EXHIBIT 4.8
EMPLOYMENT AGREEMENT effective February 1, 1998
BY AND BETWEEN: FRISCO BAY INDUSTRIES LTD.
a corporation incorporated under the
laws of Canada
(hereinafter referred to as the "Company")
OF THE FIRST PART
AND: XXXXXXXXX XXXXXXXX
of the City of MONTREAL
Province of QUEBEC
(hereinafter referred to as the "Employee")
OF THE SECOND PART
In consideration of the mutual covenants and agreements herein
contained and for other good and valuable consideration, it is hereby agreed as
follows:
1. The Company hereby engages the Employee in accordance with the
terms and conditions of this agreement and Schedules A and B hereto and the
Employee agrees to such terms and conditions and shall, wherever and whenever so
requested and/or directed by the Executive Committee of the Company, exercise
and carry out such duties, observe such directions and restrictions and possess
such authority that the Executive Committee of the Company may from time to time
confer or impose upon the Employee.
2. Without limiting and/or restricting in any manner whatsoever the
generality of the foregoing, the work and services to be performed by the
Employee shall include the following:
(a) to perform activities for the Company as are assigned from
time to time;
(b) to process any customer complaints and assist in correcting
the cause of such complaints;
(c) to assist in the collection of unpaid accounts from customers;
(d) to maintain harmonious relationships with members of
management and staff of the Company, and at all times, promote
the name of the Company;
(e) to carry out all of the foregoing at such place of business,
division, branch, territory, city, province or country as the
company directs, from time to time, in its sole discretion.
3. THIS AGREEMENT MAY BE TERMINATED AT ANY TIME BY THE COMPANY
WITHOUT PREVIOUS NOTICE AND WITHOUT PAYMENT IN LIEU OF NOTICE:
(a) For cause. Cause for the purposes of this agreement shall,
inter alia, include:
1. Any breach by the employee of any of his (her)
obligations to be observed or performed hereunder;
2. In the event of the death or total incapacity of the
Employee or in the event that the Employee is incapable
of continuing his employment for any continuous period
in excess of three (3) months; or
3. In the event that the company ceases to carry on
business or becomes bankrupt or insolvent;
4. THE COMPANY AND THE EMPLOYEE MUTUALLY AGREE THAT IN THE EVENT
THAT THE COMPANY WISHES TO TERMINATE THIS PRESENT CONTRACT, WITHOUT CAUSE, THEN
IN SUCH EVENT THE COMPANY SHALL GIVE THE EMPLOYEE A WRITTEN NOTICE AND/OR
PAYMENT IN LIEU OF NOTICE, IN ACCORDANCE WITH THE FOLLOWING SCHEDULE, WHICH THEY
DEEM, FOR PURPOSES OF THIS AGREEMENT, TO BE REASONABLE;
(a) When the employee has between 3 months and 2 years of service
in the organization: 2 weeks
(b) When the employee has over 2 years but less than 3 years of
service in the organization: 3 weeks
(c) When the employee has over 3 years but less than 5 years of
service in the organization: 4 weeks
(d) When the employee has over 5 years but less than 7 years of
service in the organization: 8 weeks
(e) When the employee has over 7 years but less than 10 years of
service in the organization: 10 weeks.
(f) When the employee has over 10 years of service in the
organization: 3 months;
In the event that the employer proceeds in accordance with this
article, either by giving working notice or payment in lieu of notice, the said
notice and/or payment constitutes full and final payment of any and all claims
for any damages, notice, severance pay or any other claims arising out the
employment agreement and/or any applicable labour standards legislation or
similar applicable legislation.
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The notice shall be sent by registered mail to the employee's last
address as indicated in the personnel records of the Company, or delivered by
hand to the employee.
The provisions of this clause shall not release either of the
parties for any other sums such as commissions, overrides, overdraw, bad debts,
repayment of loans, sums due for equipment not returned to the Company, all of
which are governed by the applicable provisions of this agreement, or as agreed
to between the parties.
