EXHIBIT 10.21
EMPLOYMENT AGREEMENT
THIS AGREEMENT made to have effect the 9th day of May, 2000.
BETWEEN:
MDSI MOBILE DATA SOLUTIONS INC. a Canadian corporation, having a place
of business at 00000 Xxxxxxxxxxx Xxx, Xxxxxxxx, X.X., Xxxxxx, X0X 0X0
(the "Company")
AND:
Xxxxxxx X. Xxxxxxxx, residing at 000 Xxxx Xxxx Xxxxxx, Xx. Xxxxx,
Xxxxxxxx, XXX. 00000
(the "Employee")
WHEREAS the Company wishes to employ the Employee and the Employee 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:
EMPLOYMENT
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1.1 The Company hereby employs the Employee in the position of Senior Vice
President & General Manager, reporting to the President & COO, and the
Employee hereby accepts such employment. The Employee shall perform all
executive duties incident to such position and such executive duties as may
be reasonably required from time to time by the President & COO, or the
CEO. An outline of the initial job description is set forth in Schedule "A"
hereto. The Employee's employment will commence upon the closing of the
merger between MDSI and Connectria.
1.2 The Employee shall perform his duties working out of the St. Louis,
Missouri office and the Employer shall at all times provide for Employee in
the greater St. Louis metropolitan area, an office with clerical and
administrative staff and equipment required for Employee to perform
Employee's duties. The Employee shall not be required to transfer to, or be
based at, an office located outside the greater metropolitan St. Louis area
without the Employee's consent. The Employee shall during his employment
act at all times in accordance with the policies set forth from time to
time by the Company and applicable to its executives generally, including
without limitation, its business conduct policy, a copy of which has been
supplied to the Employee who acknowledges its receipt.
EXCLUSIVE SERVICE
2.1 The Employee shall, during his employment with the Company, devote his
primary business time and attention during normal working hours to the
business of the Company, and may not continue as a director, employee or
consultant to any other company, firm or individual without the prior
written consent of the Company; provided however that Employee may, without
Employer's prior written consent, continue to provide services and work for
other businesses in which Employee owns an interest (including Xxxx
Xxxxxxxx, Inc., Xxxx Xxxxxxxx Holdings, Inc., and ER Cleaners I, LLC, which
shall be referred to as the "Employee Businesses") provided that such work
and services do not substantially interfere with the duties and obligations
required of the Employee under this Agreement.
REMUNERATION AND BENEFITS
-------------------------
3.1 The Company shall pay the Employee the following salary, bonuses and
benefits:
a) remuneration calculated on the basis of a basic gross salary in the
amount of U.S. $140,000 per annum, in equal semi-monthly installments.
Employee's salary will be reviewed at least annually and may be
increased (but not decreased) at such time;
b) participation in the employee group benefits program (subject to
acceptance by the plan providers) which are offered to US based
employees. These programs may be modified by the Company from time to
time as to all participants generally;
c) an Incentive Bonus program as set forth in Schedule B of
this Agreement;
d) participation in the Employee Stock Purchase Plan; and
e) reimbursement for all reasonable and necessary traveling and
other expenses (properly approved by the Company) incurred by the
Employee in connection with his duties hereunder provided, however,
for all such expenses the Employee shall furnish statements and
vouchers and shall be in accordance with the policies of the Company.
3.2 All payment of salary or bonus shall be paid in United States Dollars less
all applicable deductions for taxes and deductions approved / elected by
Employee.
3.3 Any stock options granted to the Employee from time to time are made in
accordance with the Company's Stock Option Plan ("the Plan") as amended
from time to time by the Company. A copy of the current plan has been
supplied to
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the Employee who acknowledges its receipt. The Employee acknowledges that
notwithstanding the provisions in the current, Company's Stock Option Plan
regarding accelerated vesting in the event of a Change of Control (as
defined in the Plan) or Terminating Event (as defined in the Plan), in the
event that a Change of Control or Terminating Event occurs only those Stock
Options that would have ordinarily vested to the Employee over the next
twelve months had such change or event not occurred shall become
immediately exercisable in accordance with Section 11 of the Plan and the
balance of such Stock Options shall immediately expire and/or be
terminated.
