Exhibit 10.4
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
BETWEEN
XXXXXX X. XXXXXXX
&
DYNACARE INC.
This EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of
November 22, 2000 (the "Effective Date"), between DYNACARE INC. (the "Company"),
a corporation incorporated under the laws of the Province of Ontario having its
principal place of business at 00 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxx, and XXXXXX X. XXXXXXX (the "Executive").
WHEREAS the Company considers the services of the Executive to be
unique and essential to the success of the Company's business; and
WHEREAS the Company and the Executive had previously entered into an
employment agreement dated March 4, 1997, and the parties desire that the
Executive serve as Chairman of the Board and continue as President and Chief
Executive Officer of the Company; and
WHEREAS the Company and the Executive now wish to enter into an Amended
and Restated Employment Agreement on the terms and conditions set forth herein,
and which shall constitute the sole and exclusive agreement relating to the
employment of Executive by the Company.
NOW THEREFORE, in consideration of the foregoing premises, the mutual
covenants, terms and conditions set forth herein, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is hereby agreed between the Company and the Executive that his existing
agreement shall be amended and modified in its entirety as follows:
1. EMPLOYMENT. The Company shall continue to employ the Executive in a
full-time capacity in the position set forth in this paragraph, and the
Executive shall continue to accept such employment upon the terms and
conditions set forth herein. Such employment shall be in the capacity
of President and Chief Executive Officer of the Company reporting
directly to the Board, and as a Director and Chairman of the Board of
the board of directors of the Company (the "Board"). The Company shall
nominate the Executive as a Director of the Company and shall use its
best efforts to have the Executive elected and re-elected to the Board
for the duration of the "Employment Term" (as hereinafter defined).
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2. EMPLOYMENT TERM. Unless earlier terminated pursuant to Section 10
hereof, the term of Executive's employment under this Agreement shall
commence as of the Effective Date of this Agreement and continue for a
period of three years until November 15, 2003 (the "Employment Term").
On or before June 1, 2003, the Company and Executive agree to use their
good faith efforts to negotiate a renewal of this Agreement (the
"Renewal Agreement"), on mutually satisfactory terms and conditions.
Subject to continued service by the Executive through November 15, 2003
(absent any termination by the Company without Cause, or termination by
the Executive for Good Reason, or as a result of the death or permanent
disability of the Executive, in each case giving rise to payments
pursuant to Section 11 hereof) (each individually a "Termination
Event"), then upon the expiration of this Agreement on November 15,
2003 (a "Non-Renewal Event"), the Executive shall be entitled to the
severance benefit provided in Section 11.
3. DUTIES. During the Employment Term, the Executive shall, subject to the
supervising powers of the Board, have those powers and duties
consistent with his position as Chairman of the Board, Chief Executive
Officer and President, which powers shall in all cases include, without
limitation, the power of supervision and control over, and
responsibility for, the general management and operations of the
Company. Executive agrees to devote substantially all his working time
and attention to the business of the Company. The Executive shall not,
without the prior written consent of the Company's Board of Directors,
be directly or indirectly engaged in any other trade, business or
occupation for compensation requiring his personal services during the
Employment Term. Nothing in this agreement shall preclude the Executive
from (i) engaging in charitable and community activities or from
managing his personal investments, or (ii) serving as a member of the
board of directors of an unaffiliated company not in competition with
the Company, subject however, in each such case of board membership, to
approval by the Company's Board of Directors (not to be unreasonably
withheld).
4. PLACE OF PERFORMANCE. The principal places of employment of the
Executive shall be at the Company's principal executive offices in
Xxxxxxx, Xxxxxxx, Xxxxxx and the principal executive offices in the
United States of the Company's principal United States subsidiary from
time to time (the "US Principal Executive Offices"), which is currently
located in Dallas, Texas. The Executive's time shall be allocated as
between the Company's principal executive offices and the US Principal
Executive Offices, as determined from time to time in accordance with
what the Executive reasonably determines is in the best interests of
the Company. The Company shall, entirely at its own expense, provide a
suitable home, condominium or apartment in a location reasonably
proximate to the US Principal Executive Offices for the use of the
Executive and other senior officers of the Company and pay all
reasonable living expenses relating thereto.
