Exhibit 10.3
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT made the 22nd day of November, 2000.
BETWEEN:
DYNACARE INC., a corporation incorporated under
the laws of Ontario,
(hereinafter referred to as the "Corporation"),
OF THE FIRST PART,
- and -
XXXXXX X. XXXXXX, of the City of Toronto, in the
Province of Ontario,
(hereinafter referred to as the "Senior Chairman"),
OF THE SECOND PART.
WHEREAS the Senior Chairman is currently employed by the Corporation
pursuant to the terms of an employment agreement between the Senior Chairman and
the Corporation made the 4th day of March, 1997 (the "Employment Agreement").
The Corporation and the Senior Chairman now wish to enter into an
Amended and Restated Employment Agreement on the terms and conditions set forth
herein, and which shall constitute the sole and exclusive agreement relating to
the employment of Senior Chairman by the Corporation;
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the parties
agree as follows:
1. Term
The Corporation shall employ the Senior Chairman for a period of three
years commencing on the date hereof (the "Initial Term"), unless such employment
shall be terminated earlier as hereinafter provided. The employment of the
Senior Chairman shall continue after the Initial Term for successive periods of
one year's duration on the same terms and conditions contained herein, until
terminated in accordance with the terms hereof.
-1-
2. Duties
The Senior Chairman shall serve the Corporation in the capacity of
Senior Chairman, which shall not be an office of the Company, and shall only
perform and exercise and shall only be required to perform and exercise such
duties and such powers as may be assigned to the Senior Chairman from time to
time by the board of directors of the Corporation. The Corporation acknowledges
that the Senior Chairman shall be required to devote only such of his time and
attention to the business and affairs of the Corporation than may be required to
perform any duties that may be assigned to him by the board of directors of he
Corporation.
3. Remuneration and Benefits
(a) Base Salary. The annual base salary payable to the Senior
Chairman for his services hereunder shall be $100,000,
exclusive benefits, but inclusive of any directors fees to
which the Senior Chairman may be entitled with respect to
serving as a Director of the Corporation. The annual base
salary payable to the Senior Chairman pursuant to the
provisions of this section 3 shall be payable in equal
bi-weekly instalments in arrears or in such other manner as
may be mutually agreed upon, less, in any case, any deductions
or withholdings required by law.
(b) Benefits. The Corporation shall provide the Senior Chairman
with employee benefits at least equivalent to those currently
provided by the Corporation to the Senior Chairman including
those set out in Schedule A. The Senior Chairman shall not be
permitted to participate in any stock option plan share
purchase plan, retirement plan or similar plan offered by the
Corporation.
(c) Office and Assistant. The Company will, at its own expense,
provide the Senior Chairman with the use of an office and an
assistant at the Company's Toronto head office.
(d) Vacation. The Senior Chairman shall be entitled to four weeks
paid vacation per calendar year to be taken during such
calendar year at times determined by the Senior Chairman.
4. General Provisions
(a) Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held
to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any
other provision or any other jurisdiction, but this Agreement
will be reformed, construed and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision had
never been contained herein.
-2-
(b) This Agreement and those documents expressly referred to
herein constitute the entire agreement and understanding among
the parties and supersede and preempt any prior
understandings, agreements or representations by or among the
parties, written or oral, which may be related to the subject
matter hereof in any way.
(c) This Agreement may be executed in separate counterparts, each
of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(d) All questions concerning the construction, validity and
interpretation of this Agreement and the exhibits hereto will
be governed by and construed in accordance with the internal
laws of Ontario, without giving effect to any choice of law or
conflict of law provision or rule (whether of Ontario or any
other jurisdiction) that would cause the application of the
laws of any jurisdiction other than Ontario.
(e) Each of the parties to this Agreement will be entitled to
enforce its rights under this Agreement specifically, to
recover damages and costs (including legal fees) caused by any
breach of any provision of this Agreement and to exercise all
other rights existing in its favour. The parties hereto agree
and acknowledge that money damages may not be an adequate
remedy for any breach of the provisions of this Agreement and
that any party may in its sole discretion apply to any court
of competent jurisdiction for specific performance and/or
other injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
(f) The provisions of this Agreement may be amended and waived
only with the prior written consent of the Corporation and the
Senior Chairman.
