EXHIBIT 10.15
THIS AGREEMENT MADE EFFECTIVE THE 20TH DAY OF AUGUST, 2004.
Between:
Xxxxxxx International, Inc., a Delaware corporation ("Xxxxxxx")
and
Xxxxxxx X. Xxxxxxx (the "Executive")
WHEREAS, Xxxxxxx desires to employ the Executive and the Executive desires to be
employed by Xxxxxxx;
NOW THEREFORE, the parties have agreed that the terms and conditions of the
relationship shall be as follows:
ARTICLE 1 -- DEFINITIONS
Whenever used in this Agreement, the following terms shall have the meanings set
forth below, and when the meaning is intended, the initial letter of the word is
capitalized:
(a) "Agreement" means this employment agreement, as amended from time to
time.
(b) "Base Salary" means the salary of record paid to the Executive as
annual salary, and as further indicated in paragraph (a) of Article 4
(Compensation).
(c) "Board" means the Board of Directors of Xxxxxxx.
(d) "Cause" means the Executive's:
(i) Willful and continued failure to perform substantially the
Executive's duties with Xxxxxxx after Xxxxxxx delivers to the
Executive written demand for substantial performance,
specifically identifying the manner in which the Executive has
not substantially performed his duties;
(ii) Conviction of an indictable offense; or
(iii) Willfully engaging in illegal conduct or gross misconduct
which is materially and demonstrably injurious to Xxxxxxx.
For purposes of this paragraph and Article 13, no act or omission by
the Executive shall be considered "willful" unless it is done or
omitted in bad faith or without reasonable belief that the Executive's
action or omission was in the best interests of Xxxxxxx.
(e) "Committee" means the Compensation Committee of the Board.
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(f) "Effective Date" means August 20, 2004.
(g) "Executive" shall mean Xxxxxxx X. Xxxxxxx.
(h) "Xxxxxxx" shall mean Xxxxxxx International Inc., a Delaware
corporation, including any and all subsidiaries or any successor
thereto.
ARTICLE 2 -- TERM OF THE AGREEMENT
The term of this Agreement shall commence on the Effective Date and shall
continue until terminated in accordance with the provisions of this Agreement.
ARTICLE 3 -- TITLE; COMMENCEMENT OF EMPLOYMENT; REPORTING
The Executive shall serve as the Vice President, Corporate Development and
Controller of Xxxxxxx. The Executive shall report to the Chief Financial
Officer.
ARTICLE 4 -- COMPENSATION
(a) Unless otherwise provided, all dollar amounts set forth in this
Agreement shall be in United States Dollars. The Base Salary of the
Executive for his services is established by the Committee and, at the
date of this Agreement, is at the annualized rate of $280,000. The Base
Salary shall be payable twice monthly on the 15th business day and the
last business day of each month. The Base Salary shall be reviewed
annually during Xxxxxxx'x normal review period. The review will be
undertaken by assessing the Executive's achievement of the overall
objectives established by the Committee in consultation with the
Executive and with regard to the market rates of remuneration paid for
similar duties and responsibilities.
(b) The Executive will be eligible to participate in Xxxxxxx'x Short Term
Incentive Plan. For the fiscal year commencing September 1, 2004, the
Executive's target bonus shall be 50% of Base Salary and the maximum
bonus shall be 100% of Base Salary. The Executive's right to receive
any bonus under Xxxxxxx'x Short Term Incentive Plan shall be determined
based only upon quantitative measurements established by the Committee
after consultation with the Executive and as set forth in accordance
with Xxxxxxx'x Short Term Incentive Plan.
(c) The Executive shall participate in The Supplemental Executive
Retirement Plan sponsored by Xxxxxxx for the benefit of its employees.
(d) Subject to approval by the Committee, the Executive will be eligible to
receive grants of stock options from time to time. Such stock options
will be on terms and conditions established by the Committee after
consultation with the Executive.
