EXHIBIT 10.15
Geac
Geac Computer Corporation Limited
4100 Yonge Street, Suite 601
Toronto, Ontario M2P 2G2
Tel: (416) 642-1960
Fax: (416) 642-1961
July 9, 2001
Mr. Paul D. Birch
565 Westford Street
Carlisle, Massachusetts 01741
Dear Paul:
This letter will confirm the terms of your employment as Chief Operating Officer
and Chief Financial Officer of Geac Computer Corporation Limited ("Geac")
effective July 9, 2001.
You shall serve Geac and its subsidiary, GES Enterprises ("GES"), faithfully to
the best of your ability and shall throughout the term of your assignment devote
your full working time and attention to the business and affairs of Geac and GES
and shall use your best efforts to maintain and advance that business.
REPORTING OBLIGATION
As Chief Operating Officer and Chief Financial Officer, you will report to the
Chief Executive Officer, or as directed by the Board of Directors. It is
understood and agreed that time is of the essence in the delivery of corporate
information to the Chief Executive Officer.
DETAILS OF YOUR REMUNERATION
1. BASE SALARY:
Annual base salary of U.S. $50,000 per annum, subject to annual review. This
will be paid in semi-monthly instalments subject to all proper withholding taxes
and any deductions attributable to your required or elective contributions to
the benefits provided by Geac, including the benefits referred to in Section 3
of this letter.
2. BONUS:
Commencing with the fiscal year ending April 30, 2002, you will be paid an
annual bonus of U.S.$25,000 subject to Geac achieving a 20 percent EBITDA return
on sales as defined in Schedule "A".
3. ADDITIONAL BENEFITS:
(a) Promptly after request, Geac shall pay, or reimburse you for, the
reasonable cost of preparation of your Canadian federal and provincial
tax returns and for the reasonable
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legal and accounting costs incurred by you in analyzing and addressing
cross-border tax, legal, immigration and contractual issues related to
your employment by Geac.
4. VACATION:
During each year of your employment with Geac and GES you will be entitled to 4
weeks paid vacation to be taken at mutually agreeable times. This vacation
period covers your collective entitlement for both Geac and GES.
5. TAXES:
(a) Geac shall also pay to you such amounts as will cause the net tax cost
to you of your salary, bonuses and benefits to be no greater than the
tax you would have paid as a resident of Massachusetts, taking into
account for this purpose any tax on amounts payable to you under this
paragraph.
STOCK OPTIONS
You have been granted 150 thousand (150,000) Options with an exercise price
equal to the Closing Share Price on August 1, 2001. These Options are granted
subject to Geac's Executive Stock Option Plan VI. These Options will vest in
equal annual instalments over a 4-year period commencing on the first
anniversary of the date of the grant and ending on the fourth anniversary of the
date of the grant.
The granting of additional Options shall be at the discretion of the Board of
Directors.
VOLUNTARY RESIGNATION
If you wish to resign voluntarily you shall provide Geac with at least 30 days
prior written notice, which shall set out a proposed date of resignation. Geac
may elect to require you to remain in its employment for all or part of the
notice period, or may require that you resign immediately. Upon the date of your
resignation, Geac shall pay you all unpaid salary and shall pay any unpaid bonus
provided that the conditions for payment of the bonus have been met. Upon the
date of your resignation the vesting of Options shall cease and you will have no
entitlement to pay or benefits beyond the date of resignation. This paragraph
shall be subject to, and shall not apply in the case of resignation following a
Change in Control described in the paragraphs hereafter set forth concerning a
Change in Control.
TERMINATION FOR CAUSE
If you are guilty of any conduct constituting just Cause for dismissal, Geac may
terminate your employment by providing you with written notice of termination
and your employment and your rights under this Agreement shall terminate on the
day the notice is delivered to you. Upon termination for Cause you shall be paid
all unpaid salary owing to you and the vesting of Options shall cease. You will
have no entitlement to pay or benefits beyond the date of termination.
