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EXHIBIT 10.5
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THIS EMPLOYMENT AGREEMENT entered into as of November 11, 1996.
BETWEEN: XXXXX X. XXXXX, resident and domiciled in the
Province of Quebec
(hereinafter referred to as the "Senior Executive")
AND: X.X. XXXX + XXXXX INC., a corporation incorporated
under the Canada Business Corporations Act
(hereinafter referred to as the "Corporation")
WHEREAS, conditional upon the closing of the transaction contemplated in
the asset purchase agreement dated as of November 11, 1996 whereby the
Corporation agreed to sell all of its business and substantially all of its
assets to Hosposable Products, Inc. (the "Hosposable Transaction"), the
Corporation desires to employ the Senior Executive, and the Senior Executive
desires to accept such employment, upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants
and agreements herein contained and for other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged, the
parties, intending legally to be bound, hereby agree as follows:
1. EMPLOYMENT
The Corporation hereby employs the Senior Executive as the Vice-Chairman of
the Corporation commencing January 1, 1997 (the "Employment Date").
2. DUTIES OF THE SENIOR EXECUTIVE
The Senior Executive shall devote his full time and attention to, and use
his best efforts to promote, the business and affairs of the Corporation and
shall perform duties and have such responsibilities as are customarily performed
and enjoyed by persons employed in comparable positions, subject, however, to
the direction and control of the Board of Directors of the Corporation.
3. TERM
3.1 The initial term of the employment of the Senior Executive pursuant
to this Agreement shall be five (5) years (the "Initial Term"),
beginning on the Employment Date;
3.2 The term of employment of the Senior Executive pursuant to this
Agreement shall be automatically renewed for One (1) year (a "Renewal
Term") upon the expiry of the Initial Term and on each anniversary of
the Employment Date thereafter, unless the Corporation or the Senior
Executive gives notice of intention not to renew:
(i) in the case of the Initial Term, six (6) months prior to the
expiry of the Initial Term;
(ii) in the case of a Renewal Term, three (3) months prior to the
expiry of such Renewal Term.
3.3 Notwithstanding the foregoing, this Agreement shall terminate
immediately in the event of:
(i) the termination of the employment of the Senior Executive by
the Corporation with Cause;
(ii) the Permanent Disability (as hereinafter defined) of the Senior
Executive;
(iii) the death of the Senior Executive; or
(iv) the Corporation becoming obligated to pay the amounts set out
in Section 5.1 pursuant to one of the events set out therein
(provided that the obligation to pay such amount and to provide
the other benefits set out in Section 5.1 shall survive such
termination).
3.4 If the closing of the Hosposable Transaction does not occur on or
prior to January 31, 1997, then this Agreement shall be null and void
with retroactive effect, as though it had never existed and the
Senior Executive shall be entitled to the salary and benefits that he
enjoyed for the year ended
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December 31, 1996 and necessary adjusting payments shall be made
between the Senior Executive and the Corporation.
4. SALARY
4.1 The Corporation agrees to pay the Senior Executive for the services
rendered by him as Vice-Chairman of the Corporation in accordance with
this Agreement, and the Senior Executive agrees to accept as
compensation a base salary at the annual rate of Two Hundred and
Fifteen Thousand Dollars ($215,000) in lawful money of Canada, payable
in equal bi-weekly instalments, less deductions and withholdings in
accordance with the Corporation's usual payroll policies and
applicable laws.
4.2 The base salary for each year of the term of this Agreement after the
first year shall be adjusted upward effective on each anniversary of
the Employment Date in accordance with any increase in the annual
Consumer Price Index (all regions) prepared by Statistics Canada for
the immediately preceding year over such Consumer Price Index for the
prior year provided that (i) the base salary shall in no case be less
than that of the preceding year, and (ii) the annual increase may not
exceed five percent (5%).
