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Exhibit 6(C)
EMPLOYMENT AGREEMENT
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THIS AGREEMENT shall be effective as of February 7,1996;
BETWEEN:
AMERICAN STONE CORPORATION, a corporation incorporated
under the laws of the State of Delaware (the "Employer")
-and-
XXXXX XXXXXXX of the City of Toronto in the Province of
Ontario (the "Employee")
WHEREAS the Employer is desirous of retaining the services of the
Employee in the position of President of the Employer upon the terms and
conditions herein contained and the Employee is agreeable to providing such
services.
AND WHEREAS the terms "affiliate" and "associate" when used herein
shall have the respective meaning ascribed to them in the Business Corporations
Act (Ontario);
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
mutual covenants hereinafter contained and provided for, the parties hereto
covenant and agree as follows:
1 RETENTION, DUTIES AND POWERS OF THE EMPLOYEE
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.1 TERM. Subject to the terms and conditions hereinafter set forth, the Employer
hereby appoints the employee as President of the Employer. Such employment shall
commence on the effective date hereof and shall expire on December 31, 2000
(such period referred to herein as the "Term") unless otherwise terminated in
accordance with the provisions hereof.
.2 RENEWAL. This employment agreement, following the end of the Term, shall be
automatically renewed for successive one year periods (each a "Renewal Term")
unless terminated by either party in accordance with Article 4 hereof.
.3 DUTIES AND SERVICES.
(a) The services provided by and duties of the Employee hereunder shall
be those customarily or commonly provided by or performed by a president of a
corporation such as the Employer, including, but not limited to:
I. product development, including product sourcing,
product formulation and specifications; product
logistics, packaging development and pricing;
II. operations, including employment hiring and firing,
accounting;
III. procurement, including raw material sourcing and
purchasing;
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IV. product and project coordination, including plant
sourcing, project management and quality control;
V. strategic planning, including assisting the board of
directors in finalizing annual budgets, making
recommendations on obtaining new plant and equipment,
and exclusively making all capital expenditures and
borrowing decisions for individual items of less than
$50,000.00 each (provided that the Employee will be
entitled to approve all expenditures and borrowing of
more than $50,000.00 each in consultation with the
Board of Directors with the intent that all such
expenditures and borrowing over $50,000.00 will be
approved by both the Board of Directors and the
Employee prior to expenditure being made provided
further that any expenditure or borrowing
contemplated in the budget for the Employer shall be
deemed to be approved by both parties without further
approval required, once the budget is approved by
both parties). For greater certainty, it is
understood and agreed that no amount in excess of
$50,000.00 will be borrowed by the Employer, no
expenditure in excess of $50,000.00 will be made by
the Employer, and no obligation will be incurred with
a monetary liability in excess of $50,000.00 without
the express written consent of the Employee; and
VI. such other services as may, from time to time, be
required for the proper operation of the Employer, if
such services would be reasonably expected to be
performed by the president of a company such as the
Employer.
(b) The Employee agrees to provide his services to the Employer and
perform his duties in a faithful and diligent manner to the best of the
Employee's ability on a full-time basis, and to devote all of the Employee's
attention, skill and effort to the Employer's business at all times (subject to
the provisions herein after provided) in compliance with the reasonable
policies, practices, directions and instructions, written or oral, of the board
of directors of the Employer,
(c) INTENTIONALLY DELETED.
(d) Notwithstanding the foregoing, the parties agree that the Employee
shall be entitled to carry on other business activities during the Term which
may be unrelated to the activities of the Employer, provided that such
activities do not result in a negative effect upon the Employer and provided
that the Employees first obligation will be to the Employer. In particular and
without limiting the generality of the foregoing, the Employee shall be entitled
to carry on the agency work that he has performed historically for Xxxx Sound
Ledgerock Limited ("Xxxx Sound") provided that in the event of a direct conflict
in the interests of the Employer and Xxxx Sound, the Employee will advise the
Employer immediately and will cease to act for Xxxx Sound in the conflicting
matter at the request of the Employer.
(e) INTENTIONALLY DELETED.
.4 REPORTING RESPONSIBILITIES.
