EXHIBIT 10.1
EMPLOYMENT CONTRACT
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BETWEEN: BIOSYNTECH, INC., a corporation duly incorporated under the laws
of the State of Nevada, having its head office at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ of ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, duly
represented herein by Mr Amine Selmani, Chairman of the Board of
Directors, duly authorized as he so declares,
(Hereinafter referred to as the "Company")
AND: ▇▇▇▇▇▇ ▇▇▇▇▇, domiciled and residing at ▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇.
(Hereinafter referred to as the "Executive")
WHEREAS the Executive is presently employed as Director, Asia Pacific by Genzyme
Corporation, in Boston, Massachusetts, where he presently resides;
WHEREAS The Company approached the Executive to assume the position of Chief
Executive Officer and wishes to retain his services in that capacity;
WHEREAS the Executive represents that he possesses the necessary qualifications
and experience and wishes to provide the Company with the benefit of such
experience;
WHEREAS the Company represents that it will provide the necessary latitude to
the Executive to assume fully his role as Chief Executive Officer and is in a
position to honour its obligations and undertakings mentioned in this Agreement.
AND WHEREAS the parties wish to enter into a formal Employment Contract;
BOTH PARTIES HAVE AGREED AS FOLLOWS:
1. PREAMBLE
1.1. The preamble forms part of this agreement as if recited at length
herein;
2 TERM
2.1 The Company hereby agrees to employ the Executive as Chief Executive
Officer for the Company and on the representations and undertakings of the
Company; the Executive agrees to accept such employment, all in accordance
with the express terms, duties and obligations hereinafter set forth. The
Executive will become an Executive of the Company as of the date of his
choice, but no later than March 1, 2004 (the "Effective Date") and will be
entitled to the rights and benefits provided by the Company to its
employees.
2.1 Subject to Section 5, the present agreement shall be for a period an
indeterminate term starting on the Effective Date, (hereinafter referred
to as the "Term")
3. DUTIES
3.1 The Company will employ the Executive on a full time basis in the position
of Chief Executive Officer reporting to the board of directors of the
Company (the "Board"). The Executive shall carry out his duties and
exercise his powers in connection with the Company as the Board shall from
time to time reasonably require and confer upon him; The Executive shall
be given the necessary latitude, discretion and power to adequately and
properly discharge his duties and responsibilities;
3.2 The Executive shall, during the term of this agreement:
a) devote his full time and effort to the Company, well and faithfully
serve the Company and use his best efforts, talents and endeavours
to promote the interest of the Company; and
b) carry out such other duties as may be from time to time, assigned to
him by the Board.
3.3 The Executive shall not without prior written consent of the Company
fulfill a paid function or a time-consuming non-paid function on his own
behalf or that of third parties;
3.4 The Executive may continue his engagement as an Advisory board member of
both Horizon Sciences & Technologies and Norvision Therapeutics Inc.
4 COMPENSATION
The Executive shall be entitled to an annual salary of $170,000 Can. The salary
will be reviewed annually by the Compensation Committee of the Board.
Performance bonuses of 30-50% of annual salary may, subject to the terms and
conditions of the Investor Rights Agreement by and between the Company and
certain of its shareholders dated June 26, 2002, be paid to the Executive in
accordance to the yearly objectives set by the Compensation Committee and the
yearly business plan adopted by the Board.
The Executive shall be entitled to four weeks paid vacation. Additional vacation
allotments up to a maximum of an additional two weeks shall be determined by the
Board. The Executive shall participate in all executive benefit plans (the
"Executive Benefits") which the Company may provide, including medical/hospital
and extended health care benefits and life insurance. These plans provided to
the Executive will be at least equivalent with those provided to the other
Executives of the Company. The Company reserves the right to unilaterally revise
the terms of the Executive Benefits. Executive 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 Executive
Benefits will be governed by the terms of such documents or policies
establishing the benefit in issue.
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The Company will reimburse the Executive for any reasonable expense incurred in
connection with his duties under this Agreement, provided that the Executive
provides to the Company in a timely manner an itemized written account and
receipts acceptable to the Company and the Board's Audit Committee in accordance
with the policies established from time to time by the Company.
The Executive shall be entitled to a car allowance of $1,000 per month.
