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EXHIBIT 10.15
PRIVATE AND CONFIDENTIAL.
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August 24, 1998
▇▇▇▇▇ ▇▇▇▇▇▇▇
Dear ▇▇▇▇▇:
RE: EMPLOYMENT WITH MEDIA SYNERGY
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Further to our discussions, the following terms and conditions comprise your
employment agreement with Media Synergy hereinafter referred to as "The Company"
or "MEDIA SYNERGY".
1.01 The Company shall employ you and you shall serve the Company in the
position of Vice President of Sales for an indefinite period commencing
August 24, 1998 subject to termination of employment pursuant to
Article 8 herein.
2.01 You will be compensated in accordance with the attached Addendum "A"
titled "COMPENSATION PLAN", as it may be amended annually or from time
to time at the Company's discretion and with or without prior notice to
you. The Company shall be entitled to withhold from amounts to be paid
to you any federal, state or local withholding or other taxes, payroll
deductions, or other charges which it is from time to time required to
withhold.
3.01 During the term of this Agreement, you shall perform such duties and
exercise such powers as may be necessary to properly fulfill the
position of Vice President of Sales, as outlined or required by the
Company. The Company reserves the discretion to amend, alter, or change
your job duties as it sees fit.
3.02 You shall serve the Company faithfully and to the best of your ability
and, during the term of your employment by the Company, shall devote
your full working time, attention, and ability to the business affairs
of the Company.
3.03 You shall make such reports as the Company requests.
3.04 You shall voluntarily disclose any non-confidential information
received in the course of providing your services to the Company which
would be of significant interest to the Company's sphere of business
activity in the area of multimedia email communication software.
3.05 While employed by the Company, you shall not disclose to anyone or
entity outside the company any information provided to you by the
Company which would impede or reduce the Company's ability to operate
its business profitably. Specifically, unless you first secure written
consent from the Company, you shall not disclose or use at any time
either during or for a period of three (3) years subsequent to said
employment, any secret or confidential information of the Company or
clients of the Company of which you become informed during the
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employment, whether or not developed by you, except as required in your
duties to the Company. For the purposes of this Agreement, confidential
information shall include the names or any other information about the
Company's customers or suppliers and any fact, information,
documentation, knowledge, data, know how, property, material and work,
not generally available to or generally known by the public, which is
owned, possessed or controlled by the Company or any person associated
or affiliated therewith. Confidential information shall also include
any such fact, information, documentation, knowledge, data, know how,
property, material and work relating to research and development,
experimentation, computer software programs, inventions, innovations,
improvements, formulae, processes, business plans, financial
information, trade secrets, computer based systems, data storage in a
computer, any computer readable media, product plans, marketing
strategies and names or other information about the Company's
customers, suppliers or employees Confidential Information shall not
include any information which; (i) is or becomes publicly available
through no act of you, (ii) is rightfully received by you from a third
party without restrictions, or (iii) is independently developed by you.
3.06 The Company has a proprietary interest in all information or property
relating to the business of affairs of the Company, except information
which is in the public domain. At the expiry of your employment with
the Company or at any other time that Company so requests, you shall
return or cause to be returned to the Company all tangible property of
the Company and you shall not retain any copies of such property.
3.07 It is a term of the Agreement that you sign a copy of the Agreement for
Assignment of Inventions attached hereto.
3.08 Absence of Prior Agreements.
You represent as follows:
(a) You entering into employment with the Company under this
Agreement does not constitute a breach of any contract,
agreement or understanding and you are free to execute this
Agreement and to enter into the employ of the Company.
(b) You are not bound by the terms of any agreement with any
previous employer or other party (a) to refrain from using or
disclosing any trade secret, confidential, or proprietary
information of such previous employer or other party in the
course of your employment with the Company or (b) to refrain
from competing, directly or indirectly, with the business of
such previous employer or any other party.
4.01 You agree that during your employment with the Company and for a period
of eighteen (18) months after your employment with the Company ends for
whatever reason, you shall not solicit, endeavor to entice away from
the Company or otherwise interfere with the Company's relationship with
any person who is employed by or otherwise engaged to perform services
for the Company or any
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person or entity who is, or was within the then most recent twelve (12)
month period a customer, client or prospective client of the Company.
For purposes of this agreement a prospective client is one that a
representative of Media Synergy has made a proposal to during the
twelve (12) months proceeding the date of termination. For further
clarity the above clause does not restrict you from approaching
contacts/customers with products/services which are not competitive
with the products and services sold by the Company.
