EXHIBIT 10.9
AMENDMENT AGREEMENT
THIS AGREEMENT made as of the 9th day of July, 2002 made among Infowave
Software, Inc. ("Employer") and Xxxxxx Xxxxxx (the "Employee").
WHEREAS:
A. The Employer and the Employee entered into an Employment Agreement dated
February 12, 2002 (the "Employment Agreement").
B. The Parties have agreed to amend the Employment Agreement effective as of
the date of this Agreement to provide for their respective obligations on
termination of employment.
NOW THEREFORE for good and valuable consideration as set out in the letter
dated July 9th, 2002 from the Employer to the Employee (the receipt and
sufficiency of which is acknowledged and agreed by each of the parties hereto),
the parties hereto covenant and agree as follows:
1. Section 3 of the Employment Agreement is deleted in its entirety and
replaced by the following:
3. Term and Termination
3.1 This agreement shall come into effect as of the day of and year first
written above.
3.2 This agreement shall remain in effect until Termination. Termination
may occur as provided for in this section 3.
3.3 At any time, the Employer may terminate the Employee's employment
under this agreement for cause. If this agreement and the Employee's
employment are terminated for cause, no notice, salary, compensation,
benefits, stock options, allowances or pay in lieu of notice shall be
paid or payable to the Employee after or as a result of such
termination other than compensation owing to the Employee to the
effective date of such termination.
3.4 Subject to section 3.7, the Employer may terminate the Employee's
employment without cause at any time by providing the Employee with:
(a) notice in writing equal to 6.0 months or, at the Employer's
discretion, pay in lieu of notice equal to 6.0 months of base
salary or a combination of notice and pay in lieu of notice; and
(b) continuance, during the notice period, if any, of B.C. Medical
Services Plan premiums, extended health and dental premiums, to
the extent permitted by the Employer's benefit providers. All
other benefits,
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including long-term disability insurance, accidental death and
dismemberment insurance and life insurance, will terminate on the
Employee's last day of work; and
(c) compensation, if any, owing to the Employee in respect of regular
salary and accrued vacation pay, which may be owing at the time
of termination.
3.5 The Employee may terminate his obligations under this Agreement by
giving 30 days of written notice to the Board, except during a Layoff
in which case the Employee may affect Termination immediately. When
notice is required and on the giving of such notice by the Employee,
or at any time thereafter, the Employer shall have the right to elect
to immediately terminate the Employee's employment, and upon such
election, shall provide to the Employee a lump-sum equal to the base
salary only for the 30 days or to such proportion of the 30 days that
remain outstanding at the time of such election.
3.6 In the event of the Employee's resignation, the Employer shall not be
obligated to make any payments to the Employee in respect of
termination of employment other than those expressly provided for in
Section 3.5. Or in the event of the Employee's termination without
cause, the Employer shall not be obligated to make any payments to the
Employee in respect of termination of employment other than those
expressly provided for in Section 3.4. In either cause, the Employer
shall not be obligated to provide continue vesting of stock options to
the Employee.
3.7 If prior to the termination of this agreement, there is a Change of
Control (as such term is defined herein) and in the next 6 month
period following the Change of Control, the Employee is terminated
without cause, this agreement shall be deemed to have been terminated
by the Employer and, instead of providing the Employee with notice or
benefits or payments as provided for in section 3.4 (a) to (b), the
Employer shall:
(a) pay to the Employee any portion of the Employee's base salary and
accrued vacation pay, if any, which may be due and owing at the
time of such termination;
(b) pay the Employee a lump-sum equivalent to 6.0 months of the base
salary, less statutory deductions;
(c) maintain the B.C. Medical Services Plan and extended health and
dental benefits for a period of 6.0 months commencing on the
effective date of termination, to the extent permitted by law.
Long-term disability benefits, accidental death and dismemberment
and life insurance benefits shall not be maintained and shall
cease on the Employee's last day of work; and
(d) immediately vest 50% of the Employee's unvested stock options in
accordance with the Employer's Stock Option Plan, which options
shall be
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exercisable in accordance with the agreement pursuant to which
they were granted.
For greater certainty, the Employer shall not be obligated to make
payment to the Employee under both section 3.4 and section 3.7
3.8 For the purposes of this agreement, a "Change of Control" means:
(a) any Person (as defined in the Securities Act, British Columbia),
or combination of Persons acting jointly or in concert, acquiring
or becoming the beneficial owner of, directly or indirectly, more
than 50% of the voting securities of the Employer, whether
through the acquisition of previously issued and outstanding
voting securities of the Employer or of voting securities of the
Employer that have not been previously issued, or any combination
thereof or any other transaction having a similar effect; or
(b) any amalgamation, merger or arrangement of the Employer with or
into another where the shareholders of the Employer immediately
prior to the transaction will hold less than 51% of the voting
securities of the resulting entity upon completion of the
transaction (for greater certainty, in calculating the percentage
ownership, any shares issued under a contemporaneous financing
shall not be included in the calculation); or
(c) the sale of all or substantially all of the assets of the
Employer.
3.9 In the event of a Layoff, this agreement shall remain in effect during
the Layoff.
2. Confirmation of Employment Agreement. Except as otherwise provided in this
Amendment Agreement, the Employment Agreement is hereby confirmed and remains in
full force and effect in accordance with its terms.
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3. Counterparts. This Amendment Agreement may be signed in any number of
counterparts, in original and/or fax form, and each of such counterparts shall
constitute an original document and all such counterparts, taken together, shall
constitute one and the same instrument.
IN WITNESS WHEREOF the parties have executed this Agreement as of the day
and year first above written.
INFOWAVE SOFTWARE, INC.
by its authorized signatory:
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Name: Xxx XxXxxxxx
SIGNED, SEALED AND DELIVERED in )
the presence of: )
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Witness )
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Name ) XXXXXX XXXXXX
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Address )
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Occupation )
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