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VISUALMED initials_________ Date____________ B.S. initials________Date________
VISUALMED initials_________ Date____________ B.S. initials________Date________
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of this 28th day of January 2000, by and between VISUALMED
CLINICAL SYSTEMS INC. ("VISUALMED"), a Canadian Corporation, with its principal
offices located at 000 Xxxxxxx, Xxxxxxxx, Xxxxxx, Xxxxxx, X0X 0X0 and Xxxxx
Xxxxxx ("B.S."), residing at 00 Xxxxx Xxxxxx, Xxxxxxx Xxx Xxxxxxx, Xxxxxx,
Xxxxxx, X0X 0X0. This Employment Agreement shall hereinafter be referred to as
the "Agreement".
WHEREAS B.S. has been offered employment with VISUALMED;
WHEREAS B.S. has been informed by visualmed that VISUALMED markets a unique
IT product intended for the health care industry;
WHEREAS B.S. has been informed by VISUALMED that VISUALMED's product is very
attractive to hospitals and other health care establishments and that a number
of major sales are to be concluded within the next few months;
WHEREAS VISUALMED was presented to B.S. as a very high growth company, with a
product that will be in high demand in North and South America, as well as in
Europe;
WHEREAS B.S. has been informed by VISUALMED that VISUALMED was to become a
public company within 6 months, and that B.S. would be offered a Stock Option
Plan within three (3) months after the beginning of his employment with
VISUALMED;
WHEREAS, the above mentioned statements by VISUALMED were the specific
conditions that induced B.S. to sign the Agreement.
WITNESSETH:
1. EMPLOYMENT.
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VISUALMED agrees to employ B.S., and B.S. agrees to be employed
by VISUALMED, upon the terms and subject to the conditions of this Agreement.
B.S. shall assume the duties of Vice-President Client Services, included but
not limited to client training, client application software implementation,
client support, and marketing support, and shall be based and perform his duties
at VISUALMED's principal offices in Montreal, Quebec, Canada.
2. TERM
The employment of B.S. by VISUALMED as provided in Section 1 hereof
shall commence on 28th day of February 2000, and in no event later than February
29, 2000 and shall be for an indeterminate term (the "Term").
3. DUTIES; BEST EFFORTS.
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B.S. shall perform the duties of Vice-President Client Services, as
described above, well and faithfully. B.S. shall devote all of his business
time, attention, and energies to the business and affairs of VISUALMED, shall
use his best efforts to advance the best interests of VISUALMED and shall not,
during the Term, be actively engaged in any other business activity, whether or
not such business activity is pursued for gain, profit, or other pecuniary
advantage. For the purposes of this Agreement, managing personal assets and
taking part in not-for-profit activities or organisations shall not be deemed to
be business activities.
4. COMPENSATION
(a) Salary. VISUALMED shall pay to B.S. a base salary at a rate
of not less than Canadian One Hundred Fifty Thousand Dollars
(Can$150,000.00) per annum, payable in bi-weekly installments
of Can$5,769.23.
(b) Bonus. B.S. shall be eligible for a bonus, as determined
by the Board of Directors of up to twenty-five percent (25%)
of his base salary per year, which shall be based on
VISUALMED's attainment of certain performance goals, as fixed
by the Board of Directors prior to each year of B.S.'s
employment.
(c) Salary Increase. B.S.'s salary shall increase automatically
on each anniversary date of the Agreement, as determined by
the Board of Directors.
(d) Participation in Benefit Plans. B.S. shall be entitled to be
reimbursed for automobile expenses, and to participate at his
option in such benefits under qualified retirement plans,
group health and hospitalization plans, disability and group
life insurance plans, and qualified stock option plans which
are at least as advantageous as those that are offered
to other VISUALMED executives and key management employees.
(e) Qualified Stock Option Plan. Within ninety (90) days from
B.S.'s first date of employment as per this agreement, a Stock
Option Plan will be signed between the parties. VISUALMED
agrees to offer such Plan to B.S. in order for VISUALMED to
attract and keep B.S. as an executive employee, and to allow
B.S. to benefit from the long term growth and profitability of
VISUALMED.
