EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is entered into by and between
TELEMETRIX SOLUTIONS INC., a Colorado corporation (the "Company"), and
MARGUERITE MCKEE ("Executive"). The effective date of this Agreement shall be
March 1, 2000 (the "Effective Date").
R E C I T A L S:
WHEREAS, The Company desires to hire and employ Executive as President of
its wholly owned subsidiary Telemetrix Resource Group Ltd., an entity duly
incorporated under the laws of the province of Nova Scotia, Canada ("TRG");
WHEREAS, Executive desires to become employed by the Company in such
capacity;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties agree as follows:
1. Employment. The Company agrees to employ Executive and Executive hereby
agrees to be employed by the Company on a full time basis. Executive represents
and warrants to the Company that the execution of this Agreement and her
performance under this Agreement does not breach any other agreement to which
Executive is a party or under which Executive may be bound and does not require
the consent of any other person. Executive acknowledges that her employment with
the Company commenced prior to the Effective Date of this Agreement on terms not
set forth herein. When capitalized and used in this Agreement, the term
"Employment" shall include a) such prior employment and b) Executive's
employment subsequent to the Effective Date pursuant to this Agreement. When not
capitalized and used herein, the term "employment" shall refer to Executive's
employment subsequent to the Effective Date pursuant to this Agreement.
2. Duties.
2.1 President. Executive shall be employed as President of TRG and in
such capacity shall (a) perform the duties and bear the responsibilities
commensurate with the office of President, (b) continue to perform the duties
and bear the responsibilities of her employment prior to the Effective Date in
her prior capacity as Vice President of Product Commercialization, which
position shall merge with and into Executive's position as President pursuant to
this Agreement, (c) serve the Company faithfully and to the best of her ability,
and (d) perform, without additional compensation, such other duties for the
Company and/or its Affiliates as may be delegated to Executive by her Supervisor
(as defined below) and hold such other offices to which she may be appointed or
elected from time-to-time (collectively, the "Position"). Mr. Michael J. Tracy,
the Company's President and Chief Executive Officer, or his designee, shall
supervise Executive's activities ("Supervisor"). In its sole discretion the
Company may assign Executive to a position of lesser responsibility. Executive's
conduct must promote the best interests of the Company and its Affiliates and
must not discredit the Company, its Affiliates, its products or services.
2.2 Director. Executive shall serve as a director of TRG ("Director")
commencing on the later of (a) the Effective Date or (b) such time as all
required TRG corporate action has been taken authorizing such appointment, and
terminating on the earlier of (x) the expiration of the Term (as defined in
Section 7 herein) or (y) Executive's resignation, removal, death or TRG's next
annual shareholder meeting at which directors are elected. In her capacity as
Director Executive shall be subject to removal in accordance with TRG's
corporate governance documents and the Companies Act of the province of Nova
Scotia, Canada (the "Act"). Notwithstanding that the Company will use reasonable
efforts to maintain Executive in her directorship, the Company makes no
guarantee to Executive as to the term of Executive's directorship.
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2.3 Indemnification. In connection with Executive's position as
Director, the Company agrees to indemnify Executive to the extent provided under
TRG's Articles of Association against costs, losses and expenses that Executive
in her capacity as Director may incur or become liable to pay in connection with
any claim made against Executive by reason of being or having been a TRG
director, provided that Executive's conduct which gave rise to such costs,
losses or expenses conformed to that standard of conduct for directors
prescribed by TRG's corporate governance documents and the Act.