4.02 You agree that during your employment with the Company and for a period
of eighteen (18) months after your employment with the Company ends for
whatever reason, you will not, without the advance written consent of
the Company, directly or indirectly engage in any activity or which is
directly competitive with that of the Company or any of its
subsidiaries or affiliates in any province of Canada or any state in
the United States of America where the Company is engaged in business
at the time your employment with the Company ceases.
5.01 You will be entitled to annual vacation in accordance with Company
policy.
5.02 You will be eligible to participate in the Company's benefit program.
The Company reserves the right to amend, alter, change or end any or
all benefits at its discretion and with or without prior notice to you.
6.01 You will be entitled to holidays observed by the Company.
7.01 Should you be required to use your personally owned vehicle for
purposes of undertaking business on behalf of MEDIA SYNERGY, you will
be reimbursed in accordance with the standard rates established for the
period. You will be reimbursed for your out-of-pocket expenses incurred
on behalf of the Company. All claims for travel and expense
reimbursement must be submitted on a timely basis and be clearly
identified and supported by original receipts. The Company reserves the
right to determine what is or what is not a compensable expense.
8.01 We expect this agreement for provision of your services to prove to be
satisfactory to both parties. However, in the event that your services
must be terminated for any reason, the following will apply:
Your employment may be terminated:
(a) without cause, notice, compensation in lieu of notice or
severance pay at any time during the first three (3) months of
your employment, or in the event the Company has just cause to
terminate your employment. For the purposes hereof, the
Company shall determine in its sole discretion whether "just
cause" exists as defined in (i), (ii), (iii) or (iv) below:
(i) being convicted of a criminal offense involving or
relating to the property or affairs of the Company;
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(ii) being guilty of grave misconduct with the Company
reasonably determines has materially harmed the
Company or any of its affiliates; or
(iii) a refusal to follow lawful and proper directions of
your supervisor or manager, after written notice of
that refusal and a reasonable opportunity to comply
therewith;
(iv) failure to meet reasonable performance objectives or
standards after written notice of the requirement
which have been agreed to by you.
(b) at any time, at your option, by providing two weeks prior
written notice to the Company of your effective date of
resignation, or
(c) without just cause, at the opinion of the Company upon
providing written notice to you equal to the period described
as follows:
Notice equal to the aggregate of one week plus one further
week for every full year of service with the Company as at the
date of your dismissal.
It is agreed that the Company may pay you compensation in lieu
of providing you with the aforesaid notice by paying you an
amount equal to your salary, and providing your benefits that
would otherwise have been paid over the aforesaid period of
notice.
8.02 In the event that you receive the payments and benefits described in
paragraph 8.01 herein, you hereby release and forever discharge the
Company and its officers, directors, employees, shareholders and agents
from any and all actions, causes of action, claims and demands
whatsoever arising from your employment with the Company and the
termination of that employment.
9.01 You understand that if you violate any provisions of this agreement
relating to Confidential Information or to your duty to cooperate in
matters relating to protection of intellectual property, the Company
will suffer immediate and irreparable injury. If you violate any of
such provisions, you agree that, in addition to any other remedies that
may apply, your strict compliance with Agreement should be ordered by a
court of competent Jurisdiction and Company is therefore entitled to
preliminary and final injunctive relief to enforce this Agreement.
10.01 In the event that, notwithstanding the foregoing, any part of the
provisions set forth in this Agreement shall be held to be invalid or
unenforceable, the remaining parts thereof shall nevertheless continue
to be valid and enforceable as though the invalid or unenforceable
parts had not been included therein. In the event that any provisions
relating to time period and/or areas of restriction shall be declared
by a court of competent jurisdiction to exceed the maximum time period
or areas such court deems reasonable and enforceable, the agreed upon
time period and/or areas
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of restriction shall be deemed to become and thereafter be the maximum
time period and/or areas which such court deems reasonable and
enforceable.
11.01 It is the policy of the Company to conduct its affairs in strict
compliance with the letter and spirit of the law and to adhere to the
highest principles of business ethics. Accordingly, all officers,
employees and independent contractors must avoid activities which are
in conflict, or give the appearance of being in conflict, with these
principles and with the interests of the Company. The following are
potentially compromising or harmful situations which must be avoided.
Any exceptions must be reported to the President and written approval
for continuation must be obtained.
(a) CONFIDENTIAL INFORMATION: Revealing confidential information
to outsiders or misusing confidential information.
Unauthorized divulging of information is a violation of this
policy, whether or not for personal gain and whether or not
harm to the Company is intended.
