AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 4.11
Execution Copy
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) dated as of the 1st day of January, 2018 (the “Effective Date”).
BETWEEN:
(the “Company”)
AND:
XXXX XXXXXXX
(the “Employee”)
WHEREAS the Company and the Employee entered into a letter agreement as to employment on August 12, 2016 (the “Original Agreement”); and
WHEREAS the Company and the Employee wish to amend and restate the Original Agreement on the terms and conditions set forth herein.
NOW THEREFORE in consideration of the covenants and agreements herein, the sufficiency of which is acknowledged by each of the parties, the parties agree as follows:
| 1. | EMPLOYMENT |
| 1.1 | Effectiveness of the Agreement: The terms and conditions of employment of the Employee by the Company prior to the Effective Date shall be governed by the Original Agreement and the attachments and exhibits thereto, and as of the Effective Date will be governed by the Agreement. The Employee’s employment with the Company commenced on August 15, 2016 and will continue until this Agreement is terminated in accordance with section 4 herein. |
| 1.2 | Title: The Company agrees to continue to employ the Employee as Chief Executive Officer upon the terms and conditions set out in this Agreement. The Employee will report to the board of directors of the Company (the “Board”). The Employee acknowledges that he shall undertake such duties and responsibilities for the Company and its affiliates in connection with and commensurate with the Employee’s position as are determined by the Board. The Employee further acknowledges the Company may re-assign, re-allocate, or re-organize the Employee’s duties and responsibilities if reasonable based on changing circumstances, provided such duties and responsibilities are consistent with the role of a Chief Executive Officer and do not reflect a material change in the Employee’s status, duties or reporting relationship. |
| 1.3 | Service: During the term of this Agreement, in addition to the Employee’s common law duties to the Company, the Employee covenants and agrees as follows: |
| (a) | Loyalty to the Company: Throughout the Employee’s employment, the Employee will faithfully serve the Company and use the Employee’s best efforts to promote the business of the Company. The Employee will act honestly and in good faith, in the best interests of the Company. |
| (b) | Service: The Employee shall devote his full working time and attention to the affairs of the Company. The Employee shall not engage in any other business, profession or occupation, or become an officer, employee, contractor for service, agent, or representative of any other company, partnership, firm, person, organization, or enterprise during the term of this Agreement, provided that the Employee may participate on boards of directors of other organizations (to a maximum of two (2) at any one time) and in business associations, charitable organizations or other similar organizations, as may be approved by the Board in its discretion, acting reasonably, and provided that such participation does not interfere with the proper discharge of his duties to the Company. The Employee is currently a director of the boards set forth on Exhibit A hereto and also involved in business associations, charitable organizations or other similar organizations as set forth on Exhibit A hereto. The Parties acknowledge that, without limitation to further activities that the Employee may perform, the Board has approved of the Employee’s involvement in the entities and activities set forth on Exhibit A hereto. |
| (c) | No Personal Benefit: The Employee will not receive or accept for the Employee’s own benefit or for any other person or entity’s benefit, either directly or indirectly, any commission, rebate, discount, gratuity or profit from any person or entity having or proposing to have one or more business transactions with the Company, without the prior approval of the Company, except as permitted by the Company policy. |
| (d) | Business Opportunities: During the Employee’s employment with the Company, the Employee will, to the extent reasonably practicable, communicate and channel to the Company all knowledge, business and customer contacts and any other information that could concern or be in any way beneficial to the business of the Company. Any such information communicated to the Company as aforesaid will be and remain the property of the Company notwithstanding any subsequent termination of the Employee’s employment. |
| (e) | Place of Work: The Employee will work from the Company’s premises located in 0000 Xxxxxxx Xxxxxx, Xxxx #0, Xxxxxxxxxxx, Xxxxxxx X0X 0X0 and it is anticipated that the Employee will be required to travel (both domestically and internationally) in the course of performing the Employee’s duties. In addition, it is anticipated that the Company will increase its focus on sales in the U.S., and the Employee may relocate to the Company’s U.S. headquarters, if and when appropriate, as determined by the Employee and the Board, acting reasonably. In the event of such relocation, the Company and the Employee will discuss any amendments to this Agreement as appropriate. |
| (f) | Pre-existing Obligations: The Employee is hereby requested and directed by the Company to comply with any existing common law, contractual or statutory obligations to the Employee’s former employer and to any other person or entity. The Company is not employing the Employee to obtain the confidential information or business opportunities of the Employee’s former employer or any other person or entity. |
