EXHIBIT 10.8
July 9, 2002
▇▇▇▇ ▇▇▇
c/o Infowave Software, Inc
Vancouver, BC
Dear ▇▇▇▇,
I am pleased to present you with the following employment offer on behalf of
Infowave Software, Inc. ("Infowave" or the "Company"), as contained in this
letter and the attached Proprietary Information Agreement:
Title: Executive Vice President of Sales & Marketing,
reporting to the Board of Directors. You shall be
appointed a member of the Office of the President.
Start Date: July 11, 2002.
Base Compensation: $165,000 per year.
Option Shares: An option to purchase 250,000 common shares of the
Company exercisable at a price to be determined in
compliance with the policies of The Toronto Stock
Exchange and which shall vest (i.e. become
exercisable) as to 1/16 of the options each three
months for the first year from the date of
commencement of employment, and at a rate of
1/12th of the remaining options each three months
thereafter so that all such options will be vested
over four years. The grant of the option provided
within this offer letter is subject to regulatory,
and, if necessary, shareholder approval. The
option granted within this offer letter may not be
exercised until all regulatory and shareholder
approvals have been obtained.
Performance Compensation: You are eligible to earn performance-based bonuses
up to $40,000 ($10,000 per quarter) based upon
achieving the following recognized revenue
targets:
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Q3:FY02 Q4:FY02 Q1:FY03
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75% of bonus @ $600,000 75% of bonus @ $800,000 To be reassessed during Annual
planning
85% of bonus @ $700,000 85% of bonus @ $900,000
100% of bonus @ $800,000 100% of bonus @ $1,000,000
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Performance-based bonuses will be paid out upon
acceptance of recognized revenue by the Board of
Directors after each quarter.
Benefits: The Employee may participate in and be entitled to
all benefits payable under the Employer's group
term life insurance, medical and dental plans,
long term disability coverages, pensions and/or
profit sharing plan (if any) and any other benefit
plans that the Employer may establish on the same
terms and conditions as apply to all other
employees of the Employer. A "Summary of Benefits"
sheet is enclosed for your review.
Vacation: You will accrue vacation at a rate of 1.67 days
per month - or 20 days per year.
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Change of Control: If the Employee is terminated
without cause within 6 months of a Change in
Control, the Employee shall be entitled to a gross
lump sum equal to 6 months base salary. A
"Change of Control" means:
i) any Person (as defined in the Securities Act
(British Columbia)), or combination of Persons
acting jointly or in concert, acquires or
becomes the beneficial owner of, directly or
indirectly, more than 50% of the voting
securities of Infowave, whether through the
acquisition of previously issued and
outstanding voting securities of Infowave or
of voting securities of Infowave that have not
been previously issued, or any combination
thereof or any other transaction having a
similar effect; or
ii) any amalgamation, merger or arrangement of
Infowave with or into another where the
shareholders of Infowave immediately prior to
the transaction will hold less than 51% of the
voting securities of the resulting entity upon
completion of the transaction (for greater
certainty, in calculating the percentage
ownership, any shares issued under a
contemporaneous financing shall not be
included in the calculation); or
iii) the sale of all or substantially all of the
assets of the Company.
In the event of a Change of Control, 50% of
unvested options shall vest immediately.
Termination: Should you be terminated without cause during the
first 6 months from your commencement of full-time
employment, you will be entitled, at the Company's
option, to: (i) 3 months written notice; (ii) a
gross lump sum equal to 3 months base salary with
all options due to vest in the subsequent 3 months
vesting immediately; or (iii) any combination of
such notice and payment in lieu thereof.
Should you be terminated without cause after the
first 6 months from your commencement of full-time
employment, you will be entitled at the Company's
option to: (i) 6 months written notice; (ii) a
gross lump sum equal to six months base salary
with all options due to vest in the subsequent 6
months vesting immediately; or (iii) any
combination of such notice and payment in lieu
thereof.
For greater certainty, you shall not be entitled
to a payment under both "Change of Control" and
"Termination".
Confidentiality: You will appreciate that details of all components
of your compensation package will be held by you
in strictest confidence. Confidentiality
concerning all salary issues is a condition of
your employment with Infowave.