(b) GIFTS: Accepting or offering substantial gifts, excessive
entertainment, favors or payments which may be deemed to
constitute undue influence or otherwise be improper or
embarrassing to the Company.
(c) CIVIC OR PROFESSIONAL ORGANIZATIONS: Participating in civic or
professional organizations that might involve divulging
confidential information of the Company.
(d) PERSONAL RELATIONSHIPS: Initiating or approving personnel
actions affecting reward or punishment of employees or
applicants where there is a family relationship or is or
appears to be a personal or social involvement.
(e) HARASSMENT: Initiating or approving any form of personal,
sexual, or social harassment of employees, customers,
suppliers or anyone else.
(f) OUTSIDE INVESTMENT OR INVESTMENTS: Investing or holding an
ownership interest or outside directorship in suppliers,
customers, or competing companies, including financial
speculations, where such investment or directorship might
influence in any manner a decision or course of action of the
Company.
(g) BORROWING AND LENDING: Borrowing from or lending to employees,
customers or suppliers.
(h) REAL ESTATE: Acquiring real estate of interest to the Company.
(i) OTHER INFORMATION: Improperly using or disclosing to the
Company any proprietary information or trade secrets of any
former or concurrent employer or other person or entity with
whom obligations of confidentiality exist.
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(j) COMPETITORS: Unlawfully discussing prices, costs, customers,
sales or markets with competing companies or their employees.
(k) ILLEGAL AGREEMENTS: Making any unlawful agreement with
distributors, competitors or their employees.
(l) COMPANY PROPERTY: Improperly using or authorizing the use of
any property of the Company or any other thing or property
that is owned by person or entity.
(m) GENERAL CONDUCT: Engaging in any conduct which is not in the
best interest of the Company.
(n) FOREIGN PAYMENTS: Making any unlawful agreement with or
payment to any domestic or foreign government official or
corporate representative.
(o) HEADINGS: The headings used herein are for the convenience of
the parties only and shall not be used to define, enlarge or
limit any term of this Agreement.
Each officer, employee and independent contractor must take every
necessary action to ensure compliance with these guidelines and to
bring problem areas to the attention of higher management for review.
Violations of this conflict of interest policy may result in discharge
without warning.
12.01 You hereby agree that because of the nature of Company's business, the
restrictions contained in this letter are reasonable and necessary in
order to protect the legitimate interest of the Company.
13.01 No waiver of any provision of this agreement shall be valid unless the
same is in writing and signed by the party against whom such waiver is
sought to be enforced; moreover, no valid waiver of any other provision
of this agreement at such time or will be deemed a valid waiver of such
provision at any other time.
14.01 Construction and interpretation of this agreement shall at all times
and in all respects be governed by the laws of the Province of Ontario,
Canada.
14.02 This agreement shall be binding upon, and shall inure to the benefit
of, the Company and you, and their respective heirs, personal and legal
representatives, successors and assigns.
14.03 This letter and the attached Addendum titled "Compensation Plan"
constitutes the entire agreement between you and the Company. It is
agreed and acknowledged that there are no representations. oral or
written warranties or covenants upon which the two parties are relying
in reaching this agreement, outside of the terms contained within this
letter and the attached Compensation Plan. All prior agreements
relating to your employment are superseded by this letter of
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agreement. No change or modification hereof shall be valid or binding
unless the same is in writing and signed by the party intended to be
bound.
This letter is being provided to you in duplicate and we would appreciate return
of one (1) copy of this letter indicating your acceptance of the terms and
conditions.
Yours very truly,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Human Resources Manager
ACCEPTED AND AGREED TO THIS 2nd DAY OF September, 1998.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇
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AGREEMENT FOR ASSIGNMENT OF INVENTIONS
If I should be employed to perform services for Media Synergy or any Media
Synergy division, affiliate, subsidiary or associate company or any successor in
business of any of the foregoing, then, in consideration of such employment and
the wages and salary to be paid to me, and regardless of the duration of such
employment, I hereby agree to perform to the best of my ability all duties
required of me from time to time by my employer, and I agree to comply strictly
with all the conditions herein set forth. For the purposes of these conditions,
Media Synergy or its division, affiliate, subsidiary, associate company or
successor in business of any of the foregoing by which I may be employed or to
which from time to time I may be transferred, shall deemed to be the "Employer".