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| 1.4 | Directorship and Offices: Upon the termination of employment with the Company for any reason, the Employee will immediately resign any directorship or office the Employee may hold in the Company or any parent, subsidiary or affiliated companies of the Company and, except as provided expressly in this Agreement, the Employee will not be entitled to receive any written notice of termination or payment in lieu of notice, or to receive any severance pay, damages or compensation for loss of any directorship, office or otherwise. The Employee agrees that failure to tender such resignation(s) will amount to cause for termination, for which the Company may treat the employment as being terminated for after-acquired cause. Notwithstanding the foregoing, the termination of employment will not automatically disqualify the Employee from serving as a director. |
| 1.5 | Exclusion/Debarment: The Employee represents and warrants that the Employee has never been, and as a condition of continued employment shall never be, during the term of this Agreement, excluded from any contracting by any Canadian or United States government agency or authority. The Employee further represents and warrants that the Employee is not subject to any final adverse action, as that term is defined in 42 U.S.C. § 1320a-7e(g), and that no final adverse action has previously occurred or is pending or threatened against the Employee. The Employee represents and warrants that the Employee is not under investigation by the FDA or any other Canadian, United States or foreign regulatory agency nor has the Employee been debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any Canadian, United States or foreign government department or agency. |
| 1.6 | Company Policy: The Employee acknowledges and agrees that the employment relationship will be governed by the standards and terms established by the Company’s policies as they are established from time to time and the Employee agrees to comply with the terms of such policies which may be introduced, amended, deleted or modified in the sole discretion of the Company, provided that doing so does not constitute a material change in the Employee’s terms of employment. |
| 1.7 | Professional Conduct: The Employee acknowledges and agrees that effective performance of the Employee’s duties requires integrity and the Company’s confidence in the Employee’s working relationships with other employees of the Company and with all other persons with whom the Employee deals in the course of employment. |
| 2. | COMPENSATION |
| 2.1 | Base Salary: The Employee will earn an annual salary equivalent to US$500,000.00 (the “Base Salary”), less applicable deductions, payable in arrears for all services and work the Employee performs for the Company. Any increases will be in the discretion of the Board. The Base Salary will be payable in accordance with the Company’s normal payroll practices and will be payable in Canadian dollars at the U.S./Canadian dollar Bank of Canada noon exchange rate on the applicable payroll date. The Employee’s hours and schedule may change from time to time depending on the Company’s business needs. |
| 2.2 | Annual Discretionary Bonus: Provided the Employee remains an employee of the Company in good standing and the Employee has not received or given notice of termination, for each calendar year, the Employee will be eligible to receive an annual bonus of up to 65% of the Employee’s Base Salary based on the assessment of the Board of the Employee’s and the Company’s achievement of certain milestones and objectives determined by the Board. Such milestones and objectives (including the evaluation of achievement thereof), and the bonus amount, will be at the sole discretion of the Board and will be payable in accordance with the Company’s standard payroll policies, subject to applicable payroll deductions and withholdings. Such bonus shall be paid within ninety (90) days after the end of the applicable calendar year. |
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| 2.3 | Stock Options: The options to purchase common shares of the Company previously received by the Employee (“Stock Options”) shall continue to vest during the term of this Agreement in accordance with their terms. The Company shall consider compensation as a whole annually, including stock incentives and the number of options, of chief executive officers of comparable companies when considering compensation or the grant of stock options for the Employee by reference to comparable companies and information and/or reports from independent compensation consultants (which information and reports will be shared with the Employee). |
| 2.4 | Benefits: The Employee will be entitled to participate in the standard insurance plans and other benefit programs (the “Employee Benefits”) which the Company may offer to executive level employees from time-to-time. The Company reserves the right to unilaterally revise the terms of the Employee Benefits, to change carriers, or to eliminate any Employee Benefits altogether. The Employee Benefits will be provided in accordance with the formal plan documents or policies and any issues with respect to entitlement or payment of benefits under any of the Employee Benefits will be governed by the terms of such documents or policies establishing the benefits in issue and will be a matter between the Employee and the insurer. The Company’s liability with respect to the Employee Benefits will be limited to the payment of its share of applicable premiums. |
| 2.5 | Car Allowance: The Company shall provide the Employee with a monthly car allowance of CDN$1,000 in accordance with the Company’s payroll policy, as amended from time to time. |