VACATION
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4.1 The Employee shall be entitled to a vacation period with pay of four (4)
weeks (20 working days) per annum and shall be taken at such time as agreed
to by the Company, acting reasonably.
NON-DISCLOSURE OF CONFIDENTIAL INFORMATION, TRADE SECRETS AND WORK PRODUCT
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5.1 The Employee acknowledges that as Senior Vice President & General Manager
of the Company, he holds a fiduciary position and owes to the Company a
duty of utmost loyalty and good faith. The Employee 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.
5.2 In this Agreement the following terms shall have the meanings described
below:
(a) "Confidential Information" means any information concerning the
Company's scientific, technological, financial and business
interests which is not generally available to third parties and
is identified or is reasonably capable of being identified as
confidential and proprietary information of the Company.
Confidential Information shall include but not be limited to: (a)
production processes and materials; customer lists and
requirements; business plans and strategies; and other materials
or information relating to the business of the Company; (b)
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 (c) 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 which is identified or is
reasonably capable of being identified as confidential and
proprietary information of the Company which: (a) has economic
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value, actual or potential to the Company because it is not
generally known to other persons who might obtain economic value
from its disclosure or use; or (b) the Company has made
reasonable efforts to keep secret or out of the public domain.
(c) "Work Product" means any work, research, design or development in
whatever medium which is produced or created by the Employee
during the term of this Agreement pertinent to the Company's
scientific, technological, financial or business interests and
may include Confidential Information and Trade Secrets.
5.3 The Employee agrees to keep confidential and shall not directly or
indirectly divulge or disclose to anyone nor use or otherwise appropriate
Confidential Information, Trade Secrets or Work Product either during or at
any time after the term of this Agreement.
5.4 The Employee agrees that in the course of his employment with the Company
he will not bring to or use at the Company the confidential materials of a
former employer or third party which are not generally available to the
public.
5.5 The Employee agrees that any Work Product shall be the sole and exclusive
property of the Company. The Company is and shall be the sole owner of all
copyrights, patents and other intellectual property rights in the Work
Product.
5.6 The Employee agrees to assign to the Company any rights that he may have or
acquire in the Work Product and hereby waives all claims to any right,
title or interest in the Work Product, including any moral rights which he
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 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. At any and all times either during
or after the term of this Agreement the Employee shall upon the request of
the Company promptly 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 Work Product.
CONFLICT OF INTEREST AND NON-COMPETITION
----------------------------------------
6.1 The Employee agrees that the Company has a legitimate interest in ensuring
that Confidential Information, Trade Secrets and Work Product will not fall
into the hands of its competition nor be used by the Employee for any
purpose other than the execution of his duties as an employee of the
Company. Accordingly it is specifically agreed that:
(a) The Employee shall not during the term of this Agreement, for his own
account or for the account of a third party, directly or indirectly
develop,
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design, manufacture, sell or solicit for sale or lease products or
services including computer programs, codes and documentation similar
in function to those developed, designed, manufactured or sold by the
Company or undertake any other business endeavor actively being
considered by the Company of which the Employee is aware of due to the
Employee's position with the Company;
(b) The Employee shall not for a period of one (1) year following the
termination of his employment, whether for his own account or for the
account of a third party, directly or indirectly, develop, design,
manufacture, sell or solicit for products or services which are the
same or similar in function to products developed, designed,
manufactured or marketed the by the Company during the period of two
(2) years immediately preceding the date of termination of the
Employee's employment or undertake any other business endeavor
actively being considered by the Company of which the Employee is
aware of due to the Employee's position with the Company;
(c) For a period of one (1) year following the termination of his
employment, the Employee shall not, whether for his own account or for
the account of a third party, directly or indirectly, sell or solicit
for sale products or services which are the same or similar in
function to those developed, designed, manufactured or marketed by the
Company to any customer or potential customer of the Company. For
purposes of this section "customer" means any person from whom the
Company has received an order during the two (2) year period
immediately preceding the date of termination of the Employee's
employment. "Potential customer" means those persons who have
contacted the Company or have been contacted the Company with a view
to obtaining an order during the two (2) year period immediately
preceding the Company the date of terminating the Employee's
employment.
