EMPLOYMENT AGREEMENT BETWEEN THE COMPANY AND XXXX XXXXXXXX. Exhibit 10.2
EMPLOYMENT AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 1st day of August, 1999.
B E T W E E N:
MED-EMERG INTERNATIONAL INC., a corporation
incorporated under the BUSINESS CORPORATIONS ACT (Ontario)
(hereinafter referred to as the "Corporation")
OF THE FIRST PART
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XXXX XXXXXXXX of the City of Mississauga
(hereinafter referred to as the "Executive")
OF THE SECOND PART
WHEREAS the Corporation desires to continue to employ the Executive as
its President and Chief Operating Officer and whereas the Executive is
willing to continue such employment, all on the terms and conditions and for
the remuneration as hereinafter set forth;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
covenants, agreements and payments herein set out and provided for, the
parties hereto hereby respectively covenant and agree as follows:
26. EFFECTIVE DATE
The employment of the Executive by the Corporation shall continue, with
the terms set forth below effective the date hereof (the "Commencement
Date"). The agreement made between the Executive and the Corporation dated
June 19, 1997 is terminated and is of no further force or effect, and is
superseded by this agreement, on and as of the Commencement Date.
Notwithstanding the foregoing or any other provision of this agreement, any
stock options granted to the Executive prior to the date hereof shall remain
in full force and effect.
27. TITLE
The Corporation will employ the Executive and the Executive will serve
the Corporation as President and Chief Operating Officer.
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28. DURATION OF AGREEMENT
(a) This agreement shall continue for an initial term of three years
from the Commencement Date and shall be subject to successive extensions,
each for a period of one year (subject to termination as herein otherwise
provided) unless terminated by the Corporation effective the third
anniversary of the Commencement Date upon written notice given by the
Corporation to the Executive at least 180 days prior to the third anniversary
of the Commencement Date, such notice to be effective on the third
anniversary of the Commencement Date, or unless terminated by the Corporation
on any other anniversary of the Commencement Date following the third
anniversary of the Commencement Date upon written notice given by the
Corporation to the Executive at least 180 days prior to the anniversary date
upon which this agreement is to be terminated, such notice to be effective on
such anniversary date.
(b) The Executive shall be entitled to terminate his employment by
voluntary resignation at any time by providing three months prior written
notice to the Corporation. Upon receipt of such notice, the Corporation may
in its discretion determine the termination of employment to be effective as
of a date prior to the expiration of the three-month period.
29. DUTIES
Schedule "A" sets out the purpose of the position of President and Chief
Operating Officer, his duties and responsibilities, his requirement to
observe and conduct relationships and the standards for measuring his
performance. The Executive hereby agrees to serve the Corporation loyally,
faithfully, diligently and to the best of his ability and shall use his
utmost efforts to promote and advance the business and welfare of the
Corporation and its affiliates, as described in Schedule "A". The term
"affiliate" as used in this agreement has the meaning given to it by the
SECURITIES ACT of Ontario.
30. HOURS OF WORK
The Executive shall devote to the affairs of the Corporation
substantially the whole of his time, attention and abilities during normal
business hours and at such other times as his duties may reasonably require,
unless prevented by ill-health.
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31. SALARY AND BONUS
The Corporation will pay the Executive by way of remuneration for his
services under this agreement a salary of US$200,000 per annum commencing on
the Commencement Date and US$225,000 commencing on the first anniversary of
the Commencement Date. The salary shall be paid bi-weekly. The Executive
shall receive a one-time bonus of Cdn$100,000, to be paid as to Cdn$50,000 at
the time YFMC Healthcare Inc. becomes a subsidiary of the Corporation and as
to the other Cdn$50,000 at the time of the completion of the financing(s)
referred to in paragraph 10.
32. EXPENSES
The Executive shall be required to undertake such travel as is required
by the Corporation and the Corporation shall reimburse the Executive all
reasonable travelling, hotel, entertainment and other expenses properly
incurred by him in the proper performance of his duties upon production of
appropriate receipts.
33. HOLIDAYS
The Executive shall be entitled, in addition to statutory holidays, to
five weeks' holiday in each 12-month period under this agreement. Unused
holiday entitlement may not be carried forward to the next 12-month period
unless otherwise agreed with the Corporation.
34. ADDITIONAL BENEFITS
Subject as hereinafter provided, during the continuance of this
agreement, the Corporation will provide to the Executive the benefits
described in Schedule "B" to this agreement. The benefits described in
paragraph 1 of Schedule "B" are the benefits currently available to senior
employees of the Corporation and its affiliates. Paragraph 1 of Schedule "B"
may be amended from time to time at the Corporation's discretion so long as
such amended benefits are made available to senior employees of the
Corporation and its affiliates and are not a dilution or reduction of the
then current benefits provided to the Executive by the Corporation taken as a
whole.
