EXHIBIT 10.15
EXECUTIVE EMPLOYMENT AGREEMENT
MEMORANDUM OF AGREEMENT made at Montreal, Quebec, on March 5, 2004.
BY AND BETWEEN: OPTIMAL ROBOTICS Corp., a corporation constituted
pursuant to the Canada Business Corporations Act,
with a place of business at 4700 de la Savane,
Suite 101, in the City of Montreal, Province of
Quebec
(hereinafter, the "Corporation");
AND: MR. HENRY M. KARP, executive, residing at
Landsdowne Ridge, in the City of Montreal,
Province of Quebec H3Y 1A1;
(hereinafter, the "Executive")
WHEREAS the Executive is currently employed as President and Chief Operating
Officer of the Corporation;
WHEREAS the parties desire to enter into this Agreement setting forth the terms
and conditions of the employment of the Executive with the Corporation from and
after the date hereof and the benefits attaching thereto;
NOW, THEREFORE, THIS AGREEMENT WITNESSETH THAT, in consideration of the mutual
covenants herein contained, the parties agree as follows:
ARTICLE I
INTERPRETATION
1.1 Definitions. Where used herein or in any amendments hereto or in any
communication required or permitted to be given hereunder, the following
words and phrases shall have the following meanings, respectively, unless
the context otherwise requires:
(a) "Affiliate" shall have the meaning ascribed thereto in the Canada
Business Corporations Act, as amended;
(b) "Agreement" shall mean this Executive Employment Agreement and all
instruments supplemental hereto or in amendment or confirmation
hereof; "herein", "hereof", "hereto", "hereunder" and similar
expressions mean and refer to this Agreement and not to any
particular Article, Section, Subsection or other subdivision;
"Article", "Section", "Subsection" or other subdivision of this
Agreement means and refers to the specified Article, Section,
Subsection or other subdivision of this Agreement;
(c) "Base Salary" has the meaning ascribed thereto in Section 4.1;
(d) "Basic Payments" shall mean an amount equal to the aggregate of (i)
earned but unpaid Base Salary, (ii) earned but unpaid bonuses, if
any, calculated, in the case of the fiscal year during which
termination of employment occurs, on a per diem basis from the first
day of such fiscal year to the date of termination, (iii) unpaid
business expense reimbursement, (iv) the amount payable for unused
vacation days, as provided for in the Corporation's vacation policy,
and (v) the value for income tax purposes of other benefits to which
the Executive is entitled;
(e) "Board" means the board of directors of the Corporation;
(f) "Business" shall mean the business conducted by the Corporation or
its Affiliate, as applicable, on the date of the termination of the
Executive's employment;
(g) "Cause" shall mean the occurrence of any one of the following acts
or events by or relating to the Executive:
(i) the habitual neglect or failure to fulfill obligations
assigned by the Board or to carry out lawful orders relating
to employment hereunder, except to the extent any such
assigned obligation or lawful order constitutes Good Reason;
(ii) habitual inability to carry out functions of employment due to
alcohol or drug related causes;
(iii) theft, fraud or embezzlement from the Corporation or any other
material act of dishonesty relating to the Executive's
employment; or
(iv) conviction of a crime (other than traffic violations and minor
misdemeanors);
(h) "Change of Control" shall mean the occurrence of any of (i) the
acquisition by an arm's length third party, directly or indirectly,
by way of take-over bid, merger or other similar procedure, of
outstanding shares of the Corporation representing more than thirty
percent (30%) of the votes attaching to all outstanding voting
shares of the Corporation; or (ii) the acquisition by an arm's
length third party, directly or indirectly, of all or substantially
all of the assets of the Corporation; or (iii) one-third or more of
the members of the Board consisting of persons other than Current
Directors (and for these purposes a "Current Director" shall mean
any member of the Board elected at or continuing in office after the
2004 annual and special meeting of shareholders of the Corporation,
any successor of a Current Director who has been approved by a
majority of the Current Directors then on the Board,
and any other person who has been approved by a majority of the
Current Directors then on the Board);
(i) "Confidential Information" shall mean, all information howsoever
received by the Executive from or through the Corporation in
whatever form (oral, written, machine readable or otherwise)
pertaining to the Corporation or any of its Affiliates, including,
without limitation, Intellectual Property Rights, processes,
formulas, research, developments, financial information, marketing
information, names or lists of customers, prospective customers,
suppliers or distributors; provided, however, that the phrase
"Confidential Information" shall not include information that:
(i) is in the public domain, or generally known in the industry in
which the Corporation or its Affiliate operates, as
applicable, without any fault or responsibility of the
Executive,
(ii) is approved by the Board for disclosure by the Executive prior
to its actual disclosure;
(j) "Good Reason" shall mean the occurrence of any one of the following
acts or events without the prior written consent of the Executive:
(i) the express or constructive demotion of the Executive
including any change in his title, status, position, job
function, job responsibilities and/or reporting
responsibilities within the Corporation;
(ii) the diminishment of the Executive's authority or