Without restricting the provisions of Section 1.3(a), the Employee
shall be required to report to the board of directors and shareholders of the
Employer (or such Nominee of the Employer as the Employer shall nominate from
time to time) in the manner and to the extent contemplated by this Agreement, or
as otherwise reasonably instructed by the board of directors.
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.5 INSURANCE. The Employer shall be entitled, at its sole option, to obtain and
maintain insurance on the Employee, the proceeds of which shall be payable to
the Employer. In furtherance of the foregoing, the Employee agrees to do such
things, including without limitation, submitting to physical examinations
(including blood tests) as may be required to obtain such insurance provided
that the failure of the Employee to qualify for such insurance shall not, in
itself, affect the validity of this Agreement and shall not, in itself, amount
to cause for dismissal of the Employee or termination of this Agreement.
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COMPENSATION AND BENEFITS
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.1 REMUNERATION. For the performance of his services hereunder, the Employee
shall be paid a salary (the "Salary") of $96,000.00 per annum, payable biweekly
in arrears. During any Renewal Term hereunder, the Salary shall be reviewed by
the Employer on an annual basis, with any increase in Salary to be at the sole
discretion of the Employer after discussions with the board of directors of the
Employer.
.2 BENEFITS.
a) Assuming the Employee is otherwise eligible, the
Employee will be eligible to participate in benefit
programs which are generally equivalent to any
Employer benefit plans made available to the senior
employees of The Employer, other than any stock
participation plan, bonus plan or any other kind of
profit-sharing or financial incentive plan. The
Employee acknowledges and agrees that there is
currently no benefit plan in place for the senior
employees of the Employer, but if the Employer
chooses to obtain such a plan, the Employer agrees
that it will try to obtain a typical plan that will
not exclude the Employee for any reason other than
those demographic, health or lifestyle reasons that
insurers typically apply to screen high risk
candidates.
b) The Employer shall, during the Employee's employment
hereunder, provide the Employee with a car allowance
in an amount equal to $500.00 per month.
c) The Employer shall reimburse the Employee for proper
and reasonable out-of-pocket expenses actually
incurred by the Employee in the performance of the
Employee's duties and the Employee shall maintain
supporting statements, receipts or vouchers for such
expenses to the extent reasonably possible..
.3 VACATION. In each year of employment, the Employee is entitled to take three
weeks per calendar year vacation with pay. Vacations may be taken at such time
or times as shall be convenient to the Employee and the Employer.
.4 WITHHOLDING. The Employer shall be entitled to withhold from any payments to
the Employee pursuant to the provisions of this Agreement any amounts required
by any applicable taxing or other authority.
.5 OTHER COMPENSATION. Commencing after completion of the 1996 fiscal year of
the Employer and following with each fiscal year thereafter, the Employee shall
be entitled to receive the following additional payments to share in the Net
Income (as hereinafter defined) earned in the immediately preceding fiscal year
of the Employer. "Net Income" for purposes of this Agreement shall mean net
income of the Employer calculated in accordance with generally accepted
accounting principles and procedures ("GAAP") applicable to the Province of
Ontario adjusted so that: (1) all depreciation; and (2) all depletion allowances
for
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resource based properties, which could otherwise properly be deducted, in
accordance with GAAP from gross income of the Employer to calculate net income
for other purposes shall be added back to Net Income and shall not be deducted.
Net Income will be net of applicable income taxes.] In addition, the parties
agree that Net Income shall be net only of interest payments on loans to related
companies only with respect to loans approved by the Employee as contemplated
herein. The Employee acknowledges and agrees that the existing loans between the
Employer and American Stone Industries Inc. in the approximate total amount of
$2,300,000.00 bearing interest at the Prime Rate plus two percent, (and for
purposes of this Agreement, "Prime Rate" shall mean the rate charged by Fleet
Bank of New York (or such other bank that American Stone Industries Inc. is
using from time to time) to its most favored commercial customers for US dollar
loans made in the USA) are permitted loans and the interest on same shall be
deducted from income in calculating Net Income. The interest on any other loans
made without the Employee's consent shall be added back to Net Income. The
Employee shall be entitled to the following payments which shall be made within
one hundred and twenty (120) days of the Employer's fiscal year end.
