EXHIBIT 10.22
EMPLOYMENT AGREEMENT
THIS AGREEMENT made to have effect the 7th day of May, 2001.
BETWEEN:
MDSI MOBILE DATA SOLUTIONS INC., a corporation duly incorporated under
the federal laws of Canada and having its offices at 00000 Xxxxxxxxxxx
Xxx, Xxxxxxxx, X.X. X0X 0X0
(the "Company")
AND:
XXXXX XXXX XXXXXX, a businessman, residing at 0000 Xxxxxxxx Xxxxx,
Xxxxxxxx, X.X. X0X 0X0
(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;
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 Executive Vice President
of the Company and the Executive hereby accepts such employment. The Executive
shall report to the President and Chief Operating Officer of the Company and
shall perform all duties and have all authority incident to the position of
Executive 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, and such additional authority as he may from time to time
be given, by the President and Chief Operating Officer.
1.2 The Executive shall perform his duties out of the Richmond office of the
Company or out of such other office in the lower mainland area of British
Columbia, which the Company shall establish and designate as its Vancouver head
office. The Executive's duties will involve extensive domestic and international
travel.
1.3 The parties agree that this Agreement will be for a period of one (1) year
commencing on May 7, 2001 and expiring on May 7, 2002. This Agreement may be
extended by the parties in writing from time to time for additional consecutive
periods of one (1) year each by mutual agreement, provided that such extension
is agreed to at least two (2) months in advance of expiry date.
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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 Operating 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
Canadian $220,000 gross payable bi-monthly.
3.2 All payment of salary shall be subject to deduction of all applicable
Federal and Provincial income tax, unemployment insurance, Canada Pension
deductions and other 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, pager, 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
70,000 common shares in the capital of the Company at an exercise price equal to
closing price of Company shares on the Toronto Stock Exchange ("TSE") on the
last trading day prior to the date of grant. The option to purchase the first
one-third 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 24
months commencing one month after the first anniversary date of the date of the
grant.
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5.3 All stock options granted to the Executive pursuant to this Agreement shall
automatically vest in the event of a Change of Control (as defined in the
Company's Stock Option Plan).
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 six months (6) months 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 six (6) weeks vacation per annum.
7. BENEFITS
7.1 The Executive shall receive those benefits (including medical, dental,
extended health insurance, short and long term disability, life insurance and
family assistance) which are provided to Canadian based 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 for a period
of 180 days or until long term disability begins whichever period is shorter.
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 acknowledges that in the exercise of his duties with the
Company he will develop and receive information which is proprietary or
confidential to the Company, 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;
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information with respect to the identity and special needs of the Company's
customers (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. 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.
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 Executive agrees that the Company has a legitimate interest in ensuring
that Confidential Information will neither be used by the Company's competition
nor by the Executive for a purpose other than the execution of his functions as
an employee of the Company. Therefore, the Company and the Executive
specifically agree:
(i) that during the term of his employment, under no circumstances will
the Executive compete with the Company either on his own behalf or on
behalf of or as an employee of a third party;
(ii) for a period of two (2) years following the termination of his
employment with the Company the Executive shall not compete with the
Company either on his own account or on behalf of or as an employee of
any third party; and
(iii)for a period of two (2) years following the date of termination of
his employment with the Company the Executive shall not approach any
other employee of the Company for the purpose of recruiting that
employee to his own service or offering or causing to be offered to
such other employee a new position or employment with any other person
or company
10.2 The Executive acknowledges and agrees that there can be no geographic limit
to his covenant not to compete due to the nature and extent of the business of
the Company, the market for the Company products and the technologies with which
the Company is involved.
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10.3 The parties to this agreement recognize that a breach by the Executive of
any of the covenants contained in Sections 9 and 10 of this Agreement would
cause irreparable harm to the Company which could not be adequately compensated
for by monetary damages. Accordingly the Executive agrees that in the event of a
breach by him of any of the covenants contained in Sections 9 and 10 of this
Agreement, he shall and hereby does consent to an injunction being issued
against him restraining him from any further breach of the said covenants. The
provisions of this section shall not be construed so as to affect or impair any
other remedies which the Company may have in the event of such breach, including
but not limited to an action for damages.
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 This Agreement does not apply to any general techniques, formulae,
algorithm or method for which no equipment, supplies, facility or other
resources or trade secret information of the Company was used and which was
developed entirely on the Executive's own time unless such techniques, formulae,
algorithms, or method related directly to the business of the Company or the
Company's actual demonstrated anticipated research or development.
11.4 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.
11.5 The Employee hereby assigns to the Company any rights the Employee may have
or acquire in the Work Product and waives all claims whatsoever with respect to
the Work Product including any moral rights which he/she 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
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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. TERMINATION OF EMPLOYMENT
12.1 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.
12.2 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 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.
12.3 At any time within the first six (6) months of this Agreement, 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 two (2)
months or payment in lieu thereof. Thereafter, 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 six (6) 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 12.3, the Company shall also pay to him an amount equal to his
annual accrued vacation pay, less any vacation days actual taken by the
Executive during the then-current year.
