EXHIBIT 4.44
EMPLOYMENT AGREEMENT
THIS AGREEMENT IS DATED EFFECTIVE this 1st day of September, 2002.
BETWEEN:
XXXXXXX XXXXX INTERNATIONAL INSURANCE BROKERS LTD.
a body corporate duly incorporated under
the laws of the Province of Alberta and carrying on
business in the Province of Alberta and elsewhere in Canada
(hereinafter referred to as the "Corporation")
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XXXXXXX XXXXX
an individual, resident in the City of Calgary
in the Province of Alberta
(hereinafter called the "Employee")
WHEREAS the Corporation is actively engaged in various insurance, financial and
other business activities;
AND WHEREAS the Corporation is desirous of employing the Employee to serve the
Corporation as an Accountant and Chief Financial Officer;
AND WHEREAS it is a condition of employment that this Agreement be first
executed;
AND WHEREAS it is also a condition of employment that the Employee sign a
Guarantee in favour. of Textron Financial Corporation in substantially the form
as attached hereto as Schedule "A" (the "Guarantee");
AND WHEREAS the Employee will receive the sum of TWELVE THOUSAND FIVE HUNDRED
($12,500.00) DOLLARS as consideration for the signing of this Agreement and the
Guarantee;
NOW THEREFORE in consideration of the mutual covenants, provisos and
consideration paid, the receipt and sufficiency which is hereby acknowledged,
the parties hereto respectively covenant and agree as follows:
1.0 The Corporation shall employ the Employee and the Employee agrees to
serve the Corporation and to perform on behalf of the Corporation all
such reasonable duties as may from time to time be authorized and
directed by the Corporation's Board of Directors which, without
limiting the generality of the foregoing, shall include the rendering
by the Employee in her capacity as an Accountant and Chief Financial
Officer, accounting and financial services to the Corporation, its
Officers, Directors, Shareholders, Agents, Employees and others as may
be reasonably required from time to time.
2.0 The employment of the Employee shall extend from the date hereof and
continue year after year unless and until terminated by at least THIRTY
(30) days written notice given by either
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party to the other, which notice shall be given to take effect on the
last day of the calendar month, provided that the following shall
apply;
(a) If the Corporation shall terminate the employment of the
Employee for any reason other than just cause, the Employee
shall receive severance pay equal to ONE (1) year's salary
(the salary being described in Paragraph 4.0 herein); and
(b) If the Employee shall voluntarily terminate her employment
with the Corporation at any time within SIX (6) months of the
Effective Date hereof, then the Employee shall receive
severance pay equal to EIGHT (8) month's salary, less the sum
of TWELVE THOUSAND FIVE HUNDRED ($12,500.00) DOLLARS.
3.0 The Employee shall be entitled to the sum of TWELVE THOUSAND FIVE
HUNDRED ($12,500.00) DOLLARS as consideration for the signing of this
Agreement and the Guarantee.
4.0 For services to be rendered, the Employee shall be paid a gross annual
sum to be fixed by the directors of the Corporation on an annual basis.
Such gross annual sum shall not be less than EIGHTY FIVE THOUSAND
($85,000.00) DOLLARS per annum during the currency of this Agreement.
5.0 The Employee shall be entitled to such number of weeks of paid annual
holidays as may be fixed by the directors of the Corporation from time
to time. However, such paid annual holidays shall not be less than four
weeks per annum.
6.0 The Employee shall well and faithfully serve the Corporation during the
continuance of her employment hereunder and use her best efforts to
promote the business of the Corporation and she shall devote
substantially her whole time and attention to her duties as an
Accountant and acting as Chief Financial Officer and shall not directly
or indirectly engage in or be concerned in or interested in any other
business of any kind which may interfere with, restrict or conflict
with her duties hereunder.
7.0 The Corporation shall, upon being furnished with reasonable particulars
of the same by the Employee, reimburse the Employee monthly for all
reasonable out of pocket expenses incurred by her in and above her
duties.
8.0 The Corporation shall provide, if and when possible the Employee with
private office space, secretarial assistance, general office supplies,
reference materials and research aids and such other facilities and
services as are customary and consistent for the proper performance of
the Employee's duties as an Accountant and acting as Chief Financial
Officer.
9.0 Subject to the terms and conditions governing the said Corporation, the
applicable code(s) of professional conduct common to the insurance
industry, and all other applicable laws, regulations and rules of
court, the Corporation shall have the power to:
(a) assign work and duties to the Employee;
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(b) review all work and services performed by the Employee;
(c) modify or cancel such work;
(d) require the Employee to revise such work;
(e) determine the time and manner of performance of all work; and
(f) determine the standards of performance and, within reason,
necessary hours of work.