a) A payment equal to Five percent (5%) of the first
$1,000,000.00 in Net Income earned during a fiscal year of the
Employer,
b) A payment equal to Four percent (4%) of the second
$1,000,000.00 in Net Income earned during a fiscal year of the
Employer,
c) A payment equal to Three percent (3%) of the third
$1,000,000.00 in Net Income earned during a fiscal year of the
Employer,
d) A payment equal to Two percent (2%) of the fourth
$1,000,000.00 in Net Income earned during a fiscal year of the
Employer,
e) A payment equal to One percent (1%) of all Net Income in
excess of $4,000,000.00 earned during a fiscal year of the
Employer,
2.5A For the 1996 fiscal year and for each partial fiscal year thereafter for
which the Employee is entitled to a payment, the parties agree that the
Employee's share of Net Income shall be prorated for the period during which the
Employee was in the employ of the Employer, and the Employee shall be entitled
to receive a payment that is based upon the income during the period of the
employment, adjusted to reflect the fact that the Employee only worked for a
portion of the year based upon the formula hereinafter described.
If the Employee is in the employ of the Employer for a portion of a fiscal year
(such portion referred to herein as the "Stub Period"), then the Employee shall
be entitled to a payment that is calculated in accordance with the following
provisions:
(a) For purposes of this section, the "Factor" means a fraction, the
numerator of which is the number of days in the Stub Period, and the
denominator of which is the number of days in the fiscal year
containing the Stub Period (either 365 or 366).
(b) The Employees share of Net Income for the Stub Period will be
determined as follows:
I. net income of the Employer for the Stub Period will
be calculated in accordance with
GAAP;
II. the figure in I) will be multiplied by the inverse of
the Factor and the resulting amount
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will be the deemed net income of the Employer for the
fiscal year containing the Stub Period for the
purposes of the calculations herein contained;
III. the amount which the Employer would have been
required to pay for income taxes had the amount
determined in II) been the actual net income of the
Employer for the fiscal year in which the Stub Period
is contained shall be determined; and such
determination shall be made with a view to arriving
at the lowest possible amount of income tax payable
and accordingly all available deductions, allowances,
credits and other amounts which would reduce taxable
income shall be deemed to be claimed or taken;
IV. the amount of tax determined in accordance with iii)
shall be subtracted from the amount determined in II)
to determine net income for the fiscal year
containing the Stub Period, net of taxes;
V. any amounts which, for the purposes of determining
Net Income pursuant to this Agreement are to be added
back to net income determined for other purposes
(including depreciation, depletion allowances for
resource based properties, and loan interest not
approved by the Employee or authorized in accordance
with this Agreement), and which were deducted from
income in the calculation of net income of the
Employer for the Stub Period in I) , shall be added
together and the sum thereof will be multiplied by
the inverse of the Factor. The product will be added
to the net income for the fiscal year containing the
Stub Period net of taxes as determined in IV). The
resultant sum is referred to herein as the
"Annualized Net Income of the Employer for the Stub
Period".
VI. The percentages set forth in 2.5 to determine the
Employee's share of Net Income in a fiscal period
shall be applied against Annualized Net Income of the
Employer for the Stub Period and the resultant figure
will then be multiplied by the Factor to determine
the Employee's share of Net Income for the Stub
Period.
(c) The above noted calculations shall be made without regard for the
actual income and expenses in the entire fiscal year containing the
Stub Period and shall use only income earned and expenses incurred,
having regard to GAAP, during the Stub Period.
(d) The Employer shall provide the Employee, within one hundred and
twenty (120) days following the end of the Stub Period with:
I. payment of the Employee's share of Net Income for the
Stub Period; and
II. a financial statement setting forth the calculations
set out in b) above along with the figures used to
make such calculations and all additional information
reasonably required to verify the accuracy thereof.
(e) acceptance of the payment described in d) shall not be deemed to be
an acknowledgment by the Employee that the amount is accurate, and
notwithstanding such acceptance the Employee, shall, for the six (6)
month period following receipt of the financial statement and payment
be entitled to dispute the amount of the payment, and in that event the
Employer shall make available to the Employee all supporting
documentation and materials reasonably required by the Employee to
verify
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such, amount. After such six (6) month period has passed, the Employee
shall be deemed to have accepted the payment and the statements as
correct without further recourse against the Employer subject only to
any outstanding written objections received prior to the end of the
said six (6) month period.