Such Plan shall contain mutually acceptable criteria and
objectives for B.S. to earn options to purchase common shares
of VISUALMED. The Plan shall contain, as a minimum, the
following characteristics.
B.S. shall be granted, upon meeting the applicable criteria,
at least on three (3) occasions within the first three (3)
years of the Plan, provided B.S. is still employed on each
date, an irrevocable option to purchase, each time, for the
Option Price, a number of shares equal to:
an additional percentage of one half of one percent (0.5%) of
the total fully diluted amount of outstanding shares, at the
time when the option is granted. The period of time between
each two of the occasions mentioned above shall not exceed
twelve (12) months.
VISUALMED shall make available the appropriate resources, both
human and material, for B.S. to be able to reach its
objective.
The Option Price for the exercise of options shall mean the
Market Value of the shares on the date of the grant of the
options.
The Market Value of the shares shall mean the fair market
value of the shares of VISUALMED as a going concern without
any discount for minority interest.
The options may be exercised by B.S. during the sixty (60)
months following the grant of each option as mentioned above,
provided B.S. is still employed on such date. Should B.S.
cease to be employed by VISUALMED, B.S. shall be able to
exercise the options during the shortest of the two following
periods:
- thirty-six (36) months after B.S.'s employment has ceased;
or
- the remainder of the the sixty (60) month period stated above.
Notwithstanding the foregoing, however, if B.S. is terminated
Without Serious Reason, as mentioned hereafter, B.S. shall be
entitled immediately upon such termination, and for the next
ensuing three (3) year period, to exercise any part or all of
said options with respect to the stock covered by the option,
whether exercisable as per the previous paragraphs or not.
In the event of any subdivision, change or reclassification of
VISUALMED shares into a greater number of shares, at any time
before the exercise of B.S.'s options to purchase shares, B.S.
shall be delivered, upon the exercise of an option hereby
granted, with such additional number of shares as would have
resulted from such subdivision, change or reclassification had
the exercise of the option been prior to the date of such
subdivision, change or reclassification.
In the event of any further issue of VISUALMED shares, before
or after the exercise of B.S.'s options to purchase shares,
B.S. shall be delivered with such additional number of shares,
or options, as the case may be, as necessary for B.S. to
detain a number of shares which corresponds to the percentages
mentioned above.
B.S. shall be able to sell the Shares acquired through the
exercise of the options described above, as mentioned
hereafter :
- should VISUALMED have become a public company, be listed on a recognized
stock exchange, through an IPO, an RTO, or other similar mechanism, then
B.S. shall be able to sell the Shares on the regular market, subject
to applicable laws and regulations; or
- should VISUALMED have remained a private company, B.S. shall be entitled to
require, by written notice, a new company (NEWCO) to purchase and pay,
within thirty (30) days, the Shares for the Market value on the date of the
reception by VISUALMED of the notice. NEWCO is to be formed, within 90
days of the signature of this agreement, and owned either by those
shareholders holding (as a whole) a majority of VISUALMED shares or by
VISUALMED itself. VISUALMED agrees to finance NEWCO to the extent required
to pay for the Shares, and to be jointly and severally liable for NEWCO's
obligations as provided herein.
Except as otherwise specifically provided in this Agreement,
the rights and obligations of B.S. and VISUALMED shall be
governed by the terms and conditions of the Stock Option Plan
and/or Shareholder's Agreement to be executed by the parties.
(f) Vacation. B.S. shall be entitled to paid vacation during the
Term of four (4) weeks (twenty (20) working days) per annum.
In the event of a termination of B.S.'s employment for any
reason other than those set forth in Section 5 (a) inclusive,
B.S. (or his estate) may, at this option, take or be paid for
all vacation accruing up to the date of termination. B.S.
shall also be entitled to all paid holidays given by VISUALMED
to its executives and key management employees.
