EXHIBIT 4.43
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 1st day of April, 2003.
BETWEEN:
XXXXXXX XXXXX INTERNATIONAL INSURANCE BROKERS LTD., a company
amalgamated under the laws of Alberta and having an address at
Xxxxx 000, 00000 Xxxxxxxxx Xxxx X.X., Xxxxxxx, Xxxxxxx X0X 0X0
(herein called the "Company")
OF THE FIRST PART
AND:
XXXX XXXXXXXX, business person having an address at Calgary,
Alberta
(the "Executive")
OF THE SECOND PART
WHEREAS:
A. The Company carries on a general insurance brokerage business
in the Province of Alberta and elsewhere (the "Business");
B. The Company wishes to employ the Executive as the Chief
Operating Officer of the Company and the Executive has agreed to accept such
employment, subject to the terms, conditions and covenants herein provided; and
C. The Company and the Executive are desirous of having certain
rights and benefits in the event that the Executive is dismissed or the
Executive's employment relationship with the Company is terminated in the manner
set out herein.
NOW THEREFORE, in consideration of the mutual covenants herein contained and
other good and valuable consideration (the receipt and sufficiency whereof are
hereby acknowledged), the Company and the Executive hereby agree as follows:
ENGAGEMENT
1. The Company hereby employs the Executive to render services to the
Company as, and to undertake the duties and exercise the powers of, the
Chief Operating Officer of the Company, subject always to the general
control and direction of the President and Chief Executive Officer of
the Company (the "CEO").
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2. The Executive shall have such responsibilities, duties and authority
and perform such functions that are commensurate with the position of
the Chief Operating Officer of a insurance brokerage company of
comparable size to the Company and carry out the lawful instructions
and directions from time to time given to him by the CEO and perform
his duties to the utmost of his ability and the Executive shall use his
best efforts to promote the interests and goodwill of the Company and
conduct himself in a diligent, competent and businesslike manner.
3. During the term of this Agreement, including any renewals hereof, the
Executive shall devote substantially the whole of his time and
attention to the business and affairs of the Company and its affiliates
and shall not, without the consent in writing of the Company, undertake
any other business or occupation or become an employee or agent of any
other corporation, firm or individual; provided that nothing herein
shall be construed so as to prevent the Executives from taking on a
directorship in another company or from making investments of a
strictly passive nature, so long as such director duties or
investments, when considered together, are not of a type or in an
amount such as would conflict with the efficient performance by the
Executive of his duties hereunder.
4. The Company shall employ the Executive at an annual salary of $100,000
(the "Base Salary"), payable regularly in accordance with Company
practice (less applicable source deductions). The performance of the
Executive will be reviewed annually by the Company, and at the sole
option of the Company the Base Salary of the Executive may be
increased; provided, however, the Company shall be under no obligation
to increase the Base Salary at the time of any such review.
5. In addition to his other remuneration, the Company shall make available
to the Executive (and possibly other senior executives of the Company)
a bonus plan under which a bonus may be paid by the Company, on an
entirely discretionary basis, based on the performance of the Company
and the Executive. If in any year the Executive becomes entitled to a
bonus pursuant to the provisions of the said plan, the Company shall
pay to the Executive such bonus within five days of it becoming due and
owing or at such other times as may be most advantages to the Executive
with respect to the provisions of the INCOME TAX ACT (Canada) or
similar legislation in place in the jurisdiction of the Executive's
residence.
6. The Executive shall be entitled to participate in all benefit programs
offered from time to time by the Company to senior employees of the
Company, if any. If part of the said benefit program consists of the
provision of insurance for the Executive and his estate, the Executive
agrees to provide necessary medical information and to undergo medical
examinations as may be reasonably requested by insurance carriers in
this regard.