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35. OPTIONS
The Corporation has granted to the Executive options to purchase 400,000
common shares of the Corporation at an exercise price of $1.50 per share.
Such options shall be exercisable, as to 200,000 common shares, at the time
YFMC Healthcare Inc. becomes a subsidiary of the Corporation, and as to
200,000 common shares, at the time the Corporation completes (the) equity
financing (s) in the aggregate amount of not less than US$10,000,000 to be
used for the purpose of launching the information technology initiative of
the Corporation, provided that the options shall not be exercisable in any
event until after April 27, 2000. The options shall have a term of five
years. The options shall otherwise be on the terms and conditions set forth
in the Corporation's director and employee stock option plan.
36. TERMINATION
(a) This agreement may be terminated by the Corporation immediately and
without any liability for any damages or compensation for breach of
contract, wrongful dismissal or otherwise, if the Executive shall:
(i) become mentally incapacitated or, for any 26 weeks in any 12
consecutive months, become physically incapacitated such that he
is unable to perform his obligations under this agreement; or
(ii) be convicted of any indictable offence for which a sentence of
imprisonment can be imposed by law; or
(iii) commit any act of dishonesty; or
(iv) be guilty of any misconduct relating to the discharge of his
duties hereunder; or
(v) be guilty of any neglect in the discharge of his duties hereunder
or commit any wilful or persistent breach of any of the provisions
of this agreement.
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(b) If this agreement is terminated by the Corporation by notice
pursuant to subparagraph 3(a) or by the Executive by notice
pursuant to subparagraph 3(b), then the Corporation shall forthwith
pay to the Executive his salary (less usual and statutory
deductions), at the rate and at the normal times in effect at the
time notice of termination is given, through to the termination
date.
37. NO OTHER COMMERCIAL INTERESTS
The Executive shall not at any time during the continuance of this
agreement be or become a director of any Corporation or be engaged, concerned
or interested in, directly or indirectly, and whether independently or as any
employee of, any other business, trade or occupation, except that the
Executive may:
(i) become engaged, concerned or interested in any other business,
trade or occupation or become a director of another Corporation,
with the prior written consent of the Corporation; or
(ii) hold or become beneficially interested in not more than 5% of any
class of securities in any corporation if such class of securities
is listed on a recognized stock exchange or an unlisted securities
market unless the Corporation otherwise requires on the grounds
that such corporation carries on a business competitive with that
of the Corporation or its affiliates.
Notwithstanding the foregoing, the Executive may sit on boards of other
health care and information technology firms unless there is a reasonable
basis upon which the Corporation may deny him the right to do so.
38. HEALTH AND SAFETY
The Corporation attaches great importance to the health and safety of
its employees and recognizes a duty to prevent, where possible, personal
injury by ensuring that the design, construction, operation and maintenance
of all equipment and facilities and systems are in accordance with all
applicable health and safety requirements. In order to achieve this aim, the
Executive must ensure not only that he complies with all requirements of the
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Corporation, but also that the Corporation has in place appropriate
procedures so that appropriate training and instruction is given to all
employees in order to prevent injury to themselves and others.
39. CONFIDENTIALITY
The Executive shall not at any time, other than in the course of his
duties, without the prior consent in writing of the Corporation, divulge or
make known to anyone any secrets of any technical, commercial or financial
nature or other information of a confidential nature, unless such information
is already in the public domain, relating to the business or customers of the
Corporation or its affiliates. All papers and documents used by the Executive
in the course of his employment are and will remain the property of the
Corporation and will be delivered up to the Corporation on termination of
this agreement. The provisions of this paragraph shall survive the expiration
or earlier termination for any reason whatsoever of this agreement.
40. PATENTS, SECRETS AND IMPROVEMENTS
(a) As relating to the business of the Corporation, any discovery,
invention, secret process, improvement, formula, plan, idea,
know-how or adaptation or improvement thereto or to any existing
idea, process or other property of the Corporation including,
without limitation, any new, or any adaptation of existing,
software or hardware, whether or not patentable or otherwise
subject to legal protection, made, discovered, conceived or created
by the Executive while in the service of the Corporation, during
the term of this agreement, in any way affecting or relating to the
business of the Corporation shall forthwith be disclosed to the
Corporation and shall belong to and be the absolute property of the
Corporation.