5. TERMINATION
(a) VISUALMED may terminate B.S.'s employment hereunder, in the
event that B.S. (i) dies during the Term, (ii) becomes
disabled (as hereinafter defined) for a consecutive period of
four (4) months during the Term, (iii) shall willfully fail to
comply with any of the material terms of this Agreement, (iv)
shall willfully fail to perform his duties hereunder, (v)
shall willfully disregard policy directions from the Board of
Directors of VISUALMED which are not inconsistent with the
provisions of this Agreement, or (vi) for Serious Reason.
1. For purposes of this Agreement, B.S. shall
be deemed to have become disabled when he is
deemed disabled under the terms of any
disability income insurance policy covering
him. In the absence of such a disability
policy (or if there is a conflicting
definition in two (2) or more policies of
disability insurance), B.S.'s inability to
regularly perform his regular duties shall
constitute his disability for purposes
hereof.
2. For purposes of this Agreement and its
termination, the term "Serious Reason" shall
include and be limited to (i) B.S.'s fraud,
misappropriation, or embezzlement, or (ii)
B.S.'s conviction of a criminal act directly
related to his functions at VISUALMED, or
(iii) B.S.'s material breach of the
provisions of Section 6 or 7 of this
Agreement.
3. VISUALMED may only terminate B.S.'s
employment for any of the reasons enumerated
in 5 (a) (iii), (iv), (v) or (vi)
hereinabove, by first giving B.S. a prior
notice of five (5) days (or the minimal
delay provided by law) during which B.S.
shall have the right to remedy said
situation and thereby avoid termination of
the Agreement. Failure of B.S. to remedy the
situation indicated in the prior notice,
shall then give VISUALMED the right to
terminate this Agreement.
(b) VISUALMED shall not be permitted to terminate B.S.'s
employment for any reason other than those stated in
Sub-Section 5(a). Any attempt to terminate other than as
provided in Sub-Section 5(a) above shall be deemed to be a
termination "Without Serious Reason".
(c) VISUALMED may terminate this agreement at its discretion
Without Serious Reason, only by giving B.S. four (4) weeks
prior notice of its decision to dismiss. VISUALMED may, at
any time during the notice period, choose to immediately
discharge B.S., but in this case B.S. shall be entitled
to receive and shall be paid all amounts which he would
otherwise earn during the notice period.
(d) In the event of a termination Without Serious Reason by
VISUALMED, it shall pay B.S. an amount equal to his gross base
annual salary (at the time of notification of termination).
All appropriate withholding as may be required by law will be
deducted from the amount so calculated. The payment of said
amount shall be made within seven (7) days after the last day
B.S. is employed by VISUALMED. The bonus for the fiscal year
in which termination takes place, if any, will be paid pro
rata to the number of days worked in the fiscal year.
(e) VISUALMED's obligation to make the aforesaid payments shall
not be reduced or affected if B.S. has secured alternative
employment.
(f) In the event of a termination Without Serious Reason by
VISUALMED, in addition to any amounts payable or benefits
provided for pursuant to Sub-Sections 7(c) or (d) hereof, B.S.
shall be entitled to receive the compensation set forth in
Section 4 and all his medical and health insurance benefits
for one year.
(g) B.S. shall have the right to terminate this agreement if
Constructively Dismissed, by giving VISUALMED four (4) weeks
prior notice of his decision to quit. B.S. shall then have
the right to receive compensation according to the terms and
conditions of Sub-Sections 5 (c), (d), (e)and (f) of this
Agreement and his employment shall be deemed to have been
terminated Without Serious Reason. For purposes of this
Agreement, B.S. shall be considered to have been
"Constructively Dismissed" if:
i. there is a material and adverse diminution on an accumulated basis of
his duties, authority, position, compensation, benefits, or title; or
ii. VISUALMED breaches any of the material terms of this Agreement.
(h) B.S. has the right to terminate this agreement in case a
Change in Control of VISUALMED occurs, through acquisition or
merger, and to receive compensation according to the terms
and conditions of Section 5 of this Agreement.
