EMPLOYMENT AGREEMENT
Exhibit
4.4
THIS
AGREEMENT
made as of the 10 day of January, 0000
X
X X X X X X:
PREMD
INC.,
a corporation existing under the laws of Canada
(hereinafter
called “PMD”)
-
and -
XXX
XXXXXX,
of the City of Toronto, in the Province of Ontario
(hereinafter
called the “Employee”).
WHEREAS
PMD and the Employee wish to enter into a written agreement which contains
the
agreed upon terms and conditions of employment for their mutual
benefit;
NOW
THEREFORE
in consideration of the mutual covenants and agreements contained in this
agreement and for other good and valuable consideration, the adequacy of which
is hereby acknowledged, the parties to this agreement do mutually covenant
and
agree as follows:
ARTICLE
1 - DUTIES OF EMPLOYMENT
1.1 Position
-
PMD agrees to continue to employ the Employee in the position of Vice President,
Corporate Development, to serve in such capacity as PMD’s needs may, from time
to time, require and as are made known to him by PMD or its authorized
representatives. In this capacity, the Employee shall perform such services
as
are required from time to time by the Chief Executive Officer or Board of
Directors of PMD (the “Board”)
provided, however, that without the Employee’s prior written consent, the
Employee shall not be required to perform services other than those comparable
in scope and dignity to those the Employee is presently performing.
1.2 Duties
-
The Employee accepts the office on the terms and conditions set forth in this
Agreement and acknowledges that as Vice President, Corporate Development, he
has
the responsibility for the acquisition and licensing of new technologies,
companies, project management, logistics and the operations of
the business of PMD, subject to the authority
of
the Chief Executive Officer of PMD and the Board. Throughout the term of his
employment, the Employee agrees to devote substantially all of his business
time
and effort to carry out the performance of his duties under this Agreement
and
shall conform to all lawful instructions and directions given to him by the
Chief Executive Officer or the Board, or its authorized designees, and obey
and
carry out the by-laws of PMD, as well as all written rules, policies and
practices now or hereafter established and amended from time to time by PMD
for
the conduct of its affairs and brought to the attention of the
Employee.
ARTICLE
II - TERMS OF EMPLOYMENT
2.1 Term
-
The provisions of the Agreement shall have effect from the date hereof and
shall
continue in effect indefinitely or until terminated in accordance with the
provisions of this Agreement.
ARTICLE
III - EMPLOYEE’S COMPENSATION AND BENEFITS
3.1 Compensation
-
The annual base salary payable to the Employee for the Employee’s services
hereunder for the term of this Agreement shall be $185,400 (gross), exclusive
of
bonuses, benefits and other compensation. The annual base salary payable to
the
Employee pursuant to the provisions of this Article III shall be payable in
equal monthly instalments, in arrears, in accordance with existing practice,
or
in such other manner as may be mutually agreed upon, less, in any case, any
deductions or withholdings required by law.
3.2 Salary
Review
-
The Employee’s salary and benefits shall be as stated in Article III but shall
be reviewed on January 1, 2006 and annually thereafter during the term of this
Agreement and any renewal of this Agreement.
3.3 Vacation
-
The Employee shall be entitled to vacation with pay of four (4) weeks during
each calendar year of this Agreement. The Employee’s paid vacation is to be
taken at a time approved in advance by the Chief Executive Officer of PMD or
the
Board, which approval shall not be unreasonably withheld but shall take into
account the staffing requirements of PMD and the need for the timely performance
of the Employee’s responsibilities. A maximum of five days of vacation not taken
in one year may be carried over into the subsequent year and any unused vacation
days above such five days shall expire at the end of the applicable
year.
3.4 Benefits
-
The Employee shall participate in all benefit plans which PMD provides to its
Employees, including extended health, medical and dental. In the event that
such
benefit plans include additional benefits and/or coverage for executives, then
the Employee shall be entitled to such additional benefits.
3.5 Additional
Compensation
-
The Employee shall also receive bonuses and options (or other forms of long
term
compensation) to purchase shares of PMD as may be granted by the Board, in
their
discretion, from time to time.
