Exhibit 4.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 31st day of October, 1997
BETWEEN:
IMI DIAGNATECH INC., a corporation incorporated under the laws of
Canada (hereinafter called "IMI")
- and -
XXXXXXX XXXXXXX, of the City of Dundas, in the Province of Ontario
(hereinafter called the "Employee").
WHEREAS IMI and the Employee wish to enter into a written agreement which
contains the agreed upon terms and conditions of employment for their mutual
benefit;
NOW THEREFORE in consideration of the mutual covenants and agreements
contained in this agreement and for other good and valuable consideration, the
adequacy of which is hereby acknowledged, the parties to this agreement do
mutually covenant and agree as follows:
ARTICLE 1 - DUTIES OF EMPLOYMENT
1.1 Position - The Company agrees to continue to employ the Employee in the
position of Vice President, Clinical and Regulatory Affairs, to serve in such
capacity as IMI's needs may, from time to time, require and as are made known to
him by IMI or its authorized representatives. In this capacity, the Employee
shall perform such services as are required from time to time by the Board of
Directors of IMI (the "Board") provided, however, that without the Employee's
prior written consent, the Employee shall not be required to perform services
other than those comparable in scope and dignity to those the Employee is
presently performing.
1.2 Duties - The Employee accepts the office on the terms and conditions set
forth in this Agreement and acknowledges that as Vice President, Clinical and
Regulatory Affairs, he has the responsibility for the general supervision of the
clinical and regulatory aspects of the business of IMI, subject to the authority
of the President of IMI and the Board. Throughout the term of his employment,
the Employee agrees to devote substantially all of his business time and effort
to carry out the performance of his duties under this Agreement and shall
conform to all lawful instructions and directions given to him by the Board, or
its authorized designees, and obey and carry out the by-laws of IMI, as well as
all written rules, policies and practices now or hereafter established and
amended from time to time by IMI for the conduct of its affairs and brought to
the attention of the Employee.
ARTICLE II - TERMS OF EMPLOYMENT
2.1 Term - The provisions of the Agreement shall have effect from the date
hereof and shall continue in effect until October 31, 2000, or until terminated
in accordance with the provisions of this Agreement. Subject to the provisions
of this Agreement, thereafter, this Agreement shall be automatically renewed for
successive one-year periods if no written notice has been given by either party
to the other on or before 180 days before the end of the term stating such
party's intention to terminate this Agreement.
ARTICLE III - EMPLOYEE'S COMPENSATION AND BENEFITS
3.1 Compensation - The annual base salary payable to the Employee for the
Employee's services hereunder for the term of this Agreement shall be $100,000
(gross), exclusive of bonuses, benefits and other compensation. The annual base
salary payable to the Employee pursuant to the provisions of this Article III
shall be payable in equal semi-monthly installments, in arrears, in accordance
with existing practice, or in such other manner as may be mutually agreed upon,
less, in any case, any deductions or withholdings required by law.
3.2 Salary Review - The Employee's salary and benefits shall be as stated in
Article III but shall be reviewed on March 31, 1998 and annually thereafter
during the term of this Agreement and any renewal of this Agreement.
3.3 Vacation - The Employee shall be entitled to vacation with pay of four (4)
weeks during each calendar year of this Agreement. The Employee's paid vacation
is to be taken at a time approved in advance by the President of IMI or the
Board, which approval shall not be unreasonably withheld but shall take into
account the stalling requirements of IMI and the need for the timely performance
of the Employee's responsibilities. Vacation not taken in one year may not be
carried over into subsequent years and shall expire at the end of the applicable
year.
3.4 Benefits - The Employee shall participate in all benefit plans which IMI
provides to its Employees, including extended health, medical and dental. In the
event that such benefit plans include additional benefits and/or coverage for
executives, then the Employee shall be entitled to such additional benefits.
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3.5 Additional Compensation - The Employee shall also receive bonuses and
options to purchase shares of IMI as may be granted by the Board, in their
discretion, from time to time.