6. PROTECTION OF CONFIDENTIAL INFORMATION
(a) B.S. acknowledges that he has been provided with information
about VISUALMED, and his employment by VISUALMED will,
throughout the Term, bring him into close contact with many
confidential affairs of VISUALMED and its clients, including
information about costs, profits, markets, equipment,
customers, sales, products, key personnel, pricing policies,
operational methods, technical processes and other business
affairs and methods, plans for future developments and
other information not readily available to the public.
B.S. further acknowledges that the business of VISUALMED is
conducted throughout the world, that VISUALMED competes in
nearly all of its business activities with other organizations
which are or could be located in nearly every part of the
world and that the nature of the services, position and
expertise of B.S. are such that he is capable of competing
with VISUALMED from nearly every location in the world. In
recognition of the foregoing, B.S. covenants and agrees:
i. That he will keep secret all confidential
matters of VISUALMED and not disclose such
matters to anyone other than VISUALMED,
either during or after the Term, except with
VISUALMED's prior written consent, or except
as required by law or regulation;
ii. That he will not make use of any such
confidential matter for his own purposes
or the benefit of anyone other than
VISUALMED; and
iii. That he will deliver promptly to VISUALMED
on termination of this Agreement, or at any
time VISUALMED may so request, all
confidential memoranda, notes, records,
reports and other confidential documents
(and all copies thereof) relating to the
business of VISUALMED, which he may then
possess or have under his control.
(b) The foregoing nondisclosure requirements shall not apply to
information which now or hereafter becomes available to the
public, through no fault of B.S., information which was known
to B.S., as documented by his written records, prior to the
effective date of this Agreement or which is legally and
lawfully obtained by B.S. from a third party independent of
VISUALMED. without a similar obligation of nondisclosure.
7. RESTRICTION ON COMPETITION
(a) In recognition of the considerations described in Section
4 and 5 hereof B.S. covenants and agrees that, during the
Term and for a period of one (1) year thereafter, he will not
(i) enter directly into the employ of or render directly, any
services to any person, firm or corporation engaged in any
business or activity competitive with the business of
VISUALMED, (ii) engage directly in any such business for his
own account, or (iii) become interested directly in any
such business as an individual, partner, shareholder,
creditor, director, officer, principal, agent, employee,
trustee, consultant, advisor or in any other relationship
or capacity; provided, however, that (A) the provisions of
clause (i) shall not be deemed to preclude B.S. from
employment by a corporation, some of the activities of which
are competitive with the business of VISUALMED, if B.S. does
not participate directly or indirectly, in such competitive
business activity, and (B) nothing contained in this Section
7 shall be deemed to prohibit B.S.from acquiring or holding,
solely as an investment, publicly traded securities of any
corporation so long as such securities do not, in the
aggregate, constitute more than five percent (5%) of any class
or series of outstanding securities of such corporation.
(b) In addition, for a period of one (1) year after B.S. leaves
the employ of VISUALMED, B.S. shall not solicit business,
accept business from, or deal with any client, customer or
account of VISUALMED in connection with any business activity
which is competitive with the business of VISUALMED, nor shall
he solicit for employment any person who was or is an employee
of VISUALMED at any time prior to or during the term of this
Agreement, except for the sole and exclusive benefit of
VISUALMED. This section (b) shall not prohibit any activities
permitted by 7(a) above.
8. SPECIFIC REMEDIES.
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If B.S. commits a breach of any of the provisions of Sections 6 or 7
hereof, such violation shall be deemed to be grounds for termination pursuant to
Section 5(a) hereof and VISUALMED shall have (i) the right to have such
provisions specifically enforced by any court of competent jurisdiction, it
being acknowledged and agreed that any such breach may cause irreparable injury
to VISUALMED and that money damages would not constitute an adequate remedy.
9. INDEPENDENCE, SEVERABILITY AND NON-EXCLUSIVITY.
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(a) Each of the rights enumerated in Sections 6 or 7 hereof and
the remedies enumerated in Section 8 hereof shall be
independent of the others and shall be in addition to and not
in lieu of any other rights and remedies available to
VISUALMED, at law or in equity. Should any of the covenants
contained in Sections 6 or 7, or any part of any of them, be
hereafter construed or adjudicated to be invalid or
unenforceable, the same shall not affect the remainder of the
covenant, covenants, rights or remedies which shall be given
full effect without regard to the portion of the Agreement
that was declared invalid or unenforceable.