responsibility as a senior executive of the Corporation, a
change in the Executive's duties or in the scope of such
duties including the assignment to the Executive of duties and
responsibilities which are inconsistent with his status and/or
position within the Corporation;
(iii) a reduction in the Executive's Base Salary or in the level of
participation by the Executive in the Corporation's bonus plan
for senior executives of the Corporation, unless such
reduction is voluntary on the part of the Executive;
(iv) a material reduction in the Executive's benefits; or
(v) a material breach by the Corporation of this Agreement which
is not remedied after thirty (30) days written notice thereof;
(k) "Incapacity" shall mean any medical condition whatsoever which leads
to the Executive's absence from his job function for a continuous
period of twelve (12) months without the Executive being able to
resume functions on a full time basis at the expiration of such
period; and unsuccessful attempts to return to work for periods of
less than fifteen (15) days shall not interrupt the calculation of
such twelve (12) month period;
(l) "Intellectual Property Rights" shall mean all registered and
unregistered intellectual property rights including, without
limiting the generality of the foregoing, all intellectual property
rights attached to:
(i) all inventions, patentable or not patentable, trademarks,
trade names, copyrights, industrial designs, trade secrets,
topographies and all other intellectual property rights; and
(ii) all domestic and foreign registrations, applications and
renewals thereof for registration of intellectual property
rights;
(m) "Person" shall mean an individual, corporation, company,
cooperative, partnership, trust, unincorporated association, entity
with juridical personality or governmental authority or body; and
pronouns which
refer to a Person shall have a similarly extended meaning; and
(n) "Territory" shall mean Canada and the United States of America.
1.2 Preamble. The preamble hereof shall form an integral part of this
Agreement
ARTICLE II
DUTIES
2.1 The Executive shall continue to hold the positions of President and Chief
Operating Officer of the Corporation.
2.2 The Executive shall report to the Board.
2.3 The Executive's duties and responsibilities shall include, in addition to
those inherent to the Executive's title and normally pertaining to such
title, those compatible with the Executive's position and which the Board
may delegate or assign to him from time to time.
ARTICLE III
DURATION
3.1 This Agreement is hereby concluded for an indeterminate period of time.
ARTICLE IV
SALARY
4.1 The Executive shall receive an annual base salary in an amount not less
than that to which he is currently entitled (which, for greater certainty,
shall include the portions thereof paid in periodic installments and the
so-called forced savings amount payable in one annual installment),
without giving effect to the voluntary temporary reductions to such base
salary that have been in effect since October 3, 2003 (herein, the "Base
Salary").
4.2 Eighty percent of the Base Salary in respect of any year shall be paid to
the Executive in accordance with the general payroll practice of the
Corporation. The remaining twenty percent of the Base Salary shall be paid
to the Executive on the first payroll payment day in the next following
year.
4.3 The parties agree that the Corporation, through its Compensation Committee
or independent directors, as applicable, shall, in each year within 30
days following the approval by the Board of the audited financial
statements of the Corporation for the immediately preceding year, and may,
at any time, review and at its discretion adjust, the amount of the Base
Salary; provided, however, that the amount of Base Salary in any year
shall in no event be less than the Base Salary paid or payable to the
Executive during any previous year of his employment with the Corporation.
ARTICLE V
BONUS
5.1 The Executive shall be entitled to participate in the bonus plan for
senior executives of the Corporation, when approved by the Board. The
Executive shall be paid an annual bonus in respect of each fiscal year
during the term of this agreement, in such amount, if any, and at such
time(s) as shall be determined pursuant to the Corporation's bonus plan
for senior executives of the Corporation; and (b) until such time as the
aforesaid bonus plan is approved by the Board, the Executive's annual
bonus shall be determined at the sole discretion of the Board.
5.2 The earned bonuses shall be paid within ten (10) days following the
approval, by the Board, of the Corporation's audited annual financial
statements.
ARTICLE vi
TREATMENT OF STOCK OPTIONS
6.1 Should the Executive's employment be terminated by the Corporation without
Cause or by the Executive with Good
Reason, before the announcement of a transaction or event constituting a
Change of Control, or should the Executive's employment be terminated by
the Executive for any reason (whether with or without Good Reason)
following the completion of a transaction or event constituting a Change
of Control, or should the Executive's employment be terminated by the
Corporation for any reason (whether with or without Cause) following the
announcement of a transaction or event constituting a Change of Control,
all options to purchase shares of the Corporation then held by the
Executive (collectively, "Options") shall vest immediately upon the
termination of the Executive's employment and, subject to obtaining any
required regulatory approvals and further subject to Section 6.2, shall
remain exercisable for the remainder of the original term thereof.