| 2.6 | Expenses: The Company will reimburse the Employee for all reasonable business expenses actually and exclusively incurred in connection with the performance of duties under this Agreement, provided such expenses are incurred and accounted for in accordance with the general policies and procedures of the Company, as established from time to time. |
| 2.7 | Statutory Holidays: The Company recognizes the statutory holidays observed in Ontario. |
| 2.8 | Vacation: The Employee shall be entitled to 4 weeks of paid vacation per annum, to be taken at such reasonable times as the Company shall in its discretion permit and in accordance with the Company’s vacation policy in effect from time to time. Vacation entitlement for any partial year of employment shall be pro-rated based on the portion of the year worked by the Employee. |
| 3. | TERMINATION OF AGREEMENT AND EMPLOYMENT |
| 3.1 | Obligations Upon Termination: Upon termination of the Employee’s employment, for any reason: |
| (a) | the Company shall pay the Employee all unpaid Base Salary and vacation pay earned up to and including the Employee’s last day of employment (the “Termination Date”), inclusive of any vacation pay required by Ontario Employment Standards Xxx 0000, as amended; |
| (b) | all benefits coverage and other perquisites of the Employee’s employment shall cease on the later of the Termination Date or as specified in 3.3(a); |
| (c) | all files, computer disks, information and documents pertaining to the Company’s business shall remain the property of the Company, and shall promptly be delivered by the Employee to the Company’s office, and no copy, duplication or reproduction of any kind whatsoever shall be made of such files, computer disks, information or documents, or retained by the Employee, without the express written consent of the Company. The Employee agrees to deliver all electronic information to the Company and to destroy any copies held by the Employee belonging to the Company. |
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| 3.2 | Termination by the Employee: The Employee may terminate this Agreement at any time by providing the Company with ninety (90) days’ prior written notice. Upon receipt of such notice, the Company may at any time terminate the employment of the Employee and pay the Employee the amount of Base Salary and continue all Employee Benefits the Employee would have otherwise received during the balance of the aforementioned notice period. |
| 3.3 | Termination by the Company: The Company may terminate the Employee’s employment at any time: |
| (a) | without Cause by providing the Employee with the greater of: (i) pay in lieu of notice, benefit continuation (and severance pay, if applicable) that is required by the Ontario Employment Standards Act, 2000 as amended or (ii) (A) twelve (12) months of pay of Base Salary in lieu of notice (the “Severance Period”) and (B) an amount equal to the then current target annual bonus prorated based on the number of days elapsed in the calendar year until the date of termination as a percentage of the total number of days in such calendar year. The Employee will continue to provide reasonable services to the Company on an as-needed and part-time basis for a period of up to three (3) months following the termination of his employment (the “Transition Period”), including assistance with transition of duties, unless the requirement for active service is expressly waived in whole or in part by the Company, in its sole discretion. The Employee agrees that the Company may, in its sole discretion, limit or discontinue the Executive’s access to business records and Confidential Information during the Transition Period. The Employee agrees that any services provided to the Company during the Transition Period shall be for no additional compensation in excess of the severance payments and benefits contemplated under this Agreement. Regardless of whether or not the Employee provides active service during the Transition Period, the Employee shall continue to abide by all obligations owing under this Agreement. The payments due the Employee hereunder are not subject to mitigation if the Employee receives compensation during the Severance Period from third parties as long as the Employee provides the services during the Transition Period as set forth herein. |
| (b) | for frustration of contract upon the death of the Employee or any incapacitation of the Employee that constitutes an undue hardship for the Company; |
| (c) | at any time for just Cause, without notice or pay in lieu of notice or any other form of compensation, severance pay or damages. For the purposes of this Agreement, “Cause” includes: |
| i. | any material breach of the provisions of this Agreement or the Company’s policies by the Employee if the Company has provided the Employee, with written notice of such breach and such breach has not been remedied within thirty (30) days thereafter; |
| ii. | any intentional or grossly negligent disclosure of any confidential information by the Employee; |
| iii. | any fraud, misappropriation of the property or funds of the Company or its subsidiaries, embezzlement, or other similar acts of dishonesty; |
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| iv. | the willful allowance by the Employee of the Employee’s duty to the Company and the Employee’s personal interests to come into conflict in a material way in relation to any transaction or matter that is of a substantial nature, other than conflicts which are fully disclosed and approved by the Board; |
| v. | the Employee’s criminal, or other conviction of any criminal summary conviction offence or indictable offence that is detrimental to the business or reputation of the Company; |
| vi. | if the Employee’s misconduct causes the Employee to be subject to a final and non-appealable enforcement order (or regulatory settlement in respect thereof) concerning a securities, financial services, health or other regulatory offence that is detrimental to the business or reputation of the Company; and/or |