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TERMINATION FOR ANY REASON OTHER THAN CAUSE
Geac shall have the right to terminate your employment at any time for any
reason other than Cause. You shall be entitled to receive on the date of
termination a lump sum cash payment (the "Termination Payment") in an amount
equal to (a) your base salary received or receivable by you in respect of the
immediately preceding year plus (b) either (i) the average of the bonuses paid
or payable to you with respect to each of the three preceding years or, (ii) if
you have been employed by Geac for fewer than three years at the time of your
termination, the average of the bonuses paid or payable to you with respect to
each of the years in which you have worked for Geac. You will be paid, credited
or reimbursed, as the case may be, for all unpaid salary (including credit for
any vacation earned but not taken), all unpaid bonuses, all accrued bonuses
(such bonuses to be determined on a proportionate basis having regard to the
proportion of the fiscal year which has elapsed), expenses, benefits and other
amounts payable to you or earned by you up to the termination date. For purposes
of this paragraph and payments to you following a Change of Control described
below, all amounts payable to you shall be increased to appropriately reflect
the tax payment and gross up provisions set forth above with respect to salary,
bonus and benefits.
CHANGE IN CONTROL AND CHANGE AFFECTING YOUR EMPLOYMENT
1. In the event of a Change in Control and a Change Affecting Your
Employment within 12 months of a Change in Control, you may elect to
resign from Geac within 120 days of the Change in Control and Change
Affecting Your Employment. In the event of your resignation, you will
be provided with the following:
(a) On the effective date of your resignation Geac will pay you the
Termination Payment, calculated as though such effective date was the
effective date of the termination of your employment by Geac for a
reason other than Cause; and
2. In such event, you will also be paid, credited or reimbursed, as the
case may be, for all unpaid salary (including credit for any vacation
earned but not taken), all unpaid bonuses, all accrued bonuses (such
bonuses to be determined on a proportionate basis having regards to the
proportion of the fiscal year which has elapsed), expenses, benefits
and other amounts payable to you or earned by you up to the date of
resignation. Also, in such event, all unvested Stock options previously
granted shall become fully vested.
3. In no case will you be entitled to both a payment for termination for
any reason other than cause and for a termination in the event of a
Change in Control and Change Affecting Your Employment.
For the purposes of this Letter Agreement, "Change in Control" and "Change
Affecting Your Employment" are defined as set out in Schedule "B".
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PROPERTY OF GEAC
All equipment, material, written correspondence, memoranda, communication,
reports, or other documents pertaining to the business of Geac used or produced
by you in connection with your employment, or in your possession or under your
control, shall at all times remain the property of Geac. You shall return all
property of Geac in your possession or under your control in good condition
within one week of a request by Geac, or within one week of the termination of
your employment.
NON-DISCLOSURE
You agree to be bound by the terms of the General Confidentiality Agreement
attached hereto as Schedule "C".
RESIGNATION AS OFFICER AND DIRECTOR
You covenant and agree that, upon any notice of your resignation from Geac or
termination of your employment being given, you shall forthwith tender your
resignation from all offices and directorships then held by you at Geac or any
of its subsidiaries and affiliates, such resignation to be effective
immediately, or at such other date as may be mutually agreed to by you and Geac,
and you shall not be entitled to receive any severance payment or compensation
for loss of office or otherwise by reason of the resignation, other than what
has been provided elsewhere in this Agreement. If you fail to resign as set out
above, you will be deemed to have resigned from all offices and directorships,
and Geac is hereby authorized by you to appoint any person in your name and on
your behalf to sign any documents or do any things necessary or required to give
effect to such resignation.
CHOICE OF LAW
This Agreement shall be deemed to have been made in and shall be construed in
accordance with the laws of the Province of Ontario, Canada.
SUBMISSION TO ARBITRATION
It is hereby agreed that any dispute or controversy in connection with this
Agreement, including its interpretation, will be conclusively settled by
submission to arbitration (the "Arbitration") in accordance with the rules of
arbitration of the Arbitration Act (Ontario) as amended from time to time. The
Arbitration will be conducted before a single arbitrator mutually agreeable to
the parties (the "Arbitrator"). Each party will be responsible for their own
legal costs incurred at the Arbitration. The cost of the Arbitrator will be
shared subject to Geac's agreement to reimburse you for your share of the
Arbitrator's costs in the event you are largely successful at the Arbitration.
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NOTICES
Any notice requited or permitted hereunder shall be deemed to be delivered on
the date of actual delivery, if delivered personally, or on the date four days
after mailing, if delivered by registered mail. In the case of postal
disruption, delivery shall be made by way of personal delivery.
