EXHIBIT 10.23
EMPLOYMENT AGREEMENT - Xxx Xxxx
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This Deed of Agreement dated [October 21, 2002], 2001 is made between [Xxxxx
Xxxxxx Xxxx] ("I" or "me") and MDSI MOBILE DATA SOLUTIONS INC., including each
of its corporate subsidiaries and affiliates (collectively, "MDSI").
The parties agree as follows:
1. Definitions
1.1 In this Agreement the following words shall have the meanings described
below:
(a) "Confidential Information" means any information identified or reasonably
identifiable as confidential and proprietary information of MDSI concerning
MDSI's scientific and business interests not generally available to third
parties including: (i) production processes, business plans and other
materials or information relating to the business of MDSI; (ii) computer
software, in source and executable code, and related documentation in any
media including all modifications, enhancements and versions and all
options available for such software; and (iii) information defined herein
as a Trade Secret but which is determined by a court of competent
jurisdiction not to rise to the level of a trade secret under applicable
law.
(b) "Trade Secret" means any information identified or reasonably identifiable
as confidential and proprietary information of MDSI which: (i) derives
economic value, actual or potential, from not being generally known to
other persons who might obtain economic value from its disclosure or use;
or (ii) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
(c) "Work Product" means any work, research or development produced or created
by me during the term of this Agreement pertinent to MDSI's technical,
scientific or business interests including Confidential Information and
Trade Secret material.
(d) "Client" means any Person who or which at any time during the period of
[six months] immediately prior to the Termination Date was a client of MDSI
or any Relevant Associated Company and with whom or which I dealt on behalf
of MDSI or any Relevant Associated Company during such period;
(e) "Directly or Indirectly" means (without prejudice to the generality of the
expression) whether as principal or agent; whether alone, jointly, in
partnership with another or for or on behalf of another; whether as a
shareholder, director (including a shadow director), agent, principal,
partner, consultant, employee or otherwise; or by virtue of providing
financial assistance;
(f) "Key Person" means a person who was at any time during the period of six
months immediately prior to the Termination Date engaged or employed as an
employee, director, consultant (other than a professional adviser) or agent
of MDSI or any Associated Company and who was both a person with whom I
personally dealt during my employment by MDSI; and employed or engaged in a
senior capacity and/or remunerated at over (pound)50,000 per year.
(g) "Materially Interested" means employed or engaged by or concerned or
interested in (whether directly or indirectly) other than as a shareholder
holding directly or indirectly by way of bona fide investment only up to 3%
in nominal value of the issued shares or other securities of any class of
any company listed or dealt in on any Recognised Investment Exchange;
(h) "Person" means person, firm, company, association, corporation or other
organisation or entity;
(i) "Prospective Client" means any Person with whom or which at any time during
the period of [six] months prior to the Termination Date I, on behalf of
MDSI or any Relevant Associated Company, have been in negotiation with a
view to the provision of MDSI's or any Relevant Associated Company's
services to such Person;
(j) "Recognised Investment Exchange" means a body which is a recognised
investment exchange for the purposes of the Financial Services Xxx 0000;
(k) "Relevant Associated Company" means any Associated Company to which I have
rendered services both in the period of 12 months immediately prior to the
Termination Date and in the course of my employment by MDSI;
(l) "Restricted Area" means Europe;
(m) "Restricted Services" means services which compete with those provided by
MDSI or any Relevant Associated Company in the ordinary course of its
business during the period of 12 months immediately prior to the
Termination Date; and the provision of which I was concerned or engaged
during my employment by MDSI;
(n) "Supplier" means any Person who or which at any time during the period of
six months prior to the Termination Date has provided goods and/or services
to MDSI or any Relevant Associated Company and who or which dealt directly
or indirectly with me in the course of such supply.
(o) "Termination Date" means the date of the termination of my employment with
MDSI.
2. Non-Disclosure of Confidential Information, Trade Secrets or Work Product
2.1 I agree to keep confidential and not, directly or indirectly, divulge or
disclose to anyone nor use or otherwise appropriate Confidential
Information, Trade Secrets or Work Product either during or any time after
the term of my employment other than for the benefit of MDSI. I agree to
keep such information confidential unless it has become readily available
to the public in the same form or is lawfully obtained in the same form by
me from an independent third party without breach to this agreement.