The Executive shall be granted options to acquire 900,000 shares of the
Company's common stock under the Company's stock options plan, at their closing
price on the business day prior to the date of ratification of this agreement by
the Board, of which 250,000 will vest immediately, 250,000 will vest on the
first anniversary of the Effective Date, 200,000 will vest on the second
anniversary of the Effective Date and 200,000 will vest on the third anniversary
of the Effective Date. Notwithstanding the foregoing, all of the Executive's
options shall vest ipso facto in the event of a take-over bid which results in a
change in the control of the Company
5 RESTRICTIVE COVENANTS
5.1 The Company acknowledges that the Executive is bound by confidentiality,
nonsolicitation, non-competition and intellectual property agreement with
Genzyme Corporation and the Company will not cause the Executive to breach
the terms and conditions of the agreement.
5.2 The Executive believes that he is not in breach of the confidentiality,
non-solicitation, non-competition and intellectual property agreement with
Genzyme Corporation by accepting employment by the Company.
5.3 The Executive acknowledges that as a result of his employment, he will
have access to confidential information of the Company and its
subsidiaries (collectively the "BSY Group") which is highly important to
the Company. Such confidential information includes, but is not limited
to, all present and future technical knowledge, unpatented or unpatentable
inventions, manufacturing and trade secrets, processes, manufacturing
procedures, methods, discoveries, concepts, formulas, techniques, systems,
data, results, drawings, algorithms, models, prototypes, products
developed by and for the BSY Group, in whatever form, codes, ideas,
designs, integrated circuit topographies, trademarks, copyrights, business
information relating to inventions or products, research and development,
strategies and methods which are not standard industry practices,
proposals, industrial skills, operating and testing procedures, production
processes, finances, customers, marketing, and future business plans
(hereinafter referred to as the "Confidential Information").
The Executive agrees that he will maintain in confidence and will not
disclose or make use of, other than for the benefit of the BSY Group, at
any time during or after the term of his employment with the Company,
without the prior written consent of the Company, any Confidential
Information whether or not the Confidential Information is in writing or
in any other form.
Upon termination of his employment or upon request by the Company, the
Executive will deliver to the Company any and all written and tangible
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material in the Executive's possession incorporating the Confidential
Information or otherwise relating to the BSY Group's business.
This obligation with respect to the Confidential Information extends to
information belonging to the customers and suppliers of the BSY Group, or
persons or entities who license Confidential Information or technology
rights from or to the BSY Group, and who may have disclosed such
information to the Executive.
5.4 Subject to article 2095 of the Quebec Civil Code, the Executive agrees
with and for the benefit of the Company that during his employment with
the Company and for a period of twelve (12) months from the date of
termination of his employment, however caused, he will not for any reason,
directly or indirectly, either as an individual or as a partner or joint
venturer or as an employee, principal, consultant, agent, shareholder,
(excluding ownership by the Executive, as a passive investment of less
than one percent (1%) of the outstanding shares of capital stock of any
entity with one or more classes of its capital stock listed on a Security
Exchange or publicly traded in the over the counter market) officer,
director, or salesperson for any person, firm, association, organization,
syndicate, company or corporation, or in any other manner carry on, be
engaged in, concerned with, interested in, advise, lend money to,
guarantee the debts or obligations of, permit his or her name or any part
of it to be used or employed by any person, business, firm, association,
syndicate, company, organization or corporation concerned with or engaged
or interested in a business which manufactures or sells the same products
as the company within the geographical area of Canada.
5.5 Should the Executive cease to be an officer, director or employee of the
Company, he shall immediately provide the Board with a sworn statement
identifying any and all of the business and research and development
prospects of which he is aware at that point in time. Throughout the
employment period and for a period of one year thereafter, the Executive
agrees that, directly or indirectly, he will not solicit any person
employed by the BSY Group to leave the BSY Group or employ or solicit for
employment any person who is, at the time of employment or solicitation,
employed by the BSY Group or who was in the employment of the BSY Group
during the twenty-four month period preceding the date of the termination
of his employment.
