EX-10.58 5 d341067dex1058.htm EMPLOYEE AGREEMENT EMPLOYMENT AGREEMENT
Exhibit 10.58
This Agreement is made as of January 4, 2012 by and between Xxxx-Xxxxxxxxxx Bédos (the “Executive”) and Birks & Mayors Inc., a corporation incorporated under the laws of Canada (the “Company”).
1. Position, Responsibilities and Term of Agreement
manner dictated by the Company’s standard payroll policies. The Executive shall be considered for annual Base Salary increases determined at the Company’s discretion based upon the Executive’s performance and the Company’s performance.
“Fiscal Year” in this Agreement shall mean such period of approximately twelve (12) months defined as such from time to time by the Company’s Board of Directors. In the event of any change in the definition “Fiscal Year” it should not adversely affect any bonus payment or other compensation based or calculated on the Fiscal Year.
b) Long Term Incentive Plan (LTIP).
The Board will review and determine any modifications to the Cash LTIP applicable to the Executive for every subsequent three Fiscal Year period.
In the event that the Executive is terminated without Cause after at least three (3) years of employment and within two (2) years of a change in control as defined in the Company’s Cash LTIP plan, any balance in the Cash LTIP will be paid to the Executive in a lump sum payment. In the event a change in control, as defined in the Company’s Cash LTIP, occurs after at least three (3) years of employment and the Company’s Cash LTIP is not continued or replaced with a plan of equivalent value, any balance in the Cash LTIP will be paid to the Executive in a lump sum payment.
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(i) reasonable and pre-approved expenses for temporary housing for the first three (3) months of his employment in accordance with the Company’s travel policy, such amounts to be paid directly by the Company;
(ii) a maximum of $10,000 following receipt of invoices and proof of payment for the purchase of miscellaneous home-related items such as curtains and rugs; and
(iii) the Company will select a moving company, based upon submitted proposals, for handling the relocation of all household goods and the Company will pay the moving company directly, up to a maximum of $25,000, following receipt of invoices.
2.12 It is understood that to the extent these provisions in this Section 2 generate a taxable benefit for income tax purposes, these taxes will be the sole responsibility of the Executive and the Company reserves the right to withhold the taxes as applicable.
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a) “Change in Control” shall be deemed to have occurred as of the first day that any one or more of the following conditions shall have been satisfied:
(i) any “Person” (other than members of the Controlling Shareholder Group, the Company, any trustee or other fiduciary holding securities under any employee benefit plan of the Company, or any company controlled, directly or indirectly, by the controlling shareholders of the Company), is or becomes the “beneficial owner”, directly or indirectly, of securities of the Company representing 50% or more of the combined voting power of the Company’s then outstanding securities;
(ii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation or entity, OTHER THAN a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or a merger or consolidation with or into any company the voting securities of which are beneficially owned 50% or more by the Controlling Shareholder Group, provided that the voting securities of the surviving entity outstanding immediately after such merger or consolidation are beneficially owned 50% or more by the Controlling Shareholder Group;
(iii) the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; or
(iv) the total combined voting power of the Company (or any successor entity) represented by shares of voting stock owned by members of the Controlling Shareholder Group is reduced to less than 50%.
The “Controlling Shareholder Group” includes: (i) Montrovest B.V.; (ii) Goldfish Trust; (iii) Rohan Private Trust Company; (iv) Xx. Xxxxxxx Xxxxx di Montelera, (v) the spouse and lineal descendants of Xx. Xxxxxxx Xxxxx di Montelera; (vi) any trust whose principal beneficiaries are persons described in clauses (iv) and (v). A “Person” includes any natural person and any corporation, limited liability company, partnership, trust or other entity.