3.6 Expenses - IMI shall reimburse the Employee forthwith for all proper and
reasonable out-of-pocket expenses actually incurred by the Employee in the
performance of his duties upon presentation of supporting statements, receipts
or vouchers. Subject to the provisions of IMI's governing corporate legislation,
IMI agrees to indemnify and save the Employee harmless from and against any and
all demands, claims, costs, charges and expenses, including an amount paid to
settle an action or satisfy a judgment, reasonably incurred by him in respect of
any civil, criminal or administrative action or proceeding to which the Employee
is made a party by reason of having been a director or officer of IMI or of any
affiliated company, whether before or after termination if:
(a) the Employee acted honestly and in good faith with a view to the best
interests of IMI; and
(b) in the case of a criminal or administrative action or proceeding that
is enforced by a monetary penalty, the Employee had reasonable grounds
for believing that his conduct was lawful.
ARTICLE IV - TERMINATION
4.1 Notwithstanding anything contained in this Agreement, IMI and the Employee
agree that this Agreement and the employment of the Employee may be terminated
as follows:
(a) immediately by IMI at its option, at any time, and without notice or
pay in lieu of such notice, for cause. For the purposes of this
Agreement, "cause" shall include the following:
(i) a material breach by the Employee of the provisions of Article V
at any time;
(ii) conviction of the Employee of a criminal offence punishable by
indictment, or summary conviction where such cause is not
prohibited by the law and where such conviction brings into
question the Employee's ability to perform his duties under this
Agreement honestly and effectively or where such conviction
could adversely affect the reputation and goodwill of IMI; and
(iii) in the event of death or any "disability", as such term is
defined in any disability insurance policy of IMI or if no such
policy is in place, disability shall mean mental or physical
disability or serious illness of the Employee which results in
the Employee being unable to substantially perform his duties
for a continuous period of 180 days or for periods aggregating
225 days in any period of 365 days;
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(b) at any time by IMI, without cause by paying, in lieu of notice, an
amount equal to one year of the Employee's current annual salary,
payable in a lump sum;
(c) at any time by the Employee upon 180 days written notice to IMI; or
(d) upon 180 days written notice by one party to the other party prior to
the expiry of the term of this Agreement as contemplated in Section
2.1 hereof.
4.2 Effect of Termination
(a) Upon termination of this Agreement, the employment of the Employee
shall be automatically terminated and the Employee shall have no
claims against IMI for failure to give reasonable notice of
termination or otherwise except in respect of payment of salary or
accrued vacation pay to the date of termination and payments
specifically provided for herein.
(b) Upon termination of employment, the Employee shall immediately resign
all offices (including directorships) held in IMI and the Employee
shall not be entitled to receive any additional severance pay or
compensation for loss of office or otherwise by reason of resignation
(other than as otherwise provided for herein). If the Employee fails
to resign as mentioned, IMI is irrevocably authorized to appoint some
person in the Employee's name and on his behalf to sign any documents
or do any thing necessary or requisite to give effect to it.
(c) If the Employee is terminated without cause, all options to acquire
shares of IMI held by the Employee shall immediately and automatically
become fully vested and shall be exercisable by the Employee within
the time period which is 60 days from the date of such termination
and, after such 60 day period, all unexercised options held by the
Employee shall expire and shall be cancelled by IMI.
(d) If the Employee is terminated with cause, all options, whether vested
or otherwise, shall immediately expire and shall be cancelled at the
date of such termination.
(e) The provisions of subsections (c) and (d) above shall apply to all
options to acquire shares of IMI granted previously or hereafter to
the Employee unless the terms of such options specifically state that
such subsections do not apply.
4.3 Company's Property
The Employee acknowledges that all items of any and every nature or kind created
or used by the Employee pursuant to the Employee's employment under this
Agreement, or furnished by IMI to the Employee, and all equipment, credit cards,
books, records, reports, files, manuals, literature, confidential information or
other materials shall remain and be considered the exclusive property of IMI at
all times and shall be surrendered to IMI, in good condition, promptly on the
termination of the Employee's employment irrespective of the time, manner or
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cause of termination. All personal effects used by the Employee in carrying out
his duties will remain the property of the Employee and shall be removed by him
on termination of his employment.