2.2 I also certify that I have not brought and shall not bring to MDSI or use
any materials or documents of a former employer or third party which are
not generally available to the public. I further understand that while
employed by MDSI, I am not to breach any obligation of confidence or duty
that I may have to a former employer or third party. I further warrant and
represent to the best of my knowledge and belief that I have disclosed to
MDSI any documentation and matters relating to legal obligations to my
former employer that would prevent me from accepting employment with MDSI
or impinge on my ability to perform my contract of employment to the best
of my ability. I further agree that if MDSI deems it necessary to terminate
my employment as a result of an alleged breach of any obligation to my
former employer then MDSI may terminate my employment without notice or
compensation.
2.3 During the term of my employment at MDSI, I agree to devote my entire time
and energy during normal business hours and use my best efforts to the
furtherance of the business of MDSI and shall not, unless expressly
permitted by MDSI, directly or indirectly, in any advisory or other
capacity work for any individual, firm or corporation other than for MDSI.
2.4 I further understand that while employed by MDSI, provided that I have not
breached Sections 2, 3 or 4 of this Agreement, MDSI will not restrict my
involvement or interest in any activities which I may engage in outside of
normal business hours.
3. Ownership of Work Product
3.1 I agree that any Work Product created while I am employed with MDSI related
to any identifiable project carried out by MDSI either solely or jointly
with another party shall be the sole and exclusive property of MDSI. MDSI
is and shall be the sole owner of all copyrights, patents and other
intellectual property rights in the Work Product.
3.2 I agree to assign to MDSI any rights that I may have or acquire in the Work
Product and waive all claims to the Work Product including any moral rights
I may have 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 of it, or to restrain the use
or reproduction of the Work Product in any context, or
in connection with any product or service. At any and all times, either
during or after termination of my employment with MDSI, I shall promptly,
on the request of MDSI, perform all such acts and execute and deliver all
such documents that may be necessary to vest in MDSI the entire right title
and interest in and to any Work Product. Should I render any such services
after the termination of my employment, a reasonable compensation will be
paid to me by MDSI.
3.3 I certify that I have not brought any confidential information from any
other source with me to MDSI and will not incorporate it into any Work
Product of MDSI.
3.4 I further understand that MDSI has no interest, financial or otherwise, in
any work product that I may have been involved in previous to my employment
at MDSI.
3.5 I also understand that provided I have not breached this Agreement, MDSI
will have no interest, financial or otherwise, in any work product
developed by me subsequent to the termination of my employment with MDSI.
4. Conflict of Interest and Non-Competition
4.1 I agree with and undertake to MDSI for itself and as agent for every
Associated Company that I will not Directly or Indirectly following the
Termination Date:
(a) for the period of [six] months be Materially Interested in any Person
providing Restricted Services within the Restricted Area in competition
with MDSI or any Relevant Associated Company and acknowledge that at the
date of this agreement the list at Schedule A is a list of such Persons;
(b) for the period of [twelve] months solicit the custom or entice away or
attempt or endeavour to solicit the custom or entice away from MDSI or any
Relevant Associated Company any Client or any Prospective Client;
(c) for the period of [twelve] months supply Restricted Services to any Client
or any Prospective Client in competition with MDSI or any Relevant
Associated Company [within the Restricted Area];
(d) for the period of [twelve] months be employed or otherwise engaged by any
Client or any Prospective Client in a capacity which competes with or which
may compete with the services provided by MDSI or by any Relevant
Associated Company;
(e) for the period of [twelve] months solicit or entice away from MDSI or any
Relevant Associated Company any Key Person;
(f) for the period of [twelve] months offer employment to or employ or enter
into partnership or association with (or offer so to do) or retain the
services (or offer so to do) whether as agent, consultant or otherwise of
any Key Person; or
(g) for the period of [ twelve ] months solicit or attempt to solicit; accept;
or place orders for, the supply of goods or services from any Supplier
where as a consequence such Supplier may or is likely to cease supplying,
reduce its supply to or vary the terms on which it supplies such goods or
services to MDSI or any Relevant Associated Company.
4.2 I acknowledge and agree that the restrictions in paragraph 4.1 above are
reasonable in the circumstances due to the nature of the business of MDSI
and the technologies with which MDSI is involved. If any provisions of the
covenants contained in paragraph 4.1 are deemed unenforceable for any
reason, by any court of competent jurisdiction, then it is specifically
intended and agreed by me, that the terms of the Agreement shall be
modified so as to be enforceable to the extent deemed reasonable by such
court.
