EMPLOYMENT AGREEMENT
BETWEEN VISUALMED CLINICAL SYSTEMS INC., a corporation existing under the laws
of Canada,
(hereinafter referred to as the "Corporation"),
AND: XXXXXX DAB, residing and domiciled at 000, Xxxxxxxxx, Xxxxxxxxx,
Xxxxxx,
(hereinafter referred to as the "Executive")
WHEREAS, the Executive has a long term interest in both technology and
information management in health care;
WHEREAS the Executive has been extensively involved in the financial community
for more than ten (10) years;
WHEREAS the Executive has fifteen (15) years experience of managing a
communication company with multimillion dollar sales;
WHEREAS, the Executive has entered into a contract with Dr. Art Xxxxxxx on March
13, 1998 whereby the Executive and Dr. Art Xxxxxxx wished to join forces to
create a company devoted to the development, implementation and marketing of
medical, clinical and information management software which company becomes the
Corporation;
WHEREAS, the Executive and Dr. Art Xxxxxxx in virtue of the contract signed on
March 13, 1998 considered each other to be wholly linked and beholden to the
contract for a period of no less than seven (7) years whereby they agreed to be
employed by the Corporation for a period of seven (7) years from the date of the
signature of the said contract;
WHEREAS, the Executive is a shareholder of the Corporation since January 1998;
WHEREAS, the Corporation desires to continue to retain the services of the
Executive and the Executive wishes to be employed by the Corporation in order to
maintain and improve the relationship with the shareholders, the investors and
to improve the development of the corporation's offshore markets;
WHEREAS, the Corporation acknowledges that the Executive is also the Chairman
of the Corporation's Board of Directors;
IN CONSIDERATION OF THE RESPECTIVE COVENANTS AND AGREEMENTS HEREIN CONTAINED AND
FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH
ARE HEREBY ACKNOWLEDGED BY EACH PARTY, THE PARTIES AGREE AS FOLLOWS:
1. EMPLOYEMENT
1.1. The Corporation hereby agrees to continue to employ the
Executive and the Executive hereby accepts to continue such
employment as of the date hereof in the capacity of
Vice-President of Development and, in addition, the Executive
shall continue to serve as Chairman of the Corporation's Board
of Directors if so requested by the said Board.
2. DUTIES
2.1. In his capacity of Vice-President of Development, the
Executive shall be responsible for the relationship with
the shareholders, the investors and for the development of
the Corporation's offshore market;
2.2. The Executive shall also perform such duties and exercise
such powers as are normally associated with and incidental
and ancillary to the responsibility of Vice-President of
Development;
2.3. The Executive shall report directly to the Senior
Vice-President and Chief Executive Officer and the President
of the Corporation;
2.4. The Executive shall devote all of his time and attention and
his best efforts during normal business hours to the business
and affairs of the Corporation and shall not, without a
specific prior written consent of the Senior Vice-President
and Chief Executive Officer or the President of the
Corporation, undertake any other business or occupation.
2.5. The Executive shall perform those duties that may be assigned
to him by the Senior Vice-President and Chief Executive
Officer and the President of the Corporation diligently and
faithfully and to the best of the Executive's abilities. In
addition, the Executive shall act in the best interests of the
Corporation and the Executive shall use his best efforts to
promote the interests and goodwill of the Corporation.
3. COMPENSATION
3.1. The annual salary payable to the Executive for his services
hereunder shall be one hundred and eighty thousand dollars
($180,000.00) or such higher amount that the Corporation's
Board of Directors, in its sole discretion, may determine from
time to time, exclusive of bonuses, benefits and other
compensation. Such salary shall be payable in equal
installments in accordance with the usual compensation
practices of the Corporation, such installments shall be paid
no less frequently than monthly.
3.2. The annual salary is subject to be re-evaluated twice per
year.
