation purchasing 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 corporation were the Corporation. Subject to the
foregoing, this Agreement shall inure to the benefit of, and bind, the Parties
and their legal representatives, heirs, successors and assigns.
16. ADDITIONAL ACTS
The Executive and the Corporation each agrees that h or it shall, as often
as requested to do so, execute, acknowledge and deliver and file, or cause to be
executed, acknowledged and delivered and filed, any and all further instruments,
agreements or documents as may be necessary or expedient in order to consummate
the transactions provided for in this Agreement and do any and all further acts
and things as may be necessary or expedient in order to carry out the purpose
and intent of this Agreement.
17. COMMUNICATIONS
All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been given at the time
when mailed in any post office enclosed in a registered or certified postage
prepaid envelope and addressed to the addresses set forth at the beginning of
this Agreement, or to such other address as any party may specify by notice to
the other party; provided, however, that any notice of change of address shall
be effective only upon receipt.
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18. CONSTRUCTION
The headings of the paragraphs of this Agreement have been inserted for
convenience of reference only and shall in no way restrict or otherwise affect
the construction of the terms or provisions hereof. References in this Agreement
to Paragraphs are to the paragraphs of this Agreement.
19. COUNTERPARTS
This Agreement may be executed in multiple counterparts, each of which
shall be deemed to be an original and all of which together shall be deemed to
be one and the same instrument.
20. SEVERABILITY
If any provision of this Agreement is held to be invalid or unenforceable
by a court or tribunal of competent jurisdiction, such invalidity or
unenforceability shall not affect the validity and enforceability of the other
provisions of this Agreement and the provision held to be invalid or
unenforceable shall be carried out as nearly as possible according to its
original terms and intent to eliminate such invalidity or unenforceability.
21. GOVERNING LAW
This Agreement is made and executed and shall be governed by the laws of
the Province of British Columbia, Canada applicable to contacts made in and to
be performed in British Columbia.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the
date first set forth above.
VOICE MOBILITY INC.
By: /s/Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx,
President
/s/Xxx Xxxxxxx
------------------------
Bud Stewar1,
The Executive
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