| vii. | any and all commissions, omissions or other conduct which would constitute just cause at law, in addition to the specified causes noted above. |
| 3.4 | Termination in Connection with Change In Control: This Agreement terminates if it is not assumed by the successor corporation (or affiliate thereto) upon a Change in Control (as defined below). |
| (a) | “Change in Control” means a reorganization or merger of the Company with or into any other corporation or corporations or on an acquisition of securities of the Company (excluding an equity financing of the Company with the principal purpose of raising capital or a merger with any subsidiary or other affiliate) in which transaction the Company’s shareholders immediately prior to such transaction own immediately after such transaction, less than 50% of the voting power of the surviving corporation or its parent, and/or (ii) the sale or disposition by the Company to an unrelated third party of substantially all of its business and assets. Without limiting the foregoing, a transaction will not constitute a Change in Control if (x) its sole purpose is to change the jurisdiction of the Company’s incorporation, or (y) its sole purpose is to create a holding company or other entity that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately prior to such transaction. |
| (b) | If the Company terminates this Agreement other than for Cause in advance of the closing relating to a Change of Control, or the Company’s successor terminates this Agreement other than for Cause within 12 months following the occurrence of a Change in Control, and the Employee signs and returns to the Company without revocation a release prepared by the Company of all legally waivable claims related to or arising from the Employee’s employment with the Company, then (i) the Company shall pay the Employee a sum equal to (A) twenty-four (24) months of the Employee’s then-current annual Base Salary and (B) the then current annual target bonus and (ii) the Stock Options shall vest as set forth in Section 3.4(d) (collectively, the “Change in Control Benefits”). |
| (c) | If, within twelve (12) months following a Change in Control, there is a material diminution of the Employee’s role in the company, change in work location of more than 50 kilometers (except as contemplated pursuant to Section 1.3(e) hereto), diminution of status, any materially detrimental change in compensation (including options and bonus) or benefits (considered as a whole), or diminution of reporting structure, the Employee shall have the right to resign and receive the Change in Control Benefits. |
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| (d) | If the Employee is entitled to Change in Control Benefits, then any unvested Stock Options shall immediately vest. If any provision of this Agreement conflicts with a provisions of the Stock Options or applicable stock option plan, the provision more favorable to the Employee shall govern. |
| 3.5 | Timing of Payments: All amounts payable hereunder in respect of Base Salary or with respect to payments made under the Ontario Employment Standards Act, 2000, as amended, shall be paid in installments in accordance with the Company’s normal payroll practices. Payments in respect of annual or prorated bonuses shall be paid at the time the annual bonus would otherwise be paid. |
| 3.6 | No Implied Entitlement: Other than as expressly provided herein, the Employee will not be entitled to receive any further pay or compensation, severance pay, notice, payment in lieu of notice, incentives, bonuses, benefits or damages of any kind from the Company or from any affiliate of the Company. Any payment in lieu of the Severance Period payment provided to the Employee will be inclusive of any entitlements upon termination or severance pay pursuant to the Ontario Employment Standards Act, 2000 as amended, contract, tort, common law or otherwise, and will be subject to statutory withholdings. The Employee will not be entitled to receive any further pay or compensation (except for pay, if any, accrued and owing under this Agreement up to the date of termination of employment) from the Company, and for clarity, without limiting the foregoing, the Employee will not be entitled to any bonus or pro rata bonus payment that has not already been awarded to the Employee by the Company, except as set out in paragraph 3.3(a) or except for that which was specified as part of the Change in Control Benefits. |
| 3.7 | Continued Effect: Notwithstanding any changes in the terms and conditions of the Employee’s employment which may occur in the future, including any changes in position, duties or compensation, the termination provisions in this Agreement will continue to be in effect for the duration of the Employee’s employment with the Company unless otherwise amended in writing and signed by the Company. |
| 3.8 | Obligations Upon Termination: The Employee agrees that he shall not be entitled to receive any severance fee or other benefits under Section 3 of this Agreement if the Employee breaches any of his obligations arising under Sections 4, 5, 6, 7, 8, 9 and 11 hereof. The Employee acknowledges that until a release in the form of Exhibit B hereto (a “Release”) is timely executed and delivered to the Company, the Company will not be obligated to make any severance payments or provide any other benefits due under this Agreement following termination of the Employee. The Employee further acknowledges that if the Release is not timely executed and delivered to the Company, the severance payments and other benefits described in this Section 3 shall be forfeited, except as required by statutory minimum standards. |