9.1 Notwithstanding anything in this Agreement to the contrary and unless
the prior written consent of the Employee is obtained by the
Corporation, there shall be no members of the management of the
Corporation or any of its subsidiaries or affiliates who are in a
subordinate position to that of the Employee reporting directly to the
Employee.
10.0 The relationship between the Corporation and the Employee is that of
master and servant and as such the Employee shall be eligible to
participate in any plans or arrangements or distributions by the
Corporation pertaining to any employed person, and profit sharing,
bonus or similar benefits that may be provided by the Corporation.
11.0 Nothing contained herein shall be construed to give the Employee an
interest in the tangible or intangible assets of the Corporation.
12.0 A waiver by either party of any breach of any provision of this
Agreement shall not operate or be construed as a waiver of any
subsequent breach of the same or any other provision of this Agreement.
13.0 Notices may be given by either party by letter or by cable addressed to
the other party as in the case of the Corporation, its registered
office for the time being, and in the case of the Employee, her last
known address and any such notice given by letter shall be deemed to
have been given at the time the letter would be delivered in the
ordinary course of post.
14.0 The provisions of the Arbitration Act of Alberta shall apply to all
disputes or differences whatsoever which shall at any time hereafter
(whether during the continuance in effect of this Agreement or upon or
after its discharge or determination) arises between the parties hereto
touching or concerning this Agreement or its construction or effect or
as to the rights, duties and liabilities of the parties hereto or
either of them or by virtue of this Agreement or otherwise or after any
other matter in any way connected with or arising out of or in relation
to the subject matter of this Agreement (including without restricting
the generality of the foregoing, the amounts of remuneration to be paid
to the Employee for any particular year.
15.0 This Agreement shall enure to the benefit of and be binding upon the
parties hereto together with their respective heirs, executors,
administrators, successors and assigns, as the case may be.
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IN WITNESS WHEREOF the parties have executed these presents as at the Effective
Date first written above.
XXXXXXX XXXXX INTERNATIONAL INSURANCE BROKERS LTD.
Per: (signed) Primo Podorieszach
(signed) Xxxxxx Andrietz (signed) Xxxxxxx Xxxxx
__________________________________ __________________________________
Witness XXXXXXX XXXXX
SCHEDULE "A"
INDIVIDUAL GUARANTY
This Guaranty is executed as of July __, 2002, by the undersigned guarantor
("Guarantor") in favor of Textron Financial Corporation and each of its
affiliates (individually and collectively, "TFC"). For purposes of this
Guaranty, any party which controls TFC, is controlled by TFC, or is under common
control with TFC, shall be deemed an affiliate of TFC.
RECITALS
A. TFC has entered into a Loan and Security Agreement of even date
herewith with Addison York Insurance Brokers, LLC, a Delaware limited. liability
company ("Obligor") (the Loan and Security Agreement, together with the
Promissory Note and any other document executed or delivered thereunder,
collectively the "Transaction Documents"); and
B. TFC is unwilling to enter into the Transaction Documents with Obligor,
unless Guarantor enters into this Guaranty on the terms and conditions provided
herein.
AGREEMENT
With knowledge that TFC will enter into the Transaction Documents with
Obligor in reliance upon the existence of this Guaranty, Guarantor agrees with
TFC as follows:
1. Guaranty.
(a) Subject to the terms and conditions hereof, Guarantor,
unconditionally and irrevocably guarantees to TFC (except as hereinafter
expressly provided as to limitations), without off-set or deduction, the prompt
payment and/or performance of all indebtedness, obligations and liabilities of
Obligor at any time owing to TFC pursuant to the Transaction Documents, whether
direct or indirect, matured or unmatured, primary or secondary, certain or
contingent or acquired or created by TFC (individually, a "Guaranteed
Obligation" and, collectively, the "Guaranteed Obligations").
(b) Notwithstanding anything in this Guaranty to the contrary, the
term "Guaranteed Obligations" shall not include any obligations or liabilities
of Obligor owing to TFC unless (i) one or more of the following events occurs:
the commission of fraud; embezzlement, or misappropriation of funds or monies
held in a fiduciary capacity relating to the Obligor or Xxxxxxx Xxxxx
International Insurance Brokers Ltd. that involves the actions of Guarantor,
(ii) such action causes a material adverse change in the business or financial
condition of the Obligor or Xxxxxxx Xxxxx Insurance Brokers Ltd. and (iii)
Guarantor failed to use the care that a reasonably prudent person in the same
position would have used.
