EMPLOYMENT AGREEMENT
BETWEEN VISUALMED CLINICAL SYSTEMS INC., a corporation existing under the laws
of Canada,
(hereinafter referred to as the "Corporation"),
AND: DR. ART ▇▇▇▇▇▇▇, residing and domiciled at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
(hereinafter referred to as the "Executive")
WHEREAS, the Executive has been a practicing physician in a tertiary care
university hospital environment for twenty (20) years;
WHEREAS, the Executive as a clinical practitioner, has in the past developed,
and intends to continue developing, clinical software for the hospital
environment;
WHEREAS, the Executive has entered into a contract with ▇▇. ▇▇▇▇▇▇ Dab on March
13, 1998 whereby the Executive and ▇▇. ▇▇▇▇▇▇ Dab wished to join forces to
create a company devoted to the development, implementation and marketing of
medical, clinical and information management software which company became the
Corporation;
WHEREAS, the Executive and ▇▇. ▇▇▇▇▇▇ Dab in virtue of the contract signed on
March 13, 1998 considered each other to be wholly linked and beholden to the
contract for a period of no less than seven (7) years whereby they agreed to be
employed by the Corporation for a period of seven (7) years from the date of the
signature of the said contract;
WHEREAS, the Executive is a shareholder of the Corporation since the Summer of
1998;
WHEREAS, the Corporation desires to continue to retain the services of the
Executive in the capacity of President and the Executive, wishes to be employed
by the Corporation;
IN CONSIDERATION OF THE RESPECTIVE COVENANTS AND AGREEMENTS HEREIN CONTAINED AND
FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH
ARE HEREBY ACKNOWLEDGED BY EACH PARTY, THE PARTIES AGREE AS FOLLOWS:
1. EMPLOYEMENT
1.1. The Corporation hereby agrees to continue to employ the
Executive and the Executive hereby accepts to continue such
employment as of the date hereof in the capacity of President.
2. DUTIES
2.1. The Executive shall perform such duties and exercise such
powers as are normally associated with and incidental and
ancillary to the responsibility of President.
2.2. The Executive shall report directly to the Chairman of the
Board of Directors.
2.3. The Executive shall devote all of his time and attention and
his best efforts during normal business hours to the business
and affairs of the Corporation and shall not, without a
specific prior written consent of the Chairman of the Board of
Directors, undertake any other business or occupation.
2.4. The Executive shall perform those duties that may be assigned
to him by the President of the Board of Directors diligently
and faithfully and to the best of the Executive's abilities.
In addition, the Executive shall act in the best interests of
the Corporation and the Executive shall use his best efforts
to promote the interests and goodwill of the Corporation.
3. COMPENSATION
3.1. The annual salary payable to the Executive for his services
hereunder shall be one hundred and eighty thousand dollars (
$180,000.00 ) or such higher amount that the Corporation's
Board of Directors, in its sole discretion, may determine from
time to time, exclusive of bonuses, benefits and other
compensation. Such salary shall be payable in equal
installments in accordance with the usual compensation
practices of the Corporation, such installments shall be paid
no less frequently than monthly.
3.2. The annual salary is subject to be re-evaluated twice per
year.
3.3. At such time as the Corporation has made an aggregate of $10
million in sales since the commencement of operations, the
Executive shall have an option to purchase that number of
shares equal to decimal five percent (0.5%) of the total
number of shares then issued and outstanding. The exercise
price of the present option shall be fifteen cents ($0.15) per
share. The present option may be exercised commencing two
years after the date on which it is granted;
3.4. In the event that the Executive's employment is terminated
without a serious reason, the Executive shall have the right
to exercise any or all of the above-mentioned option in whole
or in part immediately, notwithstanding any provision hereof;
3.5. The Executive shall be entitled to bonuses representing:
a) a lump sum of $150,000.00 at such time the
Corporation has effected an initial public offering
or is otherwise listed on a stock exchange or a stock
quotation system, such bonus being payable within 60
days of such event;
b) a lump sum of $50,000.00 upon the signature of a
contract for the placement of the first Beta system
in the United States. 50% of such bonus being payable
upon contract signing and the remaining of the bonus
being upon receipt of first payment on the system;
c) a lump sum of $10,000.00 upon the signature of a
contract for the placement of the first Beta system
in Canada. 50% of such bonus being payable upon
contract signing and the remaining of the bonus being
payable upon receipt of first payment on the system;
d) a lump sum of $100,000.00 upon the Corporation
reaching an aggregate of $10 millions CDN in sales
since the commencement of operations. Such bonus
being payable within 60 days of reaching such sales.