3.3. At such time as the Corporation has made an aggregate of $10
million in sales since the commencement of operations, the
Executive shall have an option to purchase that number of
shares equal to decimal five percent (0.5%) of the total
number of shares then issued and outstanding. The exercise
price of the present option shall be fifteen cents ($0.15) per
share. The present option may be exercised commencing two
years after the date on which it is granted;
3.4. In the event that the Executive's employment is terminated
without a serious reason, the Executive shall have the right
to exercise any or all of the above-mentioned option in
whole or in part immediately, notwithstanding any provision
hereof;
3.5. The Executive shall be entitled to bonuses representing:
a) a lump sum of $150,000.00 at such time the
Corporation has effected an initial public offering
or is otherwise listed on a stock exchange or a stock
quotation system, such bonus being payable within 60
days of such event;
b) a lump sum of $50,000.00 upon the signature of a
contract for the placement of the first Beta system
in the United States. 50% of such bonus being payable
upon contract signing and the remaining of the bonus
being upon receipt of first payment on the system;
c) a lump sum of $10,000.00 upon the signature of a
contract for the placement of the first Beta system
in Canada. 50% of such bonus being payable upon
contract signing and the remaining of the bonus being
payable upon receipt of first payment on the system;
d) a lump sum of $100,000.00 upon the Corporation
reaching an aggregate of $10 millions CDN in sales
since the commencement of operations. Such bonus
being payable within 60 days of reaching such sales;
3.6. During the term of the Executive's employment, the Executive
shall be entitled to participate in the Corporation's Benefit
Plans in force at the time of the present Agreement and any
other replacement benefit programs established by the
Corporation's Board of Directors. Such replacement benefit
programs shall be substantially similar to the current
Corporation's Benefit Plans.
3.7. The Executive shall be reimbursed for all reasonable travel
and out-of-pocket expenses properly incurred by the Executive
from time to time in connection with the performance of his
duties hereunder. For all such expenses, the Executive shall
furnish to the Corporation invoices, statements or other
appropriate supporting documents in respect of which the
Executive seeks reimbursement.
3.8. The Executive shall continue to be covered by the Directors'
and Officers' liability insurance policies maintained by the
Corporation.
4. VACATION
4.1. The Executive shall be entitled to six (6) weeks paid vacation
per calendar year, the timing of such vacation to be
determined by the Executive and the Senior Vice-President and
Chief Executive Officer or the President of the Corporation,
subject to the need for the timely performance of the
Executive's responsibilities hereunder.
5. TERMINATION OF EMPLOYMENT
5.1. a) The employment of the Executive hereunder shall be
for a fixed term and shall end on March 13, 2007;
b) Notwithstanding section 2090 of the Civil Code of
Quebec, the present Agreement shall not be
automatically or tacitly renewed. It shall be renewed
only if the parties to the present Agreement accept
such a renewal in writing and stipulate its terms and
conditions therein;
5.2. The employment of the Executive may be terminated at any time
by the Corporation for a serious reason, as that term may be
interpreted and applied by the Courts, and shall be effective
immediately. The Executive shall receive a written notice
setting out the reason(s) for such termination.
5.3. The employment of the Executive may be terminated by the
Corporation, without a serious reason by giving to the
Executive a six (6) month prior written notice setting out the
reason(s) for such termination.
In such an event, the Corporation shall have the obligation to
pay to the Executive:
a) the bonuses mentioned in paragraph 3.5 above, if the
terms and conditions for their entitlement are met
during the remaining period from the initial term of
the present Agreement;
b) an indemnity representing his vacation as per Section
4 above, for the remaining period from the initial
term of the present Agreement, shall be paid in one
installment at the date of termination;
c) all expenses as per paragraph 3.7 above, that have
not been reimbursed at the date of termination;
d) one of the two following indemnities at the
discretion of the Executive:
i) a lump sum, payable at the date of
termination representing the base salary for
the remaining period out of the initial
term, taking into account the twice per year
increases and representing the minimum the
cost of living allowance; or
ii) the payment of the remaining base salary, as
mentioned in subparagraph 5.3d)i) above, by
way of the Corporation's stock, whose value
will be determined at the date of the
Corporation's last financing, if any
Shareholders Agreement to which the
Executive is a party to allows it.
e) all other remuneration or benefits that would have
been entitled the Executive during the remaining
period of the initial term.