| 4. | CONFIDENTIAL INFORMATION PROTECTIONS |
| 4.1 | At all times during and after the Employee’s employment, the Employee will hold in confidence and will not disclose, use, lecture upon, or publish any of Company’s Confidential Information (defined below), except as may be required in connection with the Employee’s work for Company, or as expressly authorized by the Board. Unless forming part of the Employee’s customary duties for the Company, the Employee will obtain the written approval of the Board before publishing or submitting for publication any material (written, oral, or otherwise) that relates to the Employee’s work at Company and/or incorporates any Confidential Information. The Employee hereby assigns to Company any rights the Employee may have or acquire in any and all Confidential Information and recognize that all Confidential Information shall be the sole and exclusive property of Company and its assigns. |
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| 4.2 | The term “Confidential Information” shall mean any and all confidential knowledge, data or information related to Company’s or its affiliates business or its actual or demonstrably anticipated research or development, including without limitation (a) trade secrets, inventions, ideas, processes, computer source and object code, data, formulae, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques; (b) information regarding products, services, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, employees and customers; (c) information regarding the skills and compensation of Company’s employees, contractors, and any other service providers of Company; and (d) the existence of any business discussions, negotiations, or agreements between Company and any third party. |
| 4.3 | The Employee understands that Company has received and in the future will receive from third parties confidential or proprietary information (“Third Party Information”) subject to a duty on Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. During and after the term of the Employee’s employment, the Employee will hold Third Party Information in strict confidence and will not disclose to anyone (other than Company personnel who need to know such information in connection with their work for Company) or use, Third Party Information, except in connection with the Employee’s work for Company or unless expressly authorized by an officer of Company in writing. |
| 4.4 | The Employee represents that employment by Company does not and will not breach any agreement with any former employer, including any non-compete agreement or any agreement to keep in confidence or refrain from using information acquired by the Employee prior to employment by Company. The Employee further represents that the Employee has not entered into, and will not enter into, any agreement, either written or oral, in conflict with the Employee’s obligations under this Agreement. During employment by Company, the Employee will not improperly make use of, or disclose, any information or trade secrets of any former employer or other third party, nor will the Employee bring onto the premises of Company or use any unpublished documents or any property belonging to any former employer or other third party, in violation of any lawful agreements with that former employer or third party. The Employee will use in the performance of the Employee’s duties only information that is generally known and used by persons with training and experience comparable to the Employee’s own, is common knowledge in the industry or otherwise legally in the public domain, or is otherwise provided or developed by Company. |
| 5. | INVENTIONS |
| 5.1 | As used in this Agreement, the term “Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Intellectual Property Rights in any of the items listed above. The term “Intellectual Property Rights” means all trade secrets, copyrights, trademarks, mask work rights, patents and other intellectual property rights recognized by the laws of any jurisdiction or country. The term “Moral Rights” means all paternity, integrity, disclosure, withdrawal, special and any other similar rights recognized by the laws of any jurisdiction or country. |
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| 5.2 | The Employee has disclosed in Exhibit C a complete list of all Inventions that (a) the Employee has, or has caused to be, alone or jointly with others, conceived, developed, or reduced to practice prior to the commencement of the Employee’s employment by Company; (b) in which the Employee has an ownership interest or which the Employee has a license to use; (c) and that the Employee wishes to have excluded from the scope of this Agreement (collectively referred to as “Prior Inventions”). If no Prior Inventions are listed in Exhibit C, the Employee warrants that there are no Prior Inventions. The Employee agrees that the Employee will not incorporate, or permit to be incorporated, Prior Inventions in any Company Inventions (defined below) without Company’s prior written consent. If, in the course of the Employee’s employment with Company, the Employee incorporates a Prior Invention into a Company process, machine or other work, the Employee hereby grants Company a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide license, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in, such Prior Invention. |
