EMPLOYMENT AGREEMENT EXHIBIT 10.20
THIS AGREEMENT made as of the 16th day of February, 1998
B E T W E E N:
WAVERIDER COMMUNICATIONS INC., a corporation
incorporated pursuant to the laws of Nevada, in the
United States of America
(herein called the "Corporation")
ON THE FIRST PART
and
CHARLES W. BROWN, residing in the City of Toronto, in
the Province of Ontario
(herein called the "the Executive")
OF THE SECOND PART
WHEREAS the Corporation desires to employ the Executive and to enter
into an agreement (the "Employment Agreement") embodying the terms of such
employment;
AND WHEREAS the Executive has accepted such employment on the basis of
the terms and conditions set forth herein;
IN CONSIDERATION of the recitals and mutual covenants contained herein
and for other good and valuable consideration, the parties agree as follows:
1. EMPLOYMENT
The Corporation hereby employs the Executive and the Executive hereby
accepts employment with the Corporation for the term of this Employment
Agreement set forth in Section 2 below, in a position and with the duties,
responsibilities and authority as the Corporation may from time to time assign
to him including, without limitation, those duties, responsibilities and
authority more particularly set forth in Section 3 below, and upon all other
terms and conditions in this Employment Agreement set forth herein.
2. TERM
The term (the "term") of the Executive's employment pursuant to this
Employment Agreement shall commence on the date first written above and shall
continue until the date which is twelve months from such date, subject to the
provisions of this Employment Agreement providing for earlier termination of the
Executive's employment in certain circumstances. Thereafter, the term shall be
automatically extended for additional one year periods upon the agreement of the
Executive and the President and Chief Executive Officer of the Corporation.
30
3. POSITION, RESPONSIBILITY
It is intended that the Executive shall serve as the Vice President,
Marketing of the Corporation with responsibility for performing such duties for
the Corporation as the Executive shall reasonably be directed to perform by the
President and Chief Executive Officer of the Corporation.
Throughout the term of this Employment Agreement, the Executive shall
devote his full business time and undivided attention during normal business
hours to the business and affairs of the Corporation, except for vacations and
except for illness or incapacity, but, subject to Section 9 and subject to the
approval of the board of directors of the Corporation, which will not be
unreasonably withheld, nothing in this Employment Agreement shall preclude the
Executive from devoting reasonable periods required for serving, as appropriate,
on boards of directors of other corporations, from engaging in charitable and
public service activities, and from managing his personal investments, provided
such activities do not materially interfere with the performance of his duties
and responsibilities under this Employment Agreement and do not constitute a
conflict of interest with respect to his employment herein.
4. SALARY, CASH AND STOCK COMPENSATION PLAN
For services rendered by the Executive during the term of this Agreement, the
Executive shall be entitled to receive an annual remuneration package of
$240,000, pro-rated to $230,000, consisting of cash compensation in the amount
of $172,500, which shall be paid as to the sum of $10,000 (before deductions)
per month commencing as of the date hereof until March 31, 1998 and, subject to
completion of the Corporation's proposed public financing, $15,000 (before
deductions) per month thereafter, and bonuses in the amount of $15,000 payable
on April 1, 1998 and $42,500 payable on December 31, 1998, each such bonus to be
paid upon the achievement of certain performance objectives mutually agreed upon
by the Executive and the President and Chief Executive Officer of the
Corporation and ratified by the board of directors of the Corporation.
The Executive's salary shall be reviewed annually and may be adjusted
taking into account, among other things, individual performance and general
business conditions. In addition, the Executive shall be eligible to participate
in the Corporation's Employee Stock Option (1997) Plan (the "Stock Option Plan")
and any successor plans thereto established by the Corporation for the general
benefit of employees. Pursuant to the Stock Option Plan, the Executive shall be
awarded options (the "Stock Options") to acquire 240,000 common shares ("Common
Shares") in the capital of the Corporation at an exercise price of US$1.07 per
share, being the closing price of the Common Shares on the OTC Bulletin Board on
February 13, 1998. The Stock Options will vest as to 25% on each of March 31,
June 30, September 30 and December 31, 1998.