5. CASH COMPENSATION. Executive shall be compensated for services rendered
during the Employment Term as follows:
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(a) BASE SALARY. Executive shall be compensated at an annual base
salary of no less than US$600,000 (the base salary, at the
rate in effect from time to time, is hereinafter referred to
as the "Base Salary"). The Company's Board of Directors shall
review and may, if appropriate, at its discretion, increase
this annual Base Salary during the Employment Term. Base
Salary shall be reviewed annually and be adjusted to reflect
(among other factors) increases generally granted to other
senior executives of the Company and Chief Executive Officer
performance consistent with Company pay practices but in any
event no such annual increase shall be less than 5%. The Base
Salary shall be payable in equal bi-weekly installments.
(b) ANNUAL BONUS. In addition to the Base Salary provided for in
Section 5 (a) above, the Company will provide annual bonus
awards to Executive in accordance with the Company's executive
bonus plan from time to time in effect (the "EBP") and any
financial performance targets thereunder. During the
Employment Term, Executive's target incentive opportunity
under the EBP will be 100% of Base Salary as in effect at the
time such target incentive opportunity is established,
(i) 75% of the annual bonus award shall be delivered in
cash (at the same time other EBP awards are paid),
and
(ii) 25% of the annual bonus award shall be delivered in
shares of common stock of the Company at the same
time other EBP awards are paid that will be 100%
vested.
6. EQUITY AWARD. Executive may be awarded additional compensation (such as
stock options, shares of incentive stock, or shares of restricted
stock) pursuant to the present or any future incentive compensation or
long-term compensation program established for the senior officers of
the Company (collectively the "Incentive Compensation Programs"), in an
appropriate manner for the position occupied by Executive and his
performance therein relative to other Company senior executives and
consistent with Company pay practices. Compensation granted under such
plans will be subject to the actual provisions and conditions
applicable to such plans.
7. EMPLOYEE BENEFITS.
(a) GENERAL PROVISIONS. Except as expressly provided in this
Agreement, Executive shall be entitled to benefits that are no
less favorable to the Executive than currently being provided
to the Executive, without duplication.
(b) VACATION AND SICK LEAVE. Executive shall be entitled to
vacation and sick leave in accordance with the vacation and
sick leave policies adopted by the Company from time to time,
provided that the Executive shall be entitled to no less than
four (4) weeks of paid vacation each calendar year. Any
vacation shall be at such time and
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for such periods as shall be mutually agreed upon between the
Executive and the Company. The Executive shall be entitled to
all public holidays observed by the Company.
(c) LOAN REPAYMENT. The Company acknowledges that it has made
payment to the Executive to enable him to repay the
interest-free housing loan and other loans in the amount of
Cdn$625,000 that it previously made to the Executive and that
any compensation income to Executive resulting from the
aforesaid payment by the Company to Executive or interest-free
features of the loan will be grossed up for tax purposes at
the present rate of 48%.
(d) OPTIONS. The Company acknowledges and agrees that all options
previously granted to the Executive to purchase shares in the
capital stock of the Company will automatically vest upon the
completion of the initial public offering of the Company's
common stock.
(e) AUTOMOBILE ALLOWANCE. The Executive shall be entitled to the
payment of US$3,000.00 per month in respect of an automobile
allowance.
(f) RRSP CONTRIBUTION. The Corporation shall deposit each year to
a registered retirement savings plan ("RRSP") account
designated by the Executive an amount equal to the maximum
allowable RRSP contribution by the Executive.
(g) INSURANCE. The Company shall continue to provide insurance in
the amount of Cdn$2,500,000 on the life of the Executive and
shall pay all premiums on such insurance policy during the
term of this Agreement, the beneficiary of which shall be the
Executive's estate or such other designee of the Executive,
which amount shall be grossed up for tax purposes at the
present rate of 48%.
8. APPLICABLE TAXES. There shall be deducted from any compensation
payments made under this Agreement any federal, provincial, state, and
local taxes or other amounts required to be withheld by any entity
having jurisdiction over the matter.