ARTICLE V - CONFIDENTIAL INFORMATION AND NON-COMPETITION
5.1 Confidential Information
(a) The Employee acknowledges that throughout the course of his employment
with IMI the Employee may have access to and be entrusted with
confidential information, trade secrets and know-how concerning the
business and property of IMI and with information, trade secrets and
know-how which other persons shall require IMI and its employees,
agents and consultants to treat as confidential (all of which
information, trade secrets and know-how of IMI and others shall be
collectively defined as "Confidential Information").
(b) The Employee agrees that disclosure of any of the Confidential
Information or any use of the Confidential Information other than on
behalf of or for the direct benefit of IMI is and will be highly
detrimental to IMI and that the right to maintain the confidentiality
of the Confidential Information constitutes a proprietary right which
IMI is entitled to protect or is an obligation which IMI must observe.
Accordingly, the Employee hereby agrees that:
(i) he shall keep confidential all of the Confidential Information
for the exclusive benefit and use of IMI and will faithfully do
all in his power to assist IMI in keeping the Confidential
Information confidential until IMI shall make the same public
either by obtaining patent rights, copyrights or otherwise;
(ii) he shall not, directly or indirectly, disclose or divulge any of
the Confidential Information to any person, firm, corporation or
other entity of any kind whatsoever;
(iii) he shall not, directly or indirectly, either individually or in
partnership with, or jointly with one or more persons, firms,
corporations or any other entity of any kind whatsoever as
principal, agent, employee, shareholder or in any other capacity
or manner whatsoever, use any of the Confidential Information
other than on behalf of or for the direct benefit of IMI;
(iv) he shall not divulge, disclose or communicate to any person,
firm or corporation the name of any customer of IMI and/or the
Business (as hereinafter defined); and
(v) he shall not use for his own purpose any Confidential
Information relating to IMI and/or the Business.
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(c) The Employee acknowledges that the restrictions contained herein for
the benefit of IMI are reasonable and not excessive in the
circumstances of the Employee's knowledge and the scope of his
employment.
5.2 Non-Competition -The Employee agrees that the Employee will not, without the
prior written consent of IMI, while employed by IMI and for a period of one (1)
year after the date of termination for cause:
(a) directly or indirectly, in any manner whatsoever, including, without
limitation, either individually or in partnership or jointly, or in
conjunction with any other person or persons, firm, association,
syndicate, company or corporation, as principal, agent, shareholder or
in any other manner whatsoever, carry on or be engaged in any business
similar to or competitive with the business of IMI (the "Business") in
any country where IMI operates, or be concerned with or interested in
or lend money to, guarantee the debts or obligations of or permit his
name or any part thereof to be used or employed by any person,
persons, firm, association, syndicate, company or corporation engaged
in, concerned with or interested in any competitive business except
that the Employee may own no more than 5% of the total issued and
outstanding capital stock of a publicly-held or private corporation
engaged in, concerned with or interested in any competitive business;
(b) directly or indirectly solicit, interfere with or endeavor to direct
or entice away from IMI any customer or any person, firm or
corporation in the habit of dealing with IMI and/or the Business; or
(c) interfere with, entice away or otherwise attempt to obtain the
withdrawal of any employee or independent contractor of IMI or,
following termination of the Employee's employment, any employee who
was in the employ of IMI during the one (1) year period, as the case
may be, preceding termination for cause.
5.3 The Employee hereby acknowledges and agrees that all covenants, provisions
and restrictions contained in this Article V hereof are reasonable and valid and
all defenses to the strict enforcement thereof by IMI are waived by the
Employee.
5.4 The Employee further acknowledges and agrees that in the event of a
violation of the covenants, provisions and restrictions contained in this
Article V, IMI shall be authorized and entitled to obtain from any court of
competent jurisdiction preliminary and permanent injunctive relief and an
accounting of all profits and benefits arising out of such violation, which
rights and remedies shall be cumulative and in addition to any other rights or
remedies to which IMI may be entitled.
5.5 It is understood by the Parties hereto that the covenants in this Article V
by the Employee not to enter into competition with IMI are essential elements to
this Agreement and that, but for the agreement of the Employee to enter into
such covenants, IMI would not have retained the Employee.