(g) If any time period for giving notice or taking action
hereunder expires on a day which is a Saturday, Sunday or
holiday in the Province of Ontario, the time period shall be
automatically extended to the business day immediately
following such Saturday, Sunday or holiday.
(h) This Agreement shall survive the termination of the Senior
Chairman's employment with the Corporation and shall remain in
full force and effect after such termination.
(i) Where any accounting determination or calculation is required
to be made under this Agreement or the exhibits hereto, such
determination or calculation (unless otherwise provided) shall
be made in accordance with Canadian generally accepted
accounting principles, consistently applied, except that if
because of a change in Canadian generally accepted accounting
principles the Corporation would have to alter a previously
utilized accounting method or policy in order to remain in
compliance with Canadian generally accepted accounting
principles, such determination or calculation
-3-
shall continue to be made in accordance with the Corporation's
previous accounting methods and policies. All numbers set
forth herein which refer to share prices or amounts will be
appropriately adjusted to reflect stock splits, stock
dividends, combinations of shares and other recapitalization
affecting the subject class of shares.
5. Termination
(a) For Cause. The Corporation may terminate the employment of the
Senior Chairman without notice or any payment In lieu of
notice for just and sufficient cause recognized by law as such
which, without limiting the generality of the foregoing, shall
include:
(i) if the Senior Chairman is convicted of a criminal
offence involving fraud or dishonesty;
(ii) if the Senior Chairman or any member of his family
makes any personal profit arising out of or in
connection with a transaction to which the
Corporation is a party or with which it is associated
without making disclosure to and obtaining the prior
written consent of the Corporation;
(iii) if the Senior Chairman fails to honour his fiduciary
duties to the Corporation, including the duty to act
in the best interests of the Corporation; or
(iv) if the Senior Chairman disobeys without cause and on
a repeated basis reasonable instructions given in the
course of employment by the board of directors of the
Corporation that are not inconsistent with the Senior
Chairman's management position and not remedied by
the Senior Chairman within a reasonable period of
time after receiving written notice of such
disobedience.
(b) For Disability/Death.
(i) The Senior Chairman's employment may be terminated on
30 days' notice by the Corporation to the Senior
Chairman if the Senior Chairman becomes permanently
disabled. The Senior Chairman shall be deemed to have
become permanently disabled if in any year during the
employment period, because of ill health, physical or
mental disability, or for other causes beyond the
control of the Senior Chairman, the Senior Chairman
has been continuously unable or unwilling or has
failed to perform the Senior Chairman's duties for
180 consecutive days, or if, during any year of the
employment period, the Senior Chairman has been
unable or unwilling or has failed to perform his
duties for a total of 210 days, consecutive or not.
The term "any year of the employment
-4-
period" means any period of 12 consecutive months
during the employment period.
(ii) This agreement shall terminate without notice upon
the death of the Senior Chairman.
(c) Without Cause. The Corporation may terminate the employment of
the Senior Chairman at any time without cause provided that in
such event the Senior Chairman shall be entitled to receive
the notice and severance payments set out in subsection 6(c)
below.
6. Notice and Severance Payments
(a) Upon termination of the Senior Chairman's employment: (i) for
cause or (ii) by the voluntary termination of employment by
the Senior Chairman, the Senior Chairman shall not be entitled
to any severance payment other than compensation earned by the
Senior Chairman before the date of termination calculated pro
rata up to and including the date of termination, together
with any amount to which the Senior Chairman is entitled under
the Employment Standards Act (Ontario), as amended and in
force from time to time.
(b) If the Senior Chairman's employment is terminated as a result
of the permanent disability or death of the Senior Chairman,
the Senior Chairman or his estate, as applicable, shall be
entitled to receive, within 30 days of the date of such
termination, an amount equal to 6 months' base salary at the
then prevailing rate plus his pro-rata share of any bonus
entitlement pursuant to subsection 3 (d) hereof arising up to
the date of termination. In addition, the Senior Chairman
and/or his family shall remain entitled to and shall be
provided with, health and medical benefits equivalent to those
being received by the Senior Chairman pursuant to subsection
3(b) at the effective date of the termination, for a period of
12 months after the effective date of the termination. The
Senior Chairman agrees to reasonably comply with all
requirements necessary for the Corporation to obtain life
insurance for the term of this agreement.