5. CAR ALLOWANCE
The Employer shall provide the Executive with a car allowance of
$800.00 (Cdn) per month. The Executive will be responsible to utilize this
allowance for the provision of an automobile, acceptable by the Employer for
business use, and the full costs of ongoing maintenance and repair.
6. PERQUISITES AND BUSINESS EXPENSES
The Executive will be reimbursed for all reasonable expenses incurred
by him or her in connection with the conduct of the Corporation's business upon
presentation of sufficient evidence that such expenditures are authorized
expenditures pursuant to policies adopted by the board of directors of the
Corporation from time to time.
31
7. BENEFIT PROGRAMS
The Executive will be entitled to participate in all the Executive
benefit programs of the Corporation from time to time in effect under the terms
and conditions of such programs, including, but not limited to, pension and
other retirement 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 Corporation.
8. VACATION
The Executive shall be entitled to all usual public holidays and, in
addition, to 20 business days paid vacation during each year of the Executive's
employment hereunder. Such vacation shall be utilized by the Executive at such
time or times as do not materially interfere with the ongoing conduct of the
Corporation's business and operations.
9. TERMINATION OF EMPLOYMENT
(a) Death - In the event of the death of the Executive during the
term of this Employment Agreement, the Executive's salary will
be paid to the Executive's designated beneficiary, and in the
absence of such designation, to the estate or other legal
representatives of the Executive, through the end of the month
in which death occurs. Rights and benefits of the Executive
under the Executive benefit plans and programs of the
Corporation, including life insurance, will be determined in
accordance with the terms and conditions of such plans and
programs.
(b) Disability - The Executive's employment shall terminate
automatically upon written notice from the Corporation 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 one hundred and
eighty days during any 12 month period during the term. In the
event of any such absence or inability, the Executive shall be
entitled to receive the compensation provided for herein for
such period, and thereafter the Executive shall be entitled to
receive compensation in accordance with the Corporation's
long-term disability plan, if any, together with such
compensation, if any, as may be determined by the board of
directors of the Corporation.
(c) Termination by the Corporation for Cause - In the event of a
termination for cause, there will be no continued salary
payments by the Corporation to the Executive and any rights
and benefits of the Executive under the Executive benefit
plans and programs of the Corporation will be determined in
accordance with the terms of such plans and programs. For the
purposes of this Section 10(c) and of the Executive's
employment with the Corporation, "cause" shall mean that:
(i) The Executive has committed a felony or indictable
offence or has improperly enriched himself at the
expense of the Corporation 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 wilfully or grossly negligent, or (B)
has committed wilful and gross misconduct or, (C) has
failed to comply with a clear instructions or
directives from the board of directors of the
Corporation after having been informed of a failure
to so comply;
32
(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; or
(v) The Executive commits any other act giving the
Corporation cause to terminate the Executive's
employment, including, but not limited to chronic
alcoholism or drug addiction, material malfeasance or
non-feasance with respect to the Executive's duties
hereunder.
Prior to any termination of the Executive for cause due to any
occurrence described in subparagraphs 10(c)(ii), (iii), (iv)
and (v) above, the Corporation shall notify the Executive in
writing of the particulars of the occurrence upon which
termination would be based and shall in such notice advise the
Executive as to whether, in the Corporation's sole discretion,
the default of the Executive occasioned by such occurrence is
capable of being cured or rectified in full without loss or
damage to the Corporation, in which case the Corporation shall
afford the Executive a reasonable period of not less than five
business days in which to cure or rectify such default. In
such event and provided the Executive cures or rectifies such
default in full without loss or damage to the Corporation, the
Executive's employment shall not be terminated on the basis of
such occurrence.