6. CONFIDENTIALITY AND NON-DISCLOSURE
6.1. The Executive acknowledges that during the course of his
employment with the Corporation, he has had and will have had
or will have access to and/or has been or will be entrusted
with various trade secrets and other proprietary and
confidential information, whether technical or non-technical,
relating to the past, present or contemplated businesses and
operations of the Corporation or those of its clients,
suppliers, customers, agents or consultants, including,
without limitation, trade secrets, products, software
programs, hardware design and specifications, source code,
drawings, manuals, letters, notes, notebooks, reports,
records, related documentation in hard copy, research and
development, customer lists, customer data, financial
information and business practices (hereinafter collectively
referred to as "Confidential Information") and the direct
or indirect disclosure of any of which to competitors of the
Corporation or to the general public or to any person who is
not affiliated in an appropriate capacity with the
Corporation would be detrimental to the best interests of the
Corporation.
6.2. The Executive further acknowledges and agrees that the right
to maintain the confidentiality of all such Confidential
Information constitutes a proprietary right which the
Corporation is entitled to protect and that the Corporation is
the sole owner of such confidential Information.
6.3. Accordingly, the Executive acknowledges and agrees that he
will not at any time during the term of his employment
hereunder or at any time thereafter, whether directly or
indirectly, divulge, use, publish, reproduce, communicate
or exploit for the benefit of himself or of any other physical
or moral person, company, organism or any other group bearing
or not a moral, legal or judicial personality (hereinafter
collectively or individually referred to as the
"Third Party"), any Confidential Information which he has
acquired during or as a result of his employment with the
Corporation except to the extent that the Confidential
Information may be in the public domain without having been
disclosed by the Executive.
6.4. The Executive agrees that upon or within three (3) business
days of the termination for any reason of the Executive's
employment with the Corporation, the Executive will promptly
deliver to the Corporation the originals and all copies made
by or for the Executive or on the Executive's instructions of
all Confidential Information, which are then in the
Executive's possession or under the Executive's control.
6.5. The Executive covenants and warrants to the Corporation that
the Executive is not now under any obligation to any person,
firm or other entity which is inconsistent or in conflict with
this Agreement or which would prevent, limit or impair in any
way the performance by the Executive of his obligations or
duties hereunder.
7. RESTRICTIVE COVENANTS
7.1. In consideration of the benefits and conditions provided to
the Executive pursuant to this Agreement, the Executive
covenants and agrees that he shall not, without the specific
prior written consent of the Senior Vice-President and
Chief Executive Officer or President of the Corporation,
during the term of this Agreement and for a period of twelve
(12) months following the termination of his employment
thereof, either on his own behalf or on the behalf of any
Third Party, directly or indirectly, solicit the services of,
entice away, employ or use the services of any person
employed by or otherwise providing services to the
Corporation on a full-time or part-time basis, or solicit any
customers, clients or suppliers of the Corporation to transfer
business rom the Corporation to any Third Party. For the
purposes of the present Agreement, customers, clients or
suppliers of the Corporation means any customer, client or
supplier of the Corporation during the Executive's employment
or at the date of the termination of the Executive Employment.
