EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT MADE as of the 19th day of December, 2002.
BETWEEN:
STANTEC CONSULTING LTD.
a corporation incorporated under the laws of Canada
("STANTEC")
- and -
W. XXXXX XXXXXX
of the City of Calgary, in the Province of Alberta
(the "Executive")
WHEREAS the Executive is a full-time employee of STANTEC; and
WHEREAS STANTEC wishes to continue to employ the Executive, and the
Executive agrees to accept such employment upon the terms and conditions herein
set forth;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
mutual covenants herein contained and for other good and valuable consideration,
the receipt and sufficiency of which is acknowledged by the Executive, STANTEC
and the Executive agree as follows:
1. EMPLOYMENT
1.1 EMPLOYMENT SERVICES
STANTEC hereby employs the Executive to provide his full-time services to
STANTEC and the Executive accepts such employment by STANTEC on the terms
and conditions as herein provided.
1.2 GENERAL DUTIES AND OBLIGATIONS OF THE EXECUTIVE
The Executive:
a) shall provide his full-time services to STANTEC, and undertake such
assignments as STANTEC may designate in accordance with STANTEC's
policies and procedures in effect from time to time;
b) during such time as the Executive's full-time services are made
available to STANTEC as aforesaid:
(i) the Executive agrees that he will devote his time, energy and
ability to the furtherance of the business success of STANTEC;
and
(ii) the Executive will not, without the prior approval of STANTEC,
carry on or perform any professional or technical services for
his own private advantage;
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c) shall use his best efforts to promote the success of the business
now or hereafter conducted by STANTEC;
d) shall complete and submit weekly timesheets by noon on Mondays.
1.3 TERM OF EMPLOYMENT
The employment of the Executive by STANTEC on the terms and conditions set
out in this Agreement shall commence on the date hereof and shall continue
until terminated in accordance with the terms of this Agreement.
1.4 CHANGE OF EMPLOYER
The Executive covenants and agrees that in the event the Executive is
employed at some later date by any of STANTEC's subsidiary or affiliated
companies (the "New Employer"), this Agreement shall remain in full force
and effect, and shall be deemed to apply to the New Employer in the same
manner and to the same extent as if the New Employer had signed this
Agreement.
2. REMUNERATION OF THE EXECUTIVE
2.1 REMUNERATION
In consideration of the Executive providing the services described herein,
STANTEC shall cause to be paid to the Executive such remuneration
determined and payable in accordance with Schedule "A" attached hereto.
2.2 TRAVEL AND OTHER EXPENSES
Entitlements to travel and other expenses, if any, are detailed in
Schedule "A" attached hereto.
2.3 VACATION
The Executive shall accrue vacation entitlements at the rate of 5.8 hours
bi-weekly (four (4) weeks per year) and shall be entitled to take such
accrued vacation in accordance with STANTEC policies in effect from time
to time.
2.4 BENEFITS
The Executive shall be entitled to receive benefits offered by STANTEC to
its employees as modified from time to time.
3. TERMINATION
3.1 TERMINATION BY STANTEC WITH CAUSE
STANTEC may terminate the employment of the Executive for cause at any
time without notice and without payment of any remuneration to him
whatsoever save and except for Base Salary actually earned to the date of
such termination, calculated in accordance with the provisions of Schedule
"A" hereto.
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3.2 TERMINATION BY EITHER THE EXECUTIVE OR STANTEC WITHOUT CAUSE
Subject to the provisions of this Agreement:
a) the Executive may terminate his services under this Agreement by
giving no less than three (3) months notice in writing to STANTEC
(the "Notice Period"), in which case the Executive shall be paid
only the Base Salary actually earned by the Executive to the date of
termination, provided that the Executive's full-time services
continue to be provided to STANTEC during the Notice Period on the
same terms and conditions as preceded the notice of termination,
provided further that the Executive shall not be entitled to any
bonus which has not been paid prior to the commencement of the
Notice Period; and
b) at any time prior to the Executive's sixty-fifth birthday, STANTEC
may terminate this Agreement and the services of the Executive
hereunder without notice upon payment to the Executive of the Base
Salary actually earned by the Executive to the date of termination
together with a Termination Bonus and a One Year Compensation
Payment calculated in accordance with Schedule "A" attached hereto.
3.3 TERMINATION ON DEATH OF THE EXECUTIVE
The employment of the Executive shall be automatically terminated on the
death of the Executive whereupon STANTEC shall cause to be paid to the
executor of his estate the Base Salary actually earned by the Executive to
the date of death and a Termination Bonus calculated in accordance with
Schedule "A" attached hereto.