.6 NO OTHER BENEFITS. The Employee shall not be entitled to any additional
compensation or benefits for acting as a director, officer or employee of or in
any capacity for or on behalf of the Employer or any affiliate or associate of
the Employer or other entity in which the Employer has an equity interest, other
than as provided in this Article 2. For greater certainty, the Employee shall
not be entitled to participation in any stock or equity purchase or stock or
equity option plans of the Employer or of any affiliate of associate of the
Employer or any other entity in which the Employer has an equity interest.
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EMPLOYEE'S REPRESENTATIONS AND NEGATIVE COVENANTS
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.1 EMPLOYEE'S REPRESENTATIONS. The Employee represents and warrants that the
execution and delivery of this Agreement, the Employee's employment by the
Employer and the performance of the Employee's duties hereunder shall not
contravene or violate or result in the breach of any judgment, order, decree or
injunction of any court or governmental or regulatory authority or the
provisions of any agreement, arrangement or understanding to which the Employee
is a party or by which he is bound.
.2 CONFIDENTIAL INFORMATION. The Employee acknowledges that, in the course of
carrying out, performing and fulfilling his obligations to the Employer or any
affiliate or associate of the Employer, the Employee will have access to and
will be entrusted with information that would reasonably be considered
confidential to the Employer, its affiliates or associates and their respective
clients, the disclosure of any of which to competitors of the Employer, its
affiliates or associates or such clients, or the general public, would be highly
detrimental to the best interests of the Employer, its affiliates or associates.
Such information includes, without limitation, trade secrets, know-how,
marketing plans and techniques, project work, cost figures, client lists,
special techniques peculiar to the clients, the services and general business of
the Employer, its affiliates or associates (both past, present and contemplated)
and information relating to the clients, their names, tastes, preferences and
plans and their requirements for services provided or which could be provided by
the Employee. Except as may be required in the course of carrying out his
duties, the Employee therefore covenants and agrees that he will not disclose,
during his employment or any time thereafter, any of such information to any
person, other than the directors, officers or employees of the Employer that
have a need to know such information, nor shall the Employee use or exploit,
directly or indirectly, the same for any purpose other than the purposes of the
Employer nor will he disclose or use for any purpose, other than those of the
Employer, the private affairs of the Employer, its affiliates or associates or
any other information which he may acquire or utilize during his employment with
respect to the business and affairs of the Employer, its affiliates or
associates. The Employee shall take all reasonable measures available to him to
keep such information in the strictest confidence. Notwithstanding all of the
foregoing, the Employee shall be entitled to disclose such information that he
possesses prior to the commencement of this Agreement, and also may make
disclosure if required pursuant to a subpoena or order issued by a court,
arbitrator or governmental body, agency or official, provided that the Employee
shall:
(a) promptly notify the Employer thereof;
(b) consult with the Employer on the advisability of
taking steps to resist or narrow such requirement;
and
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(c) if disclosure is required or deemed advisable,
cooperate with the Employer in any attempt to obtain
an order or other assurance that such information
will be accorded confidential treatment at the sole
expense of the Employer.
The restrictions in this Section shall not apply to information which is or
subsequently becomes in the public domain as result of circumstances not
attributable either directly or indirectly to the Employee.
.3 CORPORATE OPPORTUNITIES. Any business opportunities related to the business
of the Employer, its affiliates or associates, which become known to the
Employee during the period of his employment hereunder must be fully disclosed
and made available to the Employer by the Employee and the Employee agrees not
to take or omit to take any action if the result would be to divert from the
Employer, its affiliates or associates any opportunity which is within the scope
of its business as known to the Employee from time to time. This provision shall
not apply to the Employee's ongoing relationship to the Xxxx Sound business
unless the Employee's position as Employee is such that his intended actions on
behalf of Xxxx Sound will benefit Xxxx Sound to the clear detriment of the
Employer, in which case the Employee shall immediately disclose his conflict to
the Board of Directors, shall take no further action, and shall follow the
direction of the Board of Directors with respect to the involvement of Xxxx
Sound.