(b) The Executive shall if and whenever required so to do by the
Corporation at the expense of the Corporation, apply to join with
the Corporation in applying for patents, copyrights or other legal
protection in Canada and in any part of the world for any such
discovery, invention, process or improvement as aforesaid and
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shall at the expense of the Corporation execute all instruments and
do all things necessary for vesting the said patent, copyright or
other legal protection when obtained and all right, title to and
interest in the same in the Corporation absolutely and as sole
beneficial owner or in any such other person as the Corporation may
specify.
41. CONDUCT
By accepting employment and continuing to be employed by the Corporation,
the Executive hereby undertakes and covenants with the Corporation as follows:
(i) not without the previous consent of the Corporation directly or
indirectly to receive (other than as agent for the Corporation) or
retain any discount, rebate, fee, gratuity, commission or payment
from a third party for any service, matter or thing connected with
his duties and services as an employee of the Corporation;
(ii) (as long as termination of employment hereunder is not pursuant to
clause (a) of paragraph 11, and if termination is pursuant to
clause (b) of paragraph 11, the payment referred to in such clause
is made) not within 12 months after ceasing to be employed (except
with the written consent of the Corporation which shall not be
unreasonably withheld) whether on his own behalf or on behalf of
any person, firm or corporation directly or indirectly to seek to
procure orders from or do business with any person, firm or
corporation who on the date of his ceasing to be employed or at any
time in the 12 months prior to that date was a client or customer
of the Corporation and with whom in the course of his employment
with the Corporation had dealings, provided always that nothing in
this undertaking shall be deemed to prohibit the Executive from
seeking or procuring orders or from doing business not in
competition with the Corporation; and
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(iii) not during the term of employment hereunder, nor for a period of 24
months thereafter, to solicit, entice, procure or endeavour to
persuade any other employee of the Corporation to leave the
employment of the Corporation.
Although the Executive and the Corporation recognize and accept that the
above restrictions are reasonable having regard to the nature of the
Corporation's business and the Corporation's interest in preserving its
goodwill and customer connections, the Corporation will only withhold its
consent to (i) or (ii) above where it is evident that the business of the
Corporation will be prejudiced by not withholding such consent and to that
extent, should any of the foregoing restrictions be found to be unreasonable
and unenforceable, they shall be deemed to be modified only to the extent
necessary to give effect to the remaining provisions of this paragraph.
42. NOTICES
Any notice, direction or other instrument required or permitted to be
given to the Executive hereunder shall be in writing and may be given by
mailing the same, postage prepaid addressed to the Executive at 0000
Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxx, Xxxxxxx X0X 0X0 or by delivering the same.
Any notice, direction or other instrument required or permitted to be given
to the Corporation hereunder shall be in writing and may be given by mailing
the same, postage prepaid, or delivering the same addressed to the
Corporation at 0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxx X0X 0XX,
Attention: Chief Executive Officer.
Any notice, direction or other instrument aforesaid if delivered shall
be deemed to have been. given or made on the date on which it was delivered
or if mailed, shall be deemed to have been given or made on the fourth
business day following the day on which it was mailed.
The Executive or the Corporation may change his or its address for
service from time to time by notice given in accordance with the foregoing.
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43. LEGAL COSTS
The Executive hereby acknowledges receipt of a copy of this Agreement
duly signed by the Employer and having been advised by the Corporation to
obtain and having been given the opportunity to arrange for independent legal
advice with respect to this Agreement, each of the matters herein set forth
and the implications thereof. The Corporation shall pay the Executive's
legal costs incurred with respect to the Executive's entering into of this
agreement up to a maximum of Cdn$5,000.
44. ENTIRE AGREEMENT AND SEVERABILITY
This agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof, apart from the written
agreements between the parties hereto relating to a Cdn$60,000 loan to the
Executive from the Corporation. There are not and shall not be any verbal
statements, representations, warranties, or agreements between the parties
with respect to the subject matter hereof. No waiver of any breach of this
agreement shall be effective unless made in writing by the party giving such
waiver and, unless otherwise provided in the written waiver, shall be limited
to the specific breach waived. The invalidity or unenforceability of any
term, covenant or condition contained in this agreement shall not affect the
validity or enforceability of any other term, covenant or condition hereof,
but shall be deemed to be severable and upon such severance, the remainder of
the agreement shall be valid and enforceable.
Notwithstanding the foregoing, this agreement may be amended or modified
in any respect from time to time by written instrument signed by the parties
hereto.