3. Exclusivity. Executive shall devote her full business time, efforts,
attention, skill and energy to the Company's business, and shall effectively
perform her duties under this Agreement and strive to achieve the objectives
designated by her Supervisor. Executive shall disclose to the Supervisor her
involvement in any other business activities related to the industries in which
the Company or a person, firm or corporation that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control of the Company (collectively, "Affiliate") are involved and
Executive shall not engage in any other business activities that require
significant personal services by Executive or in any way diminish Executive's
ability to effectively perform her duties hereunder to the satisfaction of her
Supervisor. Notwithstanding the foregoing, after notifying the Supervisor,
Executive may take reasonable personal time for:
3.1. personal investments that do not require significant services by
Executive;
3.2. participation in volunteer or charitable activities;
3.3. participation in industry-related organizations;
3.4. with prior Supervisor approval, serving as a director for other
companies; and
3.5. activities approved in advance by the Supervisor;
3.6. consulting work for Escalator Handrail Company located in Oshawa,
Ontario, Canada ("Escalator Handrail"), provided that (a)
Executive will not without the Company's prior written consent
perform any work for Escalator Handrail not within the capacity
or time frame described in the letter from Executive to the
Company disclosing the material terms of Executive's agreement
with Escalator Handrail, which letter is attached as Exhibit A
hereto and by this reference incorporated herein, (b) such
consulting work does not in any way interfere or conflict with
the Company's or its Affiliates' interests nor affect Executive's
ability to effectively perform her duties under this Agreement,
and (c) the Supervisor's approval may be withdrawn at any time if
the Supervisor in his sole discretion determines that such
consulting work is in conflict with subsection 3.6(b) above;
except that Executive shall cease any outside activity if the
Supervisor determines that such activity will interfere or
conflict with the Company's or its Affiliates' interests.
4. Conflicts of Interest. Executive shall not engage in any activity that,
in the Supervisor's judgment, may interfere or conflict with the proper
performance of Executive's duties or the Company's interests. If Executive has
any interest in a proposed transaction involving the Company, that interest must
be fully disclosed to the Company and the Supervisor must approve the
transaction.
5. Confidentiality. Executive acknowledges that the Company's product and
services are unique and have world-wide application, and that the Company has
expended significant sums and resources to develop its product and services. The
relationship between the Company and Executive is one of confidence and trust.
Executive agrees that the provisions of this Section 5 are fair and reasonable
because, as a result of her Employment by the Company, she has had and will
continue to have access to proprietary information and intellectual property of
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the Company and Executive acknowledges that such information is a highly valued
asset of the Company. The Company acknowledges and recognizes that prior to her
Employment with the Company, Executive had considerable knowledge and expertise
related to the telecommunications industry (the "Executive's Prior Knowledge").
5.1. Confidential Information. The term "Confidential Information"
means all information relating to the Company, its Affiliates, customers and
suppliers considered by the Company to be confidential, excluding the
Executive's Prior Knowledge, and including, without limitation:
5.1.1. technology, plans, products, processes and personnel;
5.1.2. software, source codes and manuals;
5.1.3. the nature of the Company's and its Affiliates' services
and any area where such services are performed or planned
to be performed;
5.1.4. research, development, manufacturing, purchasing, and
engineering;
5.1.5. markets, marketing strategies, customer lists and prospect
lists;
5.1.6. merchandising, selling, pricing or contractual terms,
5.1.7. inventions, discoveries, concepts and ideas, whether
patentable or not, processes, methods, formulas, and
techniques, trade secrets, related improvements and
knowledge;
5.1.8. financial and accounting information;
5.1.9. business expertise; and
5.1.10. any component of Confidential Information or anything
derived from Confidential Information.
The Company's determination that specific information constitutes
Confidential Information shall be binding, except for information
already in the public domain other than placed therein by Executive's
act except in the reasonable performance of her duties and except for
information which is no longer a trade secret or patentable as defined
by applicable legislation or law.
5.2. Non-disclosure. Executive agrees that she shall at no time,
whether during her Employment or at any time thereafter, disclose or use any
Confidential Information for any purpose other than the conduct of the Company's
business. Upon the breach or threatened breach of this covenant by Executive,
the Company shall be entitled without notice to obtain relief pursuant to
Section 11 below.
5.3. Notice to Company. Executive will immediately notify the Company
if she learns that Confidential Information has been disclosed or is about to be
disclosed, whether by Executive's acts, acts of third parties, law, regulation
or court order. Executive will cooperate with the Company's efforts to prevent
or limit disclosure of Confidential Information.
5.4. Ownership. Any Confidential Information that is directly
originated, developed or perfected to any degree by Executive during her
Employment by the Company shall be and remain the sole property of the Company
and shall be deemed trade secrets of the Company. To the extent that any
Confidential Information constitutes an original work of authorship by Executive
which is protectable by copyright, Executive acknowledges that such work is a
"work for hire" as defined by the U.S. Copyright Act (17 U.S.C. ss. 101 et seq.)
and is intended to be and is hereby agreed to be the sole and exclusive property
of the Company and the Executive does hereby quitclaim and release all right,
title and interest in and to the same to the Company.
