Exhibit 4.23
[GRAPHIC OMITTED]
EMPLOYMENT AGREEMENT
MEMORANDUM OF AGREEMENT made in Mississauga, Ontario, as of August 14, 2001,
BETWEEN:
Cedara Software Corp., a corporation incorporated under the laws of
Ontario, having its principal place of business in Mississauga,
Ontario,
(hereinafter referred to as the "Corporation")
AND:
Marcel Swennenhuis, domiciled and residing in The Netherlands
(hereinafter referred to as the "Executive")
WHEREAS the Corporation and the Executive desire to enter into this
employment agreement (the "Agreement") to set forth the definitive terms and
conditions of the employment of the Executive;
AND WHEREAS the Agreement between the parties will commence on August
14, 2001 (the "Effective Date");
AND WHEREAS
(a) The Executive has been employed by the Corporation since
September 1, 2000, and while so employed has rendered valuable
service to the Corporation and has acquired an extensive
knowledge of the Business (as hereinunder defined);
(b) The Corporation desires to have the continued benefit of the
Executive's knowledge and experience as an employee of the
Corporation and the Corporation desires to recognize and
compensate the Executive for duties and responsibilities that
the Executive has undertaken since the commencement of his
employment;
(c) The Executive desires to continue in the employ of the
Corporation in the capacity hereinafter stated and for the
period and on the terms and conditions set forth herein, which,
as a whole, are terms and conditions more favourable to the
Executive than those presently applicable; and
NOW, THEREFORE, for the reasons set forth above, and in consideration
of the mutual promises and agreements hereinafter set forth and other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the Corporation and the Executive agree as follows:
ARTICLE 1
INTERPRETATION
Section 1.1 Definitions
For the purpose of this Agreement, unless the context otherwise
requires, the following words or expressions shall have the following
meanings:
"Board" shall mean the Board of Directors of the Corporation.
"Business" shall mean (i) the business of developing and marketing
imaging software, software platforms, software systems and related
services; (ii) any business hereafter conducted by the Corporation up
to the termination of the Executive's employment; and (iii) any
business that the Corporation is in the process of developing (as
reflected in a written business plan) at the time of the termination
of the Executive's employment.
"Cause" shall mean any act or omission of the Executive which would
in law permit a Corporation to, without notice or payment in lieu of
notice, terminate the employment of an employee.
"Disability" shall mean the Executive's inability to substantially
fulfil his duties on behalf of the Corporation for a continuous
period of six (6) months or more or the Executive's inability to
substantially fulfil his duties on behalf of the Corporation for an
aggregate period of six (6) months or more during any consecutive
twelve (12) month period.
"Stock Option Plan" shall mean the Corporation's Stock Option Plan
No. 2, as amended or replaced from time to time.
ARTICLE 2
SCOPE OF EMPLOYMENT
Section 2.1 Employment
The Corporation hereby agrees to employ the Executive and the
Executive hereby accepts such employment, in the position of Vice President,
European Operations, on the terms and conditions herein contained as of and
with effect from the Effective Date. During his employment, the Executive
shall report to the President and Chief Operating Officer, Cedara Software
Corp. unless otherwise notified in writing by the Chairman and Chief Executive
Officer of the Corporation.
Section 2.2 Term
This Agreement and the Executive's employment hereunder shall be
deemed to commence on the Effective Date and shall continue for an indefinite
term until terminated in accordance with the terms and conditions set forth in
this Agreement.
Section 2.3 Duties
During the term of this Agreement, the Executive shall:
(a) perform those duties and responsibilities necessary or
incidental to perform the functions of Vice President, European
Operations;
(b) devote to the business and affairs of the Corporation the whole
of his working time, attention and ability, and will ensure
that he is not at any time engaged in conduct which would
interfere with the performance by the Executive of his duties
under this Agreement or which would constitute a conflict with
the interests of the Corporation;
(c) use his reasonable best efforts to promote the interests of the
Corporation and to improve and extend the business thereof; and
(d) not incur any debt, liability or obligation or enter into any
contract or agreement for, on behalf of, or in the name of the
Corporation, other than in the ordinary course of business,
unless duly authorized by the Board.
ARTICLE 3
REMUNERATION OF THE EXECUTIVE
Section 3.1 Remuneration and Benefits
As compensation for the performance by the Executive of his duties
hereunder:
(a) the Corporation shall pay to the Executive an annual base
salary (the "Base Salary") at the rate of $140,000 Euro
($189,698 CDN @ exchange rate as at August 2, 2001 of 1.355)
per annum, payable in equal bi-weekly instalments in arrears,
less applicable statutory deductions and withholdings. The
Executive's Base Salary including rate of exchange will be
reviewed on an annual basis;
(b) the Executive shall be entitled to participate in the
Corporation's annual incentive program in accordance with the
terms of the Annual Incentive Program in effect from time to
time and as amended from time to time with a target
participation of 35% of Base Salary.