(c) This Guaranty is a guaranty of payment when due and not of
collectibility. TFC may enforce this Guaranty upon the occurrence of an Event of
Default under the Transaction documents notwithstanding the existence of any
dispute between Obligor and TFC with respect to the existence of such event.
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(d) Guarantor acknowledges and agrees that (i) he has received
good, valuable and sufficient consideration for entering into and performing
under this Guaranty; (ii) he accepts the full range of risk encompassed within
this Guaranty; (iii) he is aware of the financial and other condition of Obligor
and accepts the risk that such condition may deteriorate; (iv) recourse may be
had against his separate property to enforce his obligations hereunder; (v) his
obligations and liability hereunder shall not be contingent or conditioned upon,
and shall not be released, waived, modified or impaired by reason of (A) any
change in the status of Obligor or amendment, assignment or termination of the
Transaction Documents, (B) any other breach by Obligor of any representation,
warranty or covenant set forth in the Transaction Documents, or (C) any failure
to enforce, or delay in enforcement of, any right, power or remedy of the TFC
under the Transaction Documents; and (vi) TFC shall have no obligation to
proceed against Obligor, or any other person or entity, before seeking
satisfaction against the Guarantor or its assets.
2. Continuing Nature of Guaranty. This Guaranty is a continuing guarantee
and shall apply without regard to the form or the amount of the Guaranteed
Obligations in existence at any time.
3. Absolute Nature of Guaranty. The obligations of Guarantor under this
Guaranty are absolute and, except as provided herein, unconditional. Guarantor
shall not be released from such obligations for any reason other than full
performance of the Guarantied Obligations, nor shall the Guarantor's obligations
under this Guaranty be reduced, diminished or discharged for any reason,
including:
(a) Modifications and Indulgences. Any modification, renewal or
alteration of any agreement, document or instrument relating to any Guaranteed
Obligation, or any indulgence, adjustment, preference, extension or compromise
made by TFC in favor of Obligor or Guarantor.
(b) Condition of Obligor or Guarantor. Any insolvency, bankruptcy,
arrangement, adjustment, composition, liquidation, disability, dissolution or
similar proceeding affecting Obligor or Guarantor; any sale, lease or other
disposition of any of the assets of Obligor or Guarantor; any reorganization of,
or change in the composition of the shareholders, partners or members of,
Obligor or Guarantor, or any termination of, or other change in, the
relationship between Obligor and Guarantor.
(c) Invalidity of Guaranteed Obligations. The invalidity,
illegality or unenforceability of any Guaranteed Obligation for any reason
whatsoever, including, but not limited to: the existence of valid defenses,
counterclaims or offsets to any Guaranteed Obligation; or the violation of
applicable usury laws by any Guaranteed Obligation.
(d) Release of Obligor. Any complete or partial release of Obligor
or any other party from any Guaranteed Obligation.
(e) Release of Collateral: Care of Collateral; Status of Liens.
Any release, surrender, exchange, deterioration, waste, loss or impairment of
any collateral securing payment of any Guaranteed Obligation (the "Collateral"),
whether negligent or willful; the failure of TFC or any other party to exercise
reasonable care in the preservation, protection, sale or other treatment of any
of the Collateral; the failure of TFC to create or properly perfect any security
interest intended to be given by Obligor in connection with any Guaranteed
Obligation (a "Security Interest"); the unenforceability of any Security
Interest; the subordination of any Security Interest to any other lien
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or encumbrance; or the taking or accepting by TFC of any other security for, or
assurance of payment of, any Guaranteed Obligation.
(f) Other Action or Inaction. Any other action or inaction on the
part of TFC, whether or not such action or inaction prejudices Guarantor or
increases the likelihood that Guarantor will be required to pay or perform any
Guaranteed Obligation pursuant to the terms hereof.
It is the obligation of Guarantor to discharge the Guaranteed
Obligations when due, notwithstanding any occurrence, circumstance, event,
action or omission whatsoever, whether or not particularly described herein.
Guarantor is not entering into this Guaranty in reliance on the value or the
availability of any of the Collateral. Guarantor acknowledges that Guarantor may
be required to pay the Guaranteed Obligations, in full, without the assistance
or support of any other party. Guarantor has not been induced to enter into this
Guaranty on the basis that any party other than Obligor will be liable to
perform any Guaranteed Obligation or that TFC will look to any other party to
perform any Guaranteed Obligation (other than Obligor as provided herein).