.4 PROPRIETARY INFORMATION. The Employee acknowledges and agrees that all right,
title and interest in and to any information, trade secrets, inventions,
discoveries, improvements, research materials and databases made or conceived by
the Employee during his employment relating to the business or affairs of the
Employer, its affiliates or associates shall belong to the Employer, its
affiliates or associates. In connection with the foregoing, the Employee agrees
to execute any assignments and/or acknowledgment as may be requested by the
board of directors of the Employer from time to time.
.5 NON-COMPETITION.
(a) The Employee shall not without prior written consent of the board
of directors of the Employer, which consent may be unreasonably
withheld, during the 12 month period following the date that the
Employee ceases to be an employee of the Employer or other termination
of this Agreement (regardless of who initiated the termination and
whether with or without cause), either individually or in partnership
or in conjunction in any way with any person -or persons, whether as
principal, agent, consultant, shareholder, guarantor, creditor or in
any other manner whatsoever,
I. solicit, interfere with or endeavor to entice away from the
Employer or any of its respective affiliates or associates,
accept any business from or the patronage of or render any
service to, sell to or contract or attempt to contract with
any person, firm, or corporation who was a client, customer or
supplier of the Employer, or any of its respective affiliates
or associates or a prospective client, customer or supplier of
the Employer, or any of its respective affiliates or
associates with whom the Employer, or any of its respective
affiliates or associates have or have had any dealing during
the 12 month period immediately preceding the date upon which
the Employee ceases to be an employee of the Employer,
II. offer employment to or endeavor to entice away from
the Employer, or any of its respective affiliates or
associates, any person employed by the Employer at
the date of the termination of this Agreement or
interfere in any way with the employment relationship
between such employee and the Employer, or
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III. seek employment or be employed by, consult, engage
in, carry on or otherwise be concerned with or have
any interest in, or advise, lend money to, guarantee
the debts or obligations of, permit the Employee's
name, or any part thereof, to be used or employed by
any person, firm, association, syndicate or
corporation engaged in or concerned with a business
which primarily manufactures or sells Berea
sandstone. For purposes of this agreements business
will be primarily involved in the manufacture or sale
of Berea sandstone if more than 50% of its sales
result from the manufacture or sale of Berea
sandstone.
(b) The foregoing covenants are given by the Employee acknowledging
that the Employee either has or will have specific knowledge of the
affairs of the Employer and its business. Therefore, the Employee
hereby acknowledges and agrees that all covenants, provisions and
restrictions contained in Article 3 of this Agreement are reasonable
and valid in the circumstances of this Agreement, and all defenses to
the strict enforcement thereof by the Employer are hereby waived by the
Employee. The Employee acknowledges and agrees that any breach by the
Employee of the covenants, provisions and restrictions contained in
Article 3 of this Agreement during the term of employment hereunder
shall constitute cause for termination. Notwithstanding anything herein
to the contrary, the parties agree that nothing in 3.5(a)(iii) shall be
deemed to restrict the Employee, following termination of this
Agreement (regardless of the circumstances of such termination and
regardless of who initiated same) from carrying on a business similar
to the proprietorship carried on by the Employee under the name
"Xxxxxxx Xxxxx Design" as that business was carded on prior to February
7, 1996, so long as such business is not one which primarily
manufactures or sells Berea sandstone.
(c) The Employee further acknowledges and agrees that in the event of a
breach of the covenants, provisions and restrictions in Article 3 of
this Agreement, the Employer's remedy in the form of monetary damages
may be inadequate and that the Employer shall be and is hereby
authorized and entitled, in addition to all other rights and remedies
available to the Employer, to apply for and obtain from any court of
competent jurisdiction interim and permanent injunctive relief and an
accounting of all profits and benefits arising out of such breach. The
Employee also acknowledges that the operation of the foregoing
covenants may seriously constrain his freedom to seek other
remunerative employment.
.6 RESTRICTIONS AND RIGHTS OF THE EMPLOYEE.