(d) For a period of one (1) year following the date of termination of his
employment, the Employee shall not, whether for his own account or for
the account of a third party, directly or indirectly, approach any
other employee of the Company with a view to offering or causing to be
offered to such other employee of the Company a new position or
employment with any other person or company.
6.2 The Employee 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.
6.3 The parties to this agreement recognize that a breach by the Employee of
any of the covenants contained in Sections 5 and 6 of this Agreement would
constitute
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an interference with the ongoing business of the Company and cause
irreparable harm to the Company which could not be adequately compensated
for by monetary damages. Accordingly, the Employee agrees that in the event
of a breach by him of any of the covenants contained in Sections 5 and 6 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.
OWNERSHIP AND USE OF WORK PRODUCTS
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7.1 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 Employee prior to or
in the course of his association with the Company, may be used by the
Employee 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 Employee and the Company.
7.2 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 Employee'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.
SICK LEAVE
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8.1 If the Employee 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 provide the Company with medical evidence to prove such
incapacity and the cause thereof, and shall receive his full salary until
such time as the start of short term or long term disability, or in any
case for a period of no longer than thirty (30) days.
TERMINATION BY COMPANY FOR CAUSE
--------------------------------
9.1 Without prejudice to any remedy the Company may have against the Employee
for any breach or non-performance of this Agreement, the Company may
terminate this Agreement, subject to Section 11, for cause at any time
effective immediately and without notice and without any payment for any
compensation either by way of anticipated earnings or damage of any kind to
him whatsoever, save and except in respect of remuneration to the date of
such termination. For the purposes of this paragraph, any one of the
following events shall constitute
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good and sufficient reason for termination of this Agreement and dismissal
for cause:
a) being guilty of any material dishonesty or gross neglect in the
discharge of his duties hereunder which has an adverse impact upon the
Company; or
b) being convicted of any criminal offense constituting a felony, other
than any offense which in the reasonable opinion of the Company does
not affect his position as a representative of the Company; or
c) gross negligence or repetitive negligence committed without regard to
corrective direction in the course of the discharge of his duties as
an employee which is not corrected after notice of such problems is
given to Employee and which has an adverse impact upon the Company;
d) excessive and unreasonable absence of the Employee from the
performance of his duties for any reason other than for authorized
vacation or sick leave, to the extent necessary to reasonably
accommodate a legally protected disability, or absences protected by
the Family And Medical Leave Act; or
e) material breaches of the Company's policies and procedures which have
an adverse impact upon the Company and are not corrected within thirty
(30) days after Employee receives written notice of such breaches.
TERMINATION OF EMPLOYMENT
-------------------------
10.1 The Employee shall be entitled to terminate employment with the Company
Without Cause, at will, at any time by giving three (3) months notice in
writing to the Company.
10.2 The Employee's employment hereunder may be terminated by the Company
Without Cause, at will, at any time, in which case upon termination,
Employee shall be entitled to receive twelve (12) months pay and a
pro-rated portion of any applicable incentive compensation, benefits or
other bonus plan in which Employee then was participating commencing on the
date of termination. This will be in effect for four (4) years from the
date of employment after which time severance arrangements in accordance
with common practice will apply. Employee shall not be required to mitigate
to receive these payments nor may the Company withhold any such amounts
based upon any claim or set-off.
