Employment Agreement - Catuity Inc. and John H. Lowry III
[CATUITY INC. LETTERHEAD]
April 18, 2000
CONFIDENTIAL
Mr. John H. Lowry III
21972 Heatheridge
Northville, Michigan 48167
Re: Your Employment Agreement with Catuity, Inc.
Dear Jack:
Catuity Inc., a Delaware corporation ("Catuity"), is pleased to offer you a
position as its Vice-President and Chief Financial Officer on the terms set
forth in this letter agreement. As you know, Catuity is the parent company of
Chip Application Technologies Limited ("C.A.T."), an Australian company that
has, we believe, developed some highly competitive network application software
for merchant incentive and other program. Catuity is listed on the Australian
Stock Exchange and proposes to apply for listing on NASDAQ.
This agreement will be effective as of the date hereof (the "Effective Date")
subject to your acceptance by execution of a counterpart copy of this letter
where indicated below. Your start date of employment will be no later than May
1, 2000. Your right to receive salary, bonus, benefits, shares, etc. will
commence with your start date of employment.
1. REPORTING, DUTIES AND RESPONSIBILITIES, EMPLOYEE INVENTION ASSIGNMENT AND
CONFIDENTIALITY AGREEMENT.
In this position, you will report to the President and CEO of Catuity.
This offer is for a full-time position, located at the principal offices
of Catuity except as travel to other locations (including overseas
locations) may be necessary to fulfill your responsibilities. You also
will execute Catuity's standard form of Employee Invention Assignment
and Confidentiality Agreement, which is attached.
2. SALARY, BONUS, BENEFITS, AND VACATION.
(a) SALARY.
Your initial base salary will be US$12,500 per month, which is an
annualized salary of US$150,000, and is payable in accordance with
Catuity's customary payroll practice as in effect from time to time;
your salary commences on the date you first report for work with
Catuity. This salary will be periodically reviewed by the President and
CEO in conjunction with your annual performance review.
(b) CASH PERFORMANCE BONUS.
The cash performance bonus plan, if any, (commencing for calendar year
2000) will be determined each year at the time of budget review as
determined by the Board of Directors, in consultation with the President
and CEO. Your first year cash performance bonus will be determined by
March 15, 2001 and paid in full by March 30, 2001. If no bonus program
is
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CATUITY INC.
Merchant Solutions for the Convergent World
awarded in 2000, you will be entitled to a guaranteed bonus of $10,000
payable in full by March 31, 2001.
(c) STOCK OPTION GRANT.
On the date you first report to work with Catuity, Catuity will be issue
you stock options under our Stock Option Plan (currently being
finalized), exercisable at the lower of
(i) the weighted average trading price of Catuity shares on the
Australian Stock Exchange for the 30 days immediately prior to
NASDAQ listing (converted to US$ at the current exchange rate);
and
(ii) the weighted average trading price of Catuity shares on the
NASDAQ market for the 30 days immediately following NASDAQ
listing.
(iii) The weighted average trading price of Catuity shares for the
month of April, 2000 on the ASX (converted to US$ at the current
exchange rate)
but not less than 85% of the fair market value of Catuity shares as of
date of grant.
All options will have an expiry date of the earlier of 31 December 2008
and the date six months after cessation of your employment with Catuity,
subject to additional provisions of the Plan.
In total you will be issued stock options on 150,000 shares of Common
Stock in Catuity. The stock options will have the following vesting
provisions (i.e. options will not be exercisable until vested):
(i) 50,000 options will vest upon the date you first report to work
with Catuity; and
(ii) 5,000 options will vest at the end of each quarter, conditioned
upon your continued employment by Catuity on the last day of each
quarter, commencing on 01 July 2000 and concluding on 30 June
2005.
(d) BENEFITS AND VACATION.
You will be eligible to participate in, without limitation, the
retirement plans and medical, dental, life and disability insurance
plans being established for Catuity; Catuity will reimburse you for
those costs that you incur to exercise your COBRA rights to extend your
existing insurance coverage until the effective date of your Catuity
insurance coverage, which Catuity insurance coverage, will be provided
for the term of this Agreement. In addition, you will be entitled,
without loss of compensation, to three weeks of vacation during the
first two years of your employment, and four weeks of vacation during
the third and each successive year of your employment. You may only
accrue unused vacation up to a maximum of six weeks; otherwise,
additional vacation will cease to accrue until you reduce the accrued,
unused amount through use of vacation.
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CATUITY INC.
