EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of the 1st day of February
2005, by and between OMNIMED INTERNATIONAL, INC., a Nevada corporation
maintaining its principal offices at 0 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx
Xxxxxx, XX 00000 (the "Company") and XXXXX XXXXXXXX ("Employee"), an individual
residing in Quebec, Canada.
W I T N E S S E T H:
WHEREAS, the Company desires to employ Employee as Vice President of
Digital Imaging and Employee desires to gain employment as Vice President of
Digital Imaging of the Company; and
WHEREAS, Employee is willing to accept such employment, upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter set forth, the parties hereto agree as follows:
2. Term. The Company hereby engages Employee, and Employee hereby accepts
the engagement described hereunder, for a period from the date hereof to the
second anniversary of the date hereof, subject to prior termination by mutual
agreement of the parties hereto or hereinafter provided.
3. Position and Duties. Employee shall serve as the Company's Vice
President of Digital Imaging on a part-time basis and shall perform such duties
as are customarily rendered by such an employee. In connection with these
duties, Employee shall report directly to the Company's President. Employee
shall also have such powers and duties as may from time to time be prescribed by
the Board of Directors or bylaws of the Company. Notwithstanding the foregoing,
in connection with his responsibilities as Vice President of Digital Imaging,
Employee shall:
(i) oversee and supervise the implementation of the strategic vision
for the OmniScan division;
(ii) establish marketing plans and projections for the OmniScan
Division;
(iii) identify, hire, fire and manage OmniScan team, subject to Board
oversight;
(iv) oversee sales force for the OmniScan Division;
(v) develop new applications and strategies for the Company;
(vi) manage the customer service function of the Company;
(vii) handle public relations functions on behalf of the Company,
including establishing contacts and managing relationships with
public relations contacts; and
(viii) oversee distribution.
4. Compensation.
4.1 Salary. For Employee's services hereunder, the Company's Board of
Directors (the "Board") shall:
(i) issue one hundred thousand (100,000) shares of the Company's
common stock, $0.001 par value per share (the "Shares"), to
Employee in the following manner:
(a) forty thousand (40,000) Shares upon execution of this
agreement; and
(b) two thousand five hundred (2,500) Shares upon the first
day following each completed month of employment
contemplated by this agreement (for a total of sixty
thousand (60,000 Shares).
(ii) grant to the Employee an option (the "Option") to purchase
from the Company fifty thousand (50,000) shares of the
Company's Common Stock, $0.001 par value per share (the
"Option Shares"), exercisable at a price of,
(a) fifty cents ($0.50) per Option Share from the date of
this Employment Agreement (the "Employment Date") up to
and including the eighty-ninth (89th) calendar day
following the Employment Date;
(b) one dollar ($1.00) per Option Share from the ninetieth
(90th) calendar day following the Employment Date up to
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and including the two hundred sixty ninth (269th)
calendar day following the Employment Date;
(c) one dollar and fifty cents ($1.50) per Option Share
from the two hundred seventieth (270th) calendar day
following the Employment Date up to and including the
four hundred forty ninth (449th) calendar day following
the Employment Date;
The Options shall be issued pursuant to the terms and conditions
of the 1999 Incentive Stock Option Plan ("Plan") which is
incorporated in this Option as though set forth in full, and
shall be subject to the terms set forth in Section 5 hereto.
4.2 Discretionary Bonus. From time to time during the Term, the
Company may pay to the Employee additional compensation in an amount
determined by the sole discretion of the board of directors.
4.4 401(k) Plan. Employee shall be entitled to participate in any
401(k) program that the Company may institute during the term specified in
Section 2, herein.
5. Option Rights.
5.1 Number and Price. The number and price of the Shares subject to
the Option shall be the number and price set forth in Section 4.1(ii)
hereto, subject to any adjustments which may be made pursuant to Section
5.9 below.
5.2 Duration. Subject to the terms and conditions set forth herein,
the Option may be exercised to purchase the Option Shares covered by the
Option on or before expiration of the term of this Employment Agreement, as
described in Section 2 herein (the "Expiration Date"). The Option shall
terminate and no Shares may be purchased after the Expiration Date.