4. Waivers. Guarantor waives:
(a) Action Against Others. Any right to require TFC to: institute
suit or exhaust remedies against Obligor or any other party liable for any
Guaranteed Obligation; enforce TFC's rights in any of the Collateral or other
security which is at any time given to secure any guaranteed Obligation; enforce
TFC's rights against any other guarantor of any Guaranteed Obligation; join
Obligor or any other party liable for any Guaranteed Obligation in any action
seeking to enforce this Guaranty; or exhaust any other remedies available to TFC
or resort to any other means of obtaining payment or performance of any
Guaranteed Obligation.
(b) Notices. Notice of the amount of credit extended by TFC to
Obligor at any time, whether primary or secondary; notice of the modification or
extension of any Guaranteed Obligation; notice of a default or other
non-performance by Obligor in connection with any Guaranteed Obligation; notice
of the transfer or disposition by TFC of any Guaranteed Obligation; notice of
the repossession, sale or other disposition of any of the Collateral; notice of
the acceptance of this Guaranty by TFC; demand and presentation for payment upon
Obligor or any other party liable for any Guaranteed Obligation; protest, notice
of protest and diligence of bringing suit against Obligor or any other party;
and any other action or inaction on the part of TFC in connection with this
Guaranty or any Guaranteed Obligation.
(c) Election of Remedies. All defenses Guarantor may have based
upon any election of remedies by TFC which destroys or impairs Guarantor's
subrogation rights or Guarantor's rights to proceed against Obligor or any other
person for reimbursement, including, without limitation, any loss of rights that
Guarantor may suffer by reason of any rights, powers or remedies of Obligor in
connection with any anti-deficiency laws or any other laws limiting, qualifying
or discharging indebtedness of or remedies against Obligor or any other party.
The foregoing waivers include any requirement of law that TFC exhaust any
security with respect to any obligation before proceeding under this Guaranty
and any act or omission by TFC which directly or indirectly results in or aids
the loss, limitation or impairment of the right to recover any deficiency from
Obligor. Without limitation of the foregoing, Guarantor waives all rights and
defenses arising out of an election of remedies by a creditor, even though that
election of remedies, such as a non judicial foreclosure with respect to
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security for a guaranteed obligation, has destroyed the guarantor's rights of
subrogation and reimbursement against the principal.
5. Representations and Warranties. Guarantor represents and warrants to
TFC that:
(a) Benefit. Guarantor has received, or will receive, direct or
indirect benefit from the creation of the Guaranteed Obligations.
(b) No Representation by TFC. Neither TFC nor any other party has
made any representation, warranty or statement to Guarantor in order to induce
Guarantor to execute this Guaranty.
(c) Financial Condition. As of the date hereof, and after giving
effect to this Guaranty and the contingent obligations contained herein,
Guarantor is solvent and has assets which, when fairly valued, exceed
Guarantor's liabilities.
6. Termination. This Guaranty shall automatically terminate and the
Guarantor shall have no liability hereunder upon the occurrence of any of the
following events: (a) payment of the Guaranteed Obligations in full, or (b) 180
days after the date that the Guarantor ceases to be employed (other than
termination for an event described in 1(b)) by the Obligor, Xxxxxxx Xxxxx
International Insurance Brokers Ltd.; or any of their affiliates, provided, that
such termination does not occur in anticipation of an Event of Default by
Obligor that is known to Guarantor at the time of such termination.
7. Governing Law: Miscellaneous. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of Ohio, without reference
to applicable conflict of law principles. Guarantor consents to the jurisdiction
and venue of Ohio courts in connection with TFC's enforcement of any of
Guarantor's obligations under this Guaranty. This Guaranty shall not be deemed
to create any right in any party except as provided herein and shall inure to
the benefit of, and be binding upon, the successors and assigns of Guarantor and
TFC. This Guaranty constitutes the entire agreement of Guarantor and TFC
relative to the subject matter hereof. No modification of, or supplement to,
this Guaranty shall bind TFC unless the same is in writing and is signed by an
authorized officer of TFC. Upon the request of TFC, Guarantor shall deliver to
TFC personal financial statements and such other financial information as TFC
may reasonably request. Guarantor agrees that TFC may, without the consent of,
or notice to, Guarantor, assign all or any portion of its rights hereunder to
any other party to which any Guaranteed Obligation is transferred, assigned or
negotiated. Guarantor shall be liable for all attorneys' fees and other costs
and expenses incurred by TFC in connection with TFC's enforcement of this
Guaranty.
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The undersigned have caused this Guaranty to be executed as of the date
set forth above.
WITNESS: INDIVIDUAL GUARANTOR:
_______________________________________ _____________________________________
Print Name: ___________________________ Print Name: Xxxxxxx Xxxxx
Home Address: Home Address:
_______________________________________ _____________________________________
_______________________________________ _____________________________________