Merchant Solutions for the Convergent World
3. TERM AND TERMINATION.
The term of this agreement is for a period of five years commencing upon
the Effective Date.
(a) TERMINATION BY CATUITY FOR CAUSE.
Catuity may only terminate your employment and this agreement without
notice by reason of Termination for Cause. For purposes of this
agreement, "TERMINATION FOR CAUSE" will mean termination of your
employment by Catuity's Board, after consultation with you, for your
dishonesty, fraud, gross negligence in performance of your duties,
material breach of this agreement or any other contractual or fiduciary
obligation to Catuity or under any policy or procedure of Catuity,
intentional engagement in acts seriously detrimental to Catuity's
operations or your being charged by governmental authorities with a
felony. Upon your Termination for Cause by Catuity, you will be entitled
to receive cash and other compensation, which has accrued through the
date of termination, only.
(b) TERMINATION BY CATUITY WITHOUT CAUSE.
Catuity may only terminate your employment and this agreement without
cause on nine months written notice (it being Catuity's right to pay
base salary equal to nine months amount, in lieu of notice, in order to
effect immediate termination; in such case, you will be obligated, in
accepting such payment, to release Catuity from all other obligations
other than Catuity's obligation to pay cash and other compensation,
which has accrued through the date of termination to which you may be
entitled.
(c) TERMINATION BECAUSE OF DEATH, OR INCAPACITY DUE TO DISABILITY.
Your employment with Catuity and this agreement will also terminate upon
your death or by reason of your Incapacity Due to Disability. For
purposes of this agreement, "INCAPACITY DUE TO DISABILITY" means if, at
the end of any month, you are unable to perform substantially all of
your duties under this agreement in the normal and regular manner due to
illness, injury or mental or physical incapacity, and you have been
unable or will be unable, in the good-faith judgement of the Catuity
Board, so to perform for either (1) four consecutive full calendar
months, or (2) 90 or more of the normal working days during any 12
consecutive full calendar months. Nothing in this paragraph shall alter
Catuity's obligations under applicable law, which may, in certain
circumstances, result in the suspension or alteration of the foregoing
time periods. Upon your termination for death or Incapacity Due to
Disability, you will be entitled to receive cash and other compensation
which has accrued through the date of termination.
(d) VOLUNTARY TERMINATION BY YOU.
You will be able to voluntarily terminate your employment and this
Agreement at any time, provided that you must give Catuity at least four
months advance written notice. Upon your voluntary termination, you will
be entitled to receive cash and other compensation, which has accrued
through the date of termination.
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CATUITY INC.
Merchant Solutions for the Convergent World
4. OTHER MATTERS.
You will not bring with you, or use, in the performance of your duties
hereunder any confidential or proprietary material of any former
employer, nor violate any lawful obligation to any former employer in
the performance of your duties hereunder.
Under your signature below, this will become our binding agreement with
respect to the subject matter of this letter, superseding in their
entirety all other or prior agreements and negotiations between us as to
the subject matter of this letter, will be binding upon and inure to the
benefit of our respective successors and assigns (although none of your
rights or obligations hereunder is assignable), and your heirs,
administrators and executors, will be governed by Delaware law, and may
only be amended in a writing signed by you and Catuity.
Jack, we are very excited to have you join us and look forward to working with
you. I think we can have an exciting next few years.
Sincerely,
-----------------------------------
Michael V. Howe
Catuity, Inc.
Attachment: Employee Invention Assignment and Confidentiality Agreement
ACCEPTED AND AGREED:
______________________________
John H. Lowry III
Date signed: ______________________________
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CATUITY INC.
Merchant Solutions for the Convergent World
EMPLOYEE INVENTION ASSIGNMENT AND CONFIDENTIALITY AGREEMENT
In consideration of my employment with Catuity Inc., a Delaware
corporation (the "Company"), I John H. Lowry, hereby represent to, and agree
with the Company as follows:
1. DISCLOSURE OF INVENTIONS. From and after the date I first become
employed with the Company, I will promptly disclose in confidence to the Company
all inventions, improvements, designs, original works of authorship, formulas,
processes, compositions of matter, computer software programs, databases, mask
works, and trade secrets ("Inventions"), whether or not patentable,
copyrightable, or protectable as trade secrets, that are made or conceived or
first reduced to practice or created by me, either alone or jointly with others,
during the period of my employment.