5.3 Employment Requirement. Except as provided in Section 5.7 herein,
the Option may not be exercised unless the Employee is in the employ of the
Company or one of its parent or subsidiary corporations (as within the
meaning of Section 425(e) and (f) of the Code respectively) on the date of
such exercise and shall have been such employee continuously since the
Employment Date.
5.4 Exercise Procedure. Subject to the terms and conditions set forth
herein, the Option is exercisable by a written notice signed by the
Employee and delivered to the Company at its executive offices, signifying
the Employee"s election to exercise the Option. The notice must state the
number of Shares as to which the Employee's Option is being exercised, must
contain a statement by the Employee (in a form acceptable to the Company)
that such Shares are being acquired by the Employee for investment and not
with a view to their distribution or resale (unless a Registration
Statement covering the Shares has been declared effective by the Securities
and Exchange Commission) and must be accompanied by the full purchase price
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of the Shares being purchased. Payment shall be in cash, or by certified or
bank cashier's check payable to the order of the Company, free from all
collection charges. If notice of the exercise of the Option is given by the
person or persons other than the Employee, the Company may require, as a
condition to the exercise of the Option, the submission to the Company of
appropriate proof of the right of such person or person to exercise the
Option.
Certificate for Shares so purchased will be issued as soon as
practicable and shall bear a restrictive legend stating that the Shares
have not been registered under the Securities Act of 1933, that the shares
have been acquired for investment purposes and not with a view to
distribution or resale, and that the Shares may not be sold, assigned,
pledged, hypothecated, or otherwise transferred without an effective
registration statement for such shares under the Securities Act of 1933 and
applicable state securities laws or an opinion of counsel satisfactory to
the Company to the effect that registration is not required under such
laws. The Company, however, shall not be required to issue or deliver a
certificate for any Shares until it has complied with all requirements of
the Securities Act of 1933, as amended, the Securities Exchange Act of
1934, as amended, any stock exchange on which the Company's Stock may then
be listed and all applicable state laws in connection with the issuance or
sale of such Shares or the listing of such Shares on such exchange. Until
the issuance of the certificate for such Shares, the Employee or such other
person as may be entitled to exercise the Option, shall have none of the
rights of a stockholder with respect to Shares subject to the Option.
5.5 Delivery of Certificates. As soon as practicable after the Company
receives payment for the Shares, it shall deliver a certificate or
certificates representing the Shares so purchased to the Employee.
5.6 Transferability. The Option is personal to the Employee and during
the Employee's lifetime may be exercised only by the Employee. The Option
shall not be transferable other than by will or the laws of descent and
distribution.
5.7 Expiration. In the event that an option holder ceases to be an
employee of the Company or of any subsidiary for any reason other than
permanent disability (as determined by the Board of Directors) or death,
the Option, including any unexercised portion thereof, which was otherwise
exercisable on the date of termination, shall expire unless exercised
within a period of three months from the date on which the Employee ceased
to be so employed, but in no event after the Expiration Date. In the event
of the death of Employee during this three month period, the Option shall
be exercisable by his or her personal representatives, heirs or legatees to
the same extent that the Employee could have exercised the Option if he or
she had not died, for the three months from the date of death, but in no
event after the Expiration Date.
5.8 Employment Rights. The Option does not confer on the Employee any
right to continue in the employ of the Company or interfere in any way with
the right of the Company to determine the terms of the Employee's
employment.
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5.9 Change in Corporate Structure. In the event of a reorganization,
recapitalization, stock split, stock dividend, combination of shares,
merger, consolidation, rights offering, or any other change in the
corporate structure or Stock of the Company, the Board shall make such
adjustments, if any, as it deems appropriate in the number and kind of
shares covered by the Option, or in the Option price, or both.
Notwithstanding any provision to the contrary, the Committee or the Board
may cancel, amend, alter or supplement any term or provision of the Option
to avoid any penalty provisions of the Code.