(a) Nothing in this Agreement shall be deemed to prevent or
prohibit the Employee from owning shares in a public company
as an investment, so long as the Employee does not own more
than five percent (5%) of the outstanding voting shares
thereof.
(b) Intentionally Deleted.
(c) Provided that the Employee acts honestly, diligently, and in
good faith in the completion of his duties hereunder, the
Employer agrees to indemnify and hold harmless the Employee
from any cause of action or other liability to a third party,
or to the Employer that may arise as a result of the Employee
performing his duties hereunder, including, without
limitation, any liability that may arise as a result of the
negligence of the Employee.
.7 SURVIVAL. Except as otherwise provided, each and all of the provisions of
this Article 3 hereof shall survive the termination of this Agreement and the
Employee's employment hereunder.
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TERMINATION OF THE EMPLOYEE'S EMPLOYMENT
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.1 TERMINATION FOR CAUSE. Notwithstanding anything contained in this Agreement,
this Agreement and the Employee's employment hereunder may be terminated by the
Employer
(a) for any cause recognized at law, and it shall be deemed for
purposes of this Agreement to be just cause for termination if
Net Income for a fiscal year of the Employer occurring during
the Term of this Agreement is less than one dollar ($1.00)
provided that said fiscal year must occur entirely within the
Term of this Agreement;
(b) upon thirty (30) days notice by reason of the inability of the
Employee to devote sufficient time and attention to the
business and affairs of the Employer through BONA FIDE illness
or disability, physical or mental, for a period of at least
three (3) consecutive months or ninety days in any one (1)
year period;
(c) by reason of the death of the Employee;
(d) upon the Employee reaching the age of 65;
(e) the failure of the Employee in any material respect to
observe, perform or comply with any material term, condition
or obligations required by this Agreement if such failure has
continued for a period of 14 days after notice of such failure
and a demand for performance, observance or compliance has
been given by the Employer, or in circumstances where such
failure becomes repetitive, notwithstanding that on a prior
occasion or occasions such failure has been remedied within
such 14 day period: or
(f) the conviction of the Employee of an offence punishable by
imprisonment, which would adversely affect the goodwill or
reputation of the Employer, or
(g) during the first six (6) months of the Term, and at the end of
the Term and each renewal period, the Employer may terminate
for any reason whatsoever, provided that if the termination is
without cause, then this Agreement may be terminated upon
thirty (30) days notice or one months salary in lieu thereof
which may be given thirty (30) days prior to the end of the
Term or any renewal term to coincide with the end of the said
Term or renewal term. It is understood and agreed that the
Employer shall be deemed to have given such notice to
terminate this Agreement at the end of the Term and any
applicable renewal period, unless the Employer has previously
delivered written notice of its intent to renew the Agreement
for the period of the next renewal term.
Upon termination of the Employee's employment hereunder pursuant to
this section 4.1, the Employee's sole entitlement shall be his Salary
and any expense reimbursement owing to him to the date of termination
as well as his right to his share of Net Income as stipulated in
Section 2.5 hereof and payment of any portion of the Employee's share
of Net Income from a fiscal year previous to the fiscal year in which
termination takes place, if such share has not been paid in full.
.2 OTHER TERMINATION. The Employee shall be entitled to terminate this Agreement
at any time upon thirty (30) days notice to the Employer. The following
provisions shall apply to all terminations, subject to the limitations
hereinafter expressed:
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(a) where the provisions of Section 4.1 do not apply, this Agreement
and the Employee's employment hereunder may be terminated at any time by the
Employer upon payment to the Employee, by way of lump sum severance, a sum equal
to one years salary, benefits (to the extent permitted by any plan), expense
reimbursement, and the Employee's share of Net Income for the Stub Period
calculated in accordance with Section 2.5A, and payment of any portion of the
Employee's share of Net Income from a fiscal year previous to the fiscal year in
which termination takes place, if such share has not been paid in full.
(b) upon termination of the Employees employment hereunder by reason of
the voluntary resignation of the Employee, the Employee's sole entitlement shall
be his Salary to the date of termination, benefits (to the extent permitted by
any plan), expense reimbursement, and the Employee's share of Net Income for the
Stub Period calculated in accordance with Section 0.XX, and payment of any
portion of the Employee's share of Net Income from a fiscal year previous to the
fiscal year in which termination takes place, if such share has not been paid in
full.