b) “Cause” shall mean: (i) the willful and continued failure by the Executive to substantially perform the Executive’s duties for the Company (other than any such failure resulting from the Executive’s incapacity due to physical or mental illness, or any such actual or anticipated failure after the Executive announces his
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intention to resign for Good Reason), (ii) the willful engaging by the Executive in misconduct which is financially injurious to the Company, or (iii) the Executive’s conviction or a pleading of guilty or nolo contendere with respect to the commission of a felony or a crime involving bad faith or dishonesty; (iv) the Executive’s insubordination or any act or omission of the Executive, which pursuant to applicable law, constitutes a serious reason for termination of employment without notice, payment in lieu of notice or any indemnity whatsoever; (v) any breach by the Executive of any material term of this Agreement or any other written agreement between the Executive and the Company; or (vi) the Executive’s material violation of any of the Company’s policies. No act, or failure to act, on the Executive’s part shall be considered “willful” unless done, or omitted to be done, by the Executive not in good faith and without reasonable belief that the action or omission was in the best interest of the Company.
c) “Disability” shall mean the Executive’s inability to perform the Executive’s duties by reason of mental or physical disability for at least ninety (90) days in any three-hundred sixty-five (365) day period. In the event of a dispute as to whether the Executive is disabled within the meaning hereof, either party may from time to time request a medical examination of the Executive by a doctor appointed by the Chief of Staff of a hospital selected by mutual agreement of the parties, or as the parties may otherwise agree, and the written medical opinion of such doctor shall be conclusive and binding upon the parties as to whether the Executive has become disabled and the date when such disability arose. The cost of any such medical examination shall be borne by the Company.
d) “Good Reason” shall mean (i) the Executive ceases to be a member of the Senior Management of the Company, or (ii) the Company materially breaches any material provision of this Agreement. In the event of a resignation for Good Reason, Executive must provide the Company with a written “Notice of Resignation for Good Reason.” The “Notice of Resignation for Good Reason” shall include the specific section of this Agreement which was relied upon and the reason that the Company’s act or failure to act has given rise to the Executive’s resignation for Good Reason.
3.2 Termination of Agreement by the Executive.
Executive may terminate this Agreement by giving the Company written notice of such termination in accordance with Section 6.2 at least 90 days prior to the termination date; such notice may be waived or curtailed at the Company’s option.
3.3 Termination without Cause or Resignation for Good Reason.
In the event at any time of (a) the termination of the employment of the Executive by the Company without Cause (for any reason other than by death or Disability) or (b) the resignation of the Executive from the Company within thirty (30) days of an event constituting Good Reason, the Company shall pay or provide to the Executive only the following:
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(i) Any earned and accrued but unpaid installment of base salary through the date of the Executive’s resignation or termination at the rate in effect immediately prior to such resignation or termination (or the rate in effect immediately prior to the occurrence of an event that constitutes Good Reason, whichever is greater) and all other unpaid amounts to which the Executive is entitled as of such date under any compensation plan or program of the Company (including payment for any vacation time earned and not taken during the year in which termination occurs and reimbursements not yet paid but due for business expenses previously incurred), such payments to be made in a lump sum within fifteen (15) days following the date of resignation or termination;
(ii) The amount of annual Cash Bonus the Executive would have been entitled to pursuant to Section 2.2(a), had Executive remained employed through the end of the Fiscal Year in which termination occurs, multiplied by a fraction, the numerator of which is the number of days from the beginning of such Fiscal Year to the date of termination, and the denominator of which is 365, such amount to be paid no later than the time annual bonuses are paid to other executives of the Company;
(iii) In lieu of any further salary, or of any severance payments or notice of termination of employment to the Executive, the Executive will receive up to twelve (12) months of salary continuation at the same rate of base salary in effect immediately prior to the Executive’s resignation or termination (or the base salary in effect immediately prior to the occurrence of an event that constitutes Good Reason, whichever is greater). The Company will make the salary continuation payments, less applicable taxes and other withholdings, on the Company’s regular payroll dates. In addition, the Executive will receive the equivalent of up to twelve (12) months average annual cash bonus (based on the average annual cash bonus paid to him over the previous three Fiscal Years); the amount of such average bonus will be paid out in equal installments, less applicable taxes and other withholdings, on the same regular payroll dates referred to above.
All payment of salary and of bonus continuation shall cease upon the Executive commencing alternate employment or other gainful activities.
The maximum period of twelve (12) months referred to above shall be increased by one (1) additional month after five (5) years of service for each additional year of service thereafter, up to a maximum of eighteen (18) months after ten (10) years of service.