3.6 Expenses
-
PMD shall reimburse the Employee forthwith for all proper and reasonable
out-of-pocket expenses actually incurred by the Employee in the performance
of
his duties upon
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presentation
of supporting statements, receipts or vouchers. Subject to the provisions of
PMD’s governing corporate legislation, PMD agrees to indemnify and save the
Employee harmless from and against any and all demands, claims, costs, charges
and expenses, including an amount paid to settle an action or satisfy a
judgment, reasonably incurred by him in respect of any civil, criminal or
administrative action or proceeding to which the Employee is made a party by
reason of having been a director or officer of PMD or of any affiliated company,
whether before or after termination if:
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(a)
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the
Employee acted honestly and in good faith with a view to the best
interests of PMD; and
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(b)
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in
the case of a criminal or administrative action or proceeding that
is
enforced by a monetary penalty, the Employee had reasonable grounds
for
believing that his conduct was
lawful.
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ARTICLE
IV - TERMINATION
4.1 Notwithstanding
anything contained in this Agreement, PMD and the Employee agree that this
Agreement and the employment of the Employee may be terminated as
follows:
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(a)
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immediately
by PMD at its option, at any time, and without notice or pay in lieu
of
such notice, for cause. For the purposes of this Agreement, “cause” shall
include the following:
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(i)
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a
material breach by the Employee of the provisions of Article V at
any
time;
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(ii)
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conviction
of the Employee of a criminal offence punishable by indictment, or
summary
conviction where such conviction brings into question the Employee’s
ability to perform his duties under this Agreement honestly and
effectively or where such conviction could adversely affect the reputation
and goodwill of PMD; and
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(iii)
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in
the event of death or any “disability”, as such term is defined in any
disability insurance policy of PMD or if no such policy is in place,
disability shall mean mental or physical disability or serious illness
of
the Employee which results in the Employee being unable to substantially
perform his duties for a continuous period of 180 days or for periods
aggregating 225 days in any period of 365
days;
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(b)
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at
any time by PMD, without cause by paying, in lieu of notice, an amount
equal to 18 months of the Employee’s then current (i) annual salary; and
(ii) benefits as contemplated in section 3.4; and (iii) additional
compensation as contemplated in section 3.5, all payable in accordance
with, and subject to the reduction contained in, Section 4.2
herein;
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(c)
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by
the Employee, upon prior written notice to PMD at any time after
90 days
and before 180 days, after the Change of Control of PMD in which
case PMD
shall pay to the Employee an amount equal to 12 months of the Employee’s
then current annual salary, payable immediately; or
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(d)
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at
any time by the Employee upon 60 days written notice to PMD.
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For
the purposes of this Section 4.1,
“Associate”
and “Affiliate” have the meanings ascribed thereto by the Securities
Act (Ontario)
as at the date hereof;
“Concert
Parties” means, in relation to any person, all other persons acting jointly or
in concert with such person. For the purposes hereof, it is a question of fact
as to whether a person is acting jointly or in concert with another person
in
relation to PMD. Without lPMDting the generality of the foregoing, the following
shall be deemed to be acting jointly or in concert with a particular
person:
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(i)
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every
person who, as a result of any agreement, commitment or understanding,
whether formal or informal, with the particular person or with any
other
person acting jointly or in concert with the particular person, acquires
or offers to acquire securities of PMD;
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(ii)
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every
person who, as a result of any agreement, commitment or understanding,
whether formal or informal, with the particular person or with any
other
person acting jointly or in concert with the particular person, intends
to
exercise jointly or in concert with the particular person or with
any
other person acting jointly or in concert with the particular person
any
voting rights attaching to any securities of PMD; and
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(iii)
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every
associate or affiliate of the particular person or of any person
who is
acting jointly or in concert with the particular person;
and
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“Change
of Control” of PMD shall have occurred if:
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(i)
|
any
person (other than the Employee) and the Concert Parties thereof
beneficially own more than 50% of the outstanding shares of PMD entitled
to vote generally in the election of directors of PMD; or
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(ii)
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PMD
completes (A) a merger or other business combination of PMD with
or into
another corporation unless after giving effect thereto the shareholders
of
PMD own shares of the successor corporation carrying more than 50%
of the
votes in the election of directors; or (B) a sale, exchange or other
disposition of all or substantially all of the assets of
PMD.