3.6. During the term of the Executive's employment, the Executive
shall be entitled to participate in the Corporation's Benefit
Plans in force at the time of the present Agreement and any
other replacement benefit programs established by the
Corporation's Board of Directors. Such replacement benefit
programs shall be substantially similar to the current
Corporation's Benefit Plans.
3.7. The Executive shall be reimbursed for all reasonable travel
and out-of-pocket expenses properly incurred by the Executive
from time to time in connection with the performance of his
duties hereunder. For all such expenses, the Executive shall
furnish to the Corporation invoices, statements or other
appropriate supporting documents in respect of which the
Executive seeks reimbursement.
3.8. The Executive shall continue to be covered by the Directors'
and Officers' liability insurance policies maintained by
the Corporation.
4. VACATION
4.1. The Executive shall be entitled to six (6) weeks paid vacation
per calendar year, the timing of such vacation to be
determined by the Executive and the Chairman of the Board of
Directors, subject to the need for the timely performance of
the Executive's responsibilities hereunder.
5. TERMINATION OF EMPLOYMENT
5.1. a) The employmentof the Executive hereunder shall be for
a fixed term and shall end on March 13, 2007;
b) Notwithstanding Section 2090 of the Civil Code of
Quebec, the present Agreement shall not be
automatically or tacitly renewed. It shall be renewed
only if the parties to the present Agreement accept
such a renewal in writing and stipulate its terms and
conditions therein.
5.2. The employment of the Executive may be terminated at any time
by the Corporation for a serious reason, as that term may be
interpreted and applied by the Courts and shall be effective
immediately. The Executive shall receive a written notice
setting out the reason(s) for such termination.
5.3. The employment of the Executive may be terminated by the
Corporation, without a serious reason by giving to the
Executive a six (6) month prior written notice setting out the
reason(s) for such termination.
In such an event, the Corporation shall have the obligation to
pay to the Executive:
a) the bonuses mentioned in paragraph 3.5 above, if the
terms and conditions for their entitlement are met
during the remaining period from the initial term of
the present Agreement;
b) an indemnity representing his vacation as per Section
4 above, for the remaining period from the initial
term of the present Agreement, shall be paid in one
installment at the date of termination;
c) all expenses as per paragraph 3.7 above, that have
not been reimbursed at the date of termination;
d) one of the two following indemnities at the
discretion of the Executive:
i) a lump sum, payable at the date of
termination representing the base salary for
the remaining period out of the initial
term, taking into account the twice per year
increases and representing the minimum the
cost of living allowance; or
ii) the payment of the remaining base salary, as
mentioned in subparagraph 5.3d)i) above, by
way of the Corporation's stock, whose value
will be determined at the date of the
Corporation's last financing, if any
Shareholders Agreement to which the
Executive is a party to allows it.
e) all other remuneration or benefits that would have
been entitled the Executive during the remaining
period of the initial term.
6. CONFIDENTIALITY, NON-DISCLOSURE AND INTELLECTUAL PROPERTY
6.1. The Executive acknowledges that during the course of his
employment with the Corporation, he has had and will have had
or will have access to and/or has been or will be entrusted
with various trade secrets and other proprietary and
confidential information, whether technical or non-technical,
relating to the past, present or contemplated businesses and
operations of the Corporation or those of its clients,
suppliers, customers, agents or consultants, including,
without limitation, trade secrets, products, software
programs, hardware design and specifications, source code,
drawings, manuals, letters, notes, notebooks, reports,
records, related documentation in hard copy, research and
development, customer lists, customer data, financial
information and business practices (hereinafter collectively
referred to as "Confidential Information"), and the direct
or indirect disclosure of any of which to competitors of the
Corporation or to the general public or to any person who is
not affiliated in an appropriate capacity with the Corporation
would be detrimental to the best interests of the Corporation.
6.2. The Executive further acknowledges and agrees that the right
to maintain the confidentiality of all such Confidential
Information constitutes a proprietary right which the
Corporation is entitled to protect and that the Corporation is
the sole owner of such confidential Information.
6.3. Accordingly, the Executive acknowledges and agrees that he
will not at any time during the term of his employment
hereunder or at any time thereafter, whether directly or
indirectly, divulge, use, publish, reproduce, communicate
or exploit for the benefit of himself or of any other physical
or moral person, company, organism or any other group bearing
or not a moral, legal or judicial personality (hereinafter
collectively or individually referred to as the
"Third Party"), any Confidential Information which he has
acquired during or as a result of his employment with the
Corporation except to the extent that the Confidential
Information may be in the public domain without having been
disclosed by the Executive.