LEGAL COSTS
Geac shall pay, or at your option, shall reimburse you for, the reasonable legal
fees and disbursements incurred by you in connection with the drafting and
negotiation of this Agreement.
ENTIRE AGREEMENT
This Agreement contains the entire agreement between us with respect to the
subject matter hereof. Any and all other oral or written representations,
agreements, arrangements or understandings between us are hereby terminated.
We trust that the above will be acceptable to you and we ask that you indicate
your acceptance of this offer by signing the enclosed copy of this letter.
Paul, we look forward to welcoming you to the Geac team.
Sincerely,
GEAC COMPUTER CORPORATION LIMITED
"Charles Jones"
By:
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Charles S. Jones
Chairman of the Board
ACCEPTED:
"Paul Birch"
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Paul D. Birch Date: August 2, 2001
SCHEDULE "A"
EBITDA Definition
With respect to Geac Computer Corporation and its subsidiaries for any fiscal
period, an amount equal to:
(a) Consolidated Net Income for such period plus;
(b) To the extent deducted in the calculation of Consolidated Net Income
and without duplication;
(i) depreciation and amortization for such period,
(ii) other non-cash charges for such period,
(iii) income tax expense for such period,
(iv) Consolidated Total Interest Income/Expense for such period,
(v) the aggregate amount of one time non-recurring
expenses and/or charges or gains in the disposition
of businesses taken by Geac Computer Corporation and
its subsidiaries in the fiscal year ending April 30,
2002, all of the above relating to the restructuring
of the business.
SCHEDULE "B"
"Change in Control" means the occurrence of one or more of the following events:
1. The sale, lease or transfer, in one or a series of related
transactions, of all or substantially all of Geac's assets considered
on a consolidated basis to any person or company or combination of
persons or companies;
2. The adoption of a plan relating to the liquidation or dissolution of
Geac;
3. The acquisition by any person or company or combination of persons or
companies acting jointly or in concert of a direct or indirect interest
in more than 50 percent of the ownership of Geac or the voting power of
the voting shares of Geac by way of a purchase, merger or consolidation
or otherwise (other than a creation of a holding company that does not
involve a change in the beneficial ownership of Geac as a result of
such transaction);
4. The amalgamation, merger or consolidation of Geac with or into another
corporation or the amalgamation or merger of another corporation into
Geac with the effect that immediately after such transaction the
shareholders of Geac immediately prior to such transaction hold less
than 50 percent of the total voting power of all securities generally
entitled to vote in the election of directors, managers or trustees of
the person surviving such amalgamation, merger or consolidation; or
5. During any period of two consecutive years, individuals who at the
beginning of such period constitute the entire Board of Directors of
Geac shall cease for any reason to constitute a majority thereof unless
the election, or the nomination for election by Geac's stockholders, of
each new director was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of
such period or who, themselves, were approved during such period by the
requisite two thirds vote specified above.
"Change Affecting Your Employment" means any of the following circumstances
which are not accepted by you during the 90-day period immediately following the
date on which you become aware of such circumstances:
1. Any change to your employment conditions with Geac or GES which would
significantly reduce the nature or status of your responsibilities;
2. A reduction by Geac or GES in your annual compensation as of the date
of the Change in Control;
3. The failure by Geac or GES to continue in effect for your benefit any
perquisites or participation in any employee benefit plan to which
other employees of Geac or GES are entitled, to the same extent to
which any other employees enjoy such benefits.
4. Any other change which would constitute "constructive dismissal" under
applicable law; or
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5. Any change in the location of the principal office of Geac or GES
which causes you to substantially increase your travel time or
relocate.
SCHEDULE "C"
Agreement Respecting Confidentiality, Exclusivity and Non Solicitation
1. CONFIDENTIAL INFORMATION
"Confidential Information" means information disclosed to me or acquired by me
as a result of my employment with Geac and GES and includes but is not limited
to information relating to Geac and GES's products or developments of new or
improved products, marketing strategy, sales or business plans, the names and
information about Geac and GES's past, present and prospective customers (to
whom Geac and GES has made a proposal during the course of my employment) and
clients, trade secrets and any other information which is not in the public
domain and which information can be reasonably deemed confidential information
whether or not such information is explicitly identified as being confidential.