IT IS UNDERSTOOD AND AGREED BY THE PARTIES THAT THIS PRESENT CLAUSE
IS AN ESSENTIAL TERM OF THIS AGREEMENT WITHOUT WHICH NEITHER PARTY WOULD HAVE
CONTRACTED SAME.
5. Any reimbursement for car expenses provided for in Schedule A
shall cover all car expenses, including but not limited to gas, oil,
maintenance, tires, insurance, depreciation, tools and all parking charges
incurred by the Employee on behalf of the Company and shall be supported by
vouchers. The Company will not be liable for any such expense not provided for
in the said schedule or exceeding the limit therein specified.
6. The Employee will be reimbursed for all travelling expenses and
other expenses actually and properly incurred by him in connection with his
duties hereunder, the whole in accordance with current Company policy and/or
Schedule A which forms a part of this agreement, or as amended from time to
time. For all such expenses, he shall furnish statements and vouchers; it being
clearly understood, however, that the employee shall not incur any single
expense of any kind or nature whatsoever relating to travel or other matters in
excess of $100.00 without prior written approval.
7. All vacations shall be approved by the Executive Committee of
the Company or as delegated to the General Manager in accordance with past
practice, in advance after reasonable notice by the Employee. The Employee shall
advise the Executive Committee or as delegated to the General Manager in
accordance with past practice of his whereabouts during vacation and shall
always leave someone in charge capable of assuming responsibility during such
absence. The vacation allocation as well as the scheduling of same shall be
determined in accordance with current Company policy or as amended from time to
time.
8. In the event that the Employee receives any commissions or
overrides in accordance with this agreement or any schedule attached hereto, or
any amendment thereto, and in the event an account becomes uncollectible for any
reason, any commission or override paid to the Employee for the account will
then be refunded to the Company by the Employee and will become due to the
Company in the month that the account is deemed uncollectible by the Company.
The Company's normal collection policy is stated on the Company work order form.
Special arrangements should not be made beyond these conditions unless prior
written approval is received from the Company's finance department. Any special
terms and conditions of sale and any special instructions should be written on
the work order. It is the Employee's responsibility to properly fill out and
understand the Company work order and the terms of sale.
9. The Employee hereby assigns and agrees to assign to Frisco Bay
or its nominee, its successors or assigns, all his rights, title and interest in
and to any inventions
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improvements and ideas, including without limitation those related to software
developments, as well as all intellectual property rights relating thereto,
which he has made or conceived of may make or conceive, either solely or jointly
with others, in the course of his association with Frisco Bay or on Frisco Bay's
time or with Frisco Bay's material or facilities, or relating to any subject
matter with which Frisco Bay is or may be concerned, or relating to any business
in which Frisco Bay is involved and the Employee hereby furthermore waives any
moral rights in respect of any such inventions, improvements or ideas, including
without limitation those related to software developments, which are or may be
copyrighted.
The Employee further agrees, at Frisco Bay's expense, to execute,
acknowledge and deliver all such further papers, including without limitation,
applications for patents or copyrights, as may be necessary to enable Frisco Bay
to publish or protect said inventions, improvements and ideas, including without
limitation those related to software developments, by patent, copyright or
otherwise, in any and all countries and to vest title to said inventions,
improvements and ideas, including without limitation those related to software
developments, and all intellectual property rights relating thereto, in and to
Frisco Bay or its nominees, successors, or assigns, and to render all such
assistance as Frisco Bay may require in any patent, or copyright application,
proceedings or litigation involving said inventions, improvements or ideas.