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5.5. Assignment. The Executive hereby assigns to the Company all of
her intellectual property rights (including copyrights, patents, and trademarks)
that may arise out of her Employment with the Company or her involvement with
its Affiliates.
5.6. Return of Confidential Information. Upon termination of
Executive's employment or upon request by the Company, Executive or her legal
representative shall deliver to the Company all original and duplicates and/or
copies of all documents, records, notebooks, computer records or media, and
similar materials containing Confidential Information then in her possession.
5.7. Further Assurances. Executive agrees to execute such separate and
further confidentiality agreements and/or assignments embodying and enlarging
upon the provisions of this Section 5 as the Company may reasonably request.
6. Compensation and Benefits. In consideration of the services to be
rendered pursuant to this Agreement, commencing as of the Effective Date,
Executive shall receive the following compensation and benefits during the Term
(as defined in Section 7 herein) of her employment:
6.1. Salary. The Company shall pay Executive an annual salary of One
Hundred Fifty Seven Thousand Four Hundred and 00/100 Canadian Dollars
($157,400.00 Cdn.), payable semi-monthly in arrears.
6.2. Benefits. The Company shall provide Executive with standard
benefits customary for Company employees of the nature, kind and status of
Executive.
6.3. Leave. Executive shall be entitled to Company-declared holidays,
sick leaves, personal days and other time off in accordance with Company
policies for Company employees of the nature, kind and status of Executive.
6.4. Reimbursement of Expenses. Upon receipt of an itemized accounting
of such expenses with reasonable supporting documentation, the Company shall
reimburse Executive for all reasonable and necessary out-of-pocket expenses
incurred by Executive in connection with the business of the Company and in
performance of Executive's duties under this Agreement.
6.5 Stock Options, Bonuses, Additional Compensation. Executive shall
be entitled to participate in a Company stock option plan and shall be eligible
for bonuses paid in the form of options to acquire capital stock in the Company
or its Affiliates at such time as the Company elects, in its sole discretion, to
adopt such compensation plans. Options to purchase capital stock pursuant to any
stock option plan or bonus arrangement will be at the discretion of a
compensation committee (the "Committee"). The terms and conditions of any such
stock options or bonus stock payments, including, without limitation, the class,
series and issuer of the capital stock, number of shares, exercise price,
payment terms, grant date, vesting schedule and expiration date, shall be
determined at the discretion of the Committee.
7. Duration. Executive's employment pursuant to this Agreement shall
commence on the Effective Date of this Agreement and continue for a period of
three (3) years or until terminated in accordance with Section 8 herein (the
"Term"). After termination of Executive's employment for any reason whatsoever,
the applicable provisions of Sections 5 and 9 shall remain in full force and
effect until the time specified in each such section.
8. Termination. Executive's employment may be terminated as follows:
8.1. Discretion. Either party, in its sole discretion, may terminate
Executive's employment at any time upon thirty (30) calendar days' prior written
notice.
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8.2. Death. If Executive dies during the term of her employment, the
Company shall pay her estate the compensation that would otherwise be payable to
her for the month in which her death occurs, and her employment shall be deemed
terminated on the last day of such month.
8.3. Cause. The Company may immediately terminate Executive's
employment at any time for:
8.3.1. non-performance or gross negligent performance by Executive
of Executive's obligations under this Agreement or of any
material duties as an Executive of the Company; or
8.3.2. the commission of any theft, fraud, embezzlement or
similar crime involving the commission of any indictable
offense; for acts of dishonesty or moral turpitude; for
violation of applicable local, state or federal laws or
regulations, including anti-discrimination laws or
securities laws, which acts cause or could reasonably be
expected to cause material economic damage to the Company or
material damage to the business reputation of the Company.
8.4. Severance. If the Company terminates Executive's employment
pursuant to subsection 8.1 herein, subject to the conditions set forth in this
subsection 8.4, the Company agrees to maintain Executive on its payroll until
such time as Executive has received that amount equal to one-third of her annual
salary (as set forth in subsection 6.1 herein), less applicable withholdings and
deductions ("Severance"). As a condition to the payment of Severance, Executive
agrees that she will promptly (a) comply with the provisions of subsections 5.5,
5.6 and 5.7 herein and (b) execute and deliver to the Company a release waiving
all claims against the Company. The Company shall have the right to delay
distribution to Executive of payroll disbursements comprising the Severance
until such time as the conditions of this subsection 8.4 have been fully
performed by Executive to the satisfaction of the Company.