5.6 Subject to article 2095 of the Quebec Civil Code, the Executive
acknowledges that any violation of the provisions of this Section 4 may
cause irreparable harm to the Company and that damages are not an adequate
remedy. Therefore, the Executive agrees that the Company shall be
entitled, in addition to all other rights provided by law or by this
agreement, to obtain an injunction to prevent the Executive or a person
acting on his behalf, from violating these provisions. The Executive
hereby agrees that all restrictions contained in this Section 5 are
reasonable and will not prevent the Executive from earning his living.
5.7 The Executive hereby assigns to the Company, and confirms that the
Executive has assigned all of his rights, title and interest throughout
the world in and to any invention, copyright, design, integrated circuit
topography, discovery, improvement to any of the BSY Group's products and
any other intellectual property rights developed by the Executive during
the course of his employment with the Company and for a period of one (1)
year thereafter. The Executive hereby waives his moral rights in all work
created by the Executive during the course of his employment with the
Company.
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5.8 Upon request by the Company, the Executive shall execute and deliver such
additional or further documents, assignments, concepts and other
instrument as the Company may reasonably request for the purpose of
effectively carrying out this agreement including without limitation, any
instruments deemed necessary by the Company to register any intellectual
property rights in the Company's name or to protect or to defend its
rights on such intellectual property.
5.9 If any part of clause of this Article 5 be determined to be void or
unenforceable in whole or in part, it shall not be deemed to affect the
validity of the remainder thereof, each part or clause being thereby
declared separate and distinct covenants. In the event this covenant not
to compete shall be determined by any Court to be too broad in geographic
restriction, or too broad in scope, or to endure for too long a period of
time, the Executive agrees that said covenant not to compete shall be only
for such geographical area, scope and period of time reasonable in the
circumstances.
6 TERMINATION
6.1 The Company may by written notice terminate this Agreement with immediate
effect if:
A) the Executive becomes substantially disabled or incapacitated and is
unable to perform his duties and obligations under this Agreement
for a period of six months in any twenty-four month period; or
B) without Cause, by giving the Executive a written notice of
termination and delivering his full compensation for a period of
twelve months paid in twelve monthly instalments;
6.2 The Company may terminate this Agreement with Cause by giving the
Executive a written notice of termination. Upon termination with Cause the
Executive is not entitled to any indemnity;
6.3 "Cause" includes, without limitation:
A) Executive's material breach of any provision of this Agreement and
his failure to cure that breach after having been given notice in
writing and a reasonable opportunity to cure the breach specified in
the notice;
B) Without limiting the generality of subparagraph a), Executive's
breach of the restrictive covenants set forth in section 5;
C) Executive's acting or failing to act that causes serious harm to the
Company or any of its affiliates' standing, reputation, business or
financial condition, provided that such act or failure to act is not
in accordance with the instructions or directions given to the
Executive by the Board, and provided that the Executive was not
acting in the best interest of the Company;
D) Executive being charged with a crime or offence that would, in the
judgement of the Board, impair Executive's ability to perform his
duties and discharge his responsibilities under this Agreement;
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E) Executive acting dishonestly, disloyally with regard to the Company
or Executive's violation of any rules, or being charged with fraud
or violating any law or order having a material negative impact on
the Company;
F) Executive's insubordination;
G) The voluntary or involuntary bankruptcy of Executive; and
H) The Executive concealing from the Board any fact which is material
to the Company, its business or its financial position.
7 FULL FORCE AND EFFECT
7.1 In the event where any one of the provisions of this Agreement is
considered invalid by a competent court in Quebec, the parties hereto
agree that the remainder of this Agreement shall continue to have full
force and effect.
8 APPLICABLE LAW
8.1 This Agreement shall be governed by and construed in accordance with the
laws of Quebec. Any dispute arising between the parties hereto shall be
referred to the competent court in Quebec.
9 NOTICE
9.1 The addresses of the parties for notice purposes are as follows:
BIOSYNTECH INC.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attention : the Chairman
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
or such other address as may be given by either party to the other in writing
from time to time, all notices shall be sent by registered mail postage prepaid
or by personal delivery;
10 LANGUAGE
10.1 La presente convention a ete redigee en anglais a la demande des parties,
This agreement has been drafted in English at the request of all parties.
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IN WITNESS WHEREOF the parties have duly signed this Agreement in
three counterparts on December 23, 2003.
BIOSYNTHEC, INC.
/s/ Amine Selmani
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Per: Amine Selmani, Chairman of the Board
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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