7. Intentionally Deleted.
8. The Company shall pay all reasonable expenses actually and properly
incurred by the Executive in furtherance of or in connection with the
Business in accordance with Company policy, including, but not by way
of limitation, all travel expenses, parking and all entertainment
expenses. If any such expenses are paid in the first instance by the
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Executive, the Company shall reimburse him therefor, subject to the
receipt by the Company of statements and vouchers in form reasonably
satisfactory to it.
9. For the vacation entitlement period beginning April 1, 2002 and ending
March 31, 2003, the Executive shall be entitled to an annual vacation
for time worked of up to twenty one (21) weeks. Such vacation may be
taken only at such times as the Executive and the Company may from time
to time reasonably determine having regard to the operations of the
Company; and provided further that such vacations must be taken by
March 31, 2004. For the vacation entitlement periods beginning April 1,
2003 and each 12 month period thereafter, the Executive shall be
entitled to earn an annual vacation for time worked of up to six (6)
weeks in each twelve-month period between April 1 and March 31 of each
year. Such vacations may be taken only at such times as the Executive
and the Company may from time to time reasonably determine having
regard to the operations of the Company; and provided further that such
vacations must be taken within 12 months after the end of the
respective entitlement period and may not be accumulated from year to
year.
10. The term of the Executive's employment shall be for an indefinite
period, until such time as the employment of the Executive is
terminated in accordance with the provisions of this agreement or he
resigns voluntarily.
11. The Company may terminate the employment of the Executive forthwith,
without notice and without pay in lieu of notice, for any cause which
would entitle the Company under applicable law to terminate the
services of the Executive for cause without either notice or
compensation in lieu of notice.
12. Subject to the provisions of sections 11, 13 and 14 hereof, the Company
may terminate the employment of the Executive for any reason
whatsoever, by the payment of the Executive's then Base Salary on a
regular basis (less applicable source deductions) from the date of
termination of his employment of 300% of his then current annual
salary.
13. In the event that greater compensation in lieu of notice is required to
be given by the Company to the Executive pursuant to the EMPLOYMENT
STANDARDS CODE (Alberta) or any equivalent or successor legislation,
section 12 hereof shall be construed as providing for the payment of
such greater amount.
14. Terms used in this section 14 but not otherwise defined herein have the
meanings set forth below:
14.1 (a) "Benefit Plans" means any stock option or share purchase plan,
employee loan, insurance, long-term disability, medical,
dental and other executive and employee benefit plans,
including any pension or group RRSP plans, perquisites and
privileges as may be provided by the Company or any subsidiary
of the Company to the Executive;
(b) "Benefit Plans" means any stock option or share purchase plan,
employee loan, insurance, long-term disability, medical,
dental and other executive and employee benefit plans,
including any pension or group RRSP plans, perquisites and
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privileges as may be provided by the Company or any subsidiary
of the Company to the Executive;
(c) "Expiry Date" means 12 months after a Triggering Event occurs;
and
(d) "Triggering Event" means any one of the following events which
occurs without the express or implied agreement of the
Executive:
(i) an adverse change in any of the duties, powers,
rights, discretion, salary or benefits of the
Executive as they exist at the date of a this
Agreement;
(ii) a diminution of the title of the Executive as it
exists at the date of this Agreement;
(iii) a change in the person or body to whom the Executive
reports at the date of this Agreement, except if such
person or body is of equivalent rank or stature or
such change is as a result of the resignation or
removal of such person or the persons comprising such
body, as the case may be, provided that this shall
not include a change resulting from a promotion in
the normal course of business;
(iv) a change in the municipality at which the Executive
is regularly required to carry out the terms of his
employment with the Company which at the date of this
Agreement is Calgary, Alberta without the Executive's
consent unless the Executive's terms of employment
include the obligation to receive geographic
transfers from time to time in the normal course of
business; or
(v) the Executive is not nominated as a management
nominee by the Board of Directors of the Company at a
general meeting of the shareholders of the Company.