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ARTICLE 5 -- BENEFITS
(a) AUTOMOBILE
Xxxxxxx will provide the Executive with a monthly allowance of Seven
Hundred Fifty Dollars ($750.00) for expenses incurred by the Executive
for an automobile and its related operating expenses.
(b) EXPENSES
It is understood and agreed that the Executive will incur expenses in
connection with his duties under this Agreement, including, but not
limited to, travel expenses, home facsimile expenses, personal computer
expenses and telephone expenses. Xxxxxxx shall reimburse the Executive
for any such expenses provided that the Executive provides to Xxxxxxx
an itemized written account and receipts acceptable to Xxxxxxx.
(c) VACATION
The Executive shall be entitled to four (4) weeks vacation during each
calendar year. The vacation shall be taken at the discretion of the
Executive with the understanding that the Executive will take into
account business needs and operations in scheduling vacation. All
vacation earned must be taken by the end of the calendar year following
accrual or it is forfeited.
(d) WELFARE BENEFITS
The Executive shall be entitled to those welfare benefit coverages as
are offered by Xxxxxxx to its employees generally (such as medical
insurance, dental insurance, short and long-term disability insurance
and group term life insurance), all in accordance with the employee
benefit plans and policies maintained by Xxxxxxx for the benefit of
employees of Xxxxxxx, and as amended from time to time.
(e) EXECUTIVE BENEFIT STIPEND
Xxxxxxx shall pay the Executive an annual sum equal to Twenty Thousand
Dollars ($20,000.00), in two equal installments (on January 1 and July
1 of each year), grossed up to enable Executive to pay applicable
income taxes. Such Stipend is intended to cover items such as
automobile expenses, club memberships and professional advice.
ARTICLE 6 -- TERMINATION OF EMPLOYMENT
(a) The parties understand and agree that this Agreement and the
Executive's employment hereunder may be terminated in the following
manner in the specified circumstances:
(i) By the Executive, at any time, for any reason, on the giving
of 90 days' written notice to Xxxxxxx. Xxxxxxx may waive
notice, in whole or in part, upon immediate payment to the
Executive of the Executive's Base Salary for such portion of
the 90-day notice period as is waived by Xxxxxxx.
(ii) By Xxxxxxx, in its absolute discretion, without any notice or
pay in lieu thereof, for Cause.
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(iii) By Xxxxxxx, in its absolute discretion and for any reason,
without Cause. Upon such termination, Xxxxxxx shall (A)
continue to pay the Executive his Base Salary in effect at the
time of such termination for a period of 12 months following
such termination, (B) provided such termination is following
the second anniversary of his employment with Xxxxxxx (or any
predecessor or affiliated company thereto) pay the Executive a
monthly amount equal to one-twelfth of the Executive's target
bonus in effect at the time of Executive's termination of
employment for a period of 12 months following such
termination, and (C) shall continue to provide the Executive
medical insurance, dental insurance and term life insurance
for a period of 12 months after termination, or, if such
benefits cannot be provided by Xxxxxxx, Xxxxxxx shall pay to
the Executive an equivalent lump sum cash amount in lieu of
such benefits.
In order to receive the entitlement under this paragraph, the Executive
must undertake to sign a release in a form satisfactory to Xxxxxxx,
fully releasing Xxxxxxx from further claims upon payment of the amounts
stipulated herein. However, the form of release shall not require that
the Executive give up any rights of indemnity which the Executive may
have had as against Xxxxxxx for acts carried out by the Executive in
the ordinary course of Xxxxxxx'x business.