10. It is recognized and acknowledged that the Employee shall be
made privy to certain information, including without limitation, systems, names
of clients and their identities and requirements, methods, procedures, designs
and manufacturing processes, lists of suppliers, materials, compositions, ideas,
improvements, inventions, designs, formulae, sources of finances, personnel and
their duties and capabilities, programs, models, samples, drawings, plans,
prototypes, software, source and object codes, blueprints and projects of Frisco
Bay (collectively, the "Confidential Information") and it is further recognized
and acknowledged that the Confidential Information is the exclusive property of
Frisco Bay and constitutes a proprietary right which Frisco Bay is entitled to
protect.
The Employee agrees that he shall not, during or after the term of
his association with Frisco Bay, disclose any of the Confidential Information to
any third party for any reason or purpose whatsoever and furthermore, shall not
make any use of the Confidential Information during or after the term of his
association with Frisco Bay, other than for the purpose of his association with
Frisco Bay. After the term of the Employee's association with Frisco Bay, he
shall deliver to Frisco Bay any Confidential Information which he may then have
in his possession and he shall not make any copies thereof.
The Employee further specifically agrees that the Company has a
legitimate interest in ensuring that the Confidential Information will neither
be used by the Company's competition nor be used by the Employee for a purpose
other than the execution of his functions as an Employee of the Company.
Therefore the Employee specifically agrees:
(a) That during the term of his employment, under no circumstances
will the Employee compete with the Company. In other words, the Employee, for
his own account, or for the account of a third party, directly or indirectly,
shall not manufacture, lease or sell or solicit
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for sale or lease, products which are the same or similar in function to those
sold, leased or manufactured by the Company.
(b) For a period of one (1) year following the termination of his
employment, whether for his own account or for the account of a third party,
directly or indirectly, the Employee shall not manufacture, lease or sell or
solicit for sale or lease, products which are the same or similar in function to
those sold, leased or manufactured by the Company in the territory or
territories assigned to the Employee during the period of one (1) year
immediately preceding the date of termination of Employee's employment;
(c) For a period of one (1) year following the termination of his
employment, whether for his own account or for the account of third party,
directly or indirectly, the Employee shall not manufacture, lease, or sell or
solicit for sale or lease, products which are the same or similar in function to
those sold, leased or manufactured by the Company to any client or potential
client of the Company, which the Employee was responsible for during the one (1)
year period immediately preceding the date of termination of Employee's
employment. For purposes of this section "client" means any person from whom the
Company has received an order during the one (1) year period immediately
preceding the date of termination of the Employee's employment. "Potential
client" means those persons whom the Employee has contacted with a view to
obtaining an order during the one (1) year period immediately preceding the date
of termination of the Employee's employment;
(d) For a period of one (1) year following the termination of his
employment, whether for his own account or for the account of a third party,
directly or indirectly, the Employee shall not manufacture, lease or sell or
solicit for sale or lease, products which are the same or similar in function to
those sold, leased or manufactured by the Company to any client or potential
client of the Company. For purposes of this section "client" means any person
from whom the Company has received an order during the one (1) year period
immediately preceding the date of termination of the Employee's employment.
"Potential client" means those persons whom the Company has contacted with a
view to obtaining an order during the one (1) year period immediately preceding
the date of termination of Employee's employment.
(e) For a period of one (1) year following the date of termination
of his employment, whether for his own account or for the account of a third
party, directly or indirectly, the Employee shall not approach any other
Employee of the Company with a view to offering or causing to be offered to such
other Employee of the Company, a new position or employment with any other
person or company.
(f) If any paragraph, sub-paragraph, clause or portion of any
paragraph, sub-paragraph or clause contained in this section is considered to be
null and void by a Court of competent jurisdiction, the parties agree that the
nullity of such paragraph, sub-paragraph or clause shall not affect the validity
of any other paragraph, sub-paragraph or clause contained in this section, nor
the validity of the contract as a whole.
IT IS UNDERSTOOD AND AGREED BY THE PARTIES THAT THE CLAUSES 9 AND 10
ABOVE ARE ESSENTIAL TERMS OF THIS AGREEMENT WITHOUT WHICH NEITHER PARTY WOULD
HAVE CONTRACTED SAME.