5. Employment, Remuneration, Benefits Termination
5.1 MDSI agrees to employ me in the position described in the letter of
engagement (the "Letter") and I agree to accept as compensation for all my
services to be rendered to MDSI under this Agreement the salary and
benefits as set out in the Letter. Such employment will commence on the
date established in the Letter and may be adjusted for merit from time to
time at the sole discretion of MDSI during the term of this Agreement.
5.2 I shall be entitled to vacation periods in line with the MDSI policies
applicable to employees of the United Kingdom. If I do not use all vacation
days in any calendar year, I shall be permitted to carry over those
vacation days which must be taken or be forfeited within the first four
months of the next calendar year.
5.3 I agree that upon my termination of my employment with MDSI for any reason,
I shall immediately return to MDSI all Confidential Information, Trade
Secrets, Work Product, lists, books, records, designs, software codes and
technical material (irrespective of the media or form it may be in) and
other property belonging to MDSI including keys, security passes, credit
and calling cards and equipment.
5.4 I shall be entitled to terminate employment with MDSI, at will, at any time
by providing three months notice in writing to MDSI.
5.5 MDSI may terminate my employment, at will and without cause, at any time by
giving me three months notice (or pay in lieu of such notice) in writing of
such termination. MDSI shall pay all bonuses and salary owing up to the
date of termination.
6. General
6.1 This together with the Letter is the full and complete statement of the
agreement between MDSI and myself regarding this Agreement and supersedes
and merges all prior representations, proposals, understandings and all
other agreements, oral or written, express or implied, between MDSI and I
relating to this subject matter. This Agreement may not be modified or
altered except in writing and signed by both MDSI and myself.
6.2 All notices under this Agreement shall be given in writing and shall be
deemed given as of the same day the notice is delivered in person,
couriered or faxed to the other party.
6.3 This Agreement shall be governed by laws of the United Kingdom.
6.4 If any provision of this Agreement is held to be invalid, illegal or
unenforceable under any applicable statute or rule of law, the validity,
legality and enforceability of the remaining provisions shall in no way be
affected or impaired thereby.
6.5 The parties agree that MDSI may assign its rights under this Agreement and
this Agreement shall be for the benefit of the successors and assigns of
MDSI and shall be binding upon me, my heirs, executors, administrators,
guardians or successors. I agree that I may not assign my rights, duties or
obligations under this Agreement.
6.6 The waiver or failure of either MDSI or myself to exercise any right
provided for herein shall not be deemed a waiver of any further right under
this Agreement. 6.7 Sections 3 and 4 and Paragraph 2.1 shall survive the
termination or expiration of this Agreement.
6.8 I acknowledge that irreparable harm may result to MDSI if I breach any of
my obligations under Sections 2 or 4 hereof.
IN WITNESS WHEREOF the parties have executed this deed of Agreement as of the
date written above.
SIGNED as a DEED by )
EMPLOYEE NAME_ in the presence of: )
)
)
Witness )
Signature: ___________________________ ) ----------------------
) Xxx Xxxx
EXECUTED AS A DEED by
MDSI MOBILE DATA SOLUTIONS INC.
Per: ________________________________
Director
Per: ________________________________
Director/Secretary
Witness
Signature: ___________________________
Schedule A
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MDSI Competitors
The following is a listing of those companies in competition with MDSI. It is
understood that companies which enter into direct competition with MDSI
subsequent to the signing of this Agreement may be included based upon the
characteristics of the company in relation to those found in this Schedule.
Astea International Inc.
CSG Systems (Workforce Management Division)
Telecordia (Workforce Management Division)
x-Xxxxxxxx.xxx Wireless Data Inc.
eMobile Data Inc.
iMedion Inc.
M3i Systems Inc.
Service Power
3X
W-6
Utility Partners
MobileForce Technologies Inc.
ClickSoftware Inc.
Metrix Inc.
Cerulean
PRC
Tiberon Systems
New World Systems
FieldCentrix
PointServe
X-Time
ViryaNet
Lucent (Workforce Management Division)
Oracle (Workforce Management Division)
PeopleSoft (Workforce Management Division)
Clarify (Workforce Management Division)
Dynamic Mobile Data
WebAppoint
MegaTribe
ServicePower
Aether
Thinque
Intergraph
SAP
Logica