.3 CONSEQUENCES OF TERMINATION.
(a) If the Employee's employment hereunder is terminated in accordance
with Section 4.2, the Employee shall be required, upon receipt of the Payout, to
release the Employer and all of its subsidiaries from all manners of action,
causes of action, suits, claims or demands against any of them which he ever
had, then has or may thereafter have, for or by reason of or rising out of any
cause, matter or thing. The Employee shall be deemed to have granted such a
release upon payment of the Payout whether such a release is actually executed
or not.
(b) Upon termination of the Employees employment, howsoever caused, the
Employee shall immediately resign all offices held, including directorships, in
the Employer or any of its subsidiaries and the Employee shall not be entitled
to receive any severance payment or compensation for loss of office or otherwise
by reason of such resignation other than the payment contemplated by this
Agreement. If the Employee fails to resign, the Employer is irrevocably
authorized to appoint any person to act in his name and on his behalf to sign
any documents or do any things necessary or requisite to give effect to it.
(c) The Employee hereby authorizes the Employer to deduct from any
payment due to the Employee at any time, including any termination payment, any
amounts owed to the Employer by reason of any amounts owing by the Employee to
the Employer provided however that this provision shall be applied so as not to
conflict with any applicable legislation. In the event that the aforesaid
amounts cannot be accurately calculated at the time of termination, the Employee
hereby authorizes the Employer to withhold any amounts owed to the Employee for
a period not to exceed 30 days for the purposes of such calculation.
(d) Upon termination of his employment, howsoever caused, the Employee
shall surrender to a representative of the Employer, upon request, all keys,
manuals, insured lists, correspondence, monies, supplies, customer lists,
employee lists, all other material and records, or other property of the
Employers, its affiliates or associates of any kind that may be in the
Employee's possession at such time.
(e) All payments made and notices given by the Employer pursuant to
this Article 4 shall include both notice of termination and severance pay as
defined in the EMPLOYMENT STANDARDS ACT (Ontario) as it may from time to time be
amended, the provisions of which are deemed to be incorporated into this
Agreement.
The amount paid to the Employee shall be either the Payout, or the amount
required under the said Act, whichever is greater. As provincial legislation is
changed from time to time, the above notice of termination provisions will be
altered accordingly and the new provisions will apply, if greater.
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GENERAL CONTRACT PROVISIONS
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.1 NOTICES.
(a) Any notice or other document ("Notice") required or permitted to be
given to the Employer or the board of directors of the Employer under this
Agreement shall be in writing and shall be given to The Employer at its
registered office, attention: Secretary, and to each director of the Employer by
hand delivery or by mailing by registered mail, with postage thereon fully
prepaid, in a sealed envelope, addressed to the director at the address
designated by him from time to time by notice to the Employer and reflected in
the records of the Employer.
(b) Any Notice required or permitted to be given to the Employee
hereunder shall be in writing and shall be given to the Employee by hand
delivery or by registered mail, with postage thereon fully prepaid, in a sealed
envelope, addressed to the Employee at:
XXXXX XXXXXXX
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx, X0X 0X0
(c) Any Notice hand delivered personally shall be deemed to have been
received by and given to the addressee on the day of delivery. Any Notice mailed
shall be deemed to have been received by and given to the addressee on the third
(3rd) business day following the date of mailing, provided that during a strike
or other occurrence which shall interfere with normal mail service, all Notices
shall be delivered personally by hand.
.2 CURRENCY. All dollar amounts set forth or referred to in this Agreement and
all uses of the dollar sign ($) used herein refer to Canadian currency.
.3 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein. The parties hereto hereby agree to attorn to the
jurisdiction of the courts of the Province of Ontario.
.4 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC. Any headings preceding the text
and paragraphs in this Agreement hereof have been inserted for convenience of
reference only and shall not be construed to affect the meaning, construction or
effect of this Agreement.