(d) Termination by the Corporation without Cause - In the
event of a termination without cause, the Employer
will provide a severance package which will include a
minimum of one year's salary, plus one month's salary
for each year of employment in excess of twelve years
service, to be calculated on base salary and
pro-rated for car allowance and bonus incentive. It
is agreed and understood that these amounts are
reasonable and include any obligations which the
employer may have or pay in lieu of notice and/or
severance pay pursuant to the Employment Standards
Act, R.S.O. 1990, c. E-14, or its counterpart in any
other jurisdiction. It is agreed that this Employment
Agreement may not be terminated by the Corporation
without cause without the approval of the board of
directors of the Corporation.
10. NON-COMPETITION
The Executive agrees that during the period of the Executive's
employment with the Corporation and for a period of twelve months from the last
payment of compensation to the Executive by the Corporation, the Executive shall
not engage in or participate in any business activity that competes, directly or
indirectly, in the North American market, with the businesses of the
Corporation, or its subsidiaries or affiliates.
For the purposes of this Section 9, the Executive shall be deemed to
"compete, directly or indirectly, with the business of the Corporation, or its
subsidiaries or affiliates" if the Executive is or becomes engaged, otherwise
than at the request of the Corporation, as an officer, director or the Executive
of, or is or becomes associated in a management or ownership, consultant or
agent, capacity with any corporation, partnership or other enterprise or venture
whose business includes the distribution of competing products. It is the desire
and intent of the parties that the provisions of this Section 9 shall be
enforceable to the fullest extent permissible under the laws and public policies
applied in each jurisdiction in which enforcement is sought. Accordingly, if any
particular portion of this Section 9 is adjudicated unenforceable in any
jurisdiction such adjudication shall apply only in that particular jurisdiction
in which such adjudication is made.
33
11. NON-SOLICITATION
The Executive agrees that for a period of one year following the
termination of the Executive's employment with the Corporation for any reason
whatsoever, the Executive will not, whether as principal, agent, the Executive,
employer, director, officer, shareholder or in any other individual or
representative capacity, solicit or attempt to retain in any way whatsoever any
of the employees of the Corporation or their respective subsidiaries or
affiliates.
12. CONFIDENTIAL INFORMATION
All confidential records, material and information and copies thereof
and any and all trade secrets concerning the business or affairs of the
Corporation or any of its affiliates obtained by the Executive in the course and
by the reason of his employment shall remain the exclusive property of the
Corporation. During the Executive's employment or at any time thereafter, the
Executive shall not divulge the contents of such confidential records or any of
such confidential information or trade secrets to any person or persons, and the
Executive shall not, following the termination of his employment hereunder, for
any reason use the contents of such confidential records or other confidential
information or trade secrets for any purpose whatsoever.
13. WITHHOLDING
Anything to the contrary notwithstanding, all payments required to be
made by the Corporation hereunder to the Executive or his estate or
beneficiaries, shall be subject to the withholding of such amounts relating to
taxes as the Corporation may reasonably determine, after consultation with the
Executive, it should withhold pursuant to any applicable law or regulation. In
lieu of withholding such amounts, in whole or in part, the Corporation may, in
its sole discretion, accept other provisions for payment of taxes and
withholdings as required by law, provided the Corporation is satisfied that all
requirements of law affecting the Corporation's responsibilities to withhold
have been complied with.
14. ENTIRE AGREEMENT
This Employment Agreement contains the entire agreement between the
parties hereto with respect to matters herein and supersedes all prior
agreements and understandings, oral or written, between the parties hereto
relating to such matters.