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ARTICLE VI - CLAUSES SURVIVING TERMINATION
6.1 Any confidentiality and non-solicitation clauses in Article VI of this
Agreement shall survive the termination of this Agreement, as shall Sections 3.6
and 4.2 hereof.
ARTICLE VII - PLAIN ENGLISH
7.1 This Agreement is intended to be written in plain English. When words or
expressions of a general nature are employed herein, it is intended that they be
comprehensive, unless the context clearly dictates otherwise.
ARTICLE VIII - GENERAL
8.1 General - Any notice, document or other communication required or permitted
to be given in respect of this Agreement shall be sufficiently given if
delivered to the party personally, or if sent by prepaid ordinary mail posted in
Canada, by courier, or faxed, to such party addressed as follows:
IMI:
IMI Diagnatech Inc.
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxx X0X 0X0
Telecopier No: (000) 000-0000
Attention: Chairman
Employee:
Xxxxxxx Xxxxxxx
0 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxx X0X 0X0
Any party may at any time change its address hereunder by giving notice of such
change of address to the other party or parties in the manner specified in this
paragraph. Any such notice or other written communication shall, if mailed or
sent by courier, be effective on the day it is delivered or an attempt is made
to deliver it to the address of the addressee and, if given by personal
delivery, shall be effective on the day of actual delivery.
8.2 Severability - If any covenant, provision or restriction contained in this
Agreement is found to be void or unenforceable in whole or in part, it shall not
affect or impair the validity of any other covenant, provision or restriction
and without limitation, each of the covenants,
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provisions and restrictions contained herein are hereby declared to be separate
and distinct covenants, provisions and restrictions.
8.3 Waiver of Performance - The Employee and IMI may, in writing, extend the
time for performance or waive non-compliance or non-performance by the other of
the other's obligations, covenants and agreements under this Agreement. No act
or failure to act of the Employee or IMI shall be deemed to be an extension or
waiver of timely or strict performance by the other of his/its obligations,
covenants and agreements under this Agreement.
8.4 Governing Law - This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the law of Canada
applicable therein and each of the parties hereby irrevocably attorn to the
jurisdiction of the courts of the Province of Ontario.
8.5 Entire Agreement - This Agreement set forth the entire agreement among the
parties hereto pertaining to the employment of the Employee and supersedes all
prior agreements, understanding, negotiations and discussions, whether oral or
written, of the parties hereto, and there are no warranties, representations or
other agreements between the parties hereto in connection with the subject
matter hereof except as specifically set forth therein. No supplement,
modification, waiver or termination of this Agreement shall be binding unless
executed in writing by the parties to be bound thereby.
8.6 Assignment - This Agreement is personal to the Employee and may not be
assigned by him without the prior written consent of IMI, which consent may be
unreasonably withheld. This Agreement may not be assigned by IMI without the
prior written consent of the Employee, which consent may be unreasonably
withheld. Subject to the foregoing, this Agreement shall ensure to the benefit
of and be binding upon the Parties and their respective successors, heirs,
executors, administrators, personal representatives and permitted assigns.
8.7 Headings - The headings used in this Agreement are for convenience only and
are not to be construed in any way as additions to or limitations of the
covenants and agreements contained herein.
8.8 Currency - All dollar amounts referred to in this Agreement shall be in
Canadian funds.
8.9 Time of Essence - Time is and shall always remain the essence of this
Agreement.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement on the
day and year first above written.
IMI DIAGNATECH INC.
Per /s/ Xxxxx Xxxxxx c/s
---------------------------------
SIGNED, SEALED AND DELIVERED )
In the presence of: )
)
)
/s/ Xxx Xxxxxxx )
--------------------------- )
Witness ) /s/ Xxxxxxx Xxxxxxx
---------------------------------
XXXXXXX XXXXXXX
---------------------------------
By signing, the Employee
acknowledges he understands the
contents of this Agreement, and in
particular Article IV relating to
termination and that he has been
given, the opportunity to obtain
independent, legal advice, and has
either done so or chosen not to
obtain such advice.
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