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11. The Employee does hereby acknowledge that breach by him of the
terms of Section 9 and/or 10 hereof would cause irreparable harm to the Company
and could not adequately be compensated for by damages, and in the event of a
breach by the Employee of any of said provisions, the Employee hereby consents
to an injunction being issued against him restraining him from any further
breach of any of the said provisions, but the provisions of this section shall
not be construed so as to affect or impair any other remedies which the Company
may have in the event of such breach, including but not limited to an action for
damages.
12. In the event that the Employee receives any commissions or
overrides in accordance with this agreement or any schedule attached hereto, or
any amendment thereto, the said commission or override shall become due and
payable only when the goods sold have been shipped to the client and installed
to the client's satisfaction.
In the event of termination of employment with the Company, any
commission or overrides owed will be calculated on goods shipped up to the date
of termination. Account will be taken of all shipping revenue on which
commission or draw has already been paid, all credits, reserve for uncollected
accounts, and adjustments. Should any money be owing to the Employee as a
result, it will be payable within forty-five days after the end of the month in
which the termination occurred, save for any payments held by the Company for
uncollected accounts which will become payable to the Employee upon receipt of
payment from the customer.
The Employee will not be entitled to any commissions for goods
shipped after the termination of his/her employment with the Company.
13. The Employee recognizes and accepts that management of the
Company may require from time to time, the transfer of employees from one
division, branch, territory, city, province, country, client or group of
clients, in order to assure the proper and efficient management of the Company's
operations.
14. Notwithstanding anything in this Agreement or any schedule
attached hereto to the contrary, it is hereby agreed that the employee shall
commence his employment, under the terms of this agreement, for a term of three
(3) months from the commencement of his employment on a probationary period.
This probationary period may be extended, at the discretion of the Company, for
a maximum period of up to six additional months. It is understood that the
purpose of the probationary period is to permit the Company, in its opinion, to
determine the likeliness of the employee to meet the Company standards in all
respects and in addition to ascertain the employees suitability as a permanent
employee. If, during this term, the Company in its sole discretion, is of the
opinion that the employee does not meet its standards, then it may, without
further notice, terminate the employee.
15. The Employee acknowledges and accepts to respect the Company
policy with respect to the prohibition of receiving any form of compensation,
from a customer, prospective customer, competitor, supplier, or any other person
on behalf of one of the foregoing, for any reason, save for usual and customary
Christmas gifts, providing same are of a value not exceeding $100. Any breach of
this prohibition shall be deemed to be cause within the meaning of Clause 3 of
this Agreement.
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16. In order for the Company to comply with government tax
regulations, the Employee agrees to complete and to submit a TD1X, or other tax
forms as required.
17. Upon termination, should the Employee owe money to the Company
for any reason, the entire amount is repayable to the Company within 45 days of
the termination date.
18. Upon termination, the Employee hereby authorizes the Company to
set-off any amount which the Employee owes to the Company from amounts which the
Company owes to the Employee including, but not to limit the generality of the
foregoing, vacation pay and/or any other amount which may be owing under a
provision of law or private agreement.
19. This Agreement shall enure to the benefit of and be binding on
the parties hereto and their respective heirs, legal or personal
representatives, successors and assignees.
20. This Agreement and the schedule(s) hereto constitute and
express the entire agreement between the parties hereto concerning the terms of
employment of the Employee. This Agreement supersedes all prior or existing
contracts and understandings, either expressed or implied, between the Company
and the Employee and it is acknowledged by the Company and the Employee that all
representations, promises and understandings relative to employment have been
reduced to writing herein, AND THAT ANY FUTURE MODIFICATIONS OF THIS AGREEMENT
MUST BE IN WRITING.
21. If any covenant or provision in this Agreement is determined to
be void or unenforceable in whole or in part, it shall not be deemed to affect
or impair the validity of any other covenant or provision hereof.
