Exhibit 10.18: Employment Agreement of Xxxxx Xxxxxxxxx
EMPLOYMENT CONTRACT
THIS AGREEMENT made and effective this 1st day of February , 2000 .
BETWEEN:
VOICE MOBILITY INC.
With offices at:
000 - 00000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX X0X 0X0
(hereafter referred to as the "Company"),
AND:
XXXXX XXXXXXXXX
0000 XXXX XXXX
XXXXX, XX
X0X 0X0
(hereafter referred to as the "Executive"),
WHEREAS:
A. The Company is in the business of communications including the research and
development of new technology, and the production, marketing and sales of
equipment, software and services related thereto;
B. The Executive possesses certain qualifications which may be of benefit to
the Company;
C. The Company is desirous of employing the Executive, who is desirous of
working for the Company in the development of its business and its related
interests;
NOW THEREFORE, in consideration of the premises and of the mutual
covenants, conditions and terms herein, the parties hereto agree as follows:
1. EMPLOYMENT: The Company agrees to hire the Executive who agrees to perform
services for the Company or any of its affiliates, upon the terms set forth
herein.
2. TERM: The term (the "term") of the Executive's employment shall commence on
the date above and shall continue until February 1, 2003, subject to those
provisions of this Employment Agreement providing for earlier termination of the
Executive's employment in certain circumstances. Thereafter, the term may be
extended for additional one year periods from and after February 1, 2003 upon
the agreement of the
77
Executive and the Board of Directors of the Corporation, subject always to the
provisions of paragraph 11 hereof.
3. TYPES OF SERVICES: The nature and types of services to be provided to the
Company by the Executive are set forth in Schedule "A" hereto. It is understood
and agreed that the duties and responsibilities so defined are not exhaustive
and may be altered from time to time by the Company; So long as any such changes
are reasonable, both with respect to any changing circumstances of the Company
and its business and the personal background, training and circumstances of the
Executive, the Executive shall not refuse any such changed employment request by
the Company.
4. LOCATION: Services provided by the Executive shall be primarily performed
at such site or sites as may be determined by the Company from time to time, it
being understood that some travel may be required of the Executive from time to
time as determined by the Company.
5. HOURS: Except as otherwise specified herein , The Executive shall be
expected to work those periods and times normally constituting open or operating
times for the Company and its business, however will be expected to work such
additional time or times as may be appropriate with respect to the business
requirements and commitments at the time, without claim for overtime or
additional remuneration. In the event of part-time employment, the Executive
shall be expected to work those periods and times specified on Schedule "A"
hereto.
6. REMUNERATION: The Company shall provide remuneration to the Executive in
the kind, amounts and at such time or times as more particularly set out in
Schedule "A" hereto.
7. HOLIDAYS: In addition to statutory holidays, the Executive is entitled to
the number of weeks ordinary, non-cumulative vacation in each calendar year of
employment as is more particularly set out in Schedule "A" hereto. This vacation
time is is subject to the reasonable control of the Company with respect to
scheduling, having consideration for both other Executives of the Company and
the commitments of the Company from time to time in relation to its business.
78
9. COMPANY'S COMMITMENTS:
9.1 Company agrees to pay the remuneration stipulated in accordance with
the terms of this agreement.
9.2 Company shall make and remit all required statutory deductions in
relation to the salary of the Executive.
9.3 Company shall reimburse the Executive for all reasonable traveling and
expenses related thereto incurred by the Executive while engaged in
services for the Company at other than the customary site at which the
Executive works.
10. EXECUTIVE'S COMMITMENTS:
10.1 The Executive agrees to provide the services required by the Company
from time to time, in a competent and timely manner.
10.2 The Executive shall devote such time as is required for such services.
10.3 The Executive shall provide his own vehicle for all local and
reasonable travel requirements, in return for which he will receive an
allowance as determined in Schedule A.
10.4 The Executive shall at all times herein conduct himself in competent
and courteous manner and will endeavor to xxxxxx and maintain good
relations with other Company staff, suppliers, contractors, and customers
of the Company.
10.5 The Executive further recognizes the necessity for confidentiality in
respect to the research and development being carried on by the Company and
agrees to maintain such confidentiality and not communicate to any third
parties, both during and after the term of this agreement, any information
concerning the Company's products, equipment, services or technology, that
hasn't otherwise been made public by the Company as set out in the
Confidentiality Agreement attached as Schedule B hereto. The Executive
agrees that this agreement is void until such time as the Confidentiality
Agreement is exectuted. The Executive understands that any breach of this
Confidentiality Agreement by the Executive shall be the grounds for
immediate dismissal for cause and shall further subject the Executive to
legal action for damages and other relief on behalf of the Company.