| 5.3 | Inventions assigned to the Company or to a third party as directed by the Company pursuant to the subsection 5.5 are referred to in this Agreement as “Company Inventions”. Subject to the subsection 5.5 (including the proviso set forth therein) and the Prior Inventions Employee has set forth in Exhibit C, the Employee hereby assigns and agrees to assign in the future (when any such Inventions or Intellectual Property Rights are first reduced to practice or first fixed in a tangible medium, as applicable) to the Company all rights, title, and interest in and to any and all Inventions (and all Intellectual Property Rights with respect thereto) made, conceived, reduced to practice, or learned by the Employee, either alone or with others, during the period of the Employee’s employment by the Company. Any assignment of Inventions (and all Intellectual Property Rights with respect thereto) hereunder includes an assignment of all Moral Rights. To the extent such Moral Rights cannot be assigned to the Company and to the extent the following is allowed by the laws in any country where Moral Rights exist, the Employee hereby unconditionally and irrevocably waives the enforcement of such Moral Rights, and all claims and causes of action of any kind against the Company or related to the Company’s customers, with respect to such rights. The Employee further acknowledges and agrees that neither the Employee’s successors-in-interest nor legal heirs retain any Moral Rights in any Inventions (and any Intellectual Property Rights with respect thereto). |
| 5.4 | During the period of employment, the Employee will promptly and fully disclose to the Company in writing (a) all Inventions authored, conceived, or reduced to practice by the Employee, either alone or with others, and (b) all patent applications filed by the Employee or in which the Employee is named as an inventor or co-inventor; provided, however, that such disclosure obligation does not apply to Inventions (or Intellectual Property Rights with respect thereto) which are not directly or indirectly related to the Company’s then current or future business or are not invented with Company resources or during Employee’s working hours. The Employee agrees to keep and maintain adequate and current records (in the form of notes, sketches, drawings and in any other form that is required by the Company) of all Inventions made by the Employee during the period of the Employee’s employment by the Company, which records shall be available to, and remain the sole property of, the Company at all times. |
| 5.5 | The Employee agrees that, as directed by the Company, the Employee will assign to the Company or a third party, including without limitation, all rights, title, and interest in and to any particular Company Invention; provided, however, it is understood that the Company will not elect to direct such assignment of a Company Invention if it is not directly or indirectly related to the Company’s then current or future business or was not invented with Company resources or during Employee’s working hours. |
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| 5.6 | During and after the period of employment and at the Company’s request and expense, the Employee will provide reasonable assistance to the Company, including consenting to and joining in any action, to obtain and enforce Canadian, United States and foreign Intellectual Property Rights and Moral Rights relating to Company Inventions in all countries. If the Company is unable to secure the Employee’s signature on any document needed in connection with such purposes, the Employee hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as the Employee’s agent and attorney in fact, which appointment is coupled with an interest, to act on the Employee’s behalf to execute and file any such documents and to do all other lawfully permitted acts to further such purposes with the same legal force and effect as if executed by the Employee. |
| 5.7 | The Employee agrees that the Employee will not incorporate into any Company software or otherwise deliver to the Company any software code licensed under the GNU General Public License or Lesser General Public License or any other license that, by its terms, requires or conditions the use or distribution of such code on the disclosure, licensing, or distribution of any source code owned or licensed by the Company. |
| 6. | RETURN OF COMPANY PROPERTY |
| 6.1 | Without limiting the provisions of Section 3.1(c), upon termination of the Employee’s employment or upon the Company’s request at any other time, the Employee will deliver to the Company all of the Company’s property, equipment, and documents, together with all copies thereof, and any other material containing or disclosing any Inventions, Third Party Information or Confidential Information and certify in writing that the Employee has fully complied with the foregoing obligation. The Employee agrees that the Employee will not copy, delete, or alter any information contained upon any Company computer or Company equipment before the Employee returns it to the Company. In addition, if the Employee has used any personal computer, server, or e-mail system to receive, store, review, prepare or transmit any Company information, including but not limited to, Confidential Information, the Employee agrees to provide the Company with a computer-useable copy of all such Confidential Information and then permanently delete and expunge such Confidential Information from those systems; and the Employee agrees to provide the Company access to the Employee’s system as reasonably requested to verify that the necessary copying and/or deletion is completed. |
| 7. | NON-COMPETITION/NON-SOLICITATION |
| 7.1 | The Employee covenants and agrees that for the period of the Employee’s employment by the Company and for one (1) year after termination of such employment for any reason, the Employee will not, without the Company’s express written consent, anywhere in the world, be employed by or contribute to any business activity that is competitive with the business of the Company or involves the use of real-time magnetic resonance imaging or ultrasound or similar technologies in the delivery of ablative tools. |