6.2 The Corporation shall be required to use its reasonable efforts to obtain
within 75 days following the date of any termination of the Executive's
employment referred to in Section 6.1 (the "Termination Date"), any
regulatory approvals that are required to permit all Options to remain
exercisable for the remainder of the original term thereof notwithstanding
such termination of employment; provided, however, that the Corporation
shall have no obligation to seek any shareholder approval that might be
established by the applicable regulatory authority as a condition
precedent to the grant of any such regulatory approval. If for any reason
such regulatory approvals are not obtained by such date, the Executive
shall (to the extent that he has not already done so), exercise all
in-the-money Options on or prior to the 90th day (the "Calculation Date")
after the Termination Date and the Corporation shall pay to the Executive
on the day following the Calculation Date, in a lump sum (less any
statutory deductions at source), an amount equal to the fair market value
of the Options determined as of the Termination Date and as if the Options
remained exercisable in full for the remainder of the original term
thereof, less the amount of the Gain (as hereinafter defined) realized by
the Executive upon his exercise of such in-
the-money Options. For the purposes of this Section 6.2, the Gain realized
by the Executive upon his exercise of such in-the-money Options shall
equal the difference between a) the aggregate exercise price of such
in-the-money Options and b) to the extent any of the shares underlying the
Options are sold on or prior to the Calculation Date, the proceeds from
such sale net of any brokerage commission, and to the extent such shares
are not sold by the Calculation Date, the average closing price for the
Class "A" shares of Optimal on the principal market or exchange on which
such shares are traded, over the five trading days ending on the
Calculation Date (and including the Calculation Date, if such market or
exchange is open for trading on such date).
The fair market value of the Options shall be determined by the auditors
of the Corporation, at the expense of the Corporation, on or prior to the
Calculation Date, by using the Black-Scholes valuation model and such
assumptions for use in such model as are reasonable and appropriate in
their professional judgment (such fair market value determination
hereinafter called the "Determination"). Before making the Determination,
the auditors shall give the Executive the opportunity to be heard and to
present the opinion of his professional advisors at his expense. A copy of
the Determination and the related calculations shall be provided promptly
to the Executive and such Determination shall be final and binding upon
the parties and not subject to appeal.
ARTICLE VII
BENEFITS AND VACATION
7.1 The Executive shall participate in all benefit programs and/or plans of
general application which are presently granted or which, at any time
during his employment, may be granted to senior executives of the
Corporation, the whole in accordance with the actual programs or plans
that the Corporation may institute from time to time or as otherwise
required under any applicable law.
7.2 All business expenses incurred by the Executive during his employment in
connection with the performance of his duties shall be reimbursed by the
Corporation upon submission of invoices or other supporting documentation
in accordance with company policy.
7.3 The Executive shall be entitled to such number of paid vacation days per
fiscal year of the Corporation as shall be in keeping with the vacation
policy of the Corporation as it applies to its senior executive officers,
to be taken at such times and intervals as shall be determined by the
Executive, subject to the reasonable business needs of the Corporation.
7.4 During the term of this Agreement, the Corporation shall, in addition to
any other insurance coverage provided to the Executive in his capacity as
an officer of the Corporation, pay or reimburse to the Executive or his
designee the cost of the reasonable premiums associated with a personal
life and disability insurance policy with a minimum coverage of
US$5,000,000 (or the Canadian dollar equivalent thereof) in term or whole
life insurance, which policy shall be owned by the Executive or his
designee.
7.5 All legal, accounting and other expenses incurred by the Executive to
successfully recover any amount or enforce performance of any other
obligation due to him by the Corporation shall be reimbursed by the
Corporation within ten (10) days of the presentation of appropriate
supporting documents.
ARTICLE VIII
CONFIDENTIALITY
8.1 The Executive hereby agrees not to use, divulge, diffuse, sell, transfer,
give, publish, reproduce, circulate, or otherwise distribute to any
Person, or otherwise make public, any Confidential Information.
8.2 Any document or work composed, assembled or produced by the Executive or
the Corporation in whatever form (oral, written, machine readable or
otherwise), and containing Confidential Information (including, without
limitation, all notes, extracts, text or references from which any
Confidential Information can be implicitly or otherwise revealed or
understood) shall be deemed to be Confidential Information within the
meaning of this Agreement and shall be treated as such.