15. ASSIGNMENT
Except as herein expressly provided, the respective rights and
obligations of the Executive and the Corporation under this Employment Agreement
shall not be assignable by either party without the written consent of the other
party and shall enure to the benefit of and be binding upon the Executive and
the Corporation and their permitted successors or assigns, including, in the
case of the Corporation, any other corporation or entity with which the
Corporation may be merged or otherwise combined or which may acquire the
Corporation or its assets in whole or in substantial part, and, in the case of
the Executive, his estate or other legal representatives. Nothing herein
expressed or implied is intended to confer on any person other than the parties
hereto any rights, remedies, obligations or liabilities under or by reason of
this Employment Agreement.
34
16. APPLICABLE LAW
This Employment Agreement shall be deemed a contract under, and for all
purposes shall be governed by and construed in accordance with, the laws of the
Province of Ontario without regard to the conflicts of laws rules thereof. The
Corporation and the Executive hereby each irrevocably consent and attorn to the
jurisdiction of the courts of the Province of Ontario with respect to any
dispute or proceeding arising in connection with this Employment Agreement.
17. AMENDMENT OR MODIFICATION: WAIVER
No provision of this Employment Agreement may be amended or waived
unless such amendment or waiver is authorized by the Corporation (including any
authorized officer or committee of the board of directors) and is in writing
signed by the Executive and by a duly authorized officer of the Corporation.
Except as otherwise specifically provided in this Employment Agreement, no
waiver by either party hereto of any breach by the other party of any condition
or provision of this Employment Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar breach, condition or
provision at the same time or at any prior or subsequent time.
18. RESIGNATIONS
The Executive hereby agrees that, upon termination of this employment
for any reason whatsoever, the Executive shall thereupon be deemed, upon the
request of the Corporation, to have immediately resigned any position the
Executive may have as an officer and/or director of the Corporation, together
with any other office, position or directorship which the Executive may hold
with any of the Corporation's subsidiaries or related entities in connection
with or arising from the performance of the Executive duties of employment under
this Employment Agreement. In such event, the Executive shall, at the reasonable
request of the Corporation, forthwith execute any and all documents appropriate
to evidence such resignations which are consistent with the terms of this
Employment Agreement.
19. PROVISIONS SURVIVING TERMINATION
It is expressly agreed that notwithstanding termination of the
Executive's employment with and by the Corporation for any reason or cause or in
any circumstances whatsoever, such termination shall be without prejudice to the
rights and obligations of the Executive and the Corporation, respectively, in
relation or arising up to the time up to and including the date of termination;
and the provisions of Sections 8(c) and (d), 9, 10, 11, 12, 15, 17 and 18 of
this Employment Agreement, all of which shall remain and continue in full force
and effect unless and until the board of directors of the Corporation at its
absolute discretion resolves otherwise and so notifies the Executive in writing.
20. SEVERABILITY
In the event that any provision or portion of this Employment Agreement
shall be determined to be invalid or unenforceable for any reason, the remaining
provisions and portions of this Employment Agreement shall be unaffected thereby
and shall remain in full force and effect to the fullest extent permitted by
law.
21. COUNTERPARTS
This Employment Agreement may be executed in counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
35
22. REFERENCES
In the event of the Executive's death or a judicial determination of
his incompetency, reference in this Employment Agreement to the Executive shall
be deemed, where appropriate, to refer to his beneficiary or beneficiaries.
23. CAPTIONS
Captions to the Sections of this Employment Agreement are solely for
convenience and no provision of this Agreement is to be construed by reference
to the captions of that Section.
24. CURRENCY
Unless otherwise specified herein, all dollar amounts referred to
herein shall mean Canadian dollars.
IN WITNESS WHEREOF this Employment Agreement has been executed by a
duly authorized officer of the Corporation and the Executive as of the day first
above written.
WAVERIDER COMMUNICATIONS INC.
By: /s/ D. B. Sinclair
----------------------
D. Bruce Sinclair
President and Chief
Executive Officer
SIGNED, SEALED and )
DELIVERED in the presence of: )
)
)
)
)
/s/ T.S. Worthington ) /s/ Charles Brown
- --------------------------------------- ----------------------
Witness Charles W. Brown
36