10.3 The Employee shall be entitled to terminate his employment at any time for
"Good Reason", in which case upon termination, Employee shall be entitled
to receive twelve (12) months pay and a pro rated portion of any applicable
incentive compensation, benefits or other bonus plan in which Employee then
was participating commencing on the date of termination. For purposes of
this
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Agreement, "Good Reason" shall mean (1) any material breach of this
Agreement by the Company (including but not limited to any breach or
violation of any provision of Section 1.1 or 1.2 of this Agreement) which
is not remedied within thirty (30) days after Employee gives notice of the
same to the Company, (2) the assignment to Employee of duties which result
in a diminution of Executive's position, duties or responsibilities
(excluding an isolated and inadvertent action which is remedied within
thirty (30) days after written notice of the same is given to the Company
or a temporary or occasional assignment by the Board made for reasons of
business necessity in the good faith judgment of the Board), or (3) any
reduction in Employee's base salary. Employee shall not be required to
mitigate to receive these payments nor may the Company withhold any such
amounts based upon any claim or set-off.
10.4 In the event that at the date of termination of employment, the Employee
has earned but not been paid portions of the Incentive Bonus Program, the
Company shall after termination continue to pay out, on a pro rated basis,
the bonus at the applicable time in accordance with the Incentive Bonus
Program.
RETURN OF PROPERTY
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11.1 In the event of termination of this Agreement, the Company agrees to pay
the Employee all arrears of compensation, and all out of pocket expenses
owing, up to and including the effective date of termination, upon receipt
from the Employee of (and the Employee agrees to deliver to the Company);
a) any property of the Company which may be in the possession or control
of the Employee; and
b) the repayment of any sums owed by the Employee to the Company.
SURVIVAL
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12.1 Notwithstanding the termination of this Agreement for any reason whatsoever
the provisions of Sections 5, 6 and 10 hereof and any other provisions of
this Agreement necessary to give efficacy thereto shall continue in full
force and effect following such termination.
NOTICE
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13.1 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 fax, addressed as follows:
TO: MDSI Mobile Data Solutions Inc.
00000 Xxxxxxxxxxx Xxx
Xxxxxxxx, X.X., Xxxxxx, X0X 0X0
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Att: President
Phone: 000-000-0000
Fax : 000-000-0000
AND TO: Xxxxxxx X. Xxxxxxxx
000 Xxxx Xxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx XXX 00000
Phone: 000 000 0000
Fax : 000 000 0000
or at such other address or fax 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 fax, 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 fax.
ENTIRE AGREEMENT
----------------
14.1 Any other previous agreements, written or oral, between the parties hereto
relating to the employment of the Employee by the Company are hereby
terminated and canceled 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 constitutes and expresses the whole agreement of
the parties hereto with reference to the employment of the Employee 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.
AMENDMENTS AND WAIVERS
----------------------
15.1 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.
BENEFITS OF AGREEMENT
---------------------
16.1 The provisions of this Agreement shall endure to the benefit of and be
binding upon the legal representatives of the Employee and the successors
and assigns of the Company respectively however the Company shall not be
entitled to assign this Agreement except in connection with the sale of all
or substantially all
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of the assets or operations within which the Employee has substantially
performed his duties under this Agreement.
SEVERABILITY
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17.1 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 Employee 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
Employee.
GOVERNING LAW
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18.1 This Agreement shall be governed by and construed in accordance with the
laws of the State of Missouri. The parties agree to submit any dispute
arising under this Agreement or its interpretation to arbitration in
Minneapolis, Minnesota under the rules of the American Arbitration
Association using a panel of labor arbitrators.
COPY OF AGREEMENT
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19.1 The Employee 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 & DELIVERED by )
)
/s/ Xxxxxxx X. Xxxxxxxx )
------------------------------ )
) -------------------------------
) XXXXXXX X. XXXXXXXX
in the presence of: )
)
/s/ Xxxx X. Xxxxxx )
------------------------------ )
Witness )
)
Xxxx X. Xxxxxx )
------------------------------ )
Name )
)
0000 Xxxxxx Xxx Xx. )
------------------------------ )
Address Xx. Xxxxx, XX 00000 )
MDSI MOBILE DATA SOLUTIONS INC.