9. Covenant Not to Compete. Since Executive will be a key employee of the
Company, Executive will have access to Confidential Information, and in light of
the Company's and its Affiliates' substantial investment of its resources in its
business, operations, technology, services, customers and customer prospects,
Executive acknowledges that certain of her future activities could cause
material harm to the Company and its Affiliates. Additionally, Executive
acknowledges that the Confidential Information was obtained through her
Employment with the Company and involvement with its Affiliates, that the
Company's and its Affiliates' business is of a world-wide scope, and that at the
time entering into this Agreement, Executive's covenant not to compete with the
Company and its Affiliates was a material part of the negotiated terms and
conditions of this Agreement. Accordingly, Executive agrees that in the event
her employment is terminated, the specific restrictions set forth in this
Section 9 are fair, reasonable and necessary and are not overly burdensome on
Executive's future activities. The covenants contained in this Section 9 shall
continue until one (1) year after termination of Executive's employment for any
reason whatsoever (the "Covenant Period").
9.1. Until the Covenant Period expires, Executive shall not without
the prior written consent of the Company, which consent shall not be
unreasonably withheld, directly or indirectly, own, manage, operate, control, be
employed by, assist or participate in the ownership, management, operation or
control of a company operating in Canada or the United States engaged in any of
the following or related products, services and activities:
9.1.1. paging and communication services, personal communications
services ("PCS"), mobile telecommunications services,
wireless local loop ("WLL") products, polling, monitoring
and controlling remote devices such as electrical meters and
burglar alarms, data collection, acquisition and
distribution, and meter reading (collectively, the
"Activities");
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9.1.2. the provision of necessary infrastructure components to
deploy the Activities and/or WLL capabilities;
9.1.3. the utilization of the discoveries, concepts and ideas,
processes, methods, formulas, and techniques underlying the
technology known as the T3000 System ("T3000 System") and/or
WLL for any application including, without limitation, voice
communications, data transmission, automatic utility meter
reading, home security, home health, and vending
replenishment;
9.1.4. marketing and sale of T3000 System-competitive equipment
and/or components.
9.2. Until the Covenant Period expires, Executive shall not directly
or indirectly:
9.2.1. induce any employee of the Company and its Affiliates to
leave the employ of the Company or its Affiliates;
9.2.2. interfere with the relationship between the Company or its
Affiliates and any employee of the Company or its
Affiliates;
9.2.3. hire any Company employee or Affiliate employee to work
for any organization of which Executive is an officer,
director, employee, consultant, independent contractor or
owner of an equity or other financial interest; or
9.2.4. interfere or attempt to interfere with any transaction
involving the Company or its Affiliates.
10. Securities Matters. Since the Executive will have access to
Confidential Information, her ability to engage in securities transactions will
be limited. Executive agrees to:
10.1. not engage in any transactions that violate the securities laws;
10.2. file all reports required by securities regulatory authorities;
10.3. provide information about securities transactions when requested by
the Company;
10.4. follow written Company policies concerning securities transactions;
10.5. execute any "lock-up" agreements or other restrictions on
transactions when requested by the Company;
10.6. comply with securities law requirements for all transactions.
While Executive may request Board permission for proposed securities
transactions, Executive is still responsible for compliance with legal
requirements.
11. Injunctive Relief. Upon a material breach or threatened material breach
by Executive of any of the provisions of Sections 3, 4, 5, 9 and 10 of this
Agreement, the Company or its Affiliate, as the case may be, shall be entitled
to an injunction restraining Executive from such breach, together with any other
relief or remedy available, for such breach or threatened breach, including the
recovery of damages. Nothing herein shall be construed as prohibiting the
Company or its Affiliates from pursuing any other remedies for such breach or
threatened breach. If the Company or its Affiliate take legal action to enforce
the provisions of this Agreement or to enjoin Executive from violating this
Agreement, the prevailing party, as part of its damages, shall be entitled to
recover its legal fees and expenses incurred in such action from the losing
party.
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12. Severability. It is the desire and intent of the parties that the
provisions of this Agreement shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular provision or portion of
this Agreement shall be adjudicated to be invalid or unenforceable, this
Agreement shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable, such deletion to apply only with
respect to the operation of such section in the particular jurisdiction in which
such adjudication is made.