.5 WAIVER. No waiver of any provision of this Agreement shall be binding unless
it is in writing. No indulgence or forbearance by a party shall constitute a
waiver of such party's right to insist on performance in full and in a timely
manner of all covenants in this Agreement. Waiver of any provision shall not be
deemed to waive the same prevision thereafter or any other provision of this
Agreement at any time.
.6 ENFORCEMENT AND SEVERABILITY. If any provisions of this Agreement as applied
to any party or to any circumstance shall be adjudged by a court of competent
jurisdiction to be invalid or unenforceable, the same shall not affect any other
provision of this Agreement, the application of such provision in any other
circumstances, or the validity or enforceability of this Agreement. The parties
hereto agree that the provisions hereof are reasonable and intend this Agreement
to be enforced as written. However, if any provision or part thereof is held to
be unenforceable because of the duration thereof, the area covered thereby or
the types of activities restricted thereby, the parties hereto agree that a
court of competent jurisdiction
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12
making such determination shall have the power to reduce the duration of any
provision, the geographic area of any provision and the types of activities
specified in any provision and to delete specific words or phrases contained in
any provision, and in its reduced form, such provision shall then be
enforceable.
.7 NON-ASSIGNABILITY. This Agreement is personal to the Employee and may not be
assigned by the Employee without the prior written approval of the Employer.
.8 TIME OF THE ESSENCE. Time shall be of the essence of this Agreement.
.9 ENUREMENT. Subject to the restrictions on assignments contained in this
Agreement, this Agreement shall be binding upon and shall enure to the benefit
of each of the parties and to the heirs, executors, administrators, successors
and assigns of the Employee and the successors and assigns of the Employer.
.10 ENTIRE AGREEMENT. This Agreement and the terms hereof supersede and replace
all prior negotiations and/or agreements made between the parties, whether oral
or written, and shall constitute the entire agreement between the parties with
respect to all matters relating to the Employee's employment and the execution
of this Agreement has not been induced by, nor do any of the parties hereto rely
upon or regard as material any representations or writings whatsoever not
incorporated into and made a part of this Agreement. This Agreement shall not be
amended, altered or modified except in writing signed by the parties.
.11 COUNTERPARTS. This Agreement may be executed by the parties in separate
counterparts each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF the parties have duly executed this Agreement on
_____________, 1996.
AMERICAN STONE CORPORATION
Per:
---------------------------------
Per:
---------------------------------
I/we have authority to bind the corporation
--------------------------- ---------------------------------------
Witness XXXXX XXXXXXX
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RESIGNATION
-----------
To: American Stone Corporation
From: Xxxx Garparini
Re: Resignation as President
I hereby resign by position as president of American Stone Corporation,
effective as of February 7, 1996. I will retain my position as director of the
Corporation until further notice.
Dated this ______ day of __________________, 1996
------------------------------------
Xxxx Garparini
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14
RESOLUTION OF THE BOARD OF DIRECTORS
OF
AMERICAN STONE CORPORATION
HIRING OF XXXXX XXXXXXX AS PRESIDENT
------------------------------------
RESOLVED that the employment agreement with Xxxxx Xxxxxxx, dated effective
February 7, 1996 (copy attached) is hereby approved, and it is further resolved
that Xxxx Garparini and Xxxx Xxxxxxxxxxx be authorized to execute same on behalf
of the Corporation.
* * * * *
The foregoing resolution is hereby consented to by all the Sole Director of the
Corporation pursuant to the Business Corporation Act this ______ day of
____________, 1996.
------------------------------
Xxxx Garparini, Director
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15
RESOLUTION OF THE DIRECTOR OF
XXXXXXX XXXXX DESIGN LIMITED (the "Corporation")
------------------------------------------------
RESOLVED THAT the following transfer of shares in the capital stock of the
Corporation be and the same is hereby approved:
Transferor Transferee No. and Class of Shares
---------- ---------- -----------------------
Xxxxx Xxxxxxx American Stone Industries Inc. 100 Common shares
The undersigned, being the sole director of the Corporation entitled to vote on
the foregoing resolution at a meeting of the board of directors or a committee
of directors signs the foregoing resolution pursuant to subsection 129(1) of the
Business Corporations Act effective as of the 22nd day of May, 1996.
------------------------------------
XXXXX XXXXXXX
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