However, should the Executive be terminated without Cause within two (2) years of a Change in Control, then the Executive shall receive in lieu of salary and bonus continuation a lump sum amount equal to eighteen (18) months of base salary and annual cash bonus (based on the average annual cash bonus paid to him over the previous three (3) Fiscal Years) regardless of the Executive’s length of service at that time.
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(iv) The Company shall reimburse the Executive the reasonable costs actually incurred by him to relocate himself and his family to his country of origin should such relocation occur during the salary and bonus continuation period set out above, up to the maximum amount and under the same conditions as set out above under Section 2.7(iii).
(v) In the event the employment of the Executive is terminated without Cause after at least three (3) years of employment, any amount then accrued in his Cash LTIP account will be frozen as of the date of termination of employment, will not be subject to further adjustments, and will be paid to the Executive over the remaining term of the Cash LTIP. In addition, any vested Stock Option shall terminate on the earlier of three (3) months from termination of employment or the original date of expiration of the option, the whole in accordance with the Company’s Long Term Incentive Plan.
(vi) The Company shall maintain in full force and effect for the period described in Section 3.3(iii), following the date of the Executive’s resignation for Good Reason or termination without Cause, health, dental and life insurance programs (not disability programs) in which the Executive was entitled to participate either immediately prior to the Executive’s resignation for Good Reason or termination without Cause or immediately prior to the occurrence of an event that constitutes Good Reason, provided that the Executive’s continued participation is possible under the general terms and provisions of such plans and programs.
(vii) As a condition to his entitlement to receive termination payments under clauses (ii)-(vi) of this Section, the Executive shall have executed and delivered to the Company a release substantially in the form attached hereto as Exhibit A.
For greater clarity, except as set forth above, no other payment whatsoever shall be due by the Company to the Executive.
(i) the amount set forth in clause (i) of Section 3.3;
(ii) the amount set forth in clause (ii) of Section 3.3;
(iii) the reimbursement of the costs set forth in clause (iv) of Section 3.3;
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(iv) any vested Stock Option shall expire on the earlier of twelve (12) months from the date of termination or the original expiration date of the Stock Option, the whole in accordance with the Company’s Long Term Incentive Plan;
(v) any amount owing to the Executive under the Cash LTIP will be paid out promptly in the case of his death or over the remaining term of the Cash LTIP in the case of his Disability provided that at the time of the termination of employment the Executive had at least three (3) years continuous employment.
No other payment whatsoever shall be due by the Company to the Executive.
4.1 The Executive agrees that during the Executive’s employment with the Company, and for a twelve-month period thereafter, the Executive will not, directly or indirectly, do or allow any of the following:
a) (i) Compete, in any manner, for himself or, in any capacity, for any other person or business entity whatsoever which competes with the business of the Company or any of its affiliates (as conducted on the date the Executive ceases to be employed by the Company in any capacity, including as a consultant) (a “Prohibited Business”) in Canada or any of the foreign countries, including without limitation in the states in the United States of America, in which the Company or any of its affiliates is doing business (a “Competing Business”);
(ii) solicit any person or business that was at the time of the Executive’s termination of employment, or within one year prior thereto, a customer or supplier of the Company or any of its affiliates;
This prohibition shall not apply provided the two following conditions are both met: the competitor does not derive 5% or more of its revenues (including those of its affiliates in aggregate) from the aggregate of all its Prohibited Businesses; and such revenues are less than 25% of the revenues of the Company and its affiliates in such Prohibited Business;
b) Employ, assist in employing, or otherwise engage in business with any present executive, officer, employee or agent of the Company or its affiliates; or
c) Induce any person who is an executive, officer, employee or agent of the Company, or any member of the Company or its affiliates, to terminate their relationship with the Company or any of its affiliates.
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4.2 The Executive agrees that during his employment with the Company and for so long thereafter as the Company has not allowed public disclosure of the business information referred to below, the Executive will not, directly or indirectly, disclose, divulge, discuss, copy or otherwise use or allow to be used in any manner, the customer lists, manufacturing and marketing methods, product research or engineering data, vendors lists, contractors lists, financial information, business plans and methods or other confidential business information or trade secrets of the Company, its direct or indirect subsidiaries or its affiliates, it being acknowledged by the Executive that all such information regarding the business of the Company, its direct or indirect subsidiaries or its affiliates compiled or obtained by, or furnished to, the Executive while the Executive shall have been employed by or associated with the Company is confidential information and the Company’s exclusive property (it being understood, however, that the information publicly disclosed by the Company shall not be subject to this Section 4.2, provided that such information may not be used in connection with any of the activities prohibited under clauses a), b) and c) of Section 4.1 for so long as such clauses remain in effect).