Promotion to President: Upon satisfactory achievement of recognized
revenue targets for both Q3 and Q4 2002 of
US$800,000 and US$1,000,000, respectively, the
Board of Directors will consider, at its sole and
absolute discretion, the possibility of your
promotion to President of the Company effective
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January 1, 2003. In the event that you are not
promoted to the position of President and Infowave
has met the Q3 and Q4 recognized revenue targets
described above, or if the Board of Director
appoints another person as President prior to
January 1, 2003, you may elect to terminate your
employment and you will be paid an aggregate sum
equal to 3 months base salary and all options due
to vest in the subsequent 3 months shall vest
immediately.
The Board of Directors will also consider, at its
sole and absolute discretion, the possibility of
promoting you to President of the Company in the
event of: (i) a change in the management structure
of the Office of the President; (ii) the
resignation or termination of a member of the
Office of the President; or (iii) achieving the Q4
recognized revenue target of US$1,000,000 before
Jan 1, 2003. You acknowledge and agree that you
shall have no claim against the Company for any
reason whatsoever, including without limitation
constructive dismissal, if you are not promoted to
the position of President in these circumstances.
Re-location Expenses: The Company shall pay you for reasonable moving
expenses incurred in your prior move from the City
of Calgary to the Greater Vancouver Area, to a
maximum of $7,500.
Directors and Officers The Company shall immediately add you as an
Liability Coverage: insured party under its directors and officers
liability insurance policies. The Company shall
use its reasonable commercial efforts to keep you
insured under such policies on terms consistent
with other officers of the Company.
Policies and Procedures: You agree at all times to be bound by the
Company's policies and procedures as they may be
contained and viewed on our intranet. You agree to
promptly and without delay familiarize yourself
with such policies and procedures and to maintain
a current awareness of same.
This offer, together with the attached Proprietary Information Agreement,
represents the entire understanding between the parties as to the subject matter
hereof and supersedes all prior oral and written commitments, contracts and
understandings with respect to that subject matter.
If you have any questions about the details of this offer, please contact me at
760.9039.
If you accept this job offer, please sign both copies of this letter and the
attached Proprietary Information Agreement in the designated spaces and return
one copy of each to ▇▇▇▇▇ ▇▇, Director of Human Resources. This employment offer
expires at 5:00 pm (Vancouver time) on July 10, 2002.
▇▇▇▇, we are looking forward to the prospect of you joining Infowave. We believe
you will be an asset to Infowave and a key driver and participant in its growth.
Best regards
Infowave Software, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇
Director
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▇▇▇▇ ▇▇▇
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Date
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PROPRIETARY INFORMATION AGREEMENT
THIS AGREEMENT made as of the _____ day of ______________ 200___.
BETWEEN Infowave Software, Inc., having an office at ▇▇▇▇▇ ▇▇▇ - ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇, ("Employer") and ▇▇▇▇ ▇▇▇ ("Employee").
WHEREAS the Employee has entered into a letter agreement of even date (the
"Letter Agreement") providing for the full and active employ of the Employer in
accordance with the terms and conditions set forth therein;
AND WHEREAS the Employee acknowledges that in the performance of the services
contemplated by the letter agreement he will create or be privy to Trade Secrets
and other confidential information, inventions, works, designs and other
intellectual property, all of which are valuable to the Employer;
AND WHEREAS there may exist previous agreements between the Employer and the
Employee;
NOW THEREFORE in consideration of the Employer employing the Employee and for
other good and valuable consideration (the receipt and sufficiency of which is
hereby acknowledged), the parties hereto hereby agree as follows:
1. Definitions
1.1. "Confidential Information" means information concerning the Employer's
scientific and business interests including the Technology which is not
generally available to third parties and which is treated by the Employer, in
accordance with its policies, as confidential information or a trade secret.
1.2 "Technology" means the research and development carried out by the Employer
during the term of this agreement, and the research and development that during
the term of this agreement the Employer comes to anticipate carrying out in the
future.