Per: /s/ Xxxxxxx X. Xxxxxx
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Authorized Signatory
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Schedule A - Duties and Responsibilities
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TITLE: Senior Vice President & General Manager - e-Services
RESPONSIBILITIES: Employee shall be responsible for the sales, marketing,
business development, finance, and general operations of the MDSI e-Services
business unit subject to the objectives and guidelines determined by the
President, CEO and/or Board of MDSI.
Schedule B - Incentive Bonus Program
This program has been designed to create an incentive for the achievement of the
quarterly Corporate Earnings per share targets as established by the Board of
Directors, and your overall annual personal performance. Your performance will
be measured against the achievement of the goals and objectives as noted in the
strategic renewal document as well as any other individual objectives.
The Plan contains the following two target components as set by the Board of
Directors and a personal performance incentive;
o Target incentive based on achieving quarterly EPS target (plus$0.01)
results in an award of 6% of annual base salary/quarter
o Stretch incentive based on exceeding annual EPS results up to 40% of annual
base salary
o Personal performance incentive up to 16% of annual base salary
The Corporate EPS targets (plus$0.01) in each quarter are either achieved or not
with the achievement of the target resulting in the payment of the incentive
award (i.e. 6% per quarter). The quarter's results must be achieved including
the cost of the Company's incentive plan (i.e. all employees). If the full
amount of the quarterly incentive cannot be funded within the EPS requirement
then a prorated amount will be paid with the available funds. The unpaid amount
will be carried forward to year-end. This would occur similarly in subsequent
quarters. At year end if, after paying the final quarter's incentive, there are
funds available (i.e. within the yearly EPS requirement) than such funds would
be used to pay (prorated if necessary) the unpaid incentive balance. Any
year-end unpaid balance will not be carried forward to subsequent years. These
quarterly incentives shall be paid within 30 days of the Company's quarterly
results being announced. In the event quarterly EPS in not achieved 50% of any
missed quarters incentive can be recovered if the year's EPS target is achieved.
Depending on the amount of available funds this payment may need to be governed
by the pro-ration as described. Any resulting incentive from recovered quarters
or as a result of pro-ration will be paid along with any other incentive
achieved for the year.
Personal performance incentive is 16% of annual base salary to be calculated and
paid annually within 30 days of the announcement of the Company's annual audited
results. Personal performance incentive will only be paid if the year-end EPS
target is achieved, can be prorated based on available funds and if prorating is
required personal performance incentive will take priority over EPS incentive.
Personal performance will be based on a 1-10 rating scale as follows:
1 = intolerable 2 = less than tolerable 3 = barely tolerable 4 = less than
satisfactory 5 = satisfactory 6 = more than satisfactory 7 = exceeding 8 =
significantly exceeding 9 = excelling10 = exceptional. A rating of 5 would
result in an award of 8%.
The calculation of % achievement of the stretch incentive (0-40% of base) will
be pro rated to the % achievement of the stretch target (to a maximum incentive
of 40%). Payment of the stretch incentive will be within 30 days of the
announcement of the Company's annual audited results.
NOTE:
1. The Company shall have the full authority to, terminate, amend or cancel the
plan as described above in its' sole discretion provided that such changes shall
not be retroactive prior to the effective date of the change(s) or cancellation.
2. To participate in the quarterly components of the plan, an employee must be
on staff for the entire quarter (e.g. for the first quarter, the employee's
start date must be January 1st or earlier and the employee must still be on
staff at the close of business of March 31 or later).
3. To participate in the annual components of the plan, an employee must be on
staff for the entire fourth quarter. Further, to the extent to which they can
participate in the annual components will be pro-rated to reflect their start
date with the Company.