(c) If the Senior Chairman's employment is terminated for any
reason other than the reasons set out in subsection 6(a) and
6(b) above, the Senior Chairman shall be entitled to continue
to receive the Senior Chairman's then applicable base salary
(i) in the case of termination during the Initial Term,
for the greater of the balance of the Initial Term
and [12] months following termination, and
(ii) in the case of termination after the Initial Term,
for [12] months following termination,
-5-
(as applicable, the "Severance Period" payable in the manner described in
subsection 3(a) above, plus his pro-rata share of any bonus entitlement pursuant
to subsection 3(d) hereof arising up to the date of termination. In addition,
the Senior Chairman and/or his family shall remain entitled to and shall be
provided with, health and medical benefits equivalent to those being received by
the Senior Chairman pursuant to subsection 3(b) at the effective date of the
termination during the Severance Period. The payments described in this
subsection 6(c) are the only notice and severance payments the Senior Chairman
will receive in the event of the termination of this agreement for reasons
contemplated in this subsection 6(c) and is inclusive of any entitlement under
the Employment Standards Act (Ontario).
7. Confidentiality
The Senior Chairman acknowledges and agrees that:
(a) in the course of performing his duties and responsibilities
for the Corporation, he has had and will continue in the
future to have access to and has been and will be entrusted
with detailed confidential information and trade secrets
(printed or otherwise) concerning past, present, future and
contemplated projects, services, operations, joint ventures,
and bidding techniques and procedures of the Corporation and
its subsidiaries, including, without limitation, information
relating to addresses, preferences, needs and requirements of
past, present and prospective clients, customers, suppliers
and employees of the Corporation and its subsidiaries
(collectively, "Trade Secrets"), the disclosure of any of
which to competitors of the Corporation or to the general
public, or the use of same by the Senior Chairman or any
competitor of the Corporation or any of its subsidiaries,
would be highly detrimental to the interests of the
Corporation;
(b) in the course of performing his duties and responsibilities
for the Corporation, the Senior Chairman has been and will
continue in the future to be a representative of the
Corporation to its customers, clients and suppliers and as
such has had and will continue in the future to have
significant responsibility for maintaining and enhancing the
goodwill of the Corporation with such customers, clients and
suppliers and would not have, except by virtue of his
employment with the Corporation, developed a close and direct
relationship with the customers, clients and suppliers of the
Corporation;
(c) the Senior Chairman owes fiduciary duties to the Corporation,
including the duty to act in the best interests of the
Corporation; and
(d) the right to maintain the confidentiality of the Trade
Secrets, the right to preserve the goodwill of the Corporation
and the right to the benefit of any relationships that have
developed between the Senior Chairman and the customers,
clients and suppliers of the Corporation by virtue of the
Senior Chairman's employment with the Corporation
-6-
constitute proprietary rights of the Corporation, which the
Corporation is entitled to protect.
In acknowledgement of the matters described above and in consideration
of the payments to be received by the Senior Chairman pursuant to this
agreement, the Senior Chairman hereby agrees that he will not, during the term
of this agreement and after the expiration hereof, directly or indirectly
disclose to any person or in any way make use of (other than for the benefit of
the Corporation), in any manner, any of the Trade Secrets, provided that such
Trade Secrets shall be deemed not to include information that is or becomes
generally available to the public other than a result of disclosure by the
Senior Chairman.
8. Non-Solicitation and Non-Competition
(a) The Senior Chairman agrees that during the course of his
employment with the Corporation and for the period of two
years next following the termination of this employment,
occasioned by the Senior Chairman giving notice of his
termination of this Agreement to the Corporation or by the
Corporation terminating the Senior Chairman's employment for
any reason whatsoever, he will not on his own account or as
director, representative, employee, or agent for any person,
firm, or company be engaged directly or indirectly (except as
a shareholder in a publicly traded corporation holding less
than 5% of the issued and outstanding securities of any class
of such corporation) in any business which is engaged in
activities similar to or competing with those of the
Corporation (presently being the provision of clinical
laboratory services in the United States and Canada, including
the ownership and operation of clinical laboratories and the
provision of clinical testing services to hospitals and other
health care providers under long term or other contractual
arrangements, including joint ventures):
(i) within the Municipality of Metropolitan Toronto and
within a distance of one hundred (100) miles from any
of the boundaries thereof; or
(ii) within any municipality in any Province of Canada or
State of the United States where the Corporation
operates an office or other facility and within a
distance of one hundred (100) miles from any of the
boundaries thereof.