22. Any forbearance by the Company to enforce its rights in the
event of a breach of this Agreement shall not be deemed a waiver of such breach,
or a waiver of the continuance of such breach or any additional breaches.
23. In the event that any provision of this agreement is overridden
by any mandatory provincial or applicable federal legislations, then to such
extent, the provision in question shall not be declared null and void, but
simply made to conform with the said applicable legislation.
24. This agreement shall be interpreted in accordance with the laws
of the Province of Quebec.
25. In this Agreement wherever the singular or masculine is used it
will be construed as if the plural or feminine or neuter as the case may be, had
been used where the context of the parties hereto so require.
26. The parties hereto acknowledge that they have agreed that this
Agreement, as well as related documents, be drawn up in the English language
only. Les parties reconnaissent avoir convenu que ce contrat, ainsi que les
documents s'y rattachant, soient rediges en anglais seulement.
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IN WITNESS WHEREOF this Agreement, entered into on June 18, 1998 has
been executed by the parties hereto.
Frisco Bay Industries Ltd.
/s/ Xxxxxxx Xxxxxxxxx Per: /s/ Xxxxx Xxxxxx
------------------------------------ ----------------------------------
Witness (Signature)
Xxxxxxx Xxxxxxxxx Xxxxx Xxxxxx
------------------------------------ --------------------------------------
(Print Name) (Print Name)
Employee:
/s/ Xxxxxxx Xxxxxxxxx Per: /s/ Xxxxxxxxx Xxxxxxxx
------------------------------------ ----------------------------------
Witness (Signature)
Xxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxx
------------------------------------ --------------------------------------
(Print Name) (Print Name)
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SCHEDULE A
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This Schedule A effective April 2, 2001, forms a part of the
Employment Agreement effective February 1, 1998.
The schedule defines the compensation the Employee will receive, and
the terms of this compensation for the period April 2, 2001 to January 31, 2002,
and is based upon the achievement of the mutually agreed upon business
objectives as stated herein. Nothing herein shall be construed as creating a
fixed term of employment.
This schedule supersedes any and all prior or existing compensation
schedules, compensation agreements, or compensation understandings, either
expressed or implied, verbally or in writing, between the Company and the
Employee, and it is acknowledged by the Company and the Employee that all
representations, promises, and understandings relative to compensation have been
reduced to writing herein, AND THAT ANY FUTURE MODIFICATIONS OF THIS AGREEMENT
MUST BE IN WRITING.
All of the provisions of this Schedule A are subject to the terms
and conditions of the principal Employment Agreement. In the event of any
conflict, the latter shall prevail.
Name of Employee: XXXXXXXXX XXXXXXXX
Current Position: VICE PRESIDENT, SPECIAL PROJECTS
BASE SALARY: $65,000 per annum, to be paid bi-weekly
CAR ALLOWANCE: $17,400 per annum, to be paid monthly upon
presentation of receipts
INCENTIVE:
1.5% on shipping revenues of Xxxx Canada, Nexacor and Bell related companies
other than Teleglobe.
3% on profit of above-mentioned companies.
Incentives to be paid monthly.
VACATION:
For the period May 1, 2001 - April 30, 2002, five weeks of vacation time, three
of which will be paid and two will be unpaid.
Beginning May 1, 2002, based on 12 months of continuous employment between May
1, 2001 and April 30, 2002, vacation will be as per company policy.
It is agreed and understood that for all orders with a value exceeding $l
million, the following terms and conditions apply.
1. Commission rates will be determined on a case by case basis and
will not necessarily be equal to the commission structure outlined in the
incentive portion of this Schedule A.
2. The value of the sale will not be applied to the quotas
specified in this Schedule A.
3. In the event of termination of employment, for any reason,
commissions will be paid on goods shipped up to the date of termination only. No
commissions will be paid for goods shipped after termination of employment.