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PART ONE
1. ASSIGNMENT - I agree to assign to the Employer, it's successors,
assigns or nominees, all my rights to inventions, improvements and
developments, patentable or unpatentable, including the right to invoke
the benefit of the right of priority provided by the International
Convention for the Protection of Industrial property, as amended, or by
a Convention which may hereafter be substituted for it and to invoke
and claim such right or priority without further written or oral
authorization, which, during the period of my employment by the
Employer or by its predecessors or successors in business or by any
associated company. I have made or conceived or hereafter may make or
conceive, either solely or jointly with others: (a) with the use of the
Employer's time, materials or facilities; or (b) resulting from or
suggested by my work for the Employer; or (c) in any way appertaining
to any subject matter related to the existing or contemplated business,
products and services of (i) Media Synergy, its affiliate, subsidiary
or associate company by which I am employed, (ii) any other Media
Synergy division, affiliate, subsidiary or associate company in the
same field of business, products or services and (iii) any other Media
Synergy division, affiliate, subsidiary or associate company, to which
I may be exposed in the course of my employment.
2. DISCLOSURE - I agree to make and maintain adequate and current written
records of all inventions, improvements, and developments in the form
of notes, sketches, drawings, or reports relating thereto: which
records shall be and remain the property of and available to the
Employer at all times and I agree promptly to disclose to the Employer
all such inventions, improvements and developments.
3. EXECUTION OF DOCUMENTS - At any time requested by the Employer, either
during employment or after termination thereof, and without charge to
the said Employer, but at its expense, I agree to execute, acknowledge
and deliver all such further papers, including applications for
patents, and to perform such other lawful acts as, in the opinion of
said Employer, may be necessary to obtain or
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maintain patents for such inventions in any and all countries and to
vest title thereto in the Employer, its successors, assigns or
nominees.
4. TERMINATION - Upon termination of my employment, I agree to return to
the Employer all property of the Employer of which I have had custody,
including delivery to the Finance Department of all notebooks and other
data relating to research or experiments conducted by me or any
inventions made by me, and to make full disclosure relating to such
research, experiments or inventions relating to the products, processes
or methods of manufacture of the Employer or otherwise covered by this
agreement.
5. PRIOR INVENTIONS - If, prior to the date of execution hereof, I have
made or conceived any unpatented inventions, improvements or
developments, whether patentable or unpatentable, which I desire to
have excluded from this Agreement, I have written below a complete list
thereof
6.. COMPLIANCE NOT CONTINGENT UPON ADDITIONAL CONSIDERATION - I have not
been promised, and I shall not claim am additional or special payment
for compliance with the covenants and agreements herein contained.
7. SEVERABILITY - I agree that the unenforceability or inapplicability of
any one or more phases and/or provisions of this Agreement and Covenant
shall not affect the remaining provisions of this Agreement and
Covenant or any part thereof.
I have read or have had read to me, and have full knowledge of and understand
the aforementioned Agreement
Employee Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Employee Signature: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Witness (Media Synergy employee): /s/ ▇▇▇▇▇▇ ▇▇▇
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Date: September 2, 1998
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PART TWO
List any unpatented inventions, improvements and developments whether patentable
or unpatentable made or conceived prior to the date of execution herewith which
you desire to have excluded from the foregoing Agreement. Note: If none, state
"none". Also, it is necessary to record issued patents, pending patent
applications or prior inventions previously assigned or agreed to be assigned to
others.
Employee Signature: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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ADDENDUM A - COMPENSATION PLAN
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POSITION Vice President of Sales
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BASE $100,000 annually
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BONUS Discretionary Bonus: $10,000 annually, payable in quarterly
installments, commencing after completion of 90 day
probationary period if certain non-revenue based milestones are
achieved e.g. building direct sales force team, establishment
of a U.S. based sales presence
Revenue Bonus: $40,000 annually, payable at the end of
July 31, 1999 fiscal year if:
1. Aggregate revenue of $5.0 million for fiscal
year is achieved. Accelerator of $25,000 paid
if revenues exceed $5.0 million target.
For purposes of this agreement actual sales shall be
defined as sales which are recognizable for financial
reporting purposes in accordance with Generally
Accepted Accounting Principals, as determined by the
Company's auditors.
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STOCK OPTIONS 300,000 Common shares to be vested evenly over 4 years
commencing the first date of employment. Strike price to be at
$0.185 per share (50% of the latest financing price of $0.37
per share).
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SHAREHOLDER Upon exercise of any stock options you will
AGREEMENT be required to sign and comply with the Company's
standard shareholder's agreement.
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RRSP MATCHING RRSP matching of $1,000 prorated from commencement of
employment to July 31, 1998.
For example, assuming first date of employment is
January 1, 1998 then the RRSP entitlement would be (7 1/2 mths
* $1,000) = $583
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BENEFITS Standard employee benefits after 3 months probation.