4.3 Upon the termination of the Executive’s employment with the Company, or at any time upon the request of the Company, the Executive (or the Executive’s heirs or personal representatives) shall deliver to the Company (a) all documents and materials (including, without limitation, computer files) containing confidential information relating to the business and affairs of the Company, its direct and indirect subsidiaries and its affiliates, and (b) all documents, materials and other property (including, without limitation, computer files) belonging to the Company, its direct or indirect subsidiaries and its affiliates, which in either case are in the possession or under the control of the Executive (or Executive’s heirs or personal representatives).
4.4 The Executive expressly agrees and understands that the remedy at law for any breach by the Executive of any of the provisions of this Section 4 will be inadequate and that damages flowing from such breach are not readily susceptible to being measured in monetary terms. Accordingly, it is acknowledged that upon adequate proof of the Executive’s violation of any legally enforceable provision of this Section 4, the Company shall be entitled to immediate injunctive relief and may obtain a temporary order restraining any threatened or further breach. Nothing in this Section 4 shall be deemed to limit the Company’s remedies at law or in equity for any breach by the Executive of any of the provisions of this Section 4, which may be pursued or availed of by the Company.
4.5 In the event the Executive shall violate any legally enforceable provision of this Section 4 as to which there is a specific time period during which he is prohibited form taking certain actions or from engaging in certain activities, as set forth in such provision, then, such violation shall toll the running of such time period from the date of such violation until such violation shall cease; provided, however, the Company shall seek appropriate remedies in a reasonably prompt manner after discovery of a violation by the Executive.
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4.6 The Executive has carefully considered the nature and extent of the restrictions upon him and the rights and remedies conferred upon the Company under this Section 4, and hereby acknowledges and agrees that the same are reasonable in time, territory and scope, are designed to eliminate competition which otherwise would be unfair to the Company, are not designed to stifle the inherent skill and experience of the Executive, would not operate as a bar to the Executive’s sole means of support, are fully required to protect the legitimate interests of the Company and do not confer a benefit upon the Company disproportionate to the detriment to the Executive.
4.7 If any court or arbitrators determine that any of the covenants contained in this Section 4 (the “Restrictive Covenants”), or any part thereof, is unenforceable because of the duration or territory of such provision, the duration or territory of such provision, as the case may be, shall be reduced so that such provision becomes enforceable and, in its reduced form, such provision shall then be enforceable and shall be enforced.
4.8 The Company and the Executive intend to and hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts in the Province of Quebec. If the courts of any one or more or such jurisdictions hold the Restrictive Covenants wholly unenforceable by reason of breach of scope or otherwise, it is the intention of the Company and the Executive that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other jurisdiction within the geographical scope of such Restrictive Covenants as to breaches of such Restrictive Covenants in such other respective jurisdiction, such Restrictive Covenants as they relate to each jurisdiction being, of this purpose, severable, diverse and independent covenants, subject, where appropriate, to the doctrine of res judicata.
The term “affiliates” in this Section 4 when used in referencing affiliates of the Company includes, but is not limited to, Mayor’s Jewelers, Inc. and its subsidiaries.
6.1 Governing Law. This Agreement shall be construed in accordance with and governed for all purposes by the laws of the Province of Quebec and the laws of Canada applicable thereto.
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a) | To the Company: |
Birks & Mayors Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: Senior Vice President, Human Resources
b) | To the Executive: |
Xx. Xxxx-Xxxxxxxxxx Xxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxx
X0X 0X0
6.5 Jurisdiction. Subject to Section 4.8, any legal action or proceeding arising out of or relating to this Agreement shall be brought exclusively in the courts of the Province of Quebec and, by execution and delivery of this Agreement, the Executive and the Company irrevocably consent to the jurisdiction of those courts. The Executive and the Company irrevocably waive any objection, including any objection based on the grounds of forum non-conveniens, which either may now or hereinafter have to the bringing of any action or proceeding in such jurisdiction in respect of this Agreement or any transaction related thereto.