1.3 "Work Product" means any work, research or development produced or created
by the Employee of a technical, scientific, or business nature pertinent to the
Employer's scientific or business interests including that relating to the
Technology or Confidential Information.
1.4 "Compete" means to research, develop, manufacture, distribute, or market,
other than as instructed by the Employer a product or service which performs a
similar function to a product or service (a) which during the term of this
agreement the Employer researches, develops, manufactures, distributes, or
markets, or (b) which during the term of this agreement the Employer comes to
anticipate researching, developing, manufacturing, distributing, or marketing in
the future.
1.5 "Homework" means either and both of the following:
(a) information or material which was legally in the possession of the
Employee prior to this agreement;
(b) information or material which the Employee develops or obtains during
the term of this agreement without using the Technology, Confidential
Information, Work Product, or equipment, materials, or facilities
belonging to or provided by the Employer, and which the Employee
intends to use, though not necessarily exclusively, in a way that does
not relate to the Work Product and that does not Compete.
1.6 "Office" means any of the Employer's normal places of business.
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1.7 "Termination" means the termination of the Employee's employment with the
Employer.
1.8 "Layoff" means a temporary suspension of the Employee's employment with the
Employer which is affected by the Employer.
2. Replacement of previous agreements
2.1 This agreement completely replaces any and all previous agreements between
the Employer and the Employee relating to the subject matter hereof.
3. Duration of Agreement
3.1 This agreement shall be deemed to come into effect on the day and year
first above written.
3.2 This agreement shall remain in effect until Termination, provided that
Section 7 shall survive Termination.
3.3 Termination may be affected by either party at any time provided that any
requirements under the Letter Agreement of notice before Termination and/or
compensation after Termination are met.
3.4 In the event of a Layoff, this agreement shall remain in effect during the
Layoff.
3.5 In the event of a Layoff, the Employee shall have the right during the
Layoff to affect Termination effective immediately upon notifying the Employer.
4. Work Product and Homework of Employee
4.1 The Employee has expended or will expend time and effort, and may have
expended or may expend money in the research and development relating to the
Technology resulting in Work Product being created on behalf of the Employer.
The parties wish to acknowledge that any and all Work Product has been carried
out on behalf of the Employer and all proprietary right, title, and interest in
and to the Work Product and the Technology remains that of the Employer.
4.2 The Employer recognizes the right of the Employee to create Homework.
5. Ownership of Work Product and Homework
5.1 The Employee agrees that any Work Product created by the Employee in
furtherance of any identifiable project carried out by the Employer either
developed solely or jointly with any other party will be the sole and exclusive
property of the Employer. The Employer is and will be the sole owner of all
copyrights, patents, and other intellectual property rights in the Work Product
and the Technology.
5.2 The Employee hereby assigns to the Employer any rights the Employee may
have or acquire in the Work Product, excepting any rights the Employee may
obtain from the Employer in a separate written agreement. At any and all times,
either during or after termination of the Employee's employment with the
Employer the Employee will promptly, on the request of the Employer, perform all
such acts and execute and deliver all such documents that may be necessary to
vest in the Employer the entire right, title, and interest in and to any such
Work Product. Should any such services be rendered after termination of
employment with the Employer a reasonable compensation will be paid to the
Employee by the Employer upon a per diem basis in addition to reasonable
traveling and accommodation expenses incurred as a result of rendering such
services.
5.3 If the Employee removes any Work Product from the Office, and makes
modifications to the Work Product using either his or her own equipment or the
Employer's equipment, the Employee agrees that all modifications done to the
Work Product are owned by the Employer.
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5.4 The Employer agrees that any and all Homework is the sole property of the
Employee unless the Homework becomes part of any Work Product. When Homework
becomes part of the Work Product the Employer retains exclusive rights and
ownership.
5.5 The Employer grants to the Employee the right to use its equipment and
facilities for the purpose of obtaining computer software or information which
is in the public domain, or which is distributed by the copyright holder free of
charge or as shareware, provided that these activities do not impede or delay
the creation of Work Product. Any information or materials developed by the
Employee with the aid of computer software or information obtained by the
Employee in this way shall be deemed to be Homework if it would have been
Homework had it been developed without the aid of said computer software or
information.