5.10 Compliance with Legal Requirements. The Option shall be subject
to the requirement that if at any time the Board shall determine that the
registration, listing or qualification of the Shares covered hereby upon
any securities exchange or under any federal or state law, or the consent
or approval of any governmental regulatory body is necessary or desirable
as a condition of, or in connection with, the granting of the Option or the
purchase of the Shares, the Option may not be exercised unless and until
such registration, listing, qualification, consent or approval shall have
been effected or obtained free of any conditions not acceptable to the
Board. The Board may require that the person exercising the Option shall
make such representations and agreements and furnish such information as it
deems appropriate to assure compliance with the foregoing or any other
applicable legal requirements.
5.11 Incentive Stock Option Treatment. The Option is intended to
qualify for "incentive stock option" treatment under the provisions of
Section 422A of the Internal Revenue Code of 1954, as amended. However, the
Employee is urged to consult with his or her individual tax advisor prior
to exercising the Option since the exercise of the Option may result in
adverse tax consequences including the payment of additional federal and/or
state income taxes.
6. Insurance.
6.1 Key Man Insurance. The Company shall have the right to apply for
and take out, in the Company's own name or otherwise, at the Company's
expense, life, health, accident, or other insurance covering Employee, in
any amount the Company deems necessary to protect the Company's interest
hereunder, and Employee shall have no right, title or interest in or to any
such insurance. Employee shall assist the Company in obtaining such
insurance by submitting to usual and customary medical and other
examinations and by signing such applications, statements and other
instruments as may be reasonably required by any insurance company.
7. Business Expenses. During the Term, Employee shall be entitled to
receive reimbursement for all reasonable business expenses incurred by him (in
accordance with the policies and procedures from time to time adopted by the
Board of Directors of the Company for its senior executives and consultants) in
performing services hereunder, provided that Employee properly accounts therefor
in accordance with such policy and procedures and such expenses have been
specifically approved in advance. Moreover, Employee expressly acknowledges and
agrees that prior verbal approval must be obtained from the Chief Executive
Officer of the Company by Employee for expense greater than one hundred dollars
($100), and prior written approval for expenses greater than three hundred
dollars ($300).
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8. Confidentiality. Employee recognizes and acknowledges that the
technology, including but not limited to specifications, programs,
documentation, methods and data which The Company owns, plans or develops,
whether for its own use or for use by its clients, developments, designs,
inventions and improvements, trade secrets and works of authorship are
confidential and are the property of the Company. Employee also recognizes that
the Company's customer lists, supplier lists, proposals and procedures are
confidential and are the property of the Company. Employee further recognizes
and acknowledges that in order to enable the Company to perform services for its
clients, those clients may furnish to the Company confidential information
concerning their business affairs, property, methods of operation or other data;
that the goodwill afforded to the Company depends upon, among other things, the
Company and its employees keeping such services and information confidential.
All of these materials and information including that relating to the Company's
systems and the Company's clients, will be referred to below as "Proprietary
Information."
9. Non-Disclosure. Employee agrees that, except as directed by the Company,
and in the ordinary course of the Company's business, Employee will not at any
time, whether during or after Employee's employment with the Company, disclose
to any person or use, directly or indirectly, for Employee's own benefit or the
benefit of others, any Proprietary Information, or permit any person to examine
or make copies of any documents which may contain or is derived from Proprietary
Information, whether prepared by Employee or otherwise coming into Employee's
possession or control. Employee agrees that the provisions of this paragraph
shall survive the termination of this Agreement and Employee's employment by the
Company.
10. Possession. Employee agrees that upon request by the Company, and in
any event upon termination of Employee's employment, Employee shall then over to
the Company all documents, papers or other material in Employee's possession or
under Employee's control which may contain or be derived from Proprietary
Information, together with all documents, notes or Employee's work products
which are connected with or derived from Employee's services to the Company,
shall be either returned to the Company or, as appropriate, permanently deleted.
Upon termination of Employee's employment with the Company, Employee agrees to
pay in full any amount owned the Company.