45. GOVERNING LAW
This agreement shall in all respects be construed and enforced in
accordance with and governed by the laws of the Province of Ontario. Each of
the parties hereto hereby irrevocably attorns to the jurisdiction of the
courts of the Province of Ontario.
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46. RIGHTS OF ENFORCEMENT
In the event of a breach by the Executive of any covenant contained or
referred to in this Agreement, the Corporation shall be entitled to an
injunction restricting such breach in addition to any other remedies provided
by law. Any remedy expressly set forth in this Agreement shall be in
addition to and not inclusive of or dependent upon the exercise of any other
remedy available to the Corporation at law or otherwise. The Executive
hereby agrees that all restrictions in this Agreement are reasonable and
valid and all defences to the strict enforcement thereof by the Corporation
are hereby waived by him.
47. FULL SATISFACTION
The terms set out in this Agreement, provided that such terms are
satisfied by the Corporation, are in lieu of (and not in addition to) and in
full satisfaction of any and all other claims or entitlements which the
Executive has or may have upon the termination of employment in the
circumstances contemplated in this Agreement. The compliance by the
Corporation with these terms will effect a full and complete release of the
Corporation from any and all claims which the Executive may then have for
whatever reason or cause in respect of the Executive's employment and the
termination of it, other than those obligations specifically set out in this
Agreement. In agreeing to the terms set out in this Agreement, the Executive
specifically agrees to execute a formal release document to that effect and
will deliver upon request appropriate resignations from all offices and
positions with the Corporation and any associated or affiliated companies if,
as, and when requested by the Board upon the termination of employment within
the circumstances contemplated by this Agreement.
48. BINDING EFFECT
Neither this agreement nor any portion thereof may be assigned by the
Executive. Neither this agreement nor any portion thereof may be assigned by
the Corporation without the consent of the Executive. This agreement shall
enure to the benefit of and be binding upon the parties hereto and their
respective heirs, legal personal representatives, successors and permitted
assigns.
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49. DISPUTE RESOLUTION
The parties hereto acknowledge that in the event of a dispute under this
agreement they shall make submissions under and shall be bound by the rules
of the Private Court in Ontario and any order whether interlocutory or final
is an award which is enforceable under the Arbitration Act, 1991 of Ontario.
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IN WITNESS WHEREOF this agreement has been executed by the parties
hereto.
MED-EMERG INTERNATIONAL INC.
by
SIGNED, SEALED AND DELIVERED )
in the presence of )
) ---------------------------------
) Xxxx Xxxxxxxx
--------------------------------- )
SCHEDULE A
PRESIDENT AND CHIEF OPERATING OFFICER
II. PURPOSE OF THE POSITION
To help develop and apply the policies of the Board of Directors and the
Chief Executive Officer. To manage the affairs of the Corporation, control
the operations of all line and staff components and have specific
responsibility for sales growth, operating results, acquisition activities
and the financial condition of the Corporation.
III. DUTIES AND RESPONSIBILITIES
As chief manager of the Corporation, the President and Chief Operating
Officer will, under the overall policy direction as established by the Board
of Directors and the Chief Executive Officer, operate the activities of the
business and delegate to subordinates such authority and responsibility as he
may determine.
A. Board Functions
a) Creation and issuance of negotiables or transferable instruments and
securities.
b) Establishment of the controls and regulations deemed necessary to protect
properly the rights and interests of shareholders and creditors of the
Corporation.
c) Revision of corporate By-laws as may be desirable.
d) He will present to the Board reports and recommendations from the other
officers and committees.
In concert with the Chief Executive Officer, he will make recommendations to
the Board with regards to the following:
e) Appointment of officers of the Corporation and determination of their
duties, authorities, and compensation.
f) Appointment of trustees and agents for the Corporation.
g) Authorization of capital expenditures.
h) Authorization for acquisition or disposal of corporate assets.
i) Approval of loans, investments, and other plans to finance the
Corporation's operations.
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j) Declaration of dividends and establishment of reserves.
B. Operations
1. Control and supervision of the operations and financial affairs of the
Corporation through approval of major plans, programs, budgets, and
forecasts; review of periodic reports, financial and operating
statements, and summary analyses of major operations in relation to
authorized programs; and determination of remedial action as required.
2. Be alert to detect and prevent unadvised application of allotted funds.
Xxxxxx the best use of facilities in the interest of the Corporation.
3. Execute and implement the acquisition program and new product and
services initiatives as conceived in concert with the Chief Executive
Officer, including related financial measures required.