7.2. In consideration of the benefits and conditions provided to
the Executive pursuant to this Agreement, the Executive
covenants and agrees that he shall not, without the specific
prior written consent of the Senior Vice-president and Chief
Executive Officer or the President of the Corporation,
during the term of this Agreement and for a period of twelve
(12) months following the termination of his employment
hereof, both individually or jointly with a Third Party
whether as owner, shareholder, creditor, agent, employee,
officer, director or in any other capacity, effect any work
or perform any service whatsoever in the field of medical,
clinical and information management software, nor act as a
consultant, lend monies or guarantee debts or obligations, nor
permit that his name or part of his name be used or employed,
whether it be for his own personal benefit or for the benefit
of any Third Party, engaged, concerned or interested in any
enterprise which carries on business or pursues activities
in the field of medical, clinical or information management
software in the territory of Canada and the United States.
7.3. In addition and without prejudice to all other rights and
remedies available to the Corporation, the Corporation may
enforce the compliance and respect of any and all of the
provisions of the present sections 6 and 7 by way of but not
limiting to injunction, and may obtain an injunction in order
to enjoin any breach or threatened breach of any of the
provisions thereof. The Executive expressly and specifically
acknowledges that in the event of a breach of any of the
obligations described in section 6 or 7, such breach shall
cause the Corporation to suffer damages for which an
injunction is an effective relief. This remedy shall be in
addition to and not in limitation of any rights or remedies to
which the corporation is or may be entitled to.
7.4. During the term of this Agreement, the Executive shall
promptly disclose to the Senior Vice-President and Chief
Executive Officer or the President of the Corporation all
information concerning any interest, direct or indirect, of
the Executive (whether as owner, shareholder, partner, vendor
or other investor, director, officer, employee, consultant or
otherwise) or any member of his immediate family, in any
business which is reasonably known to the Executive to
purchase or otherwise obtain services or products from, or to
sell or otherwise provide services or product to, any person
within the Corporation.
8. GENERAL
8.1. The preamble of the present Agreement forms an integral part
to it for any legal purposes.
8.2. If any provision of this Agreement shall be held by any court
of competent jurisdiction to be invalid or unenforceable, in
whole or in part, such invalidity or unenforceability shall
not affect the validity or enforceability of the remaining
provisions of this Agreement and such remaining provisions
shall remain enforceable and binding.
8.3. A waiver of any term or condition of this Agreement by either
party shall not be construed as a waiver of a subsequent
breach or failure of the same term or condition, or a waiver
of any other term or condition.
8.4. This Agreement shall enure to the benefit of and be binding
upon the heirs, executors, administrators and legal personal
representatives of the Executive and the successors and
assigns of the Corporation. This Agreement is personal to the
Executive and may not be assigned by him.
8.5. The parties acknowledge that the present Agreement constitutes
a complete, faithful and whole reproduction of the agreement
between them and supercedes any prior Agreement to the same
effect and more specifically the contract entered into by the
Executive and Dr. Art Xxxxxxx on March 13, 1998, and the
parties formally renounce to rely on any discussions and
negotiations, whether oral or written, that preceded its
signing.
8.6. The parties acknowledge that any modification may not be made
to the present Agreement unless agreed upon between the
parties and attested to by a written document to this effect.
8.7. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Quebec.
8.8. The Executive acknowledges and warrants the Corporation that
he has had sufficient time to review and consider this
Agreement thoroughly, has read and understands the terms and
the Executive's obligations hereunder and has been given an
opportunity to obtain independent legal advice, or such other
advices the Executive may desire, concerning the
interpretation and effect of this Agreement. The Executive has
entered into this Agreement freely and voluntarily.
8.9. The parties hereby acknowledge that it is there expressed wish
that this Agreement and all documents related thereto be drawn
up in the English language. Les parties reconnaissent qu'il
est de leur volonte que la presente entente et tous les
documents s'y rapportant soient rediges en anglais.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT
ON January 12, 2000 IN Montreal
-------------------------- -------------------------------
VISUALMED CLINIC SYSTEMS INC.
Per: /s/ Xxxxxxx LeHir /s/ Xxxxxx Dab
Senior Vice-President and CEO Xxxxxx Dab