| 7.2 | The Employee covenants and agrees that for the period of the Employee’s employment by the Company and for one (1) year after termination of such employment for any reason, the Employee will not, either directly or indirectly, solicit or attempt to solicit any employee, independent contractor, or consultant of the Company to terminate his, her or its relationship with Company in order to become an employee, consultant, or independent contractor to or for any other person or entity. |
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| 8. | NOTIFICATION OF NEW EMPLOYER |
| 8.1 | After the termination of this Agreement, the Employee consents to the notification of any new employer of the Employee’s rights and obligations under this Agreement, by the Company providing a copy of this Agreement. |
| 9. | INJUNCTIVE RELIEF |
| 9.1 | The Employee acknowledges that, because the Employee’s services are personal and unique and because the Employee will have access to the Confidential Information of the Company, any breach of this Agreement would cause irreparable injury to the Company for which monetary damages would not be an adequate remedy and, therefore, will entitle the Company to injunctive relief (including specific performance). The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity. |
| 10. | PUBLICITY |
| 10.1 | Except to the extent required by the Employee’s duties or customarily performed by the Employee, the Employee shall not, without the prior written consent of the Company, make or give any public announcements, press releases or statements to the public or the press regarding the Employee’s work or the Company’s business. |
| 11. | NOTICES |
| 11.1 | All notices, requests, demands and other communications to be given pursuant to the terms of this Agreement shall be in writing and shall be deemed to have been duly given (i) on the date of delivery if personally delivered or sent by a recognized overnight courier or (ii) on the date of transmission if sent by email (provided notice is then also promptly delivered personally or by a recognized overnight courier), in each case to the parties at the addresses listed below: |
| (a) | If to the Employee, at the Employee’s then current address in the Company’s payroll records; |
| (b) | If to the Company: |
Profound Medical Corp.
0000 Xxxxxxx Xxxxxx, Xxxx 0
Xxxxxxxxxxx, XX X0X 0X0
Attention: Chair of the Board of Directors
E-mail: xxxxxx@xxxxxxxxxxxxxx.xxx
Each party may change its address for receipt of notice by giving notice of the change to the other party.
| 12. | SURVIVAL |
| 12.1 | The Employee’s obligations under this Agreement shall survive the termination of the Employee’s employment, regardless of the manner or reason for termination, including, without limitation, those set forth in Sections 4 through 7 hereof. |
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| 12.2 | The assignment of this Agreement by the Company to any successor or other assignee and shall be binding upon the Employee’s heirs and legal representatives. |
| 13. | SEVERABILITY |
| 13.1 | If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. |
| 14. | WAIVER |
| 14.1 | Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of that provision or any other provision on any other occasion. |
| 15. | ASSIGNMENT |
| 15.1 | The Company may assign this Agreement to (i) an affiliate, subsidiary, related company or partnership without prior notice or consent of the Employee, or (ii) a new employer in connection with any transaction or reorganization; provided that any such successor or assignee expressly assumes in writing the Company’s obligations under this Agreement and has responsibility for managing the underlying business of the Company. The Employee may not assign any of his rights nor delegate any of the duties hereunder. |
| 16. | ENTIRE AGREEMENT |
| 16.1 | This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior communications between us with respect to such matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by the Employee and the Company. Any subsequent change or changes in duties, salary or compensation will not affect the validity or scope of this Agreement. |
| 17. | HEADINGS |
| 17.1 | The headings utilized in this Agreement are for convenience only and are not to be construed in any way as additions or limitations of the covenants and agreements contained in this Agreement. |
| 18. | INDEPENDENT LEGAL ADVICE |
| 18.1 | The Employee acknowledges that the Employee has read and understands this Agreement, and acknowledges that an opportunity was provided to obtain legal advice about it. The Company shall reimburse the Employee for the reasonable costs of obtaining legal advice regarding this Agreement, but in no event more than CDN$3,500 plus HST or such reasonable amount over and above CDN$3,500 plus HST. |
| 19. | COUNTERPARTS |
| 19.1 | This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original and all of which will constitute one Agreement. |
| Page 12 |
| 20. | LAWS |
| 20.1 | This Agreement shall be governed by and interpreted in accordance with the laws of Ontario and the laws of Canada applicable therein. The Employee and the Company hereby attorn to the exclusive jurisdiction of the superior courts of Ontario to resolve any dispute arising from this Agreement except to the extent the Company seeks injunctive relief outside Ontario where applicable to enforce the Employee’s covenants hereunder. |
[Signature Page to Follow]
| Page 13 |
IN WITNESS WHEREOF the parties have duly executed this Agreement as of the __1st___ day of ________January_______, 2018.