3.4 TERMINATION ON PERMANENT INCAPACITY OF THE EXECUTIVE
The employment of the Executive shall be terminated if the Executive is
unable by reason of illness, disease, mental or physical disability or
incapacity, or otherwise, to perform his services hereunder for a period
of 180 days (whether or not consecutive) during any 12 month period,
whereupon STANTEC shall cause to be paid the Base Salary actually earned
by the Executive to the date of termination and a Termination Bonus
calculated in accordance with Schedule "A" attached hereto. Nothing
herein, however, shall disentitle the Executive from any rights or
entitlements to which the Executive may be entitled pursuant to the
company benefits programs in the event that such permanent incapacity
occurs.
3.5 TERMINATION BY EXECUTIVE BY REASON OF CHANGE OF CONTROL OF STANTEC INC.
a) In this Agreement, a change of control is deemed to have taken place
if any one of the following occur after the date hereof:
(i) a third person, including a person, firm, syndicate, group or
corporation, becomes the beneficial owner, directly or
indirectly, of shares of Stantec Inc. carrying more than 50%
of the total number of votes that may be cast for the election
of directors of Stantec Inc.; or
(ii) a third person, including a person, firm, syndicate, group or
corporation, becomes the beneficial owner, directly or
indirectly, of shares of Stantec Inc. carrying more than 30%
of the total number of votes that may be cast for the election
of directors of Stantec Inc. and when nominees of the said 30%
holder are elected as a majority of the Stantec Inc. Board of
Directors.
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b) If during the term of this Agreement, there occurs a change of
control of Stantec Inc., the Executive shall, in his sole discretion
and at any time within the six (6) month period immediately
following the date of such change of control, be entitled to
terminate this Agreement. Upon the termination of this Agreement
pursuant to this paragraph, STANTEC shall cause to be paid to the
Executive in full and final satisfaction of all of its obligations
to the Executive the Base Salary actually earned by the Executive to
the date of termination together with a Termination Bonus and a One
Year Compensation Payment calculated in accordance with Schedule "A"
attached hereto..
3.6 TERMINATION AT AGE SIXTY FIVE
This Agreement shall terminate on the Executive's sixty-fifth birthday
without further notice or compensation other than the Base Salary actually
earned by the Executive to the date of termination.
4. THE EXECUTIVE'S OBLIGATIONS
4.1 CONFIDENTIALITY
The Executive shall treat all information obtained during the Executive's
employment with STANTEC as confidential (the "Confidential Information").
The Executive shall not use the Confidential Information in any manner
detrimental to the interests of STANTEC nor shall the Executive disclose
the Confidential Information to any party except in the interests of
STANTEC.
4.2 NON-COMPETITION
The Executive acknowledges and agrees that in the performance of his
duties he will necessarily acquire detailed knowledge of the business and
affairs of STANTEC and that STANTEC will suffer harm in the event that
such confidential information is disclosed to its competitors or in the
event that the Executive uses such confidential information for any
purpose other than the performance of his duties as an employee of
STANTEC. Therefore, the Executive covenants and agrees that for a period
of two (2) years following termination of the Executive's employment with
STANTEC under this Agreement, he will not directly or indirectly as an
owner, employee, servant, consultant, contractor, agent or otherwise,
engage in business or otherwise provide services in competition with
STANTEC in the Provinces of Manitoba, Saskatchewan, Alberta and British
Columbia.
The foregoing restrictions also apply to other geographic areas, including
international areas, for work in the following categories:
a) work being done or started by STANTEC or any of its affiliated or
subsidiary companies;
b) work for which a previous report or proposal has been prepared or
submitted by STANTEC or any of its affiliated or subsidiary
companies within two (2) years prior to the termination of this
Agreement; and
c) work for which promotional efforts by STANTEC or any of its
affiliated or subsidiary companies, or any one in their employ, had
occurred during the period of two (2) years prior to the termination
of this Agreement.
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The Executive has read and understood the provisions of this Section 4.2,
agrees with the restrictions set forth herein and agrees that the time
period and geographic location restrictions are fair, reasonable and
legitimately necessary for the protection of STANTEC's interests. In the
event a Court of competent jurisdiction declares the time period or
geographic location restrictions to be unreasonable, the Executive and
STANTEC covenant and agree that the time period restriction shall be
reduced to one (1) year and the geographic location restriction be limited
to the Province of Alberta. In the further event that a court of competent
jurisdiction declares the reduced time period or geographic location
restrictions to be unreasonable, the Executive and STANTEC covenant and
agree that the time period restriction shall be further reduced to six (6)
months and the geographic location restriction be further limited to the
City of Calgary.
4.3 CHANGE OF GEOGRAPHIC AREA
The Executive covenants and agrees that in the event the Executive is at
some later date responsible for a different geographic area, Section 4.2
remains in full force and effect and shall be deemed to apply to the new
area in the same manner and to the same extent as if the new geographic
area had been identified as the geographic area in Section 4.2 hereof.