(b) The Executive agrees that during employment pursuant to this Agreement
and for twelve (12) months following termination without Cause of his
employment by Xxxxxxx and payment of the severance payment amount and
benefit continuation as detailed in subparagraph (iii) of paragraph (a)
of Article 6 (Termination of Employment), he will not solicit or accept
business with respect to products competitive with those of Xxxxxxx
from any of Xxxxxxx'x customers, wherever situated, and he shall not
either individually or in partnership, or jointly in conjunction with
any other person, entity or organization, as principal, agent,
consultant, lender, contractor, employer, employee, investor,
shareholder, or in any other manner, directly or indirectly, advise,
manage, carry on, establish, control, engage in, invest in, offer
financial assistance or services to, or permit his name to be used by
any business that competes with the then-existing business of Xxxxxxx,
provided that the Executive shall be entitled, for investment purposes,
to purchase and trade shares of a public company which are listed and
posted for trading on a recognized stock exchange and the business of
which public company may be in competition with the business of
Xxxxxxx, provided that the Executive shall not directly or indirectly
own more than five percent (5%) of the issued share capital of the
public company, or participate in its management or operation, or in
any advisory capacity within the time limits set out herein.
For purposes of the obligations set out herein, the business of Xxxxxxx
shall mean the provision of contract bus services for school bus
transportation throughout Canada and the United States and municipal
and paratransit bus transportation within the United States, inter-city
and tourism bus transportation throughout North America and healthcare
transportation services and emergency management services in the United
States.
(c) The Executive further agrees that for a period of twelve (12) months
following termination of employment, however caused, he will not
solicit for hire or rehire, or take away, or cause to be hired, or
taken away, any employee of Xxxxxxx.
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ARTICLE 7 -- AUTHORITY
(a) The Executive shall support the Chief Financial Officer in carrying out
the general or specific instructions and directions of the Board and
together with the Chief Financial Officer in doing so, may enter into
contracts, engagements or commitments of every nature or kind, in the
name of and on behalf of Xxxxxxx, and may engage, employ and dismiss
all managers and other employees and agents of Xxxxxxx, subject to the
by-laws and charter documents of the Company and the authority given
him by the Company from time to time.
(b) The Executive shall conform to all lawful instructions and directions
given to him by the Chief Financial Officer, the Chief Executive
Officer, and the Board and obey and carry out the by-laws of Xxxxxxx.
ARTICLE 8 -- SERVICE
(a) The Executive, throughout the term of his employment, shall devote his
full time and attention to the business and affairs of Xxxxxxx, and
shall not undertake any other business or occupation or, unless
approved by the Chief Financial Officer, become either (i) an officer,
employee or agent of any other company or firm which is a commercial
venture or (ii) a director of more than two companies or firms which
are commercial ventures.
(b) The Executive shall well and faithfully serve Xxxxxxx and use his best
efforts to promote the interests thereof and shall not disclose any
information he may acquire in relation to Xxxxxxx'x business, the
private affairs or trade secrets of Xxxxxxx, techniques and concepts,
and other confidential information concerning the business, operations
or financing of Xxxxxxx, to any person other than the Board, or for any
purposes other than those of Xxxxxxx, either during the term of his
employment under this Agreement or after such term.
ARTICLE 9 -- CHANGE IN CONTROL
(a) If a change in control (as defined in the Change in Control Agreement)
occurs, the rights and obligations of the Executive and Xxxxxxx shall
be in accordance with the Change in Control Agreement attached as
Appendix A.
(b) In order to receive the entitlement under this paragraph, the Executive
must undertake to sign a release in a form satisfactory to Xxxxxxx,
fully releasing Xxxxxxx from further claims upon payment of the amounts
stipulated in Appendix A. However, the form of release shall not
require that the Executive give up any rights of indemnity which the
Executive may have had as against Xxxxxxx for acts carried out by the
Executive in the ordinary course of Xxxxxxx'x business.
If a change in control occurs and Executive receives all payments under the
Change in Control Agreement, the Executive hereby waives any rights he may have
to any payments or other benefits under this Agreement, including any severance
payments.
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ARTICLE 10 -- ASSIGNMENT OF RIGHTS
The rights which accrue to Xxxxxxx under this Agreement shall pass to their
affiliates, successors or assigns. The rights of the Executive under this
Agreement are not assignable or transferable in any manner but flow to the
Executive's estate and heirs.