14.2 Subject to section 14.3, notwithstanding anything to the contrary
contained in this Agreement, if a Triggering Event occurs, the
Executive shall be entitled to elect to terminate his employment with
the Company and to receive a payment from the Company in an amount
equal to 300% of his then current annual base salary.
14.3 All termination rights of the Executive provided for in section 14 are
conditional upon the Executive electing to exercise such rights by
notice given to the Company only up to the Expiry Date.
14.4 The Company shall not dismiss the Executive for any reason unless such
dismissal is specifically approved by the Board of Directors of the
Company.
14.5 In the event that the Executive is entitled to a payment pursuant to
section 14.2, the Executive shall be entitled to have all Benefit Plans
continued for a period of 12 months after the date of the giving of
notice by the Executive pursuant to subsection 14.3, or the dismissal
from the Executive's employment, as the case may be, or for any longer
period
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available under any Benefit Plans when coverage is provided from a
source other than the Company.
14.6 Intentionally Deleted.
14.7 Intentionally Deleted.
15. Any payment to be made by the Company pursuant to the terms of section
14 shall be paid by the Company in cash in a lump sum within five
business days of the giving of notice by the Executive pursuant to
subsection 14.3, or within five business days of the termination or
dismissal from the Executive's employment as referred to in section 12.
Any such payment shall be calculated, in the case of subsection 14.2,
at the date of giving notice pursuant to subsection 14.3 and, in the
case of subsection 14.4, at the date of dismissal or termination, as
the case may be.
16. In the event that the Executive dies prior to the satisfaction of all
of the Company's obligations under the terms of this Agreement, any
remaining amounts payable to the Executive by the Company shall be paid
to the person or persons previously designated by the Executive to the
Company for such purposes. Any such designation of beneficiaries shall
be made in writing, signed by the Executive and dated and filed with
the Secretary of the Company. In the event that no designation is made,
all such remaining amounts shall be paid by the Company to the estate
of the Executive.
17. This Agreement shall be assigned by the Company to any successor
corporation of the Company and shall be binding upon such successor
corporation. The Company shall ensure that the successor corporation
shall continue the provisions of this Agreement as if it were the
original party in place of the Company; provided however that the
Company shall not thereby be relieved of any obligation to the
Executive pursuant to this Agreement. All appropriate arrangements
shall be made by the Company for any successor corporation to honour
this Agreement.
18. All confidential records, material and information and copies thereof,
and all trade secrets (and without restricting the generality of the
foregoing, including inventions, discoveries and methods of processing
and production) concerning the business or affairs of the Company
obtained by the Executive in the course of his employment shall remain
the exclusive property of the Company. During the Executive's
employment, or at any time thereafter, the Executive shall not divulge
the contents of such confidential records or any of such confidential
information or trade secrets to any person other than to the Company or
the Company's qualified employees, and the Executive shall not,
following the termination of his employment hereunder for any reason,
use the contents of such confidential records or such confidential
information or trade secrets for any purpose whatsoever. Under no
circumstances shall the Executive remove any books, records or
documents or copies thereof (whether or not confidential) from the
Company's office, nor shall the Executive make any copies of any such
books, records or documents or copies thereof for use outside the
Company's office, except as specifically authorized by the Board of
Directors of the Company after he ceases to be employed by the Company.
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18.1 The Executive hereby agrees that he will not at any time during the
term of his employment with the Company and for a period of two years
thereafter:
(a) divulge to any person, firm or corporation any name or names
of any or all of the individuals and companies that assisted
the Company or that participated in any private placement
financing by the Company; or
(b) interfere with or knowingly entice away any employee of the
Company who was an employee of the Company within 90 days of
the termination of the Executive's employment; or
(c) disclose to any third party any information pertaining to the
Company and its subsidiaries and their respective assets,
and the Company may apply for or have an injunction restraining breach
or threatened breach of the covenants herein contained.