6.4. Any ideas, concepts, research, information, discoveries,
inventions, improvements, methods, formulas, designs,
processes, programs, software, trademarks, trade names,
copyrights, patents, products, computer codes and applications
thereof, plans or writings originated, conceived, discovered,
made or first reduced to practice by the Executive during the
term of his employment hereunder, either solely or jointly
with others, whether in whole or in part, whether during
the Executive's usual hours of work or otherwise, at the
request or suggestion of, or in accordance with, the plans of
the Corporation, (hereinafter collectively referred to as the
"Intellectual Property"), shall be the sole and exclusive
property of the Corporation, or its assignees, whether or
not patent, software or other intellectual property
protection, trademark, industrial design, or copyright
applications are filed thereon.
6.5. The Executive, without further compensation by the
Corporation, will make, execute, acknowledge and deliver, at
the reasonable request and at the expense of the Corporation,
through the Corporation's legal representative:
a) Specific assignments of all of the Executive's
rights, title and interest in and to all Intellectual
Property;
b) all applications, in the name of the Corporation, for
patents, software or other intellectual property
protection, trademarks, trade names or copyrights
pertaining to the Intellectual Property and all
patent, software or other intellectual property
protection, trademarks, trade names or copyrights
which shall thereafter issue on such applications and
all renewals, extensions or reissues thereof in any
country of the world; and
c) specific assignments of all of the Executive's
rights, title and interest under any of the documents
referred to in the preceding subsection 6.5 (b) which
by law could not be registered or filed in the name
of the Corporation.
6.6. The Executive shall perform all reasonable lawful acts and
take all reasonable steps which the Corporation deems
necessary or advisable for, and otherwise co-operate to
the best of the Executive's ability with the Corporation in,
preparing and processing applications for patents, copyright,
or other intellectual property protection, trademarks or trade
names and obtaining, perfecting, patenting, registering,
explaining, protecting or enforcing any protection for any
Intellectual Property in any country. Such cooperation shall
include, but not be limited to, the giving of testimony, and
shall be subject to compensation by the Corporation to the
Executive.
6.7. The Executive shall have the right to review and comment on
any and all documents he is requested to execute pursuant
to paragraph 6.5 and 6.6 hereof. Should the Executive not
respond to the request to execute such documents within ten
(10) days from reception of a notice to that effect, the
Corporation's Secretary will have the right to execute the
documents indicated in the notice pursuant to the following
Power of Attorney: the Executive hereby irrevocably appoints
the Corporation's Secretary as attorney-in-fact in the
Executive's name and on the Executive's behalf to execute the
assignments or documents as aforesaid. The Executive hereby
acknowledges that such appointment is irrevocable and is
coupled with an interest. The Executive hereby requests
and authorizes the Commissioner of Patents and any official
of any country whose duty it is to issue patents, software or
other intellectual property, protection, trademarks, trade
names or copyrights.
6.8. Attached hereto as "Schedule 6.8", a list of patents or other
Intellectual Property, and patent or other applications for
registration and/or protection thereof, relating to and made
by the Executive prior to the present Agreement and a
description of all conceived inventions or other Intellectual
Property made by the Executive prior to the present Agreement
covered by such applications or with respect to which no such
applications have yet been filed, in the fullest detail
consistent with any obligations of the Executive, which
have not been in use by or available to the Corporation at any
time prior to the date hereof and which the Executive
considers not to be the property of the Corporation under this
Agreement.
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The Executive represents that the Executive has the right to
disclose to the Corporation information regarding such patents
or other relevant ideas and inventions, and related
applications as aforesaid referred to in Schedule 6.8 (if
any).
6.9. The Executive agrees that upon or within three (3) business
days of the termination for any reason of the Executive's
employment with the Corporation, the Executive will promptly
deliver to the Corporation the originals and all copies made
by or for the Executive or on the Executive's instructions of
all Confidential Information, which are then in the
Executive's possession or under the Executive's control.
6.10. The Executive covenants and warrants to the Corporation that
the Executive is not now under any obligation to any person,
firm or other entity which is inconsistent or in conflict with
this Agreement or which would prevent, limit or impair in any
way the performance by the Executive of his obligations or
duties hereunder.
6.11. The obligations and covenants of the Executive contained in
this Section shall survive the termination of this Agreement
for a period of three (3) years.
7. RESTRICTIVE COVENANTS
7.1. In consideration of the benefits and conditions provided to
the Executive pursuant to this Agreement, the Executive
covenants and agrees that he shall not, without the specific
prior written consent of the Chairman of the Board of
Directors, during the term of this Agreement and for a
period of twelve (12) months following the termination of his
employment hereof, either on his own behalf or on the behalf
of any Third Party, directly or indirectly, solicit the
services of, entice away, employ or use the services of any
person employed by or otherwise providing services to the
Corporation on a full-time or part-time basis, or solicit
any customers, clients or suppliers of the Corporation to
transfer business from the Corporation to any Third Party.