ARTICLE 11 -- NOTICES
All notices and other communications required or permitted hereunder, or
necessary or convenient in connection herewith, shall be in writing and shall be
deemed to have been given when hand delivered, delivered by facsimile or mailed
by registered mail as follows (provided that notice of change of address shall
be deemed given only when received):
If to Xxxxxxx, to:
Xxxxxxx International, Inc.
00 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
If to the Executive, at such address as Executive provides to Xxxxxxx from time
to time as part of his personnel records, or to such other names or addresses as
Xxxxxxx or the Executive shall designate by notice to the other in the manner
specified in this paragraph.
ARTICLE 12 -- LIABILITY INSURANCE
Xxxxxxx shall maintain the Executive's liability insurance in accordance with
Xxxxxxx'x corporate policy and applicable law.
ARTICLE 13 -- INDEMNIFICATION
Xxxxxxx agrees that if the Executive is made a party to any action, suit,
proceeding or any other claim whatsoever, by reason of the fact that the
Executive is or was a director, officer, employee or agent of Xxxxxxx, or is or
was serving at the request of Xxxxxxx as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise,
whether or not the basis of such claim is the Executive's alleged action in an
official capacity while in service as a director, officer, employee or agent of
Xxxxxxx, the Executive shall be indemnified and held harmless by Xxxxxxx to the
fullest extent legally permitted or authorized by Xxxxxxx'x certificate of
incorporation or bylaws or Board resolutions against all expenses, liability and
loss, including, without limitation, legal fees, fines or penalties and amounts
paid or to be paid in settlement, all as reasonably incurred by the Executive in
connection therewith, and such indemnification shall continue as to the
Executive even after the Executive has ceased to be a director, officer,
employee or agent of Xxxxxxx, and shall inure to the benefit of the Executive's
heirs, executors and administrators.
ARTICLE 14 -- WITHHOLDING OF TAXES
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Xxxxxxx shall be entitled to withhold from any amounts payable under this
Agreement all taxes as legally shall be required pursuant to applicable federal,
state or local laws. Xxxxxxx shall not be obligated to compensate the Executive
for the payment of such taxes.
ARTICLE 15 -- SEVERABILITY
If any provision of this Agreement or the application thereof to anyone, or
under any circumstances, is adjudicated to be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect any other
provision or application of this Agreement which can be given effect without the
invalid or unenforceable provision or application and shall not invalidate or
render unenforceable such provision or application in any other jurisdiction.
ARTICLE 16 -- ENTIRE AGREEMENT
This Agreement, including Appendix A hereto, constitutes the entire agreement
between the parties with respect to the employment and appointment of the
Executive and any and all previous agreements, written or oral, express or
implied, between the parties or on their behalf, relating to the employment and
appointment of the Executive by Xxxxxxx, are terminated and cancelled and each
of the parties releases and forever discharges the other of and from all manner
of actions, causes of action, claims and demands whatsoever, under or in respect
of any previous agreement; provided, however, that this does not terminate or
cancel the separate indemnification agreement between Xxxxxxx and the Executive.
ARTICLE 17 -- AMENDMENT, WAIVER, ETC.
No provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by the
Executive and Xxxxxxx. No waiver by any party hereto at any time of any breach
by any other party hereto of, or compliance with, any condition of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
ARTICLE 18 -- 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 in it.
ARTICLE 19 -- COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original but all of which together will constitute one and
the same instrument.
ARTICLE 20 -- GENDER AND NUMBER
Except where otherwise indicated by the context, any masculine term used herein
shall also include the feminine; the plural shall include the singular, the
singular shall include the plural.
ARTICLE 21 -- GOVERNING LAW
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This Agreement shall be governed by the internal law, and not the laws of
conflicts, of the State of Delaware.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the 20th day
of August, 2004.
XXXXXXX INTERNATIONAL INC.
BY:__________________________________________
NAME: XXXX XXXXXX XXXXXXX
TITLE: SENIOR VICE PRESIDENT, GENERAL COUNSEL
AND CORPORATE SECRETARY
EXECUTIVE
_____________________________________________
XXXXXXX X. XXXXXXX
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