9. MISCELLANEOUS BENEFITS. During the Employment Term, the Company shall
provide the Executive with the following additional benefits:
(a) BUSINESS TRAVEL AND EXPENSES. Executive shall be reimbursed by
the Company for reasonable and other business expenses, as
approved by the Company, which are incurred and accounted for
in accordance with the Company's normal practices and
procedures for reimbursement of expenses.
(b) NON-EXCLUSIVITY. Nothing in this Agreement shall prevent the
Executive from being entitled to receive any additional
compensation or benefits as approved by the Company's Board of
Directors.
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10. TERMINATION OF EMPLOYMENT. Notwithstanding any other provisions of this
Agreement to the contrary, the employment of the Executive pursuant to
this Agreement may be terminated as follows:
(a) TERMINATION BY THE COMPANY FOR CAUSE. Executive may be
terminated for "Cause" by the Company as provided below. As
used herein, the term "Cause" shall mean (i) conviction of the
Executive for a felony; or (ii) the commission by the
Executive of fraud or theft against, or embezzlement from, the
Company. For purposes of this section, no act or failure to
act on Executive's part shall be considered to be reason for
termination for Cause if done, or omitted to be done, by
Executive in good faith and with the reasonable belief that
the action or omission was in the best interests of the
Company. Cause shall not exist unless and until there shall
have been delivered to the Executive a copy of a resolution,
duly adopted by the affirmative vote of not less than two
thirds of the entire membership of the Board at a meeting of
the Board held for the purpose (after ten (10) days' prior
written notice to the Executive of such meeting and the
purpose thereof and an opportunity for him, together with his
counsel, to be heard before the Board at such meeting), of
finding that in the good faith opinion of the Board, the
Executive was guilty of the conduct set forth above in this
Section 10(a) and specifying the particulars thereof in
detail. As set forth more fully in Section 10(f) hereof, the
"Date of Termination" (which shall be no earlier than 30 days
after delivery of the written notice to the Executive) shall
be the date specified in the "Notice of Termination;"
provided, however, that in the case of a termination for Cause
under clauses 10(a)(i) and 10(a)(ii) above, the Date of
Termination shall be the date of delivery of the Notice of
Termination. Anything herein to the contrary notwithstanding,
if, following a termination of the Executive's employment by
the Company for Cause based upon the conviction of the
Executive for a felony, such conviction is overturned in a
final determination on appeal, the Executive shall be entitled
to the payments and the economic equivalent of the benefits
the Executive would have received if his employment had been
terminated by the Company without Cause.
(b) TERMINATION BY THE COMPANY FOR EXCESSIVE ABSENTEEISM. At the
sole discretion of the Company's Board of Directors, Executive
may be terminated if the Executive shall have been absent from
his duties with the Company on a full-time basis for one
hundred and twenty (120) consecutive days, and if within
thirty (30) days after written Notice of Termination is given
by the Company to the Executive, the Executive shall not have
resumed the performance of his duties hereunder on a full-time
basis. In this event, the Date of Termination shall be thirty
(30) days after Notice of Termination is given by the Company
(provided that the Executive shall not have returned to the
full-time performance of his duties).
(c) DEATH. The Executive's employment shall terminate upon his
death, and the date of his death shall be the Date of
Termination for purposes of this Agreement.
