Exhibit 10.2
EMPLOYMENT AGREEMENT
MEMORANDUM OF AGREEMENT made the day of June, 1997.
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 employ the Executive as its President
and Chief Operating Officer and whereas the Executive is willing to accept 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:
1. EFFECTIVE DATE
Employment of the Executive hereunder and this agreement shall take effect
on the closing of the initial public offering of the Corporation's common shares
(the "Commencement Date").
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2. TITLE
The Corporation will employ the Executive and the Executive will serve the
Corporation as President and Chief Operating Officer.
3. DURATION OF AGREEMENT
This agreement shall continue until the end of the month in which the
second anniversary of the Commencement Date occurs and shall continue thereafter
from month to month, unless terminated earlier (a) upon 180 days' notice at any
time after the end of the 18th clear month after the Commencement Date or (b) in
accordance with paragraph 11.
4. 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.
5. 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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6. SALARY
The Corporation will pay the Executive by way of remuneration for his
services under this agreement a salary of $175,000 per annum, which shall be
paid bi-weekly. In addition, the Corporation may provide to the Executive
performance bonuses on a mutually acceptable basis.
7. 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.
8. HOLIDAYS
The Executive shall be entitled, in addition to statutory holidays, to four
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.
9. 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.
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The Corporation has previously lent to the Executive $60,000 on an
interest-free basis. Such loan is unsecured and is evidenced by a promissory
note. Principal in 12 equal quarterly instalments shall be due and payable
commencing on June 30, 1999. Notwithstanding the foregoing, such note shall be
due on any termination of this agreement, except for termination pursuant to
clause (b) of paragraph 11.
10. OPTIONS
The Corporation confirms the grant to the Executive of options to purchase
65,000 common shares of the Corporation under the Corporation's director and
employee stock option plan. Such options are fully vested and will be escrowed,
or the shares taken up thereunder will be escrowed, if required, pursuant to the
initial public offering of the Corporation's common shares.
11. 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
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(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.
(b) If this agreement is terminated by the Corporation other than
pursuant to the immediately preceding clause (a) or other than by notice
pursuant to the clause (a) of paragraph 3, then the Corporation shall forthwith
pay to the Executive his salary (less usual and statutory deductions) as if he
were employed through the second anniversary of the Commencement Date; provided
that, if such termination is at any time after the first anniversary of the
Commencement Date, the Corporation shall forthwith pay to the Executive one
year's salary less usual and statutory deductions. The Corporation may
terminate this agreement at any time concurrent with such payment. Employment
shall be reinstated if such payment is not made. Any severance payments will be
payable to the Executive on the most favourable tax basis to him.
12. 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
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(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.
13. 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 Corporation,
but also that appropriate training and instruction is given to all employees
whom the Executive controls, in order to prevent injury to themselves and
others.
14. 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
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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.
15. 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 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.
16. CONDUCT
By accepting employment and continuing to be employed by the Corporation,
the Executive hereby undertakes and covenants with the Corporation as follows:
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(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
(iii) not during this agreement 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
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to be modified only to the extent necessary to give effect to the remaining
provisions of this paragraph.
17. 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, or delivering the same (by facsimile, telex or otherwise)
addressed to the Executive at 0000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxx, Xxxxxxx -.
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 (by facsimile, telex or otherwise)
addressed to the Corporation at 0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxx X0X 0X0, 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 second 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.
18. LEGAL COSTS
The Corporation shall pay the Executive's legal costs incurred with respect
to the Executive's entering into of this agreement.
19. ENTIRE AGREEMENT AND SEVERABILITY
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This agreement constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof. There are not and shall not be any
verbal statements, representations, warranties, undertakings 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.
20. 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.
21. BINDING EFFECT
Neither this agreement nor any portion thereof may be assigned by 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.
22. DISPUTE RESOLUTION
The parties hereto acknowledge that in the event of a dispute under this
agreement they
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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.
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 )
)
) _____________________________________l/s
_________________________ ) Xxxx Xxxxxxxx
SCHEDULE A
SCHEDULE "B"
BENEFITS
1. Standard Employee Benefit Program of the Corporation for its senior
executives including long term disability insurance.
2. 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.
3. The Corporation shall pay the Executive up to $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.
4. The Corporation shall pay the Executive up to $2,000 annually to be
disbursed by the Executive for continuing education and related expenses
(for example, travel, hotel). Appropriate receipts shall be delivered to
the Corporation.
5. The Corporation shall pay the premiums in respect of a $500,000 life
insurance policy on the life of the Executive. The Executive may designate
the beneficiary.