11. TERMINATION:
11.1 This agreement shall be deemed to terminate on the death of the
Executive or, at the option of the Company, in the event of the Executive's
absence or inability to render the services required hereunder due to
disability, illness, incapacity or otherwise, for an aggregate of 180 days
during any 12 month period during the term herein.
11.2 The Company may terminate this agreement at any time for cause upon
written notice specifying same to the Executive.
For the purposes of this Sub Section and of the Executive's employment with
the Company,
79
"cause" shall mean that:
(i) The Executive has committed a felony or indictable offence or has
improperly enriched himself at the expense of the Company or has committed
an act evidencing dishonesty or moral turpitude, including without
limitation an act of theft;
(ii) The Executive, in carrying out his duties hereunder, (A) has been
willfully or grossly negligent, or (B) has committed willful and gross
misconduct or, (C) has failed to comply with clear and reasonable,
instructions or directives from the Board of Directors of the Company
after having been informed in writing of a failure to so comply having
been given reasonable opportunity to comply or correct a matter;
(iii) The Executive has breached a material term of this Employment
Agreement
(iv) The Executive becomes bankrupt or in the event a receiving order
(or any analogous order under any applicable law) is made against the
Executive or in the event the Executive makes any general disposition
or assignment for the benefit of his creditors which materially
interferes with his ability to render services hereunder,
(v) The Executive commits any other act giving the Company cause to
terminate the Executive's employment at common law, including, but not
limited to chronic alcoholism or drug addiction, material malfeasance
or non feasance with respect to the Executive's duties hereunder.
11.3 In the event of termination and subject to the terms of any other
agreement or Plan, all rights granted the Executive to purchase or acquire
stock in the Company or any related Company, whether such rights should be
granted under this agreement, or any other agreement or understanding
between the parties, shall terminate in accordance with the terms of the
plan, or agreement, under which such rights were granted. The Executive
shall return to the Company all assets of the Company which may be in the
possession of the Executive, whether on or off the normal site of work.
Without restricting the generality of the foregoing, such assets shall be
deemed to include files, letters, memorandum, or any other documentation,
software, or intangible assets pertaining to the Company and its business,
whether in the form of hard copy, software or other electronic data.
11.4 In the event of termination, any benefits to or on behalf of the
Executive which have been pre-paid by the Company shall be adjusted as of
the effective date of such termination and reimbursed to the Company by the
Executive. The Company shall be entitled to off-set and deduct any such
amounts from any compensation remaining to be paid to the Executive.
12.0 NON-COMPETITION
12.01 The Executive shall not during the period of this Agreement and for a
period of 6 months from the date of the termination of this Agreement and/or the
Executive's employment with the Company,
80
(whichever occurs first) if the Company terminates the Agreement without cause
and for a period of 12 months from the date of the termination of this Agreement
and/or the Executive's employment with the Company, (whichever occurs first) if
terminated for cause, or by the Executive (without prior written consent of the
Company, which may be reasonably withheld), either individually or in
partnership, or in conjunction with any person or persons, firm, association,
syndicate, company or corporation as principal, agent, director, officer,
Executive, consultant, investor, or in any other manner whatsoever, carry on or
be engaged in or be concerned with or interested in, or advise, lend money to,
guarantee the debts or obligations of or permit his/her name or any part thereof
to be used or employed by the Company's competitors in the unified messaging
business as at the date of termination, in any geographical location where the
Executive was employed during the course of his/her employment with the Company
12.02 The Executive further covenants and agrees that he will not disclose,
at any time, any Business Opportunities.
12.03 The Executive hereby acknowledges that irreparable damage may result
to the Company, its business or property in the event of the breach of any of
the covenants and assurances herein agreed to by the Executive and that this
agreement was made by the Company and continues primarily upon the Executive's
covenants and assurances herein, and the Executive hereby covenants that in the
event of such breach or danger thereof, the Company shall be entitled, in
addition to any other remedies and damages available, to an interlocutory or
permanent injunction whereby the Executive shall be ordered to respect the
covenants and assurances contained in this Agreement.
12.04 The covenants of the Executive contained in section 18.01 shall
survive the termination of this Agreement for any reason including for reason of
any breach hereof.
13. ENTIRE CONTRACT: There are no representations, warranties, conditions,
terms or collateral contracts or agreements affecting the employment
contemplated in this agreement except as set out herein.
14. AMENDMENT:
14.1 Except for increases in remuneration or extension of employment
benefits, the terms of this agreement shall remain in force until terminated and
shall only be amended by agreement in writing signed by both parties.
14.2 Should any provision or provisions in this agreement be held to be
void or unenforceable by any Court of competent jurisdiction based on any
stipulation with respect to area or time herein, this agreement shall be deemed
to be amended with such area and/or time altered to reflect the area or time
deemed acceptable and enforceable by such Court.