2. WORK FOR HIRE: ASSIGNMENT OF INVENTIONS. I acknowledge that
copyrightable works prepared by me within the scope of my employment by the
Company are "works for hire" under the federal Copyright Act and that the
Company will be considered the author thereof. I agree that all Inventions will
be the sole and exclusive property of the Company and are hereby assigned by me
to the Company.
3. INVENTIONS EXCEPTION. For the purposes hereof, "inventions" will not
include an invention that i developed entirely on my own time without using the
company's equipment, supplies, facilities, or trade secret information except
for those inventions that either: (1) relate at the time of conception or
reduction to practice of the invention to the company's business, or actually or
demonstrably anticipated research or development of the company, or (2) result
from any work performed by me for the company.
4. ASSIGNMENT OF OTHER RIGHTS. I hereby irrevocably transfer and assign
to the Company: (a) all worldwide patents, patent applications, copyrights, mask
works, trade secrets and other intellectual property rights in any Invention:
and (b) any and all "Moral Rights" (as defined below) that I may have in or with
respect to any Invention. I also hereby forever waive and agree never to assert
any and all Moral Rights I may have in or with respect to any Invention, even
after termination of my work on behalf of the Company. For purposes of this
Agreement, "Moral Rights" means any claim authorship of an Invention or any
rights to restrain or object to any modification of any Invention, and any
similar right, existing under judicial or statutory law of any country in the
world, or under any treaty, regardless of whether or not such right is
denominated or generally referred to as a "moral right."
5. ASSISTANCE. I will assist the Company, at the Company's request, in
obtaining for itself and in enforcing patents, copyrights, mask work rights, and
other legal protections for the Company's Inventions in any and all countries. I
will execute any documents that the Company may reasonably request for use in
obtaining or enforcing such patents, copyrights, mask work rights, trade secrets
and other legal protections. My obligations under this Section 5 will continue
beyond the termination of my employment with the Company, provided that the
Company will compensate me at a reasonable rate after such termination for
reasonable out-of-pocket expenses actually spent by me at the Company's request
on such assistance. I hereby appoint the Secretary of the Company as my
attorney-in-fact to execute documents on my behalf for this purpose.
6. PROPRIETARY INFORMATION: CONFIDENTIALITY. I understand that my
employment by the Company creates a relationship of confidence and trust with
respect to any information of a confidential or secret nature that may be
disclosed to me by the Company that relates to the
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CATUITY INC.
Merchant Solutions for the Convergent World
business of the Company or to the business of any parent, subsidiary, affiliate,
customer or supplier of the Company or any other party with whom the Company
agrees to hold information of such party in confidence ("Proprietary
Information"). Such Proprietary Information includes, without limitation,
strategies, financial information, forecasts, personnel information and customer
lists. At all times, both during my employment and after its termination, I will
keep and hold all such Proprietary Information in strict confidence and trust,
and I will not use or disclose any of such except to the extent necessary to
perform my duties as an employee of the Company. Upon termination of my
employment with the Company, I will promptly deliver to the Company all
documents and materials of any nature pertaining to my work with the Company and
I will not take with me any documents of materials or copies thereof containing
any Proprietary Information.
7. NO BREACH OF PRIOR AGREEMENT. I represent that my performance of all
the terms of this Agreement and of my duties as an employee of the Company will
not breach any invention assignment, proprietary information or similar
agreement with any former employer or other party. I represent and agree that I
will not bring with me to the Company or use in the performance of my duties for
the Company and documents or materials of a former employer that are not
generally available to the public or that have not been legally transferred to
the Company.
8. NOTIFICATION. I hereby authorize the Company to notify my actual or
future employers of the terms of this Agreement and my responsibilities
hereunder.
9. NON-SOLICITATION. During, and for a period of one (1) year after
termination of, my employment with the Company, I will not solicit any
suppliers, customers, employees or consultants of the Company to cease their
relations with the Company.
10. INJUNCTIVE RELIEF. I understand that in the event of a breach or
threatened breach of this Agreement by me that the Company may suffer
irreparable harm and will therefore be entitled to injunctive relief to enforce
this Agreement.
11. GOVERNING LAW. This Agreement will be governed and interpreted in
accordance with the internal laws of the state in which the Company's principal
office is located in the United States as of the start date of your employment,
excluding that body of law governing conflicts of law.
CATUITY, INC. EMPLOYEE:
By:_______________________________ By: _____________________________
Name: Michael V. Howe (Signature)
Title: President & CEO Name: John H. Lowry
Date signed: Date signed: