Exhibit 10.24
EXECUTIVE
AGREEMENT
THIS AGREEMENT made as of the 17th
day of July, 2006
(the “ Effective Date
”)
AMONG
OPEN TEXT, INC.
a corporation incorporated under the laws
of
the State of Illinois (hereinafter referred to
as
the “Corporation”)
OF THE FIRST PART
- and -
JOHN WILKERSON,
a resident of the State of
Washington,
(hereinafter referred to as the
“Executive”)
OF THE SECOND PART
WHEREAS the Corporation is a
wholly-owned subsidiary of Open Text Corporation, a corporation
amalgamated under the laws of Ontario, Canada (hereinafter “
Open Text Corporation ” ) ;
WHEREAS the Executive has agreed to
enter into and deliver this Agreement in consideration of receiving
certain additional benefits and other additional compensation as
provided for pursuant to the terms of this Agreement;
NOW THEREFORE THIS AGREEMENT
WITNESSES that in consideration of the mutual covenants and
agreements herein contained and for other good and valuable
consideration, the parties agree as follows:
For the purposes of this Agreement,
the following terms shall have the following meanings,
respectively:
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a.
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“Affiliate” means, with respect to any Person, any other
Person that directly or indirectly through one or more
intermediaries, controls or is controlled by, or is under common
control with, the Person specified. For the purposes of this
definition and Agreement, the term “ Control”
means the possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or
otherwise;
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b.
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“Agreement” means this Employment Agreement as may be
amended or supplemented from time to time, including any and all
schedules annexed hereto;
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c.
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“Annual Base Salary”
has the meaning ascribed to that
term in Section 6(a) hereof;
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d.
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“Board
of Directors” means
the board of directors of Open Text Corporation as may be
constituted from time to time, and “Directors”
means the directors of Open Text Corporation;
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e.
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“Change of Control”
means either of the following
events:
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i.
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the sale of all
or substantially all of the assets of Open Text Corporation;
or
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ii.
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any transaction
whereby any person, together with Affiliates and Associates of such
person, or any group of persons acting in concert (collectively,
“Acquiror” or “Acquirors”), acquires
beneficial ownership of more than 50% of the issued common shares
of Open Text Corporation on a fully diluted basis, or any
transaction as a result of which beneficial ownership of common
shares constituting more than 50% in the aggregate of the issued
common shares of Open Text Corporation on a fully diluted basis
cease to be held by persons who are shareholders of Open Text
Corporation as at the date hereof or by Affiliates or Associates of
such present shareholders;
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(for the purposes of this definition
and this Agreement, the terms “Associate,”
“group,” and “beneficial
ownership” shall have the meanings ascribed thereto under
Rule 14a-1(a) of the General Rules of the Exchange Act,
Section 14(d)(2) of the Exchange Act, and Rule 13d-3 of the
General Rules of the Exchange Act, respectively);
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f.
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“Compensation Committee”
means the compensation committee of
the Board of Directors of Open Text Corporation as may be
constituted from time to time;
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g.
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“Date
of Termination” shall mean the date of termination of the
Executive’s employment, whether by death of the Executive, by
the Executive or by the Corporation pursuant to the terms of this
Agreement;
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h.
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“Disability” has the meaning ascribed to that term in
Section 12(b) hereof;
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i.
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“Exchange Act”
means the Securities Exchange
Act of 1934, as amended from time to time;
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j.
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“Incumbent Director”
shall mean any member of the Board
of Directors who was a member of the Board of Directors immediately
prior to a Change of Control and any successor to an Incumbent
Director who was recommended or appointed to succeed any Incumbent
Director by the affirmative vote of the Directors when that
affirmative vote includes the affirmative vote of a majority of the
Incumbent Directors then on the Board of Directors;
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k.
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“Just
Cause” shall
mean:
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i.
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the failure by
the Executive to perform his duties according to the terms of his
employment or in a manner satisfactory to the Board of Directors
(other than those (A) that follow a demotion in his position
or duties or (B) resulting from the Executive’s
Disability) after the Corporation has given the Executive
reasonable notice of such failure and a reasonable opportunity to
correct it;
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ii.
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the engaging by
the Executive in any act that is materially injurious to the
Corporation, monetarily or otherwise, but not including, following
a Change of Control, the expression of opinions contrary to those
directors of the Corporation who are not Incumbent Directors or
those of the Acquirors;
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iii.
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the engaging by
the Executive in any illegal conduct or any act of dishonesty
resulting or intended to result directly or indirectly in personal
gain of the Executive at the Corporation’s expense, including
the failure by the Executive to honor his fiduciary duties to the
Corporation and his duty to act in the best interests of the
Corporation;
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iv.
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the failure by
the Executive to comply with the provisions of Section 12(d)
where the Executive elects to terminate his employment with the
Corporation unless notice of such termination of employment is
properly given in accordance with the terms of Section 15(b)
hereof;
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v.
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the failure of
the Executive to abide by the terms of any resolution passed by the
Board of Directors; or
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vi.
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the failure by
the Executive to abide by the policies, procedures and codes of
conduct of Open Text Corporation and the Corporation.
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l.
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“Person” or “persons” includes an
individual, sole proprietorship, partnership, unincorporated
association, unincorporated syndicate, unincorporated organization,
trust, body corporate, and a natural person in his capacity as
trustee, executor, administrator or other legal
representative;
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m.
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“Parachute Event”
means the occurrence of the
following without the Executive’s written consent (except in
connection with the termination of the employment of the Executive
for Just Cause or Disability or termination of the
Executive’s employment because of the death of the
Executive):
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i.
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a material
change (other than those that are consistent with a promotion) in
the Executive’s position or duties, responsibilities, title
or office in effect immediately prior to the Change of Control
(except for a change in any position or duties as a director of the
Corporation), which includes any removal of the Executive from or
any failure to re-elect or re-appoint the Executive to any such
positions or offices.
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ii.
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a material
reduction by the Corporation or any of its subsidiaries of the
Executive’s salary, benefits or any other form of
remuneration payable by the Corporation or its subsidiaries;
or
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iii.
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any material
failure by the Corporation or its subsidiaries to provide any
benefit, bonus, profit sharing, incentive, remuneration or
compensation plan, stock ownership or purchase plan, pension plan
or retirement plan in which the Executive is participating or
entitled to participate immediately prior to a Change of Control,
or the Corporation or its subsidiaries taking any action or failing
to take any action that would materially adversely affect the
Executive’s participation in or materially reduce his rights
or benefits under or pursuant to any such plan;
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iv.
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any other
material breach by the Corporation of this Agreement;
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n.
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“Voluntary Termination”
means the termination of the
Executive’s employment with the Corporation by the Executive
at his discretion in accordance with the provisions of
Section 12(d) of this Agreement.
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The initial term of this Agreement
shall be one (1) year commencing on the Effective Date of this
Agreement (“ Initial Term ”), subject to earlier
termination as provided for in this Agreement. At the end of the
Initial Term and each subsequent year thereafter, this Agreement
shall be deemed to be extended automatically for an additional
one-year term on the same terms and conditions unless either party
gives contrary written notice to the other party no less than three
(3) months prior to the date on which this Agreement would
otherwise be extended.
The Executive is engaged and agrees
to perform services for and on behalf of the Corporation as its
Executive Vice President – Global Sales and Services
or in such other capacity to which the Executive may be assigned by
the Corporation from time to time. The Executive shall perform such
duties and exercise such powers pertaining to the management and
operation of the Corporation and any subsidiaries and Affiliates of
the Corporation as may be determined from time to time by the Chief
Executive Officer ( “CEO” ) and the Reporting
Manager (as defined below) consistent with the office of the
Executive. The Executive shall:
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a.
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devote his full
time, attention, and best efforts to the business, affairs, and
goodwill of the Corporation;
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b.
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perform those
duties that may be assigned to the Executive diligently and
faithfully to the best of the Executive’s abilities and in
the best interests of the Corporation; and
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c.
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use his best
efforts to promote the interest and goodwill of the
Corporation.
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The Executive shall report to the
President/ CEO ( “Reporting Manager ” ) .
The Executive shall report fully on the management, operations, and
business affairs of the Corporation and advise to the best of his
ability and in accordance with business standards on business
matters that may arise from time to time during the term of this
Agreement.
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6.
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REMUNERATION
AND BENEFITS
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a.
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The Corporation shall pay to the
Executive as compensation for his services provided hereunder an
annual base salary (“ Annual Base Salary ”) for
each year of the term of this Agreement, which shall be determined
by the Reporting Manager and the CEO (and the Compensation
Committee, as may
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be required) and set out in a
separate document, subject to the provisions of Section 8, and
which shall be exclusive of bonuses, benefits and other
compensation as provided for herein. The Annual Base Salary shall
be payable in accordance with the Corporation’s regular
payroll practices for senior executives or in such other manner as
may be mutually agreed upon, less, in any case, all applicable
deductions or withholdings as required by law. As of the date of
this Agreement, the Annual Base Salary is USD $350,000
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b.
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The Corporation
shall provide the Executive with employee benefits comparable to
those provided by the Corporation from time to time to other senior
executives of the Corporation. Benefits to be enjoyed by the
Executive during the term of this Agreement shall include, but not
be limited to, those benefits set forth in Schedule
“A”, as amended from time to time, and shall include
reimbursement of any properly incurred expenses as provided for in
Section 11 hereof.
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7.
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ANNUAL
PERFORMANCE BONUS
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In addition to the Executive’s
Annual Base Salary, the Executive may be awarded an additional
bonus (the “Performance Bonus” ), which shall be
based upon performance goals approved by the Reporting Manager and
the CEO (and the Compensation Committee, as may be required) from
time to time and set forth in a separate document. Any changes
respecting the amount or other terms of the Performance Bonus
payable to the Executive must be approved by the Reporting Manager
and the CEO (and if required, the Board of Directors). As of the
date of this Agreement, the Performance Bonus target is USD
$300,000 .
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8.
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SALARY
AND/OR BONUS ADJUSTMENTS
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Other than as herein provided, there
shall be no cost-of-living increase or merit increase in the Annual
Base Salary or increases in any bonuses payable to the Executive
unless approved by the Reporting Manager and the CEO. The CEO and
Reporting Manager shall review annually the Annual Base Salary and
all other compensation to be received by the Executive under this
Agreement.
The Corporation shall permit the
Executive to participate in any share option plan, share purchase
plan, retirement plan or similar plan offered by the Corporation
from time to time to its senior executives in the manner and to the
extent authorized by the Compensation Committee. The Compensation
Committee may, in its absolute discretion, grant additional
options, subject to approval by the Board of Directors, and it may
review the advisability of additional option grants for the
Executive.
The Executive shall be entitled to
twenty (20) days paid vacation per fiscal year of the
Corporation at a time approved in advance by the Reporting Manager,
which approval shall not be unreasonably withheld but shall take
into account the staffing requirements of the Corporation and the
need for the timely performance of the Executive’s
responsibilities. Any vacation entitlement hereunder shall be
subject to the Corporation’s policy respecting same in effect
from time to time.
Subject to the terms of this
section, the Executive shall be reimbursed for all reasonable
travel and other out-of-pocket expenses actually and properly
incurred by the Executive from time to time in connection with
carrying out his duties hereunder. Determination of whether
expenses are reasonable or not shall be made by the Reporting
Manager. For all such expenses the Executive shall furnish to the
Corporation originals of all invoices or statements in respect of
which the Executive seeks reimbursement.
The Corporation may immediately
terminate the employment of the Executive for Just Cause without
notice or any payment in lieu of notice, and for purposes of
greater certainty, the Corporation shall have no obligation to make
any payments to the Executive on account of severance or bonuses or
partial bonuses or any other amounts except as expressly stipulated
in Section 13(a) hereof.
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i.
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This Agreement may be immediately
terminated by the Corporation by notice to the Executive if the
Executive is determined to suffer from disability (hereinafter
referred to as “Disability”). The Executive shall be
deemed to suffer from Disability if in any year during the
employment period, because of ill health, physical or mental
disability, or for other causes beyond the control of the
Executive, the Executive has been continuously unable or unwilling
or has failed to perform the Executive’s duties for 120
consecutive days, or if, during any year of the employment period,
the Executive has been unable or unwilling or has failed to perform
his duties for a total of 180 days, consecutive or not. The CEO,
acting reasonably (subject to Section 33 below), shall finally
determine if the Executive is suffering from ill health, physical
or mental disability or other causes beyond his control during the
time periods as hereinbefore set forth in the event of any dispute
between the Executive and the
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Corporation concerning the
occurrence of Disability for purposes of this Section.
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ii.
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Notwithstanding
any short term or long term corporate benefits or insurance
policies relating to disability maintained by the Corporation at
the relevant time, if during any period of ill health, physical or
mental disability or for other causes beyond the control of the
Executive, the Executive has been continuously unable or unwilling
or has failed to perform the Executive’s duties less than 120
consecutive days (the “Short-Term Illness”), the
Executive shall continue to receive all amounts of remuneration and
benefits otherwise payable to and enjoyed by the Executive under
this Agreement less any and all amounts received by and/or payable
to the Executive in connection with benefits paid and/or payable as
a result of such Short-Term Illness.
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iii.
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Upon
termination of this Agreement as a result of Disability, the
Corporation shall pay to the Executive the severance payment
provided for in Subsection 13(b) hereof less any and all amounts
received by and/or payable to the Executive in connection with
benefits paid and/or payable as a result of the
Disability.
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iv.
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The term
“any year of the employment period” means any period of
12 consecutive months during the employment period.
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This Agreement shall terminate
immediately, without notice or any payment in lieu thereof, upon
the death of the Executive.
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d.
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Voluntary
Termination by Executive
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If the Executive is desirous of
voluntarily terminating his employment with the Corporation at any
time during the Agreement or in accordance with the terms for
non-renewal under Section 3 hereof, the Executive agrees to
give the Corporation 3 months advance written notice of such
termination and further agrees that he shall not be entitled to any
payment on account of severance under Section 13(b) hereof.
The Reporting Manager or the CEO may waive such notice in writing
after consulting with the Board of Directors, in their sole and
absolute discretion, in which case the E