18.2 The foregoing covenants are given by the Executive acknowledging that
he has specific knowledge of the affairs of the Company. In the event
that any clause or portion of any such covenant should be unenforceable
or be declared invalid for any reason whatsoever, such unenforceability
or invalidity shall not affect the enforceability or validity of the
remaining portions of the covenants and such unenforceable or invalid
portions shall be severable from the remainder of this agreement. The
Executive hereby acknowledges and agrees that all restrictions
contained in this agreement are reasonable and valid and all defences
to the strict enforcement thereof by the Company are hereby waived by
him.
18.3 Without intending to limit the remedies available to the Company, the
Executive acknowledges that damages at law will be an insufficient
remedy to the Company in view of the irrevocable harm which will be
suffered if the Executive violates the terms of section 18 hereof and
agrees that the Company may apply for and have injunctive relief in any
court of competent jurisdiction specifically to enforce any such
covenants upon the breach or threatened breach of any such provisions,
or otherwise specifically to enforce any such covenants and hereby
waives all defences to the strict enforcement thereof by the Company.
19. All previous agreements, written or oral, express or implied, between
the parties hereto or on their behalf relating to the employment of the
Executive by the Company are hereby terminated and cancelled, and each
of the parties hereto hereby releases and forever discharges the other
of and from all manner of actions, causes of action, claims, demands
whatsoever under or in respect of any such agreements.
20. Any notice in writing required or permitted to be given to the
Executive hereunder shall be sufficiently given if served on the
Executive personally or mailed by registered mail postage prepaid
addressed to the Executive at his last address known to the Company.
Any such notice mailed as aforesaid shall be deemed to have been
received by and given to the Executive two business days following the
date of mailing. Any notice in writing required or permitted to be
given to the Company hereunder shall be given by registered mail
postage prepaid addressed to the President of the Company at its head
office. Any
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such notice mailed as aforesaid shall be deemed to have been received
by and given to the Company two business days following the date of
mailing. Either party may at any time give notice in writing to the
other of any change of address of the party giving such notice and from
and after the giving of such notice the address therein specified shall
be deemed to be the address of such party for the giving of notices
hereunder.
21. Each of the parties hereto agrees to do and execute or cause to be
made, done or executed all such further and other things, acts, deeds,
documents, assignments and assurances as may be necessary or reasonably
required to carry out the intent and purpose of this Agreement fully
and effectually. Without limiting the generality of the foregoing, the
Company shall take all reasonable steps in order to structure the
payment or payments provided for in this Agreement in the manner most
advantageous to the Executive with respect to the provisions of the
INCOME TAX ACT (Canada) or similar legislation in place in the
jurisdiction of the Executive's residence.
22. This agreement shall be governed by and interpreted under the laws of
the Province of Alberta.
23. All dollar amounts referred to in this agreement are expressed in
Canadian funds unless otherwise specifically provided herein.
24. Save and except as provided in section 16, the benefits and obligations
of this agreement may not be assigned by either party to any other
person; provided, however, that the Company may assign this agreement
to an affiliate or subsidiary of the Company upon notice to the
Executive. Except as aforesaid, this agreement shall enure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, including, in the case of the Executive, his
heirs, executors and administrators.
25. The Executive acknowledges that:
(a) he has read and understood this agreement; and
(b) has obtained independent legal advice in connection with this
agreement and the provisions hereof.
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IN WITNESS WHEREOF the parties hereto have executed this agreement as of the
24th day of April, 2003.
SIGNED, SEALED AND DELIVERED )
by XXXX XXXXXXXX in the presence of: )
)
(signed) "Xxxxxxx Xxxxx" )
)
________________________________ )
Signature )
) (signed) "Xxxx Xxxxxxxx"
Xxxxxxx Xxxxx )
) ______________________________
________________________________ ) XXXX XXXXXXXX
Print Name )
)
Calgary, Alberta )
________________________________
Address
XXXXXXX XXXXX INTERNATIONAL
INSURANCE BROKERS LTD.
Per: (signed) "Primo Podorieszach"
Per: _____________________________________