11. Ownership. Employee hereby assigns and agrees to assign to the Company
or its subsidiaries or affiliates, as appropriate, its successors, assigns or
nominees, Employee's entire right, title and interest in any developments,
designs, patents, inventions and improvements, trade secrets, trademarks,
copyrightable subject matter or proprietary information which Employee has made
or conceived, or may make or conceive, either solely or jointly with others,
while providing services to the Company, or with the use of the time, material
or facilities of the Company or relating to any actual or anticipated business,
research, development, product, service or activity of the Company known to
Employee while employed at the Company, or suggested by or resulting from any
task assigned to Employee or work performed by Employee for or on behalf of the
Company, whether or not such work was performed prior to the date of this
Agreement.
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12. Injunctive Relief. Employee acknowledges that disclosure of any
Proprietary Information by Employee or breach by Employee of any of the
covenants not to compete will give rise to irreparable injury to the Company, or
clients of the Company. Employee also agrees that this injury to the Company, or
clients of the Company, would be inadequately compensated in money damages
alone. Accordingly, the Company or, where appropriate the client of the Company,
may seek and obtain injunctive relief against the breach, or threatened breach,
of the disclosure of any Proprietary Information by Employee, or breach by
Employee of any of the covenants not to compete, in addition to any other legal
remedies which may be available. The Company further acknowledges that the
enforcement of a remedy hereunder by way of injunction would not prevent
Employee from earning a reasonable livelihood since Employee's experience and
capabilities would be such that in the event that Employee's employment with the
Company terminates for any reason, Employee will be able to obtain employment in
business activities which are not restricted by this Agreement.
13. Non-Competition.
13.1 Definitions. For the purpose of this Section 13 and Section 14
hereof, the following terms shall have the meanings ascribed to them below:
(a) "Covenant Term" shall mean a period beginning on the date
hereof and ending on the date which is two years after the
date on which this Agreement, or Employee's engagement
hereunder, is terminated.
(b) "Covenant Territory" shall mean the United States of America
and its properties.
(c) "Business of the Company" shall mean the development of
information technology products or services designed for use
in a medical context.
13.2 Covenant. Employee agrees that because of the confidential and
sensitive nature of the Proprietary Information and because the use of, or
even the appearance of the use of, the Proprietary Information in certain
circumstances may cause irreparable damage to the Company and its
reputation, or to clients of the Company, Employee shall not, without the
prior written consent of the Company, own (except that Employee may own not
more than one percent (1%) of the equity securities or securities
convertible into equity securities of any corporation or other entity the
securities of which are traded on a national stock exchange or listed on
the National Association of Securities Dealers Automated Quotation System),
manage, operate, join, control or participate in the ownership, management,
operation or control of, or be connected as a promoter, joint venturer,
agent, director, officer, employee, partner, consultant or otherwise with,
any profit or non-profit, business or organization which directly or
indirectly, engages in the Business of the Company in the Covenant
Territory or which otherwise, directly or indirectly, competes with the
Business of the Company in the Covenant Territory.
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13.3 Interpretation of Unenforceable Provision. The parties intend for
the provisions of this Section 13 to be construed, interpreted, and
enforced to the maximum extent permitted by law. The parties acknowledge
and agree that they have both participated in the preparation of this
Agreement and it shall not be construed or interpreted against either party
on the basis that it was prepared by such party. In the event that any
provision of this Section 13, or part thereof, shall be determined by any
court of competent jurisdiction to be invalid, illegal, or unenforceable in
any respect for any reason, such provision shall be revised and/or
interpreted to make it enforceable to the maximum extent in all other
respects as to which it may be enforceable, all as determined by such court
in such action.
14. Non-Solicitation. Employee agrees that during the Covenant Term, he
will not, directly or indirectly, (a) induce any customer of the Company or its
successors to patronize any business similar to the Business of the Company; (b)
request or advise any customer (including, without limitation, distributors) or
supplier of the Company or its successors to withdraw, curtail or cancel such
customer's or supplier's business with the Company or its successors; (c) except
in the ordinary course of business, disclose to any other person or corporation
the name or addresses of any of the customers of the Company or its successors;
or (d) induce or encourage any Employee to terminate his relationship with the
Company.
15. Termination.
15.1 Termination With or Without Cause. The Company shall have the
right to terminate Employee's engagement hereunder with or without Cause.