(b) The Senior Chairman shall not, during the course of his
employment and for a period of two (2) years next following
the termination of his employment with the Corporation, for
any reason whatsoever, solicit or seek to obtain orders from
or interfere with or endeavour to entice away any client or
customer of the Corporation with whom he has come in contact,
or of whom he has knowledge, during the course of his
employment with the Corporation.
-7-
(c) The Corporation shall be entitled to counter any violation of
this section 8 by interim injunction without security and the
Senior Chairman shall incur full liability to the Corporation
for any violation.
(d) The termination of employment for the purpose of this section
8 shall be the time when the Senior Chairman ceases receiving
remuneration from the Corporation, whether or not he has
stopped functioning at an earlier time.
(e) The covenants contained in this section 8 are separate and
several and the Senior Chairman acknowledges that the
restrictions herein contained on his activities after such
termination of his employment are reasonable to protect the
business interests of the Corporation and that such agreements
are given for valuable consideration and are valid and
enforceable.
9. Return of Materials
All files, forms, brochures, books, materials, written correspondence,
memoranda, documents, manuals, computer disks, software products and lists
(including lists of customers, suppliers, products and prices) pertaining to the
business of the Corporation or any of its subsidiaries and associates that may
come into the possession or control of the Senior Chairman shall at all times
remain the property of the Corporation or such subsidiary or associate, as the
case may be. On termination of the Senior Chairman's employment for any reason,
the Senior Chairman agrees to deliver promptly to the Corporation all such
property of the Corporation in the possession of the Senior Chairman or directly
or indirectly under the control of the Senior Chairman.
10. No Assignment
Neither party may assign, pledge or encumber his or its interest in
this agreement nor assign any of his or its rights or duties under this
agreement without the prior written consent of the other party.
11. Successors
This agreement shall be binding on and enure to the benefit of the
successors and permitted assigns of the Corporation and the heirs, executors,
personal legal representatives and permitted assigns of the Senior Chairman.
12. Notices
Any notice or other commune on required or permitted to be given
hereunder shall be in writing and either delivered by hand or mailed by prepaid
registered mail. At any time other than during a general discontinuance of
postal service due to strike, lock-out or otherwise, a notice so mailed shall be
deemed to have been received three business days after the postmarked date
thereof
-8-
or, if delivered by hand, shall be deemed to have been received at the time it
is delivered. If there is a general discontinuance of postal service due to
strike, lockout or otherwise, a notice sent by prepaid registered mall shall be
deemed to have been received three business days after the resumption of postal
service. Notices shall be addressed as follows:
(a) If to the Corporation:
00 Xxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
with a copy to:
Golder, Thoma, Cressey, Rauner, Inc.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx
00000 6402
Attention: Xxxxx Xxxxxx
(b) If to the Senior Chairman:
c/o 00 Xxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
13. Legal Advice
The Senior Chairman hereby represents and warrants to the Corporation
and acknowledges and agrees that he had the opportunity to seek and was not
prevented nor discouraged by the Corporation 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. The Senior Chairman
further acknowledges that he has read this Agreement, understands this
Agreement, and agrees to be bound by this Agreement.
-9-
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first above written.
SIGNED, SEALED AND ) DYNACARE INC.
DELIVERED )
)
) By: /s/ Xxxxxx Xxxxxxx
----------------------------------
) Name: Xxxxxx Xxxxxxx
) Title: Chief Executive Officer
)
) /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Witness ) Xxxxxx X. Xxxxxx
-10-
SCHEDULE A
EMPLOYEE BENEFITS
The employee benefits are as set out in the attached copy of the
Dynacare benefits plan.
-11-