5. SEVERANCE
5.1 The Senior Executive shall be entitled to receive, as severance, for
a period of two (2) years following:
(i) the dismissal of the Senior Executive without Cause by the
Corporation during a Renewal Term;
(ii) the resignation of the Senior Executive at any time following or
in connection with (a) a change in control of the Corporation or
(b) the sale by the Corporation of all or substantially all of its
assets; for the purposes of this Section 5.1(ii), the Hosposable
Transaction shall not be considered a change in control or a sale
of all or substantially all of the assets of the Corporation;
the payment of an amount equal to his base salary immediately prior to
such termination payable in equal bi-weekly instalments, less
deductions and withholdings as well as the benefits set out in Section
7.1 and the right to a leased vehicle set out in Section 8, payable as
if he were an employee of the Corporation:
6. BONUS COMPENSATION
In addition to the compensation described in Section 4.1 and Section 4.2
above, the Senior Executive shall be entitled to bonus compensation in
accordance with the Corporation's bonus policy for vice-presidents of the
Corporation.
7. BENEFITS AND EXPENSES
7.1 The Senior Executive shall, during the Initial Term and Renewal Terms
of this Agreement, be entitled to all such, employment benefits as
may, from time to time, be made generally available to senior
management employees of the Corporation.
7.2 Upon presentation of appropriate vouchers in accordance with the
Corporation's policies and practices, the Senior Executive shall be
reimbursed for all reasonable expenses which are incurred by him in
the performance of his duties hereunder.
8. VEHICLE
The Corporation shall supply the Senior Executive with a leased vehicle in
accordance with the Corporation's Executive Car Policy.
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9. VACATIONS
The Senior Executive shall be entitled to six weeks' paid vacation per
twelve month period ending April 30 during the Initial Term and any Renewal
Term. Unused vacations shall lapse at the end of each such twelve month period
and shall not carry over to any subsequent year. The vacations shall be taken at
times agreeable with the Corporation and consistent with the Senior Executive's
duties. No payment shall be made to the Senior Executive for vacation days which
are not taken.
10. COVENANT NOT TO COMPETE
10.1 The Senior Executive hereby covenants and agrees that he shall not,
within North America:
(i) directly or indirectly engage in, or have any interest in
(either individually, or as a joint venturer, partner, member
of any firm, officer, director, stockholder, lender, financial
or other consultant or employee of any person, firm, joint
venture, partnership or corporation, or otherwise) any person,
firm, corporation or business that engages in a business which
is competitive, directly or indirectly, with the business of
the Corporation;
(ii) divert or attempt to divert or take advantage of any business
or opportunities of any type whatsoever which are directly or
indirectly competitive with the business of the Corporation;
(iii) solicit or attempt to solicit any existing or future customer
or clients which use the services of or provide services to the
Corporation, except where such solicitation or attempted
solicitation concerns business activities which are not
directly competitive with the business of the Corporation; or
(iv) solicit or induce or attempt to solicit or induce any employee
of the Corporation to leave or terminate such employment;
(collectively, the "Covenant Not To Compete"), for a period commencing
on the Employment Date and terminating on the third anniversary of the
termination of this Agreement.
10.2 The Senior Executive confirms that the restrictive provisions of the
Covenant Not To Compete are reasonable and that a breach thereof will
cause the Corporation irreparable harm, and the Senior Executive
agrees that the Corporation shall be entitled to equitable relief,
including remedies of injunction and specific performance, with
respect to any breach or attempted breach of the Covenant Not To
Compete.
11. CERTAIN DEFINED TERMS
For purposes of this Agreement the following terms and phrases shall have
the following meanings:
11.1 "Permanent Disability" shall mean the inability of the Senior
Executive to perform substantially all his duties and responsibilities
to the Corporation by reason of a physical or mental disability or
infirmity for either:
(i) a continuous period of nine months, or
(ii) 270 days during any consecutive twelve month period.