(b) The parties intend to and do hereby confer jurisdiction to
enforce the covenants contained in Sections 6 or 7 and the
remedies enumerated in Section 8 upon the courts of any state
of the United States and any other governmental jurisdiction
within the geographical scope of such covenants.
(c) If any of the covenants contained in Sections 6 or 7 is held
to be invalid or unenforceable because of the duration of such
provision or the area covered thereby, the parties agree that
the court making such determination shall have the power to
reduce the duration and/or area of such provision and in its
reduced form said provision shall then be enforceable.
(d) No such holding of invalidity or unenforceability in one
jurisdiction shall bar or in any way affect VISUALMED's right
to the relief provided in Section 8 or otherwise in the courts
of any other state or jurisdiction within the geographical
scope of such covenants as to breaches of such covenants in
such other respective states or jurisdictions, such covenants
being, for this purpose, severable into diverse and
independent covenants.
10. SUCCESSORS.
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The Agreement and all rights of the parties hereunder shall inure to
the benefit of, and be enforceable by, the parties' successors and heirs.
11. NOTICES.
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All notices, consents or other communications required or permitted to
be given by any party hereunder shall be in writing (including telecopy or other
similar writing) and shall be given by personal delivery, certified or
registered mail, postage prepaid, or telecopy (or other similar writing) as
follows:
To VISUALMED: To B.S.:
VisualMed Clinical Systems Inc. Xxxxx Xxxxxx
000 Xxxxxxx, Xxxxxxxx, Xxxxxx, 00 Xxxxx Xxxxxx,
X0X 0X0 Xxxxxxx Des Ormeaux, Quebec,
Attn: Xxxxxxx Xx Hir H9B 2J6.
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or at such other address or telecopy number (or other similar number) as either
party may from time-to-time specify to the other. Any notice, consent or other
communication required or permitted to be given hereunder shall have been deemed
to be given on the date of mailing, personal delivery or telecopying or other
similar means thereof and shall be conclusively presumed to have been received
on the second business day following the date of mailing or, in the case of
personal delivery or telecopy or other similar means, the day of delivery
thereof, except that a change of address shall not be effective until actually
received.
12. MODIFICATIONS.
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No term, provision or condition of this Agreement may be modified or
discharged unless such modification or discharge is authorized by the Board of
Directors of VISUALMED and is agreed to in writing and signed by the Chairman.
13. WAIVERS.
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No waiver by either party hereto of any breach by the other party
hereto of any term, provision or condition of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
14. ENTIRE AGREEMENT.
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This Agreement constitutes the entire understanding between the parties
hereto relating to the subject matter hereof, superseding all negotiations,
prior discussions, preliminary agreements and agreements relating to the subject
matter hereof made prior to the date hereof.
15. GOVERNING LAW.
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Except as otherwise explicitly noted, this Agreement shall be governed
by and construed in accordance with the laws of the Province of Quebec, Canada
(without giving effect to conflicts of law).
16. INVALIDITY.
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Except as otherwise specified herein, the invalidity or
unenforceability of any term or terms of this Agreement shall not invalidate,
make unenforceable or otherwise affect another term of this Agreement which
shall remain in full force and effect.
17. HEADINGS.
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The headings contained in this Agreement are for reference purposes
only and shall not affect the meaning or interpretation of this Agreement.
18. LANGUAGE.
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The parties have agreed that this agreement be drafted in English. Les
parties ont convenue que cette convention soit redigee en anglais.
19. SURVIVAL.
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Sections 5 d) e) f) g) h), 6, 7, 8, 9 shall survive the termination of
the Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year set forth above.
ATTEST: VISUALMED CLINICAL SYSTEMS INC.
(s) Xxxxx Xxxxxx By (s) Xxxxxxx Xx Xxx
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Xxxxx Xxxxxx Xxxxxxx XxXxx
Senior Vice President & CEO