Reimbursement of monthly parking charges.
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VACATION 3 weeks plus statutory holidays.
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REVIEWS Compensation to be reviewed by Compensation Committee
annually. First review no later than August, 1999.
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Media Synergy, Inc. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Signed: /s/ ▇▇▇▇▇▇ ▇▇▇ Signed: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name Printed: ▇▇▇▇▇▇ ▇▇▇ Name Printed: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Date: September 2, 1998 Date: September 2, 1998
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▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President Sales
Media Synergy
May 6, 1999
Dear ▇▇▇▇▇,
It is my pleasure to inform you that the compensation committee has accepted the
proposed changes to your compensation plan. The changes will take effect May 1,
1999 except for the commission calculation which will be calculated as at
February 1, 1999. In addition the compensation committee has added two marquee
account bonuses to your compensation plan. A bonus of $5,000 Cdn for Multiple
Zones and a bonus of $10,000 Cdn for the signing of CNET. Since Multiple Zones
is now a client you will be paid your $5,000 bonus on the next-pay period.
Congratulations !
The section below outlines your current compensation and your new compensation
plan. Please note that the revenue target for the period Feb 99 to July 99 has
been reduced to $800k from $1.1 million for purposes of calculating your sales
commission and team bonus commission.
CURRENT COMPENSATION
Base Salary 100,000
Discretionary Bonus 10,000
Revenue Bonus (l) 40,000
Revenue Accelerator Bonus (2) 25,000
Stock Options 300,000 strike price $0.185/share.
(1) Payable if revenues of $5 million achieved as at July 31, 1999.
(2) Payable in addition to $40k bonus if revenues as at July 31, 1999
exceed $5 million.
NEW COMPENSATION
Base Salary 100,000
Commission on total revenue up to target 1.25%
Commission on revenue in excess of target (3) 2.25%
Team Bonus (4) $22,500
Multiple Zones Bonus $ 5,000
CNET Bonus $10,000
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Stock Options:
Existing 300,000 strike price $0.185/share
Additional 200,000 strike price $0.37/share
(3) Revenue target for the period Feb 99 to July 99 = $0.8 million.
(4) Payable if target revenue of $0.8 million achieved for period Feb 99 to
July 99.
As always your compensation plan is confidential and should not be shared with
anyone within the Company. I want to thank you for your continued support and
commitment to Media Synergy.
Yours truly,
▇▇▇▇▇▇ ▇▇▇
Chief Operating Officer
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MEDIASYNERGY
October 7, 1999
To: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Re: 2000 Compensation
Effective August 1, 1999 to July 31, 2000 your total compensation package will
include the following components.
Target
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Base Salary $ 125,000
Performance Bonus $ 25,000
Super Marquee Bonus $ 50,000
Commission $ 50,000
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Total $ 250,000
- Options will be granted annually at the discretion of CEO.
Performance Bonus: (Format is subject to change)
- 50% on corporate targets paid annual - Target bonus is $12,500 with 60%
weight on Revenue and 40% weight on EBITDA targets. The range will be applied
to the scale below.
- 50% on personal objectives paid quarterly - $3125 per quarter based on
instituting:
- sales automation,
- sales knowledge and skill transfer process,
- reusable sales training process,
- market intelligence process,
- revenue forecasting process
Super Marquee Bonus:
- $10,000 paid for each Super Marquee client on signed contract (target 5
accounts with no cap)
- Super Marquee defined as $300,000 in annualized revenue. Bonus will be
adjusted at end of contract based on actual ▇▇▇▇▇▇▇▇.
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Commission:
- Commissions will be paid quarterly based on billed revenues using the
following schedule and applied to the scale below.
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Quarter 1 Quarter 2 Quarter 3 Quarter 4
Target - C$619,500 Target - C$1,173,000 Target - C$2,203,500 Target - C$3,684,000
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Quarter YTD Quarter YTD Quarter YTD Quarter YTD
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$5,000 NA $5,000 $5,000 $7,500 $7,500 $10,000 $10,000
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Scale:
The following scale will be applied against bonus for annual corporate targets
(EBITDA and revenue) and commissions paid on quarterly revenue targets.
Revenue Targets
If % Plan Attainment: 75% to 100% to 125% 4:1 Up & Down
Then % Incentive Plan 0% to 100% to 200%
EBITDA (Loss) Target
If % Plan Attainment: 0% to 100% to 125% 2:1 Down (Smaller Loss)
Then % Incentive Plan 3000% to 100% to 0% 4:1 Up (greater loss)
(0% plan attainment means break even)