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13. CHANGE OF CONTROL OF THE COMPANY
13.1 In this section the term "Change of Control" shall mean:
(a) the sale of greater than 50% of the issued and outstanding common
shares in the capital of the Company pursuant to a "takeover bid" (as
defined in the British Columbia Securities Act);
(b) the disclosure that any person (a "Control Person") directly or
indirectly, beneficially or legally owns, or exercises control or
direction over, greater than 50% of the issued and outstanding shares
in the capital of the Company, in any xxxxxxx xxxxxxx report,
information circular, prospectus, offering memorandum, material change
report or other disclosure document of the Company or any such Control
Person, filed or required to be filed with the British Columbia
Securities Commission, the TSE or any other securities regulatory
authority or stock exchange;
(c) the sale or disposition of all or substantially all of the assets of
the Company to a non-affiliated party;
(d) the merger, amalgamation or consolidation of the Company with or into
any other non-affiliated corporation; or
(e) the appointment of a liquidator, receiver, receiver-manager, or
trustee in bankruptcy of the Company, or the making of any assignment
or proposal to or for the benefit of the creditors of the Company.
13.2 In the event that the Company undergoes a Change of Control the Executive
shall have the right at any time within thirty (30) days from the date on which
the Change of Control occurred to resign from his employment with the Company in
accordance with Section 12.2 above, in which case he shall be entitled to
receive the severance package described in Section 12.3 above.
13.3 The Executive will not be required to mitigate the amount of any payment or
benefit provided for under this Section 13 or any damages resulting from a
failure of the Company to make any such payment or to provide such benefit, by
seeking other employment, or otherwise, nor shall the amount of any payment or
benefit provided for under this Section 13 be reduced by any compensation earned
by the Executive from employment or self employment.
14. RESIGNATION AND INDEMNITY
14.1 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.
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14.2 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.
14.3 Without limiting the generality of the foregoing of Section 14.2 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;
(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.
14.4 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 14 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 14.2 and Section 14.3 and all income
taxes payable as a result of the receipt of the indemnity payment.
14.5 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
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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.
14.6 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.
15. RETURN OF PROPERTY
15.1 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.
16. SURVIVAL
16.1 Notwithstanding the termination of this Agreement for any reason whatsoever
the provisions of Sections 9, 10, 11 and 14 hereof and any other provisions of
this Agreement necessary to give efficacy thereto shall continue in full force
and effect following such termination.
17. NOTICE
17.1 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: MDSI Mobile Data Solutions Inc.
00000 Xxxxxxxxxxx Xxx
Xxxxxxxx, X.X. X0X 0X0
Attn: President
Phone: 000-000-0000
Fax: 000-000-0000
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AND TO: Xxxxx Xxxx Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, X.X. X0X 0X0
Phone: 000-000-0000
Fax: 000-000-0000
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.
18. ENTIRE AGREEMENT
18.1 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.
19. AMENDMENTS AND WAIVERS
19.1 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.
20. BENEFITS OF AGREEMENT
20.1 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.
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21. SEVERABILITY
21.1 If any provision of this Agreement is deemed to be void or unenforceable,
in whole or in part, it shall not be deemed to affect or impair the validity or
any other provision hereby declared and agreed to be severable from each and
every other section, subsection or provision hereof and to constitute separate
and distinct covenants. The Executive hereby agrees that all restrictions herein
are reasonable and valid and all defences to the strict enforcement thereof by
the Company are hereby waived by the Executive.
22. GOVERNING LAW
22.1 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.
23. COPY OF AGREEMENT
23.1 The Executive hereby acknowledges receipt of a copy of this Agreement duly
signed by the Company.
IN WITNESS WHEREOF the parties have executed this Agreement as of the day and
year first above written:
SIGNED, SEALED AND DELIVERED by )
XXXXX XXXX XXXXXX )
in the presence of: )
)
/s/ Xxxxxx Xxxxxx )
---------------------------- ) /s/ Xxxxx Xxxx Xxxxxx
Witness ) --------------------------------
) XXXXX XXXX XXXXXX
00000 Xxxxxxxxxxx Xxx )
Xxxxxxxx X.X. X0X 0X0 )
---------------------------- )
Address )
)
Legal Assistant )
---------------------------- )
Occupation )
MDSI MOBILE DATA SOLUTIONS INC.
Per: /s/ Xxxx Xxxxxx
-------------------------------
Authorized Signatory
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Schedule "A"
Job Description: Executive Vice President
Purpose:
To establish short-term and long-range objectives, plans and policies subject to
the approval of the President and Chief Operating Officer. To direct all aspect
of the Company's technical operations, including product development, product
implementation and quality assurance, to monitor performance of such activities
and ensure objectives are met.
Duties and Responsibilities:
Develop corporate goals, objectives and strategies for the Company's technical
operations in accordance with direction from the Company. Directs and
coordinates Company's technical 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 technical
staffing plan that meets the on-going operational 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.