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a) This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal and legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive should die while any amounts are still payable to the Executive hereunder, all such amounts shall be paid in accordance with the terms of this Agreement to the Executive’s estate or beneficiary.
b) If either party is required to institute litigation or arbitration to enforce their rights under this Agreement, then the prevailing party, as determined by a court of competent jurisdiction, shall be entitled to recover reasonable attorney’s fees and costs.
6.7 Survival of Rights and Obligations. The provisions of sections 3.2, 3.3, 3.4, 3.5 and 4 (but subject to the time limitations in Section 4.1) shall survive the termination or expiration of this Agreement. Section 4.1a) shall not survive the termination or expiration of this Agreement if the Company terminates the Executive without Cause, or if the Executive resigns with Good Reason. However, nothing in this subsection prohibits the Company from seeking relief under Section 4 of this Agreement, including circumstances where the Executive purports to resign with Good Reason.
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BIRKS & MAYORS INC. | ||
By: | /s/ Xx. Xxxxx di Montelera | |
Xx. Xxxxx di Montelera | ||
Chairman of the Board | ||
EXECUTIVE | ||
/s/ Xxxx-Xxxxxxxxxx Xxxxx | ||
Xxxx-Xxxxxxxxxx Xxxxx |
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EXHIBIT A
RELEASE
Birks & Mayors Inc. (the “Company”) and Xxxx-Xxxxxxxxxx Bédos (the “Executive”) entered into an Employment Agreement (“Employment Agreement”) made as of January 4, 2012. To satisfy the requirement of Section 3.3 of the Employment Agreement, Executive hereby grants the Company the Release set forth below:
(a) any and all claims and matters of any kind which arise or might arise, or which otherwise relate to the Executive’s employment with the Company or any of the Company’s parent companies, subsidiaries, affiliates, or the Executive’s termination of employment;
(b) any and all claims for wages and benefits (including without limitation salary, stock, stock options, commissions, bonuses, severance pay, health and welfare benefits, vacation pay, and any other fringe-type benefit);
(c) any and all claims for wrongful discharge, breach of contract (whether written or oral, express or implied), and implied covenants of good faith and fair dealing;
(d) any and all claims for alleged employment discrimination on the basis of age, race, color, religion, sex, national origin, veteran status, disability and/or handicap or any other prohibited ground of discrimination, in violation of any federal, provincial, state, or local statute, ordinance, judicial precedent, or executive order;
(e) any and all claims under any federal, provincial, state or local statute relating to employee benefits;
(f) any and all claims in tort, including but not limited to any claims for fraud, misrepresentation, defamation, interference with contract or prospective economic advantage, intentional infliction of emotional distress, and/or negligence;
(g) any and all claims for additional commissions, compensation, or damages of any kind; and
(h) any and all claims for attorneys’ fees and costs.
2. Review. The Executive acknowledges that he has had the opportunity to review the Employment Agreement and this Release and to consider their terms with his attorneys and advisors and that he understands their meaning and effect. The Executive hereby acknowledges that the execution of this Release is the Executive’s own free and voluntary act and that the only inducement for Executive’s granting this Release is the payment provided for in Section 3.3 of the Employment Agreement. The Executive understands and acknowledges that the agreement with the Company constitutes a transaction within the terms of articles 2631 et seq. of the Civil Code of Québec and is made without prejudice and without any admission whatsoever of responsibility, fault or liability on the part of the Company.
(a) This Release shall be deemed to have been made in and shall be construed in accordance with the laws of the Province of Québec.
(b) This Release shall enure to the benefit of and be binding upon the Executive and the Company and their respective heirs, executors, administrators, legal personal representatives, successors and assigns.
(c) The Executive has requested that this Release be drawn up in the English language. / Le soussigné a requis que la présente Quittance soit rédigée en anglais.
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UNDERSTOOD AND AGREED:
Xxxx-Xxxxxxxxxx Bédos | Date | |||
Witness | Date |
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