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(d) TERMINATION BY THE EXECUTIVE FOR GOOD REASON. The Executive
may terminate his employment hereunder for "Good Reason,"
provided that the Executive shall have delivered a Notice of
Termination within ninety (90) days after the occurrence of
the event of Good Reason giving rise to such termination. For
purposes of this Agreement, "Good Reason" shall mean the
occurrence of one or more of the following circumstances,
without the Executive's express written consent, which are not
remedied by the Company within thirty (30) days of receipt of
the Executive's Notice of Termination except in the event of a
Change in Control:
(i) an assignment to the Executive of any duties
materially inconsistent with his position, duties,
responsibilities, and status with the Company, or any
material limitation of the powers of the Executive
not consistent with the powers of the Executive
contemplated by Section 3 hereof;
(ii) any removal of the Executive from, or any failure to
re-elect the Executive to the positions specified in
Section 1 of this Agreement;
(iii) the change of the Executive's title as specified by
Section 1 of this Agreement;
(iv) the Company's requiring the Executive without his
written consent to be based at any office or location
more than 25 miles commuting distance from the
locations referred to in Section 4 of this Agreement;
(v) a reduction in the Executive's Base Salary or Annual
Bonus target incentive opportunity as in effect from
time to time, without his written consent;
(vi) the failure of the Company to continue in effect any
Benefit Plan that was in effect on the date hereof or
provide the Executive with equivalent benefits,
without his written consent;
(vii) the failure of the Company to maintain the Executive
as a member of its Board of Directors at all times
thereafter, for so long as he shall serve as Chief
Executive Officer of the Company;
(viii) any other material breach by the Company of this
Agreement;
(ix) "Change in Control" as defined in Section 11(f) of
this Agreement provided, however, that if so
requested by the Company prior to any Change of
Control, the Executive shall remain employed by the
Company on the same terms as provided for herein and
shall not be entitled to deliver Notice of
Termination as a result of such Change of Control
until the expiry of one year from the event of such
Change of Control or such lesser period as may be
requested by the Company, and, for certainty, the
Executive shall upon the expiry of such earlier
period, then be entitled to deliver Notice of
Termination;
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(x) a failure of the Company to secure a written
assumption by any successor company as provided for
in Section 15(g) hereof.
In the event of a termination for Good Reason, the Date of
Termination shall be the date specified in the Notice of
Termination, and shall be more than thirty (30) days after the
Notice of Termination.
(e) OTHER TERMINATIONS. Notwithstanding the foregoing, the
Executive may terminate his employment at any time, subject to
the provisions of Section 10(f) hereof. If the Executive's
employment is terminated hereunder for any reason other than
as set forth in Sections 10(a) through 10(d) hereof, the date
on which a Notice of Termination is given or any later date
(within 30 days) set forth in such Notice of Termination shall
be the Date of Termination.
(f) NOTICE OF TERMINATION. Any termination of the Executive's
employment hereunder by the Company or by the Executive shall
be communicated by written Notice of Termination to the other
party hereto. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the
specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of
the Executive's employment under the provisions so indicated
and a date of termination.
11. COMPENSATION UPON TERMINATION OR DURING DISABILITY
(a) DISABILITY PERIOD. During any period during the Employment
Term that the Executive fails to perform his duties hereunder
as a result of incapacity due to physical or mental illness
("Disability Period"), the Executive shall continue to (i)
receive his full Base Salary and bonus otherwise payable for
that period of the Employment Term including the Disability
Period and (ii) participate in the Benefit Plans. Such
payments made to the Executive during the Disability Period
shall be reduced by the sum of the amounts, if any, payable to
the Executive at or prior to the time of any such payment
under disability benefit plans of the Company or under any
government disability insurance program, where such amounts
were not previously applied to reduce any such payment.
(b) DEATH. If the Executive's employment hereunder is terminated
as a result of his death, then: (i) the Company shall pay the
Executive's estate or designated beneficiary, as soon as
practicable after the Date of Termination, a lump sum payment
equal to (1) any Base Salary installments due in the month of
death and any reimbursable expenses accrued or owing the
Executive hereunder as of the Date of Termination, (2) a PRO
RATA portion of any bonus owed to the Executive for that
portion of the Employment Term through to the Date of
Termination and any earned and unpaid bonus relating to
services performed by the Executive in the year preceding his
death, and (3) the severance benefits set forth in Section
11(e), and (ii) all outstanding stock options, earned shares
of incentive stock, and other awards granted to the Executive
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under the Incentive Compensation Programs shall immediately
become fully vested as of the Date of Termination and all
transfer restrictions shall lapse but continue to be subject
to such exercise periods as shall be provided for under the
terms of each grant.