6. Confidential Information and Non-Disclosure
6.1 The Employee will not, either during the term of his or her employment or
at any time thereafter, disclose to any person other than to the Employer or
make use of other than as directed by the Employer any Confidential Information
which the Employee may receive or create as a result of his or her employment or
retainer, unless the Employee can clearly prove that the information (a) is or
has become readily available to the public in the same form, other than through
a breach of this agreement, (b) was lawfully obtained in the same form by the
Employee from an independent third party without breach of this agreement and
which did not originate from the Employer, or (c) was in the Employee's
possession in the same form prior to the Employee's disclosure of such
information and did not originate from the Employer.
6.2 The Employee hereby certifies that he or she has not brought and will not
bring with the Employee to the Employer or use while performing his or her
employment duties for the Employer or incorporate into any Work Product any
materials or documents of a former employer or a third party which are not
generally available to the public. The Employee understands that while employed
by the Employer, the Employee is not to breach any obligation of confidence or
duty that the Employee may have to a former employer or third parties and the
Employee agrees that he or she will fulfill all such obligations during his or
her retainer or employment with the Employer.
6.3 The Employee will not remove any Confidential Information from the Office
unless permitted by the Employer.
7. Conflict of Interest and Non-Competition
7.1 The Employee agrees that during the term of this agreement and for a period
of one year after Termination the Employee will neither Compete, assist a third
party to Compete, nor manage or operate an organization that Competes.
7.2 The Employee acknowledges and agrees that there can be no geographical
limit to his or her covenant not to Compete due to the nature of the business of
the Employer and the technologies with which the Employer is involved.
7.3 In the event that a dispute arises concerning whether or not the research,
development, manufacture, distribution or marketing of a product of service was,
during the term of this agreement, anticipated by the Employer, such
anticipation shall be presumed to not have occurred unless the Employer can
clearly show otherwise.
8. General Provisions
8.1 This agreement applies to all Work Product whether created by the Employee
prior or subsequent to the date of this agreement.
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8.2 All obligations of confidence and non-disclosure of the Work Product, all
provisions of assistance by the Employee in obtaining intellectual property
protection, and all provisions of avoidance of previous agreements contained in
this agreement will survive termination of this agreement.
8.3 The Employee hereby covenants that he is not a party to any existing
employment agreement or other agreement which could limit the scope of the work
to be performed by the Employee pursuant to this Agreement.
8.4 This agreement will be binding upon and enure the benefit of the parties
hereto and their respective heirs, executors, administrators, successors and
assigns. This agreement will not be assignable by the Employee.
8.5 The Employee hereby acknowledges and agrees that the Employer's trade
secrets and other confidential information constitute extremely valuable
proprietary property of the Employer and that the Employer and its licensees
will suffer irreparable harm if unauthorized parties gain access to the
Employer's secrets. The Employee accordingly agrees that if any of the
Employer's secrets are disclosed, copied, or used in violation hereof, then the
Employer shall have, in addition to any other remedies available to it, the
right to injunctive relief (including interlocutory injunctive relief) enjoining
such action and the Employee hereby acknowledges and agrees that other remedies
and inadequate to fully protect the Employer's proprietary rights.
8.6 The parties will execute and deliver all such further documents, do or
cause to be done all such further acts and things, and give all such further
assurances as may be necessary to give full effect to the intent and meaning of
this agreement.
8.7 If any term, covenant, or condition of this agreement or the application
thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this agreement or the application of such term,
covenant, or condition to persons or circumstance other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and each
term, covenant or condition of this agreement shall be valid and enforced to the
full extent permitted by law.
8.8 All references to a party whether a party to this agreement or not, will be
read with such changes in number and gender as the context or reference
requires.
8.9 This agreement shall be governed by and construed in accordance with the
laws of the Province of British Columbia and the parties hereby attorn to the
jurisdiction of the Courts of the Province of British Columbia.
IN WITNESS WHEREOF, the parties have executed this agreement as of the day and
year first above written.
Infowave Software, Inc.
Per:
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