8.3 Confidential Information and all embodiments thereof (including any
reproduction) shall remain the sole property of the Corporation and shall
be returned to the Corporation immediately upon request to this effect or
immediately after the termination of the Executive's employment.
8.4 Anything to the contrary herein notwithstanding, disclosure of
Confidential Information shall not be precluded if such disclosure is in
response to a valid order of a governmental body or is otherwise required
by law; provided however that the Executive shall, if reasonably possible,
first have given notice thereof to the Corporation and shall have, as
reasonably possible:
(a) fully cooperated in the Corporation's attempt, if any, to obtain a
"protective order" from the appropriate governmental body; or
(b) attempted to classify such documents to prevent access by the
public, in accordance with the provisions of any law pertaining to
freedom of information.
ARTICLE IX
OBLIGATION OF NON-COMPETITION
9.1 The Executive shall not, during his employment and for a period of two (2)
years following the termination of his employment, provided that the
Corporation is not in material default hereunder or under any stock option
agreement
between the parties, on his own behalf or on behalf of any Person, whether
directly or indirectly, in any capacity whatsoever, alone, through or in
connection with any Person, carry on or be employed by, be engaged in or
have any financial interest in any business in all or part of the
Territory which is in direct competition with the Business.
9.2 The Executive shall not be in default under Section 9.1 by virtue of
holding, strictly for portfolio purposes and as a passive Investor, not
more than five percent (5%) of the issued and outstanding shares of, or
any other interest in, any Person which is listed on any recognized stock
exchange
ARTICLE X
OBLIGATION OF NON-SOLICITATION OF EMPLOYEES
10.1 The Executive shall not, during his employment and for a period of two (2)
years following the termination of his employment provided that the
Corporation is not in material default hereunder or under any stock option
agreement between the parties, on his own behalf or on behalf of any
Person, whether directly or indirectly, in any capacity whatsoever, alone,
through or in connection with any Person, employ, offer employment to or
solicit the employment or engagement of or otherwise entice away from the
employment of the Corporation or any one of its Affiliates, any individual
who is employed by the Corporation or such Affiliate at the time of the
termination of the Executive's employment or who was employed by the
Corporation or such Affiliate in the six (6) month period preceding the
termination of the Executive's employment.
ARTICLE XI
TERMINATION OF EMPLOYMENT
11.1 The Executive's employment may be terminated in any of the following
eventualities:
(a) At any time, for Cause, upon written notice from the Corporation to
the Executive;
(b) Upon the death or the Incapacity of the Executive;
(c) Upon sixty (60) days written notice from the Executive to the
Corporation, specifying the intention of the Executive to resign
(except if Good Reason exists, in which event the Executive may
terminate his employment at any time by written notice to the
Corporation); or
(d) At any time, by the Corporation, without Cause, upon written notice
from the Corporation to the Executive.
11.2 No purported termination of employment by the Corporation shall be valid
or effective unless it has been approved at a meeting of the Board duly
called and held, and approved by a vote of two-thirds of the directors
then in office and qualified to vote thereon (rounded up to the next whole
number of directors), and a certified copy of which shall accompany the
Corporation's written notice of termination of the Executive's employment.
ARTICLE XII
PAYMENTS UPON TERMINATION OF EMPLOYMENT
12.1 Should the Executive's employment be terminated prior to the announcement
of a transaction or event constituting a Change of Control a) by the
Corporation for Cause or upon the death or the Incapacity of the
Executive, or b) upon the Executive's resignation without Good Reason, the
Corporation shall pay to the Executive within ten (10) days following the
termination of his employment, in one lump sum (less statutory deductions
at source), the Basic Payments except for bonuses forming part of the
Basic Payments which shall be paid in accordance with Section 5.2 of this
Agreement. The Executive shall not be entitled to receive any pay in lieu
of notice, severance pay or any indemnity whatsoever, other than the Basic
Payments.