(c) ABSENCE FROM WORK. If the Executive's employment hereunder is
terminated for excessive absenteeism as defined in Section
10(b), then (i) the Company shall pay the Executive, as soon
as practicable after the Date of Termination (1) any Base
Salary and any reimbursable expenses accrued or owing the
Executive hereunder as of the Date of Termination, (2) a PRO
RATA portion of any bonus owed to the Executive for that
portion of the Employment Term through to the Date of
Termination and any earned and unpaid bonus relating to
service performed by the Executive in the year preceding his
Date of Termination for excessive absenteeism, and (3) the
severance benefits set forth in Section 11(e); and (ii) all
outstanding stock option and incentive stock awards granted to
the Executive shall immediately become fully vested as of the
Date of Termination and all transfer restrictions shall lapse
but continue to be subject to such exercise periods as shall
be provided for under the terms of each grant.
(d) TERMINATION FOR CAUSE OR BY THE EXECUTIVE OTHER THAN FOR GOOD
REASON. If the Executive's employment hereunder is terminated
by the Company for Cause or by the Executive (other than for
Good Reason), then (i) the Company shall pay the Executive, as
soon as practicable after Date of Termination, any Base Salary
and any reimbursable expenses accrued or owing the Executive
hereunder for services as of the Date of Termination; and (ii)
the Executive shall immediately forfeit any unvested career
shares and earned but unvested incentive stock shares. In the
event of termination by the Company for Cause, the Executive
shall have the right to exercise the vested unexercised
portion of all outstanding stock option and stock awards prior
to the Date of Termination, and the unexercised portion of any
such award shall be forfeited thereafter and any restricted
stock shall remain subject to the terms of each grant. In the
event of termination by the Executive other than for Good
Reason but subject to the provisions of Section 12, the
Executive shall have the right to exercise the vested
unexercised portion of all outstanding stock options and stock
awards then held by the Executive for such period following
the Date of Termination as shall be provided for under the
terms of each grant, and the unexercised portion of any such
awards shall be forfeited thereafter and any restricted stock
shall remain subject to the terms of each grant.
(e) ALL OTHER TERMINATIONS. Executive's employment may be
terminated without Cause by the Company's Board of Director's
or by the Executive for Good Reason or upon a Non-Renewal
Event, provided that in such event:
(i) Executive shall be entitled to receive the sum of
US$2,000,000 to be paid in a lump-sum (net of
appropriate withholdings) upon the Date of
Termination;
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(ii) Executive and his eligible dependents shall be
entitled to continue participation in the Company's
Benefit Plans at the same cost as other Company
senior executives (to the extent allowable in
accordance with the administrative provisions of
those plans and applicable federal and provincial
law) for a period of up to three (3) years or until
Executive and his eligible dependents are eligible to
be covered by a successor employer's comparable
benefit plans, whichever is sooner;
(iii) Any stock or stock option granted to the Executive
subject to vesting restrictions shall become vested
and fully exercisable as of the Date of Termination
but subject to the provisions of Section 12. In
addition, any restrictions on sale, transfer or
disposition of restricted stock will be lifted.
(f) CHANGE IN CONTROL. For purposes of this Agreement, "Change in
Control" shall mean:
(i) The Company's shareholders approve a merger (pursuant
to which the Company is not the surviving entity),
consolidation (pursuant to which the voting
shareholders of the Company cease to hold in excess
of fifty (50%) percent of the voting stock of the
consolidated entity), sale or disposition of all or
substantially all of the Company's assets or a plan
of partial or complete liquidation and such
transaction is completed substantially in accordance
with the terms approved by the shareholders;
(ii) The majority of the Board consists of individuals
other than Incumbent Directors (a "Hostile Board"),
which term "Incumbent Directors" means the members of
the Board as of the Effective Date of this Agreement
and any other Director elected to the Board with the
consent of the Executive, PROVIDED THAT any person
becoming a director subsequent to such date whose
election or nomination for election was supported by
two-thirds of the directors who then comprised the
Incumbent Directors shall be considered to be an
Incumbent Director; PROVIDED FURTHER that the
occurrence of a Share Acquisition (as defined below)
without the prior approval of the two-thirds of the
Incumbent Directors shall be deemed to result in a
Hostile Board for all purposes hereunder; or
(iii) the acquisition by any third-party of stock
constituting at least 51% of all outstanding shares
of stock of the Company (a "Share Acquisition") and
subsequent to such acquisition either (i) the Company
no longer is a public company for applicable Canadian
or U.S. securities law purposes, or (ii) there is a
material diminution of the Executive's position or
any other breach of this Agreement by the Company or
event giving rise to a Good Reason termination by the
Executive.