For the purpose of the present Agreement, customers, clients
or suppliers of the Corporation means any customer, client or
supplier of the Corporation during the Executive's employment
or at the date of the termination of the Executive Employment.
7.2. In consideration of the benefits and conditions provided to
the Executive pursuant to this Agreement, the Executive
covenants and agrees that he shall not, without the specific
prior written consent of the Chairman of the Board of
Directors, during the term of this Agreement and for a
period of twelve (12) months following the termination
of his employment hereof, both individually or jointly with
a Third Party whether as owner, shareholder, creditor, agent,
employee, officer, director or in any other capacity, effect
any work or perform any service whatsoever in the field of
medical, clinical and information management software, nor
act as a consultant, lend monies or guarantee debts or
obligations, nor permit that his name or part of his name be
used or employed, whether it be for his own personal benefit
or for the benefit of any Third Party, engaged, concerned or
interested in any enterprise which carries on business or
pursues activities in the field of medical, clinical or
information management software in the territory of Canada
and the Unites States.
7.3. In addition and without prejudice to all other rights and
remedies available to the Corporation, the Corporation may
enforce the compliance and respect of any and all of the
provisions of the present Sections 6 and 7 by way of, but
not limiting to injunction, and may obtain an injunction in
order to enjoin any breach or threaten breach of any of the
provisions thereof. The Executive expressly and specifically
acknowledges that in the event of a breach of any of the
obligations described in Sections 6 or 7, such breach shall
cause the Corporation to suffer damages for which an
injunction is an effective relief. This remedy shall be in
addition to and not in limitation of any rights or remedies to
which the Corporation is or may be entitled to.
7.4. During the term of this Agreement, the Executive shall
promptly disclose to the Chairman of the Board of Directors
all information concerning any interest, direct or indirect,
of the Executive (whether as owner, shareholder, partner,
vendor or other investor, director, officer, employee,
consultant or otherwise) or any member of his immediate
family, in any business which is reasonably known to the
Executive to purchase or otherwise obtain services or products
from, or to sell or otherwise provide services or product to,
any person within the Corporation.
8. GENERAL
8.1. The preamble of the present Agreement forms an integral part
to it for any legal purposes.
8.2. If any provision of this Agreement shall be held by any court
of competent jurisdiction to be invalid or unenforceable, in
whole or in part, such invalidity or unenforceability shall
not affect the validity or enforceability of the remaining
provisions of this Agreement and such remaining provisions
shall remain enforceable and binding.
8.3. A waiver of any term or condition of this Agreement by either
party shall not be construed as a waiver of a subsequent
breach or failure of the same term or condition, or a waiver
of any other term or condition.
8.4. This Agreement shall enure to the benefit of and be binding
upon the heirs, executors, administrators and legal personal
representatives of the Executive and the successors and
assigns of the Corporation. This Agreement is personal to the
Executive and may not be assigned by him.
8.5. The parties acknowledge that the present Agreement constitutes
a complete, faithful and whole reproduction of the agreement
between them and supercedes any prior Agreement to the same
effect and more specifically the contract entered into by the
Executive and ▇▇. ▇▇▇▇▇▇ Dab or March 13, 1998, and the
parties formally renounce to rely on any discussions and
negotiations, whether oral or written, that preceded its
signing.
8.6. The parties acknowledge that any modification may not be made
to the present Agreement unless agreed upon between the
parties and attested to by a written document to this effect.
8.7. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Quebec.
8.8. The Executive acknowledges and warrants to the Corporation
that he has had sufficient time to review and consider this
Agreement thoroughly, has read and understands the terms and
the Executive's obligations hereunder and has been given an
opportunity to obtain independent legal advice, or such other
advice the Executive may desire, concerning the interpretation
and effect of this Agreement. The Executive has entered into
this Agreement freely and voluntarily.
8.9. The parties hereby acknowledge that it is their expressed wish
that this Agreement and all documents related thereto be drawn
up in the English language. Les parties reconnaissent qu'il
est de leur volonte que la presente entente et que tous les
documents s'y rapportant soient rediges en anglais.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT
ON January 12, 2000 IN Montreal
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VISUALMED CLINIC SYSTEMS INC
Per: (s) ▇▇▇▇▇▇▇ LeHir (s) Art ▇▇▇▇▇▇▇
Senior Vice-President and CEO DR. ART ▇▇▇▇▇▇▇
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