The date of such Permanent Disability shall be, in the case of clause
(i) above, the last day of such nine month period or in the case of
clause (ii) above, such date as determined in good faith by the Board
of Directors.
11.2 "Cause" shall mean:
(i) conviction of a crime involving the misappropriation of funds or
property of the Corporation or otherwise constituting a felony
under applicable law, or the entering of a plea of guilty or nolo
contendere in respect of the same; or
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(ii) a determination by a majority of the members of the Board of
Directors of the Corporation that the Senior Executive has
neglected his duties hereunder after written notice thereof from
the Corporation and failure to correct any alleged deficiency
(as determined by a majority of the members of the Board of
Directors of the Corporation) in sixty (60) days; for such
purposes, the Board of Directors of the Corporation will be
deemed not to include a member who is a Related Party to the
Senior Executive;
(iii) a unanimous determination by the members of the Board of
Directors of the Corporation, other than the Senior Executive,
which determination shall be final, binding and conclusive, that
the Senior Executive has committed an act involving dishonesty
or gross negligence, or any other act which in the reasonable
judgment of such members of the Board of Directors of the
Corporation could materially harm the business reputation of the
Corporation in the community.
11.3 "Related Party" shall mean with respect to any person who is an
individual, a child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law or sister-in-law of that
person, including adoptive relationships.
12. NOTICE
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given upon receipt of: hand delivery;
certified or registered mail, return receipt requested; or telecopy transmission
with confirmation of receipt:
12.1 If to the Corporation, to:
X.X. Xxxx & Xxxxx Inc.
0000 00xx Xxxxxx
Xxxxxxx, Xxxxxx X0X 0X0
Attention: Xxxxxx X. XxxXxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Hosposable Products, Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xx.
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
12.2 If to the Senior Executive, to:
X.X. Xxxx + Xxxxx Inc.
0000 00xx Xxxxxx
Xxxxxxx, Xxxxxx X0X 0X0
Attention: Xxxxx X. Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
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with a copy to:
XxXxxxxx Xxxxxxxx
0000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: Xxxxxx X.X. Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
13. MISCELLANEOUS PROVISIONS
13.1 Withholding. The Corporation shall be entitled to withhold the
amount, if any, of all taxes or other amounts which in accordance with
the applicable laws of any jurisdiction are required to be withheld by
an employer with respect to any amount paid to the Senior Executive
hereunder. The Corporation, in its sole and absolute discretion,
acting reasonably, shall make all determinations as to whether it is
obligated to withhold any taxes or other amounts hereunder and the
amount thereof.
13.2 Deceased Employee. In the event that the Senior Executive shall die
while entitled to benefits hereunder which have accrued but have not
been paid, the payment which would otherwise be made to the Senior
Executive, shall be made to his estate or its appropriate personal
representative.
13.3 No Assignment. The Senior Executive shall not, and shall not have any
right to, sell, assign, transfer or pledge any rights under this
Agreement by operation of law or otherwise.
13.4 Severability. If any provision of this Agreement is held by a court
of competent jurisdiction to be invalid, illegal or unenforceable,
such provision shall be severed and enforced to the extent possible or
modified in such a way as to make it enforceable, and the invalidity,
illegality or unenforceability thereof shall not affect the validity,
legality or enforceability of the remaining provisions of this
Agreement.
13.5 Successors. This Agreement and all the terms and provisions hereof
shall be binding upon and shall inure to the benefit of all of the
parties hereto, and their legal representatives, heirs, successors and
assigns, except as expressly herein otherwise provided.
13.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Quebec.
13.7 Counterparts. This Agreement may be executed in counterparts, each of
which shall be original, but all of which shall constitute one and the
same instrument.
13.8 Pronouns and Headings. As used herein, all pronouns shall include the
masculine, feminine, neuter, singular and plural thereof wherever the
contest and facts require such construction. The headings, titles and
subtitles herein are inserted for convenience of reference only and
are to be ignored in any construction of the provisions hereof.