13. Notices. All communications, requests, consents and other notices under
this Agreement shall be given in writing and delivered by facsimile, courier,
registered or certified mail (postage prepaid) to the receiving party at the
recipient's last known address. Notice shall be deemed given on the date of
delivery as shown by the facsimile confirmation or delivery receipt.
14. Governing Law. Except for the statutory standards of conduct set forth
in subsection 2(b) herein, this Agreement and all of Executive's rights pursuant
to her Employment are governed solely by and interpreted consistent with the
laws (but not the choice of law rules) of the U.S. State of Nebraska without
giving any effect whatsoever to the laws of Canada or the laws of any province
therein.
15. Consent to Jurisdiction; Waiver of Service of Process. Executive
acknowledges that the Company is a U.S. corporation incorporated under the laws
of the U. S. State of Colorado with its parent company's headquarters located in
the U.S. State of Nebraska. In light of such knowledge, Executive consents to
jurisdiction and waives service of process in accordance with the terms of this
Section 15. The parties hereby irrevocably submit to the jurisdiction of any
Federal District Court sitting in Denver, Colorado over any action or proceeding
arising out of or relating to this Agreement and/or Executive's Employment and
hereby irrevocably agree that all claims in respect of such action or proceeding
may be heard and determined in such Federal District Court. The parties
irrevocably consent to the service of any and all process in any such action or
proceeding by mailing, delivering or telefaxing copies of such process to them
in the manner provided by Section 13 herein. The parties agree that a final
judgment in any such action or proceeding, not subject to further appeal, shall
be conclusive and may be enforced in any other jurisdictions by suit on the
judgment or in any other manner provided by law. To the extent that any party
has or hereafter may acquire any immunity from jurisdiction of any court or from
any legal process with respect to itself or its property, such party hereby
irrevocably waives such immunity with respect to this Agreement and/or
Executive's Employment.
16. Assignment. The Company may assign its rights and obligations under
this Agreement to any Affiliate, any successor corporation or to any acquirer of
substantially all of the business and assets of the Company, and all covenants
and agreements hereunder shall inure to the benefit of and be enforceable by or
against any such assignee. Neither this Agreement nor any rights or duties
hereunder may be assigned or delegated by Executive.
17. General Provisions. This Agreement may be executed in multiple
counterparts, no one of which needs to be executed by all of the parties;
provided, however, that this Agreement shall not become binding upon any of the
parties unless and until a counterpart is executed by all parties. Each such
counterpart shall be considered an original. Facsimile signatures will have the
same effect as original signatures. This Agreement only be modified by a written
amendment signed by the Company and Executive. A waiver by the Company of a
breach of any provision of this Agreement by Executive shall not operate or be
construed as a waiver of any subsequent or other breach by Executive. Except as
otherwise provided herein, this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective legal representatives,
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heirs, successors and assigns. This Agreement sets forth the entire agreement
and understanding of the parties with respect to the subject matter herein and
supersedes all prior understandings, agreements or representations by or between
the parties, whether written or oral.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement to
be effective as of the Effective Date.
COMPANY: TELEMETRIX SOLUTIONS INC.,
a Colorado corporation
By: /s/ Michael J. Tracy
-------------------------------------
Michael J. Tracy
President and Chief Executive Officer
EXECUTIVE: MARGUERITE MCKEE
By: /s/ Marguerite McKee
-------------------------------------
Marguerite McKee, an individual
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Exhibit A
March 13,2000
Michael Tracy
Telemetrix Inc
1225 Sage St
Gering, Nebraska
Subject: Escalator Handrail Company
Michael,
I provide part-time consulting for Escalator Handrail Company in Oshawa, Ontario
assisting their company in the implementation of their Business Strategy using
Structural Consulting Techniques. They are first in the world in manufacturing
handrails for escalators and are expanding their business into other lift
industry products. I have been assisting them in reviewing their plans for the
implementation of both their three year and one year business objectives. I
anticipate spending a few hours a week ( two to six) of my personal time to
support them in assessing their plans. I am also giving them a two and a half
day course in mid- April (vacation days) in the fundamentals of Structural
Thinking to assist them in being self sufficient. I expect to be finished
working with them by June or July this year.
This is the only activity that I have in a consulting capacity.
Regards,
/s/
Marguerite McKee