15.2 Effect of Termination.
(a) Upon termination of this Agreement or Employee's engagement
hereunder, all compensation and benefits payable by the
Company hereunder shall be immediately terminated; provided,
however, Employee or his estate, as the case may be, shall
be entitled to receive any payments under any applicable
life or disability insurance plans. Such payments, if any,
shall be made at the time and in accordance with the terms
and conditions of such plans.
(b) Upon a termination by Employee of his engagement, all
compensation and benefits payable by the Company hereunder
shall be immediately terminated.
16. No Prior Obligations.
Employee hereby acknowledges and represents that, except as otherwise
expressly provided by the terms of this Agreement, the Company has no
liabilities or obligations (whether accrued, absolute, contingent, unliquidated
or otherwise) to Employee.
17. General Provisions.
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17.1 Notices. All notices required to be given under the terms of this
Agreement shall be in writing and shall be deemed to have been duly given
only if delivered to the addressee in person or mailed by certified mail,
return receipt requested, to the address as included in the Company's
records or to any such other address as the party to receive the notice
shall advise by due notice given in accordance with this paragraph. Any
party hereto may change its or his address for the purpose of receiving
notices, demands and other communications as herein provided, by a written
notice given in the manner aforesaid to the other party hereto. Copies of
all correspondence should additionally be sent to the following:
If to the Company:
Omnimed International, Inc.
0Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP
1065 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
17.2 Benefit of Agreement and Assignment. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their
respective executors, administrators, successors and assigns; provided,
however, that Employee may not assign any of his rights or duties hereunder
except upon the prior written consent of the Board of Directors of the
Company.
17.3 Applicable Law. This Agreement is made in and is to be governed
by and construed under the laws of the State of New York.
17.4 Captions. The captions appearing at the commencement of the
sections hereof are descriptive only and for convenience of reference only
and are not intended to be part of or to effect the meaning or
interpretation of this Agreement.
17.5 Severability. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in
any respect, then to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other such instrument.
17.6 Entire Agreement. This Agreement contains the entire Agreement of
the parties, and supersedes any and all other Agreements, either oral or in
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writing, between the parties hereto with respect to the subject matter
hereof. Each party to this Agreement acknowledges that no representations,
inducements, promises, or Agreements, oral or otherwise, have been made by
either party, or anyone acting on behalf of either party, which are not
embodied herein, and that no other Agreement, statement or promise not
contained in this Agreement shall be valid or binding.
17.7 Amendments. This Agreement may be modified or amended only by an
Agreement in writing signed by the Company and Employee.
17.8 Waiver. No waiver of any provision hereof shall be valid unless
made in writing and signed by the party making the waiver. No waiver of any
provision of this Agreement shall constitute a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a
continuing waiver.
17.9 Representations and Warranties. Each party hereto represents and
warrants that it or he has the power and authority to execute and deliver
this Agreement and to perform its or his obligations hereunder.
17.10 Compliance with Laws and Policies. Employee agrees that he will
at all times comply with all applicable laws and all current and future
lawful policies of the Company, not inconsistent with the intent of this
agreement.
17.11 Arbitration. Any dispute or controversy arising under or in
connection with this Agreement, other than matters pertaining to injunctive
relief, including, without limitation, temporary restraining orders,
preliminary injunctions and permanent injunctions, shall, upon the written
demand of either party served upon the other party, be submitted to
arbitration. Such arbitration shall be held in the City of New York, New
York, and conducted in accordance with the Rules of the American
Arbitration Association.
17.12 Representation. Each of the parties hereto represents that each
has read and fully understands each of the provisions as contained herein,
and has been afforded the opportunity to review same with his attorney of
choice; and further that each of the parties hereto represents that each
and every one of the provisions contained in this Agreement is fair and not
unconscionable to either party.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first written above.
OMNIMED INTERNATIONAL, INC. EMPLOYEE
By: /s/ Xxxxxx Xxxxxx /s/ Xxxxx Xxxxxxxx
Xxxxxx Xxxxxx Xxxxx Xxxxxxxx
President
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