4.4 NON-SOLICITATION OF EMPLOYEES AND CLIENTS
The Executive acknowledges and agrees that during the continuance of his
employment and for a period of two (2) years thereafter, he will not, for
his own private advantage, or for the advantage of any third party:
a) hire any employee of STANTEC or its affiliates or subsidiaries, or
induce or attempt to induce any employee of STANTEC or its
affiliates or subsidiaries to leave their employment with STANTEC;
nor
b) contact, solicit, sell, serve, divert or receive any business to or
from any of the clients of STANTEC or its affiliates or
subsidiaries.
4.5 EXCEPTION FOR TERMINATION WITHOUT CAUSE
In the event of the termination of this Agreement by STANTEC without
cause, the provisions of Sections 4.2 and 4.4 shall be limited to one (1)
year (or such lesser period if applicable, as set out in Section 4.2
above).
4.6 STANTEC INFORMATION
All notes, records, working papers, files, research material, literature,
drawings, computer software and other proprietary information ("STANTEC's
Information") accumulated or developed by the Executive in connection with
his assignments at STANTEC and any technological concepts or devices
resulting therefrom, whether patentable or otherwise, are considered the
property of STANTEC and the Executive may not copy, secure, transmit,
keep, store, gain from, sell or use STANTEC's Information or property for
any purposes other than in undertaking assignments at STANTEC. To the
extent necessary, the Executive covenants and agrees to execute and
deliver to STANTEC, or such of its subsidiaries or affiliates as STANTEC
directs, such documents or instruments as may be necessary to assign any
of the rights or interests described in this section that are developed by
the Executive.
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4.7 STANTEC POLICIES
The Executive agrees to comply with all policies and practices established
by STANTEC and communicated to the Executive from time to time. In the
event of a conflict between such policies and practices and this
Agreement, the terms of this Agreement shall prevail.
5. INTERPRETATION
5.1 CURRENCY
Unless otherwise indicated, all dollar amounts referred to in this
Agreement are expressed in Canadian funds.
5.2 SECTIONS AND HEADINGS
The division of this Agreement into Articles and Sections and the
insertion of headings are for convenience of reference only and shall not
affect the interpretation of this Agreement. Unless otherwise indicated,
any reference in this Agreement to an Article, Section or a Schedule
refers to the specified Article, Section or Schedule to this Agreement.
5.3 NUMBER, GENDER AND PERSONS
In this Agreement, words importing the singular number only shall include
the plural and vice versa, words importing gender shall include all
genders and words importing persons shall include individuals,
corporations, partnerships, associations, trusts, incorporated
organizations, governmental bodies and other legal or business entities.
5.4 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether written or oral.
There are no conditions, covenants, agreements, representations,
warranties or other provisions, express or implied, collateral, statutory
or otherwise, relating to the subject matter hereof except as herein
provided.
5.5 TIME OF ESSENCE
Time shall be of the essence of this Agreement.
5.6 SEVERABILITY
If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, such
determination shall not impair or affect the validity, legality or
enforceability of the remaining provisions hereof, and each provision is
hereby declared to be separate, severable and distinct.
5.7 APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with the
laws of the Province of Alberta and the federal laws of Canada applicable
therein, and each party hereby irrevocably and unconditionally submits to
the exclusive jurisdiction of the courts of Alberta and all courts
competent to hear appeals therefrom.
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5.8 SUCCESSORS AND ASSIGNS
This Agreement shall enure to the benefit of and be shall binding on and
enforceable by the parties and, where the context so permits, their
respective heirs, legal representatives, successors and permitted assigns.
The Executive may not assign any of his rights or obligations hereunder
without the prior written consent of STANTEC.
5.9 AMENDMENT AND WAIVERS
No amendment or waiver of any provision of this Agreement shall be binding
on any party unless consented to in writing by such party. No waiver of
any provision of this Agreement shall constitute a waiver of any other
provision, nor shall any waiver constitute a continuing waiver unless
otherwise expressly provided.
5.10 NOTICE
a) Any notice or other written communication required or permitted
hereunder shall be in writing and:
(i) delivered personally to the party or, if the party is a
corporation, to an officer of the party to whom it is
directed;
(ii) sent by registered mail, postage prepaid, return receipt
requested (provided that such notice or other written
communication shall not be forwarded by mail if on the date of
mailing the party sending such communication knows or ought
reasonably to know of any difficulties with the postal system
which might affect the delivery of mail, including the
existence of an actual or imminent postal service disruption
in the city from which such communication is to be mailed or
in which the address of the recipient is found); or
(iii) sent by facsimile, confirmation of delivery requested.
b) All such notices shall be addressed to the party to whom it is
directed at the following address:
If to the Executive: 000 Xxxxxxxx Xxxxxx
Xxxxxxx XX X0X 0X0
If to STANTEC: Attention: President
#000 00000 000 Xxxxxx
Xxxxxxxx XX X0X 0X0
Fax No. (000) 000-0000
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c) 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 section. Any such notice or other
written communication shall, if mailed or given by facsimile, be
effective on the day it is first attempted to be delivered to such
party at such address (whether or not such delivery takes place),
and if given by personal delivery, shall be effective on the day of
actual delivery.
