EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and will be entered into as of the 1st day of
January, 2006, by and between OMNIMED INTERNATIONAL, INC., a Nevada corporation
maintaining its principal offices at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇. 07927 (the "Company") and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ("Employee"), an
individual residing at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, the Company desires to employ Employee as Chief Technical Officer
and Employee desires to gain employment as Chief Technical Officer 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:
1. Employment of Employee and Services to be Rendered. The Company hereby
engages Employee as Chief Technical Officer and Employee agrees that he shall
perform such duties as are customarily rendered by such an employee, as well as
such duties described in Section 3 below.
2. Term. The Company hereby engages Employee, and Employee hereby accepts
the engagement described hereunder, for a period of two years from the Effective
Date of this Agreement (the "Expiration Date"), 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 Chief
Technical Officer on a part-time basis. He will administer and coordinate the
technology development and maintenance activities of the organization in support
of policies, goals, and objectives established by the chief operating officer
and the Board of Directors by performing the following duties personally or
through subordinate managers. In connection with his responsibilities as Chief
Technical Officer, Employee shall:
(i) Development of the company's information management strategy
participates in and manages internal and external technology planning
and project management;
(ii) develop overall business strategies and product workflow and
architecture;
(iii) participate in and manage company and customer support;
(iv) participate in and manage company and customer system infrastructure
and architecture development;
(v) support, identify and evaluate new technologies for use by Company;
(vi) act as an internal support consultant to product development team;
(vii) provide direct sales and marketing support; and
(viii) manage information technology staff including scheduling, hiring,
development, appraisal and work prioritization.
(ix) Ongoing oversight of all corporate IT projects
(x) Specification and acceptance of technology deliverables by supervising
lower-level staff and managers
(xi) Management and direction of staff toward technological objectives,
based on long-term product and profitability goals
(xii) Development and specification of strategic business relationships
with technology vendors and related resources
4. Compensation.
4.1 Salary. For Employee's services hereunder, the Company's Board of
Directors (the "Board") shall pay Employee an annual salary of $81,000 for the
first year of the Term and $96,000 for the second year of the Term. The Company
shall also issue to employee, upon the Commencement Date, options to purchase
one million eight hundred thousand (1,800,000) shares of the Company's Common
Stock, $0.001 par value per share (the "Shares"). Such options shall vest over a
period of two years on an equal monthly basis of seventy five thousand (75,000)
Shares per month, and shall be exercisable for a four (4) year period from the
Effective Date of this Agreement, provided that the Employee is employed by the
Company, at a price of $0.80.
The Options shall be issued pursuant to the terms and conditions of the
Company's 2006 Incentive Stock 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.
Further, Employee acknowledges and agrees that the previous employment
agreement between the Employee and the Company is terminated in all respects,
and that no other compensation, other than what has previously been paid or is
stated as payable hereunder, is due and owing to Employee, whether accured or
unpaid under any previous employment agreements or otherwise (it being expressly
understood and agreed to that any and all claims for any prior compensation have
been satisfied in full and/or waived by the Employee in their entirety).
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.
4.3 401(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 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.
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.
5.12 Restrictions on Resale of Shares Acquired Upon Exercise of
Options. Employee represents and agrees that if Employee exercises this Option
in whole or in part, Employee will in each case hold the Shares acquired upon
such exercise for a period of at least one year. Further, certificates for
Shares so purchased shall bear a restrictive legend stating that the certificate
and the securities represented by such certificate and all rights therein are
subject to and transferable (including without limitation by way of pledge or
other grant of a security interest therein) only in accordance with the
provisions of a certain Employment Agreement effective as of January 1, 2006 and
a certain Stock Option Agreement dated as of January 1, 2006, among the Company
and the Employee, which restrict the transfer of these shares. A copy of such
agreements, as may be amended from time to time, are on file and available for
inspection at the principal office of the Company.
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
therefore 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).
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 turn
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.
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.
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 one year
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, during the Covenant Term, 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.
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 Death. This Agreement shall terminate immediately upon Employee's
death, unless sooner terminated hereunder.
15.2 No Termination by the Company Without Cause. The Company shall
not have the right to terminate Employee's engagement hereunder without Cause.
15.3 Disability. If Employee shall be unable to perform his services
hereunder by reason of illness or other incapacity, his failure so to perform
his duties will not be grounds for terminating his engagement for Cause by the
Company; provided, however, should the period of such incapacity exceed three
months, or if on 50% or more of the normal working days throughout six (6)
consecutive months Employee is unable to perform his duties fully due to such
incapacity, then the Company may terminate his engagement hereunder.
15.4 Termination by the Company With Cause. The Company shall have the
right to terminate Employee's engagement hereunder for Cause. For purposes of
this Agreement, "Cause" means (a) subject to Section 13.3 hereof, the material
failure by Employee substantially to perform his duties or obligations
hereunder, which shall not be cured within 15 days after notice of such failure;
(b) inadequate financing of the Company's operations to support Employee's
continued employment, as determined solely by the Company's Board of Directors;
(c) Employee engaging in misconduct which is materially injurious to the
Company; (d) Employee engaging in any act that in any way has a direct,
substantial, and adverse effect on the Company's reputation; (e) habitual
drunkenness; (f) unlawful drug use; (g) Employee's conviction of a crime of
moral turpitude; or (h) Employee's conviction of, or entry of a plea of guilty
or nolo contendere in, a court of competent jurisdiction of a crime constituting
a felony.
15.5 Termination by Employee for Good Reason. Employee shall be
entitled to terminate his employment for "Good Reason." As used herein, the term
"Good Reason" shall mean (i) a material change by the Company in Employee's
duties, staff support or responsibilities; (ii) relocation of Employee's
principal place of employment to a location outside the greater New York
metropolitan area, unless with Employee's prior written consent; or (iii) any
other material branch of the Agreement by the Company, which breach is not cured
within fifteen (15) days after written notice thereof.
15.6 Effect of Termination.
(a) Upon termination of this Agreement or Employee's engagement
hereunder pursuant to Section 15.1 or 15.3 hereof, all compensation and benefits
not previously earned by employee 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 and shall be entitled to exercise all options issued
pursuant to paragraph 5 on or before the Expiration Date. 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. General Provisions.
16.1 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 notices and correspondence should additionally
be sent to the following:
Omnimed International, Inc.
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16.2 Benefit of Agreement and Assignment. This Agreement shall inure
to the benefit of and are 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.
16.3 Applicable Law. This Agreement is made in and is to be governed
by and construed under the laws of the State of New York.
16.4 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 affect the meaning or interpretation of
this Agreement.
16.5 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.
16.6 Entire Agreement. This Agreement contains the entire Agreement of
the parties, and supersedes any and all other Agreements, either oral or in
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 is not embodied herein, and that
no other Agreement, statement or promise not contained in this Agreement shall
be valid or binding.
16.7 Amendments. This Agreement may be modified or amended only by an
Agreement in writing signed by the Company and Employee.
16.8 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.
16.9 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.
16.10 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.
16.11 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. The parties expressly
agree and acknowledge that the prevailing party in any arbitration proceeding
commenced hereunder shall be entitled to receive, in addition to any damages and
other relief that may be awarded, reasonable attorneys; fees actually incurred
in connection with such arbitration.
16.12 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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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President