"Confidential Information" shall not include:
(a) Information that was known by me at the time it was disclosed
to me by Geac and GES or was acquired by me; or
(b) Information that is or becomes publicly known or otherwise
entered the public domain through no wrongful act of mine; or
(c) Information that is received by me from a third party which
has no obligation to maintain it in confidence; or
(d) Information that is developed independently by me without use
of any Confidential Information.
2. USE AND DISCLOSURE
While employed by Geac and GES and following the termination of my employment, I
shall not, directly or indirectly, in any way use or disclose to any person any
Confidential Information. I agree and acknowledge that Confidential Information
of Geac and GES is the exclusive property of Geac and GES and I shall hold all
such Confidential Information in trust for Geac and GES. I confirm and
acknowledge my fiduciary duty to use my best efforts to protect Confidential
Information; not to misuse such information; and to protect such Confidential
Information from any misuse, misappropriation, harm, or interference by others
in any manner whatsoever.
3. GEAC AND GES PROPERTY
Upon ceasing employment with Geac and GES, I will immediately turn over to Geac
and GES all property then in my possession or under my control belonging to Geac
and GES, or any past, present or prospective customer, client, supplier or
business partner of Geac and GES.
4. EXCLUSIVITY AND DEDICATION
During the period of my employment with Geac and GES:
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(a) I shall devote my entire working time during the regular
business hours assigned to my position with attention to such
duties as may be assigned to me by Geac and GES. During such
time I shall faithfully and diligently serve and endeavour to
further the interests of Geac and GES;
(b) I agree that I shall not engage in or become connected with:
(i) any other business during my regular business hours
at Geac and GES; or
(ii) any business which is in competition with Geac and
GES at any time.
5. CONFLICTS
My employment with Geac and GES does not now and shall not in the future
conflict with any obligations or interests that I have with any other person,
business, organization or former employer. I agree to notify Geac and GES in
writing immediately upon having any knowledge to the contrary of any conflict or
potential conflict.
6. NON-SOLICITATION OF CUSTOMERS
I agree that during the term of this Agreement and for a period of 1 year
immediately following the termination of my employment with Geac and GES, I
shall not, on my own behalf or on behalf of any person, firm, partnership,
association, corporation or business organization, entity or enterprise,
directly or indirectly, solicit, contact, call upon, communicate or attempt to
communicate with any customer or prospective customer of Geac and GES or any
representative of any customer or prospective customer of Geac and GES, with a
view to the sale or provision of any deliverable or service competitive or
potentially competitive with any deliverable or service sold or provided or
under development by Geac and GES during the 1 year immediately preceding the
effective date of the termination of my employment.
7. NON-SOLICITATION OF EMPLOYEES
I agree that while I am employed by Geac and GES, and for a period of 1 year
following the termination of my employment with Geac and GES, I shall not
directly or indirectly, solicit, induce or attempt to induce any Geac and GES
employee into leaving the Company's employment, nor shall I directly or
indirectly participate in any organization's recruitment or hiring of Geac and
GES employees.
8. TERM
This Agreement shall become effective when signed and shall terminate upon the
termination of my employment with Geac and GES, except that paragraphs 1, 2, 3,
6 and 7 shall survive such termination.
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9. SEVERABILITY
I acknowledge that each paragraph of this Agreement is separate from each other
paragraph of this Agreement and if any one paragraph is found to be invalid, it
shall not invalidate the remainder of this Agreement.
10. JURISDICTION
This Agreement shall be interpreted in accordance with the laws of the
jurisdiction in which it is signed.
11. INDEPENDENT LEGAL ADVICE
I acknowledge I have read and understood this Agreement and have had the
opportunity to obtain independent legal advice prior to the execution of this
Agreement. In the event that I did not obtain such advice, I shall not use the
absence of such advice in an attempt to obviate, alter, sever or otherwise
terminate this Agreement or any part thereof.
12. ENTIRE AGREEMENT
This Agreement shall supersede any previous confidentiality agreement or similar
understanding which I may have had with Geac and GES. Any amendments to this
Agreement must be made in writing and signed by both Geac and GES and me.
DATED at Carlisle, this 2nd day of August, 2001.
"PAUL BIRCH"
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Paul D. Birch Witness
P BIRCH
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