13.9 Amendments. This Agreement can be amended in any respect upon the
written agreement of all of the parties hereto.
13.10 Jurisdiction. Any judicial proceeding brought against any of the
parties to this Agreement with respect to any dispute arising out of
this Agreement or any matter related hereto may be brought in the
courts of the Province of Quebec, and by execution and delivery of
this Agreement, each of the parties to this Agreement accepts for
himself or itself the exclusive jurisdiction in the aforesaid courts,
and irrevocably agrees to be bound by any judgment rendered thereby in
connection with this Agreement.
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13.11 Language clause. The parties hereto have requested and hereby
confirm their request that this agreement and all notices relating
thereto be drafted in the English language. Les parties aux presentes
ont demande et par les presentes confirment leur demande que le
present contrat et tout avis y afferent soient rediges en anglais.
In WITNESS WHEREOF, the parties have signed this Agreement as of the date
first above written.
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XXXXX X. XXXXX
X.X. XXXX + XXXXX INC.
Per: X. X. XXXXX
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AMENDMENT entered into as of January 23, 1997 to the Employment Agreement
entered into as of November 11, 1996.
BETWEEN: XXXXX X. XXXXX, resident and domiciled in the
Province of Quebec
(hereinafter referred to as the "Senior Executive")
AND: X.X. XXXX + XXXXX INC., a corporation incorporated
under the Canada Business Corporations Act
(hereinafter referred to as the "Corporation")
WHEREAS Senior Executive and the Corporation entered into an Employment
Agreement as of November 11, 1996 (the "Employment Agreement") conditional upon
the closing of the Hosposable Transaction (as defined in the Employment
Agreement);
WHEREAS article 3.4 of the Employment Agreement provides that if the
closing of the Hosposable Transaction does not occur on or prior to January 31,
1997, then the Employment Agreement shall be null and void with retroactive
effect;
WHEREAS the closing of the Hosposable Transaction will not occur on or
prior to January 31, 1997;
WHEREAS notwithstanding the fact that the Hosposable Transaction will not
occur on or prior to January 31, 1997, the Senior Executive and the Corporation
wish the Employment Agreement to remain in effect beyond January 31, 1997;
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Article 3.4 of the Employment Agreement is amended by deleting the words
"January 31, 1997" in the second line and replacing them with the words
"April 30, 1997".
2. Save as amended by section 1 hereof, the Employment Agreement is unamended.
3. The parties hereto have requested and hereby confirm their request that
this Agreement and all notices relating thereto be drafted in the English
language. Les parties aux presentes ont demande et par les presentes
confirment leur demande que le present contrat et tout avis y afferent
soient rediges en anglais.
4. All the Employment Agreement is incorporated by reference into this
Amendment and the Employment Agreement as amended represents the entire
agreement of the parties hereto with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date
first above written.
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XXXXX X. XXXXX
X.X. XXXX + XXXXX INC.
Per: X. X. XXXXXXXXX
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THIS ADDENDUM dated as of March 10, 1998 to the Employment Agreement entered
into as of November 11, 1996, as amended as of January 1, 1997.
BETWEEN: XXXXX X. XXXXX, business executive resident and
domiciled in the Province of Quebec
(the "Senior Executive")
AND: WOOD XXXXX INC., a corporation incorporated under
the Canada Business Corporations Act, formerly
known as 3290441 Canada Inc.