15. SEVERANCE: Subject to the aforesaid, should any provision or provisions in
the agreement be held to be void or unenforceable by any Court of competent
jurisdiction, the same shall be severed and shall not affect the validity of the
remainder of this agreement.
16. EXECUTIVE'S ACKNOWLEDGEMENT: The Executive acknowledges that he has fully
read this agreement and the terms herein. The Executive acknowledges his
81
concurrence with the same and his opportunity to consult with independent legal
counsel before execution.
17. GENDER: Wherever the masculine gender is used herein, the same shall be
construed as being the feminine gender where the context so requires.
18. HEADINGS: Headings included in this agreement are for ease of reference
only and shall not be used in any way in the interpretation of this Agreement.
19. JURISDICTION: This agreement shall be governed by the laws of the Province
of British Columbia.
82
IN WITNESS WHEREOF, the parties have hereto set their hands effective the
date first written above.
VOICE MOBILITY INC.
PER:
--------------------------------
--------------------------------
(S)
-----------------------------------------------------------
(WITNESS) (EXECUTIVE)
83
SCHEDULE "A" - PARTICULARS OF EMPLOYMENT CONTRACT.
PARAGRAPH1. TYPES OF SERVICES:
a) GENERALLY - The Executive shall serve the Company as its Executive Vice
President of Business Development and, in such capacity, subject to the
direction of the Company's, Chief Executive Officer and Board of Directors, he
shall be responsible for the all duties as outlined in the attached job
description.
b) SPECIFICALLY (WITHOUT RESTRICTING THE GENERALITY OF a) ABOVE) - Voice
Mobility Inc. has an excellent opportunity in an emerging market. As a solo
entity VMI will have success but greater success can be achieved by forging
strong industry alliances to better position the company for global breakthrough
growth. The business development team has the autonomy to act for the company in
looking to the worldwide market for partners that will help the company top
raise the global profile and to better execute the business plan.
The Vice-President of Business Development is subject to direction from the
Chief Executive Officer and the Board of Directors and is expected to be the
point man for the company in areas of strategic importance. The principal
objective of this position is to secure globally branded partners for
distribution, development and marketing relationships. Acting as the focal point
for all strategic discussions the VP, Business Development will draw upon
resources for other areas of the company to help in the achievement of
objectives.
As a discipline, the Business Development group will be responsible to a budget
and work within a clearly defined mandate to pursue strategic relationships and
present same to the senior management team and/or the Board of Directors for
further action.
PARAGRAPH 2. REMUNERATION:
(a) Base Salary. As base compensation for the services to be rendered by
the Executive hereunder, the Company agrees to pay the Executive an
annual base salary in the amount of $130,000, such salary to be paid
in bi-weekly installments.
(b) Further additional compensation will be made available to the
Executive, based on the successful achievement of agreed Management
Objectives ("MBO's"). Such objectives for the calendar year, 2000 are
as set out in Schedule D to this agreement. The objectives for the
calendar year 2001 will be established and agreed to by November 1,
2000..
84
i. It is expressly agreed that the score on Schedule D must be
rounded to the whole number. For every number that is equal to or
greater than one half, the number will be rounded upwards.
ii. The amount of compensation for the successful acheivement of
MBO's is as follows:
Score Rating Payoff %
1 Strongly Disagree 0
2. Disagree 0
3. Not sure 50
4. Agree 100
5 Strongly Agree 100
iii. If the contract is terminated during the calendar year, the bonus
is pro-rated to the date of termination.
(c) The Executive will receive in addition to remuneration above, a car
allowance of $500 per month and shall be reimbursed for all reasonable
expenses incurred by him in connection with the conduct of the
Company's business upon presentation of sufficient evidence of such
expenditures and provided the same are authorized expenditures
pursuant to policies adopted by the Board of Directors of the Company
from time to time.
(d) The Executive will be entitled to participate in all Executive benefit
programs of the Company from time to time in effect under the terms
and conditions of such programs, including, but not limited to,
pension, share incentive and other benefit plans, group life
insurance, hospitalization and surgical and major medical coverages,
dental insurance, sick leave, including salary continuation
arrangements, vacations and holidays, long-term disability, and such
other fringe benefits as are or may be available from time to time to
other executives of the Company. The Company expressly agrees to
change such programs in their absolute discretion and the Executive
agrees that such change will not constitute a breach of this
agreement.
(e) The Company will provide the Employee with an option to purchase
500,000 shares of Common Stock or Voice Mobility International, Inc.,
a Nevada corporation, pursuant to the terms and conditions of the 1999
Stock Option Plan (the "Plan") more particularly set out in the Option
Agreement, attached as Schedule C hereto.
PARAGRAPH 3. VACATION
The Executive shall be entitled to all usual public holidays and, in addition,
three weeks paid annual vacation during each year of employment hereunder. Such
vacation time shall be utilized by the Executive at mutually reasonably
acceptable times.
85