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4.2 Payment
of Termination Amount.
The amounts payable to the Employee as contemplated in subsection 4.1(b) above
shall be paid in 12 equal monthly instalments over an 11 month period beginning
30 days after the date of termination provided, however, that if the Employee
obtains alternative employment during such 11 month period, the monthly
instalments beginning on the later of:
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4 -
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(a)
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the
date of the commencement of such comparable alternative employment;
and
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(b)
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the
date which is six months after the date of
termination
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shall be reduced by 50% (except with respect to benefits which will not be
reduced).
For
the purposes of this Section 4.2, “comparable alternative employment” shall mean
any form of remunerative activity in the nature of employment, whether as
employee, consultant, agent, partner, sole proprietor or otherwise with similar
responsibilities and remuneration.
4.3 Effect
of Termination
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(a)
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Upon
termination of this Agreement, the employment of the Employee shall
be
automatically terminated and the Employee shall have no claims against
PMD
for failure to give reasonable notice of termination or otherwise
except
in respect of payment of salary or accrued vacation pay to the date
of
termination and payments specifically provided for herein.
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(b)
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Upon
termination of employment, the Employee shall immediately resign
all
offices (including directorships) held in PMD and the Employee shall
not
be entitled to receive any additional severance pay or compensation
for
loss of office or otherwise by reason of resignation (other than
as
otherwise provided for herein). If the Employee fails to resign as
mentioned, PMD is irrevocably authorized to appoint some person in
the
Employee’s name and on his behalf to sign any documents or do any thing
necessary or requisite to give effect to it.
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(c)
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If
the Employee is terminated without cause or if the Employee terminates
this Agreement pursuant to subsection 4.1 (c) above, all options
to
acquire shares of PMD held by the Employee shall immediately and
automatically become fully vested and shall be exercisable by the
Employee
within the time period which is 30 days from the date of such termination
and, after such 30 day period, all unexercised options held by the
Employee shall expire and shall be cancelled by PMD.
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(d)
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If
the Employee is terminated with cause, all options, whether vested
or
otherwise, shall immediately expire and shall be cancelled at the
date of
such termination.
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(e)
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The
provisions of subsections (c) and (d) above shall apply to all options
to
acquire shares of PMD granted previously or hereafter to the Employee
unless the terms of such options specifically state that such subsections
do not apply.
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4.4 Property
of PMD
The
Employee acknowledges that all items of any and every nature or kind created
or
used by the Employee pursuant to the Employee’s employment under this Agreement,
or furnished by PMD to the Employee, and all equipment, credit cards, books,
records, reports, files, manuals, literature, confidential information or other
materials shall remain and be considered the
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5 -
exclusive
property of PMD at all times and shall be surrendered to PMD, in good condition,
promptly on the termination of the Employee’s employment irrespective of the
time, manner or cause of termination. All personal effects used by the Employee
in carrying out his duties will remain the property of the Employee and shall
be
removed by him on termination of his employment.
ARTICLE
V - CONFIDENTIAL INFORMATION AND NON-COMPETITION
5.1 Confidential
Information
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(a)
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The
Employee acknowledges that throughout the course of his employment
with
PMD the Employee may have access to and be entrusted with confidential
information, trade secrets and know-how concerning the business and
property of PMD and with information, trade secrets and know-how
which
other persons shall require PMD and its employees, agents and consultants
to treat as confidential (all of which information, trade secrets
and
know-how of PMD and others shall be collectively defined as “Confidential
Information”).