(c) the Executive shall be entitled to participate in the benefit
plans which are made available to senior employees of the
Corporation, in effect from time to time, in accordance with
the terms of such plans. The Corporation and Executive agree to
develop an alternative benefit plan based on a benchmark study
for a comparable position in the Netherlands. This benchmark
study will be executed by KPMG Netherlands at the request of
the Corporation;
(d) the Corporation shall, upon presentation of itemized receipts,
reimburse the Executive for all approved travel and other
business expenses directly and reasonably incurred by the
Executive in the performance of his duties, including
reasonable approved travel and short-term accommodation
expenses for trips as required;
(e) the Executive is currently participating in the Corporation's
Stock Option Plan. The terms and conditions of options are
governed entirely by the terms of the Stock Option Plan. The
Executive may qualify for further options grants through the
Corporation's annual review of its options program that is
usually concluded at the time of the Corporation's annual
general meeting in December of each year.
Section 3.2 Vacation
The Executive shall be entitled to 20 days paid vacation per annum to
be taken at a time or times convenient to the Corporation. Such vacation
entitlement shall be pro-rated for the period of employment during the 2001
calendar year. Unused vacation may be carried over as per the following
schedule: zero to three years of service, 10 days; three years to five years
of service, 15 days; five years and more of service, 20 days.
ARTICLE 4
TERMINATION
Section 4.1 Termination
This Agreement may be terminated by the Corporation at any time for
the following reasons:
(a) for Cause, by written notice to the Executive;
(b) in the event of the death of the Executive;
(c) in the event of a breach of this Agreement and/or the Employee
Confidentiality and Intellectual Property Assignment Agreement
by the Executive, as determined by the Corporation, where such
violation has not been cured within two (2) weeks of written
notice thereof by the Corporation to the Executive;
(d) in the event of the Disability of the Executive, by written
notice to the Executive; and
(e) without Cause and other than for the reasons in subsection
4.1(b), (c) and (d), by paying to the Executive: (i) any
accrued but unpaid Base Salary for services rendered to the
date of termination, any accrued but unpaid expenses required
to be reimbursed under this Agreement and the value of the
prorated vacation leave with pay for that portion of the year
in which the employment of the Executive hereunder is
terminated that the Executive was actively employed, to the
extent such vacation entitlement has not been used by the
Executive at the time of termination together with the value of
such vacation carried over in accordance with Section 3.2; (ii)
salary continuance equal to eight months of Base Salary plus
one month per year of service to a maximum of eighteen months
less applicable statutory deductions and withholdings taking
into account service since September 1, 2000. Should the
Executive secure comparable employment prior to the completion
of the severance period, 50 percent of the balance owing will
be paid to the Executive as a lump sum; (iii) the monthly
average of the previous year's bonus amount, if any, paid to
the executive multiplied by the number of months of the
severance term less statutory deductions and withholdings; (iv)
continued participation in the benefit plans for the severance
term; and (v) an executive outplacement programme for one (1)
year.
Section 4.2 Payment Upon Termination
Should this Agreement be terminated pursuant to Subsections 4.1(a),
(b), (c), or (d) or should the Executive resign from his employment pursuant
to section 4.3, the Executive, or his estate, as the case may be, shall only
be entitled, unless otherwise specified in this Agreement, to payment of the
Executive's Base Salary earned up to the date of termination plus an amount
equal to the sum of: (i) the value of the pro-rated vacation leave with pay
for that portion of the year in which the employment of the Executive
hereunder is terminated that the Executive was actively employed, to the
extent such vacation entitlement has not been used by the Executive at the
time of termination together with the value of such vacation carried over in
accordance with Section 3.2; and (ii) the business expenses reasonably
incurred by the Executive up to the date of termination. Should this Agreement
be terminated pursuant to Subsection 4.1(b) or (d), the Executive, or his
estate as the case may be, shall be paid a sum equal to the monthly average of
the previous year's bonus amount, if any, paid to the Executive multiplied by
the number of completed months of employment in the fiscal year in which the
Executive's employment is terminated. For greater certainty, should this
Agreement be terminated pursuant to Subsection 4.1(a) or (c) or Section 4.3,
the Executive shall not be entitled to any bonus for any portion of the year
in which the employment of the Executive is terminated that the Executive was
actively employed. Nothing in this Section 4.2 shall be construed so as to
terminate the Executive's participation in the Corporation's disability plans
to the extent that he is receiving benefits thereunder at the date of
termination, which continued participation shall be in accordance with the
terms of such plans. The parties agree that notwithstanding this section 4.2,
the Executive will not receive less than that which he is entitled to upon
termination of employment in accordance with the Employment Standards Act
(Ontario).
Section 4.3 Termination by Executive
The Executive may resign from his employment by giving 30 days'
written working notice (exclusive of vacation time) to the Corporation
Section 4.4 Duties Upon Termination
Following the termination of the Executive's employment for any
reason whatsoever, the Executive hereby agrees to resign from any offices,
positions and directorships which he may have or may have held with the
Corporation.