(the "Corporation")
WHEREAS the Senior Executive entered into an employment agreement with X.X. Xxxx
+ Xxxxx Inc. ("GHWW") as of November 11, 1996, as amended as of January 1, 1997
(the "Senior Executive Employment Agreement"), conditional upon the closing of
the transaction contemplated in the asset purchase agreement dated as of
November 11, 1996 among Xxxxx Corporation (formerly known as Hosposable
Products, Inc.) ("Xxxxx"), the Corporation and GHWW whereby GHWW agreed to sell
all of its business and substantially all of its assets to the Corporation (the
"Hosposable Transaction");
WHEREAS pursuant to completion of the Hosposable Transaction on March 18, 1997,
the Corporation assumed the obligations of GHWW under the Senior Executive
Employment Agreement;
WHEREAS the Senior Executive and the Corporation have agreed to amend the Senior
Executive Employment Agreement in the manner herein set forth;
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. SECTION 6 -- BONUS COMPENSATION of the Senior Executive Employment
Agreement is hereby amended, effective January 1, 1998, as follows:
"6. BONUS COMPENSATION
Effective January 1, 1998, in addition to the compensation described in
Sections 4.1 and 4.2 above, the Senior Executive shall be entitled to
receive bonus compensation annually for each year of the remainder of
the Initial Term and for each Renewal Term of his employment with the
Corporation. Bonus compensation will be determined as a percentage of
the base salary of the Senior Executive for the relevant year based on
(i) the actual consolidated net earnings before tax of Xxxxx ("Xxxxx'x
Results") compared with the budgeted consolidated net earnings before
tax of Xxxxx ("Xxxxx'x Budgeted Results") and (ii) the actual
consolidated net earnings before tax of the Corporation ("Corporation's
Results") compared with the budgeted consolidated net earnings before
tax of the Corporation ("Corporation's Budgeted Results") in accordance
with the following formula:
6.1 Bonus Entitlement based on Consolidated Net Earnings Before Tax of
Xxxxx
XXXXX'X RESULTS AS A BONUS ENTITLEMENT AS
PERCENTAGE OF XXXXX'X A PERCENTAGE OF
BUDGETED RESULTS BASE SALARY
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<100% 0%
100% to <105% 7.50%
105% to <110% 8.75%
110% to <115% 10.00%
115% to <120% 11.25%
120% to <125% 12.50%
125% to <130% 13.75%
130% or more 15.00%
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6.2 Bonus Entitlement based on Consolidated Net Earnings Before Tax of
the Corporation
CORPORATION'S RESULTS AS A BONUS ENTITLEMENT AS
PERCENTAGE OF CORPORATION'S A PERCENTAGE OF
BUDGETED RESULTS BASE SALARY
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<100% 0%
100% to <105% 2.50%
105% to <110% 3.75%
110% to <115% 5.00%
115% to <120% 6.25%
120% to <125% 7.50%
125% to <130% 8.75%
130% or more 10.00%
6.3 Xxxxx'x Budgeted Results and Corporations's Budgeted Results
"Xxxxx'x Budgeted Results" means the budgeted consolidated net
earnings before tax of Xxxxx approved by Xxxxx'x board of
directors, as the same may be amended by Xxxxx from time to time
for purposes of calculating bonus compensation payable to other
officers of Xxxxx to take into account significant acquisitions or
divestitures which would materially affect Xxxxx'x performance.
"Corporation's Budgeted Results" means the budgeted consolidated
net earnings before tax of the Corporation approved by the
Corporation's board of directors, as the same may be amended from
time to time by the Corporation for purposes of calculating bonus
compensation payable to other officers of the Corporation to take
into account significant acquisitions or divestitures which would
materially affect the Corporation's performance."
2. Save as amended by Section 1 hereof, the Senior Executive Employment
Agreement is unamended.
3. The Senior Executive Agreement is incorporated by reference into this
Agreement and the Senior Executive Employment Agreement as so amended
constitutes the entire agreement of the Parties hereto with respect
to the subject matter hereof.
4. The Parties have requested that this Agreement be drawn up in the
English language. Les parties aux presentes ont demande que cette
entente soit redigee en anglais.
IN WITNESS WHEREOF, the Parties have signed this Agreement as of the date
first above written.
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XXXXX X. XXXXX
WOOD XXXXX INC.
Per: ---------------------------------
Xxxxxx X. XxxXxxxxx, President
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