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(b)
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The
Employee agrees that disclosure of any of the Confidential Information
or
any use of the Confidential Information other than on behalf of or
for the
direct benefit of PMD is and will be highly detrimental to PMD and
that
the right to maintain the confidentiality of the Confidential Information
constitutes a proprietary right which PMD is entitled to protect
or is an
obligation which PMD must observe. Accordingly, the Employee hereby
agrees
that:
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(i)
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he
shall keep confidential all of the Confidential Information for the
exclusive benefit and use of PMD and will faithfully do all in his
power
to assist PMD in keeping the Confidential Information confidential
until
PMD shall make the same public either by obtaining patent rights,
copyrights or otherwise;
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(ii)
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he
shall not, directly or indirectly, disclose or divulge any of the
Confidential Information to any person, firm, corporation or other
entity
of any kind whatsoever;
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(iii)
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he
shall not, directly or indirectly, either individually or in partnership
with, or jointly with one or more persons, firms, corporations or
any
other entity of any kind whatsoever as principal, agent, employee,
shareholder or in any other capacity or manner whatsoever, use any
of the
Confidential Information other than on behalf of or for the direct
benefit
of PMD;
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(iv)
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he
shall not divulge, disclose or communicate to any person, firm or
corporation the name of any customer of PMD and/or the Business (as
hereinafter defined); and
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(v)
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he
shall not use for his own purpose any Confidential Information relating
to
PMD and/or the Business.
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(c)
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The
Employee acknowledges that the restrictions contained herein for
the
benefit of PMD are reasonable and not excessive in the circumstances
of
the Employee’s knowledge and the scope of his employment.
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5.2 Non-Competition
-The Employee agrees that the Employee will not, without the prior written
consent of PMD, while employed by PMD and for a period of one (1) year after
the
date of termination as contemplated in subsections 4.1(a), (b) or
(d):
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(a)
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directly
or indirectly, in any manner whatsoever, including, without lPMDtation,
either individually or in partnership or jointly, or in conjunction
with
any other person or persons, firm, association, syndicate, company
or
corporation, as principal, agent, shareholder or in any other manner
whatsoever, carry on or be engaged in any business directly competitive
with the business of PMD (the “Business”)
in any country where PMD operates, or be concerned with or interested
in
or lend money to, guarantee the debts or obligations of or permit
his name
or any part thereof to be used or employed by any person, persons,
firm,
association, syndicate, company or corporation engaged in, concerned
with
or interested in any directly competitive business except that the
Employee may own no more than 5% of the total issued and outstanding
capital stock of a publicly-held or private corporation engaged in,
concerned with or interested in any directly competitive
business;
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b)
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directly
or indirectly solicit, interfere with or endeavour to direct or entice
away from PMD any customer or any person, firm or corporation in
the habit
of dealing with PMD, and/or the Business; or
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(c)
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interfere
with, entice away or otherwise attempt to obtain the withdrawal of
any
employee or independent contractor of PMD or, following termination
of the
Employee’s employment, any employee who was in the employ of PMD during
the one (1) year period, as the case may be, preceding termination
for
cause.
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5.3 The
Employee hereby acknowledges and agrees that all covenants, provisions and
restrictions contained in this Article V hereof are reasonable and valid and
all
defences to the strict enforcement thereof by PMD are waived by the
Employee.
5.4 The
Employee further acknowledges and agrees that in the event of a violation of
the
covenants, provisions and restrictions contained in this Article V, PMD shall
be
authorized and entitled to obtain from any court of competent jurisdiction
preliminary and permanent injunctive relief and an accounting of all profits
and
benefits arising out of such violation, which rights and remedies shall be
cumulative and in addition to any other rights or remedies to which PMD may
be
entitled.
5.5 It
is understood by the Parties hereto that the covenants in this Article V by
the
Employee not to enter into competition with PMD are essential elements to this
Agreement and that, but for the agreement of the Employee to enter into such
covenants, PMD would not have retained the Employee.
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ARTICLE
VI - CLAUSES SURVIVING TERMINATION
6.1 Any
confidentiality and non-solicitation clauses in Article V of this Agreement
shall survive the termination of this Agreement, as shall Sections 3.6, 4.3
and
4.4 hereof.