| Signed, Sealed and Delivered in the presence of: | ) | |
| /s/ Xxxxxxx Xxxxx | ) | |
| Name (witness) | ) | |
| Xxxxxxx Xxxxx | ) | |
| Address | ) | |
| 0000 Xxxxxxxxxxx Xxxxx | ) | |
| ) | ||
| Director, Human Resources | ) | /s/ Xxxx Xxxxxxx |
| Occupation | ) | XXXX XXXXXXX |
| ) |
| Per: | /s/ Xxxxxx Xxxx | ||
| Name: | Xxxxxx Xxxx | ||
| Title: | Chair of the Board | ||
Exhibit A
CURRENT
BOARD POSITIONS and Other Business Activities
Approved by the Company
Elminda Ltd, Chairman of the Board
Stereotexis Inc., Director
Xxxxxx Medical, Advisor
Xxxxx Foundation, Advisor
Exhibit B
R E L E A S E
I, Xxxx Xxxxxxx of the City of ________, in the Province of Ontario, for and in consideration of the sum of * ($*) and other good and valuable consideration which is being delivered to me concurrently with the execution and delivery hereof (the receipt and sufficiency of which is hereby acknowledged) do hereby remise, release and forever discharge PROFOUND MEDICAL CORP. (hereinafter called the “Company”), its officers, directors, servants, employees and agents, including any related or associated companies, and their heirs, executors, administrators, successors and assigns, as the case may be, of and from any and all manner of actions, causes of action, suits, contracts, claims, damages, costs and expenses of any nature or kind whatsoever, whether in law or in equity, which, as against the Company or such persons as aforesaid or any of them I have ever had, now have, or at any time hereafter I or my personal representatives can, shall or may have, by reason of or arising out of the termination of my employment with the Company or in any other way connected with my employment with the Company (except as otherwise set forth below), and more specifically, without limiting the generality of the foregoing, any and all claims for damages for termination of my employment, constructive termination of my employment, loss of position, loss of status, loss of future job opportunity, loss of opportunity to enhance my reputation, the timing of the termination and the manner in which it was effected, loss of bonuses, loss of benefits, including life insurance and short and long-term disability benefit coverage, and any other type of damages; provided, however, that notwithstanding anything contained herein, this Release does not apply to any claims related to (i) equity in the Company or its affiliates that I hold, directly or indirectly, including without limitation, the options granted to me in connection with my employment with the Company, or (ii) any unpaid reimbursement of expenses and accrued but unpaid salary or termination payments provided for in the Employment Agreement.
I FURTHER AGREE that this Release includes any and all claims I may have arising under contract, the Ontario Employment Standards Act, 2000, as amended, common law or other applicable law related to my employment with the Company and that the consideration provided includes any amount that I may be entitled to under such legislation and I agree to immediately withdraw any complaint as settled and not to file any complaint pursuant to such legislation with respect to my employment or the termination of my employment.
IT IS UNDERSTOOD that the Company has withheld income tax and other statutory deductions from the aforesaid consideration and I agree to indemnify and hold harmless the Company from any further assessment for income tax or other statutory deductions which may be made under statutory authority.
IT IS FURTHER UNDERSTOOD that as a former officer of the Company I owe a fiduciary duty to the Company and I agree that the Company will suffer irreparable harm if confidential information or information unique to the Company is disclosed in any way by me without authorization of the Company and that I have returned to the Company originals or copies of the Company’s corporate records, files, financial documents, client lists, or any other material that is related to the Company’s business, clients, personnel or operations.
IT IS FURTHER UNDERSTOOD AND AGREED that this is not to be construed or considered as an admission of liability on the part of the Company. The terms of this Release set out the entire agreement between myself and the Company and are intended to be contractual and not a mere recital.
| Page 2 |
IT IS EXPRESSLY ACKNOWLEDGED that the contents, terms and effect of this Release have been explained to me by my lawyer and are fully understood.
IN WITNESS WHEREOF I, Xxxx Xxxxxxx, have hereunto set my hand and seal this ____ day of __________________, 20___ in the City of __________________, Province of Ontario.
| Xxxx Xxxxxxx |
| Page 3 |
Exhibit C
INVENTIONS
1. Prior Inventions Disclosure. The following is a complete list of all Prior Inventions (as provided in Subsection 5.2 of the attached Employment Agreement):
| ¨ | None |
| ¨ | See immediately below: |