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12. NONSOLICITATION AND NONCOMPETITION
(a) During his employment with the Company and for a period of (2)
two years from the date of the Executive's termination of
employment for any reason, the Executive will not provide
services, in any capacity, whether as an employee, consultant,
independent contractor, or otherwise, to any person or entity
that provides products or services that compete with the
Business of the Company, except that after the termination of
Executive's employment this restriction shall only apply to
North America. If so requested in writing by Executive, the
Company shall advise the Executive promptly in writing in
advance (but in no case later than 30 calendar days) as to
whether, in the exercise of its reasonable judgment, the
Company views any proposed activity contemplated by the
Executive as constituting a competing "Business," PROVIDED
THAT nothing herein shall prevent the Executive from, after
the termination of his employment, being a passive owner of
not more than 5% of the outstanding stock of any class of a
corporation that is publicly traded and that may acquire any
corporation or business that competes with the Company.
(b) For a period of two (2) years following the termination of the
Executive's employment for any reason, the Executive will not
directly or indirectly solicit the Business of any customer of
the Company during the two (2) year period prior to the
termination of the employment relationship with the Company
for any purpose other than to obtain, maintain and/or service
the customer's Business for the Company.
(c) For a period of two (2) years following the termination of the
Executive's employment for any reason, the Executive agrees
not to, directly or indirectly, recruit or solicit any
employees of the Company to work for the Executive or any
other person or entity.
(d) As used in this Section, the following terms shall have their
respective definitions:
(i) "Business" means the business of providing clinical
laboratory services.
(ii) "Indirectly solicit" shall include, but are not to be
limited to, providing Company's proprietary
information to another individual, or entity,
allowing the use of Executive's name by any company
(or any employees of any other company) other than
the Company, in the solicitation of the Business of
Company's customers.
(e) EXCLUSIVE PROPERTY. Executive confirms that all confidential
information is and shall remain the exclusive property of the
Company. All business records, papers and documents kept or
made by Executive relating to the business of the Company, its
affiliates and subsidiaries (other than his personal records)
shall be and remain the property of the Company. Upon the
termination of his employment with the Company or upon the
request of the Company at any time, Executive shall promptly
deliver to the Company, and shall not without the consent of
the Board retain copies of, any written materials not
previously made available to the public, or records and
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documents made by Executive in his possession concerning the
business or affairs of the Company or any of its affiliates or
subsidiaries (other than his personal records); provided,
however, that subsequent to any such termination, the Company
shall provide Executive with copies (the cost of which shall
be borne by Executive) of any documents which are requested by
Executive and which Executive has determined in good faith are
(i) required to establish a defence to a claim that Executive
has not complied with his duties hereunder or (ii) necessary
to Executive in order to comply with applicable law.
(f) REMEDIES.
(i) INJUNCTIVE RELIEF. Without intending to limit the
remedies available to the Company, Executive
acknowledges that a breach of any of the covenants
contained in this Section 12 may result in material
irreparable injury to the Company or its affiliates
or subsidiaries for which there is no adequate remedy
at law, that it will not be possible to measure
damages for such injuries precisely and that, in the
event of such a breach or threat thereof, the Company
shall be entitled to obtain a temporary restraining
order and/or a preliminary or permanent injunction
restraining Executive from engaging in activities
prohibited by this Section 12 or such other relief as
may be required to specifically enforce any of the
covenants in this Section 12. Without intending to
limit the remedies available to Executive, Executive
shall be entitled to seek specific performance of the
Company's obligations under this Agreement.