ARTICLE
VII - PLAIN ENGLISH
7.1 This
Agreement is intended to be written in plain English. When words or expressions
of a general nature are employed herein, it is intended that they be
comprehensive, unless the context clearly dictates otherwise.
ARTICLE
VIII - GENERAL
8.1 General
-
Any notice, document or other communication required or permitted to be given
in
respect of this Agreement shall be sufficiently given if delivered to the party
personally, or if sent by prepaid ordinary mail posted in Canada, by courier,
or
by facsPMDle, to such party addressed as follows:
if
to PMD:
0000
Xxxxx Xxxxxx
Xxxxx
000
Xxxxxxx,
Xxxxxxx X0X 0X0
Facsimile
No: (000) 000-0000
Attention:
Chief Executive Officer
if
to the EMPLOYEE:
Xxx
Xxxxxx
000
Xxxxxxxxx Xxxxxx, Xxxxxxx
Xxxxxxx,
X0X 0X0
Any
party may at any time change its address hereunder by giving notice of such
change of address to the other party or parties in the manner specified in
this
paragraph. Any such notice or other written communication shall, if mailed
or
sent by courier, be effective on the day it is delivered or an attempt is made
to deliver it to the address of the addressee and, if given by personal
delivery, shall be effective on the day of actual delivery.
8.2 Severability
-
If any covenant, provision or restriction contained in this Agreement is found
to be void or unenforceable in whole or in part, it shall not affect or impair
the validity of any other covenant, provision or restriction and without
limitation, each of the covenants, provisions and restrictions contained herein
are hereby declared to be separate and distinct covenants, provisions and
restrictions.
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8.3 Waiver
of Performance
-
The Employee and PMD may, in writing, extend the time for performance or waive
non-compliance or non-performance by the other of the other’s obligations,
covenants and agreements under this Agreement. No act or failure to act of
the
Employee or PMD shall be deemed to be an extension or waiver of timely or strict
performance by the other of his/its obligations, covenants and agreements under
this Agreement.
8.4 Governing
Law
-
This Agreement shall be governed by and construed in accordance with the laws
of
the Province of Ontario and the law of Canada applicable therein and each of
the
parties hereby irrevocably attorn to the jurisdiction of the courts of the
Province of Ontario.
8.5 Entire
Agreement
-
This Agreement set forth the entire agreement among the parties hereto
pertaining to the employment of the Employee and supersedes all prior
agreements, understanding, negotiations and discussions, whether oral or
written, of the parties hereto, among the parties hereto, and there are no
warranties, representations or other agreements between the parties hereto
in
connection with the subject matter hereof except as specifically set forth
therein. No supplement, modification, waiver or termination of this Agreement
shall be binding unless executed in writing by the parties to be bound
thereby.
8.6 Assignment
-
This Agreement is personal to the Employee and may not be assigned by him
without the prior written consent of PMD, which consent may be unreasonably
withheld. This Agreement may not be assigned by PMD without the prior written
consent of the Employee, which consent may be unreasonably withheld. Subject
to
the foregoing, this Agreement shall enure to the benefit of and be binding
upon
the Parties and their respective successors, heirs, executors, administrators,
personal representatives and permitted assigns.
8.7 Headings
-
The headings used in this Agreement are for convenience only and are not to
be
construed in any way as additions to or lPMDtations of the covenants and
agreements contained herein.
8.8 Currency
-
All dollar amounts referred to in this Agreement shall be in Canadian
funds.
8.9 Time
of Essence
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Time is and shall always remain the essence of this Agreement.
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remainder of this page is left intentionally blank]
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IN
WITNESS WHEREOF
the parties hereto have executed this Agreement on the day and year first above
written.
| Per: |
“signed”
Name: Xxxxx Xxxxxx
Title: President and Chief Executive
Officer
Authorized Signing Officer
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SIGNED, SEALED AND
DELIVERED
)
In the presence
of:
)
)
“signed”
)
Witness Xxxxx Xxxx-Xxxxxxx
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“signed”
XXX
XXXXXX
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