ARTICLE 5
CONFIDENTIAL INFORMATION
Section 5.1 Employee Confidentiality and Intellectual Property Assignment
Agreement
The Executive acknowledges his responsibilities and obligations as
outlined in the Employee Confidentiality and Intellectual Property Assignment
Agreement signed upon date of hire.
ARTICLE 6
PROPERTY OF THE CORPORATION
Section 6.1 Deliveries Upon Termination
The Executive hereby agrees to return to the Corporation, immediately
upon the termination of the employment of the Executive hereunder and without
making copies or disclosing information relating thereto, any and all
documents, equipment and other property belonging to the Corporation. Without
restricting the generality of the foregoing, the Executive shall return all
credit cards, identification cards and keys belonging to the Corporation.
ARTICLE 7
NOTICES
Section 7.1 Notices
Any notice required or permitted to be given by a party hereto to the
other shall be deemed validly given if personally delivered or mailed by
registered prepaid post and addressed as follows:
- in the case of the Corporation to:
Cedara Software Corp.
0000 Xxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxx
X0X 0X0
Attention: Chief Executive Officer
- in the case of the Executive, to:
Marcel Swennenhuis
00 Xxxxxxx Xxxx
Xxxxx, Xxxxxxxxxxx 0000 EN
provided that a party hereto may from time to time notify the other in writing
of a new address to which notices to it shall henceforth be sent until further
notice in writing be given. Any notice shall be deemed to be effected (i) if
personally delivered, on the date of receipt, or (ii) if mailed, on the fifth
business day following the date of mailing. Notwithstanding the foregoing, if
a strike or lockout of postal employees is in effect, or generally known to be
impending, notice shall be effected by personal delivery.
ARTICLE 8
MISCELLANEOUS
Section 8.1 Assignment
This Agreement may not be assigned by the Executive. The Executive
acknowledges and agrees that the Corporation may assign this Agreement.
Section 8.2 Governing Law
This Agreement is to be governed by and construed and enforced in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein.
Section 8.3 Severability
If any provision of this Agreement is determined to be invalid,
illegal or incapable of being enforced for any reason, all other conditions
and provisions of this Agreement shall nevertheless remain in full force and
effect.
Section 8.4 Entire Agreement
This Agreement and the Employee Confidentiality and Intellectual
Property Assignment Agreement signed upon date of hire and the Stock Option
Plan, constitute the entire agreement between the parties with respect to the
subject matter contemplated therein and supersede and replace any provision of
any other document heretofore entered into by them with respect to the subject
matter of this Agreement, the Employee Confidentiality and Intellectual
Property Assignment Agreement and the Stock Option Plan. This Agreement shall
not be amended except by a written instrument hereafter signed by the parties
hereto.
Section 8.5 Waiver
No waiver of any of the provisions of this Agreement shall constitute
a waiver of any other provision (whether or not similar) nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
Section 8.6 Successors and Assigns
This Agreement shall enure to the benefit of and be binding upon the
successors and assigns of the Corporation.
Section 8.7 Required Deductions For Withholdings
The Corporation shall make such deductions and withholdings from any
payments hereunder as may be required by law.
Section 8.8 Independent Legal Advice
The Executive acknowledges that he has been advised to obtain, and
that he has obtained or has been afforded the opportunity to obtain,
independent legal advice with respect to this Agreement and the Employee
Confidentiality and Intellectual Property Assignment Agreement and that he
understands the nature and consequences of this Agreement and the Employee
Confidentiality and Intellectual Property Assignment Agreement.
Section 8.9 Acknowledgements
The Executive acknowledges and accepts that the terms set out in
Section 4.1(e), provided that such terms are satisfied by the Corporation, are
in lieu of (and not in addition to) and in full satisfaction of any and all
other claims or entitlements which the Executive has or may have upon the
termination of his employment and the compliance by the Corporation with these
terms will affect a full and complete release of the Corporation from any and
all claims which the Executive may have for whatever reason or cause in
connection with the Executive's employment or the termination of such
employment, other than those obligations specifically set out in this
Agreement. In receiving a payment or payments pursuant to Section 4.1(e), the
Executive voluntarily accepts such payment or payments for the purpose of
making full and final compromise, adjustment and settlement of all claims as
aforesaid and specifically agrees to execute a formal release document to that
effect in the form attached hereto as Schedule "A".
Section 8.10 Counterparts
This Agreement may be executed by the parties in one or more
counterparts, each of which when so executed and delivered shall be deemed to
be an original and such counterparts shall together constitute one and the
same instrument.
IN WITNESS WHEREOF the parties hereto have executed this Agreement at
the place and as of the date first mentioned above.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
)
/s/ XXXXX XXXX ) /s/ MARCEL SWENNENHUIS
--------------------------------- ----------------------------------------
CEDARA SOFTWARE CORP.
Per: /s/ XXXX XXXXXXX
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XXXX XXXXXXX
PRESIDENT AND COO