5.11 FURTHER ASSURANCE
Each of the parties shall execute and deliver all such further documents
and do such further acts and things as may be reasonably required from
time to time to give effect to this agreement.
5.12 EXECUTION
This Agreement may be executed in several counterparts, each of which,
when so executed, shall be deemed to be an original, and such counterparts
together shall constitute one and the same instrument.
5.13 LEGAL ADVICE
The Executive hereby represents and warrants to STANTEC and acknowledges
and agrees that he had the opportunity to seek and was not prevented nor
discouraged by STANTEC from seeking independent legal advice prior to the
execution and delivery of this Agreement and that, in the event that he
did not avail himself of that opportunity prior to signing this Agreement,
he did so voluntarily without any undue pressure and agrees that his
failure to obtain independent legal advice shall not be used by him as a
defence to the enforcement of his obligations under this Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date
first above written.
STANTEC CONSULTING LTD.
Per: /s/ X.X. Xxxxxxxxxxxx
_________________________________
X.X. Xxxxxxxxxxxx, President
Per: /s/ Xxxxxxx X. Xxxxx
_________________________________
Xxxxxxx X. Xxxxx, Vice President
SIGNED, SEALED AND DELIVERED )
in the presence of: )
)
/s/ Xxxxx XxXxxx /s/ W. Xxxxx Xxxxxx
__________________________________________) _________________________________
Witness ) W. Xxxxx Xxxxxx
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SCHEDULE "A"
EMPLOYMENT AGREEMENT
Between:
Stantec Consulting Ltd.
- and -
W. Xxxxx Xxxxxx
REMUNERATION
Retroactive to January 1, 2002, STANTEC shall cause to be paid to the Executive
as his remuneration a base salary (the "Base Salary") of $8,653.50 bi-weekly.
TRAVEL AND OTHER EXPENSES
STANTEC agrees to reimburse the Executive for travel and entertainment expenses
actually and properly incurred by the Executive in the course of performing his
services hereunder, such payment to be made in accordance with STANTEC's
policies.
OVERTIME EXEMPTION
The Executive will be exempt from overtime entitlements as the scope of the
Executive's duties and responsibilities will be supervisory or managerial in
nature and/or by virtue of the Executive's profession.
BONUS
STANTEC may, in its sole discretion, pay the Executive a bonus from time to
time. In determining whether or not to pay a bonus in respect of any year,
STANTEC will consider, among other things, exceptional individual and corporate
performance. Receipt of a bonus in any year shall not create an entitlement to a
bonus in subsequent years.
TERMINATION BONUS
Where the Executive is entitled to a Termination Bonus as a result of the
operation of Sections 3.2(b), 3.3, 3.4, or 3.5, the Termination Bonus shall be
calculated as:
1. If no bonuses have been paid to Canadian employees pursuant to Stantec's
annual bonus plan for the fiscal year prior to the year in which
termination occurs:
(a) a bonus equal to the bonus, if any, paid to the Executive in respect
of the fiscal year two years prior to the year in which termination
occurs; plus
(b) the amount determined in paragraph (a) above pro rated for that
portion of the year which has elapsed from the last fiscal year end
to the date of termination.
2. If bonuses have been paid to Canadian employees pursuant to Stantec's
annual bonus plan for the fiscal year prior to the year in which
termination occurs, a bonus equal to the bonus, if
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any, paid to the Executive in respect of the fiscal year prior to the year
in which termination occurs pro rated for that portion of the year which
has elapsed from the last fiscal year end to the date of termination.
ONE YEAR COMPENSATION PAYMENT
Where the Executive is entitled to a One Year Compensation Payment as a result
of the operation of Sections 3.2(b) or 3.5, the One Year Compensation Payment
shall be calculated as the sum of:
1. Twenty-six times the Executive's bi-weekly Base Salary at the time of
termination; plus
2. an additional amount calculated as:
(a) an amount equal to the bonus, if any, paid to the Executive in
respect of the fiscal year prior to the year in which termination
occurs or, if no bonuses have been paid to Stantec's Canadian
employees generally in respect of that year;
(b) an amount equal to the bonus, if any, paid to the Executive in
respect of the fiscal year two years prior to the year in which
termination occurs.
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