12.2 Should the Executive's employment be terminated prior to the announcement
of a transaction or event constituting a Change of Control a) by the
Corporation without Cause, or b) by the Executive for Good Reason, (1) the
Corporation shall pay to the Executive (A) the Basic Payments, and (B) an
amount (the "Termination Payment") equal to two (2) times the highest
annual Base Salary paid or payable to the Executive during his employment
hereunder (hereinafter, the "Highest Base Salary") plus two (2) times the
highest aggregate bonuses paid or payable to him in respect of any year of
his employment hereunder (hereinafter, the "Highest Aggregate Bonuses"),
each payable in one lump sum (less statutory deductions at source) within
ten (10) days following the termination of his employment, except for
bonuses forming part of the Basic Payments which shall be paid in
accordance with Section 5.2 of this Agreement, (2) the insurance, if any,
then owned by the Executive or his designee for which the Corporation is
responsible for the cost of the premiums in accordance with Section 7.4
shall forthwith be converted to, or replaced by a level deposit premium
insurance policy to age 80, for the same insurance amount, which policy
shall be owned by the Executive or his designee, and the Corporation shall
pay directly to the insurance carrier the entire cost of the premium for
such level deposit premium insurance policy (the "Insurance Covenant"),
and (3) the Corporation shall forthwith acquire medical insurance coverage
for the Executive, which coverage shall provide the Executive and his
family with health, life, dental and other insurance coverage in Canada
and the United States which is equivalent to the coverage theretofore
maintained by the Corporation for the benefit of its senior executives and
enjoyed by the Executive. Such coverage shall be for a term of five years
and shall commence forthwith following the termination of the Executive's
employment (the "Medical Insurance Covenant").
12.3 Should the Executive's employment be terminated by the Corporation for any
reason (whether with or without Cause) following the announcement of a
transaction or event
constituting a Change of Control or by the Executive (whether with or
without Good Reason) following the completion of a transaction or event
constituting a Change of Control, the Corporation shall pay to the
Executive the Basic Payments and the Termination Payment, in each case as
described, and payable on the dates set forth in Section 12.2, and shall
perform the Insurance Covenant and the Medical Insurance Covenant, as
described in Section 12.2.
12.4 In the event of the termination of the employment of the Executive for any
reason, all indebtedness still owing by the Executive to the Corporation
at the time of such termination will be forgiven and extinguished and the
Corporation will pay or reimburse to the Executive the amount of any taxes
incurred by him in connection with any such forgiveness.
12.5 The Executive recognizes and accepts that the Corporation shall not, in
any case, be responsible for any additional amount, indemnity in lieu of
notice, severance pay or other damages arising from the termination of his
employment, except for those specifically provided for herein.
ARTICLE XIII
MISCELLANEOUS
13.1 Payments and Withholdings. All Base Salary (other than the twenty percent
portion thereof that is payable in one annual installment) and bonus, if
any, payable hereunder shall be paid in accordance with the Corporation's
general payroll practice and all amounts paid to the Executive hereunder
shall be paid net of any amounts to be withheld as required by applicable
law.
13.2 Headings. The headings in this Agreement are inserted for convenience of
reference only and shall not affect the interpretation hereof.
13.3 Severability. Any Article, Section, Subsection or other subdivision of
this Agreement or any other provision of this
Agreement which is, or becomes, illegal, invalid or unenforceable shall be
severed herefrom and shall be ineffective to the extent of such
illegality, invalidity or unenforceability and shall not affect or impair
the remaining provisions hereof, which provisions shall (a) be severed
from any illegal, invalid or unenforceable Article, Section, Subsection or
other subdivision of this Agreement or any other provision of this
Agreement; and (b) otherwise remain in full force and effect.
13.4 Amendments. No amendment shall be binding unless expressly provided in an
instrument duly executed by the parties.
13.5 Waiver. No waiver, whether by conduct or otherwise, of any of the
provisions of this Agreement shall be deemed to constitute a waiver of any
other provisions (whether or not similar) nor shall such waiver constitute
a continuing waiver unless otherwise expressly provided in an instrument
duly executed by the parties to be bound thereby.
13.6 Existing Agreement. This Agreement shall supersede and replace any
employment agreement entered into by the Corporation and the Executive
prior to the signature of this Agreement.
13.7 Notices. Any notice given pursuant hereto shall be in writing and shall be
sufficiently given if delivered (whether in person, by courier service or
other personal method of delivery), or if transmitted by facsimile:
(a) If to the Corporation:
c/o 7350 TransCanada Highway
Montreal, Quebec
H4T 1A3
Attention: Chief Executive Officer
Telecopy No.: (514) 738-8355
(b) If to the Executive, at his address first hereinabove set forth;
telecopy no.: not applicable
13.8 Governing Law. This Agreement shall be governed by and interpreted and
construed in accordance with the laws of the Province of Quebec and the
laws of Canada applicable therein.
13.9 Language. The parties hereto acknowledge that they have requested and are
satisfied that this Agreement and all related documents be drawn up in the
English language. Les parties aux presentes reconnaissent avoir requis que
la presente entente et les documents qui y sont relatifs soient rediges en
anglais.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto on
the date and at the place first above-mentioned.
OPTIMAL ROBOTICS CORP.
Per: ________________________________
Per: ________________________________
HENRY M. KARP
________________________________