The parties hereto acknowledge that they have agreed that this
Agreement, as well as related documents, be drawn up in English. Les parties
reconnaissent avoir convenu que ce contrat, ainsi que les documents s'y
rattachant, soient rediges en anglais.
I have read, understood and am in agreement with the terms and
conditions as set forth in this Schedule A.
Schedule A, entered into on June 7, 2001, has been executed by the
parties hereto.
Frisco Bay Industries Ltd.
Per: /s/ Xxxxxx X. Xxxxxx
----------------------
(Signature)
Xxxxxx X. Xxxxxx
--------------------------
(Print Name)
Employee
/s/ Xxxxxxxxx Xxxxxxxx
---------------------------
(Signature)
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SCHEDULE B
----------
The Company advises that:
1. It is our experience that at the time of employment, when
employees are asked to sign an employment contract containing the restrictive
non-competitive employment covenant, they profess that they would never consider
going into competitive employment situation upon termination of their employment
with the Company during the restrictive period.
2. The Company seeks an employment contract with its employees not
only for protection. The Company seeks an employment agreement with its Employee
not only to protect its legitimate proprietary rights, but to enable the Company
to operate its business and develop a growing opportunity for everyone in the
business on a sale which would otherwise not be possible were there no
employment contracts.
3. The Company, therefore, regards the agreement as a "trust", not
just an agreement, between the Company and the Employee. Regardless of the
circumstances, therefore, the Company feels that if the Employee initiates some
action which will break that trust, then the Company is entitled to protect its
rights with every remedy at its disposal.
4. The Company has certain proprietary rights. These include the
lists of clients, potential clients and any information or knowledge concerning
their tastes, desires, peculiarities, or characteristics. It includes lists of
employees, lists of applicants, and their addresses and characteristics. It also
includes trade secrets and confidential information about the goods and services
sold by the Company as well as the way in which the Company carries on business.
The Company is entitled to protect these proprietary rights and will enforce
these rights at law. Lists of any kind which pertain to what are known as "trade
connections" of this Company, and "trade secrets" of this Company, taken from
this Company in any way, shape or form and used in a competitive manner,
constitute an infringement of the Company's legal rights and, of course, could
also constitute theft.
5. The Company is likewise entitled under the term of its contract
to protect its trade secrets - its special methods of doing business, its
specially invented techniques and its systems and reporting methods which all
constitute secret techniques in which the Company has a proprietary right.
6. Many of the Company's capable personnel have received (and will,
no doubt, continue to receive) offers of employment from our competitors.
However, they abide by the terms of their contract and by the terms of the trust
they have with the Company and their colleagues. To do otherwise would be unfair
to those who remain with the Company and honour their agreement. As a result,
the Company is obliged to pursue its legal right in respect of any Employee who
sees fit to ignore the non-competition provision of the Company employment
contract.
7. As a condition of employment with the Company, many Employees
are requested to sign a contract. If you have any concern about the terms and
conditions of this contract, you may wish to seek legal advice and the Company
invites you to do so. However, the
Company emphatically stipulates that all contracts be signed by the Employee
within 10 days of receipt of contract documents.
8. When the contract has been signed by you, both copies of the
fully executed contract, and any other contract documents should be returned to
the Company.
9. This Schedule B forms part of the Employment Agreement.
TO BE SIGNED BY THE EMPLOYEE:
I have read and understand the above outline of the reasons why the
Company requires an employment contract from its Employees. I understand the
terms of the contract and any questions I have asked concerning the contract
have been answered to my satisfaction. I understand that I am freely able to
seek independent legal advice, should I desire to do so and that I have either
done so or have waived the necessity of so doing.
NAME Xxxxxxxxx Xxxxxxxx
--------------------------------------
DATE June 18, 1998
--------------------------------------
SIGNATURE /s/ Xxxxxxxxx Xxxxxxxx
---------------------------------
WITNESS - NAME Xxxxxxx Xxxxxxxxx
----------------------------
SIGNATURE /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
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