4. Approve operating and administrative policies.
5. In concert with the Chief Executive Officer, he will also carry out the
following activities with respect to acquisitions and public relations:
b) Formulation of acquisition policies and plans, subject to approval of the
Board.
c) Evaluation of potentials.
d) Recommendations to the Board.
e) Negotiations and commitments, subject to Board approval.
f) Formulation of public relations policies and plans, subject to approval
of the Board when required.
C. Organization
1. Approve and enforce the organization plan of the Corporation and any of
its components, and changes therein.
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2. Subject to the concurrence of the Chief Executive Officer, approve the
addition, elimination, or alteration of management positions.
3. Approve the addition, elimination, or alteration of positions other than
in management.
4. Be alert to sponsor improvements in the organization plan of the
Corporation and of any of its components.
5. Approve salary and wage structures.
D. Personnel
1. Approve personnel policies.
2. Interview, pass upon the qualifications of, and, subject to the
concurrence of the Board of Directors, hire personnel for or appoint
employees to management positions.
3. Approve promotion, demotion, and release of personnel who are not members
of management. Subject to the concurrence of the Board of Directors,
approve promotion, demotion, and release of members of management.
4. Approve vacations and personal leaves for the Managers of the
Departments.
5. Subject to the concurrence of the Board of Directors, approve and sign
agreements with employee groups and their representatives.
6. Be alert to ensure equitable administration of wage and salary policies
and structures, employee benefit plans, and personnel rating programs.
Protect the interests of employees as individuals.
E. Finance
1. The President will assume responsibility for the financial condition of
the Corporation and take adequate measures to satisfy its fiscal needs
and conserve the assets entrusted to his charge.
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2. Insure that each division and department develops and submits operating
budgets and forecasts in keeping with policy requirements.
3. In conjunction with the Chief Executive Officer, review, and submit to
the Board for approval, the annual consolidated operating budget and
forecasts and the proposed capital expenditure program.
4. Establish and adhere to procedures governing the authorization of
corporate expenditures.
5. Approve expense accounts for senior officers.
F. Public Relations and Advertising
The President will be responsible for the implementation of policies
developed jointly with the Chief Executive Officer for public relations and
advertising including communications to shareholders, employees, industry and
the public and will participate directly in these programs with the Chief
Executive Officer as they shall mutually agree.
G. Marketing and Sales
The President shall participate in the preparation of sales and marketing
expenditure budgets and be accountable for control of actual results in
confirmation with the budget.
IV. RELATIONSHIPS
The President will observe and conduct the following relationships. Portions
of the conduct of such relationships may be delegated to members of the
organization, but overall responsibility or accountability for their proper
conduct may not be delegated.
A. Board of Directors
1. Accountable to the Board of Directors and the Chief Executive Officer for
the fulfillment of this function, responsibilities and authority, and
relationships, and for their proper interpretations.
B. Department Managers
1. Coordinate the activities of the Department managers. Call upon them for
advice and assistance whenever advisable. Stand ready at all times to
render them advice and support.
C. Government, Vendors and the Public
1. Conduct such relationships with representatives of government, with
vendors, and with the public as warranted.
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V. STANDARDS FOR MEASURING PERFORMANCE
1. In conjunction with the Chief Executive Officer, the soundness and
adequacy of the objectives and policies recommended to the Board of
Directors; the effectiveness with which the policies of the Board are
executed; and the extent to which the approved objectives of the
Corporation are realized.
2. The extent to which the assets of the Corporation have been conserved and
strengthened, the soundness of the financial condition of the
Corporation, and the extent to which its fiscal needs have been met.
3. The profit results of the Corporation as a whole and of the individual
operating divisions.
SCHEDULE "B"
BENEFITS
4. Standard Employee Benefit Program of the Corporation for its senior
executives including long term disability insurance.
5. The Corporation shall pay the Executive's annual professional fees to
maintain his status as a member of the Institute of Chartered Accountants
of Ontario and other professional organizations necessary or beneficial
to the carrying out of his duties.
6. The Corporation shall pay the Executive up to Cdn$10,000 annually in
monthly instalments as a car allowance. The Corporation shall also pay
for gas for such car upon production of appropriate receipts. All other
expenses with respect to such car, for example, insurance premiums,
repairs, shall be paid by the Executive.
7. The Corporation shall pay the Executive such amounts as are approved by
the Executive, the Chief Executive Officer and the Chairman of the Board
in each year disbursed by the Executive for continuing education and
related expenses (for example, travel, hotel). Appropriate receipts
shall be delivered to the Corporation.
8. The Corporation shall pay the premiums in respect of a Cdn$500,000 life
insurance policy on the life of the Executive. The Executive may
designate the beneficiary.