(ii) ADDITIONAL REMEDY. In the event of an arbitrator's
determination that Executive has breached any of the
covenants contained in this Section 12 during his
employment or within one year after termination
thereof for any reason, then (1) all of Executive's
outstanding stock options shall immediately terminate
as of the date of the breach and (2) any gains
realized by Executive from exercising all or a
portion of any stock options within three months
prior to his termination of employment or anytime
after his termination of employment, shall be paid by
Executive to the Company. The amount of the realized
gains shall be the difference between the exercise
price and the fair market value of the stock on the
day each option is exercised and the Executive agrees
to pay immediately said amounts to the Company. The
Company shall cooperate with the Executive in filing
amended tax returns required as a result of the
exercise by the Company of its rights pursuant to
this subclause (ii). Executive agrees to pay
immediately the unpaid balance to the Company.
Executive may be released from his obligations
hereunder only if the Board (or its duly appointed
agent) determines in its sole discretion that such
action is in the best interests of the Company.
13. ARBITRATION. In the event of any difference of opinion or dispute
between the Executive and the Company with respect to the construction
or interpretation of this Agreement or the
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alleged breach thereof, which cannot be settled amicably by agreement
of the parties, then such dispute shall be submitted to and determined
by arbitration by a single arbiter in the city of Toronto, Ontario in
accordance with the provision of the Arbitrations Act (Ontario), and
judgment upon the award rendered shall be final, binding and conclusive
upon the parties and may be entered in the highest court, provincial or
federal, having jurisdiction. The costs of the arbitration shall be
borne as determined by the arbitrator; PROVIDED, HOWEVER, that if the
Company's position is not substantially upheld, as determined by the
arbitrator, the expenses of the Executive (including, without
limitation, fees and expenses payable to the arbitrator, fees and
expenses payable to witnesses, including expert witnesses, fees and
expenses payable to attorneys and other professionals, expenses of the
Executive in attending the hearing, costs in connection with obtaining
and presenting evidence and costs of the transcription of the
proceedings), as determined by the arbitrator, shall be reimbursed to
him by the Company.
14. CONFIDENTIALITY. During the Employment Term, and except as otherwise
required by law, the Executive shall not disclose or make accessible to
any business, person or entity, or make use of (other than in the
course of the business of the Company) any trade secrets, proprietary
knowledge or confidential information, which he shall have obtained
during his employment by the Company and which shall not be generally
known to or recognized by the general public. All information regarding
or relating to any aspect of either the Company's business, including
but not limited to that relating to existing or contemplated business
plans, activities or procedures, current or prospective clients,
current or prospective contracts or other business arrangements,
current or prospective products, facilities and methods, manuals,
intellectual property, price lists, financial information (including
the revenues, costs, or profits associated with any of the Company's
products or services), or any other information acquired because of the
Executive's employment by the Company, shall be conclusively presumed
to be confidential; PROVIDED, HOWEVER, that Confidential Information
shall not include any information known generally to the public (other
than as a result of unauthorized disclosure by the Executive) or any
specific information or type of information generally not considered
information disclosed by the Company or any officer thereof to a third
party without restrictions on the disclosure of such information. The
Executive's obligations under this Section 14 shall be in addition to
any other confidentiality or nondisclosure obligations of the Executive
of the Company at law or under any other agreements.
15. OTHER MATTERS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the Company and the Executive relating to
the subject matter hereof, and supersedes any previous
agreements, commitments and understandings, written or oral,
with respect to the matters provided herein. As used in this
Agreement, terms such as "herein," "hereof," "hereto" and
similar language shall be construed to refer to this entire
instrument and not merely the paragraph or sentence in which
they appear, unless so limited by express language.
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(b) ASSIGNMENT. Except as set forth below, this Agreement and the
rights and obligations contained herein shall not be
assignable or otherwise transferable by either party to this
Agreement without the prior written consent of the other party
to this Agreement. Notwithstanding the foregoing, any amounts
owing to the Executive upon his death shall inure to the
benefit of his heirs, legatees, personal representatives,
executor or administrator.
(c) NOTICES. Any and all notices provided for under this Agreement
shall be in writing and hand delivered or sent by first class
registered or certified mail, postage prepaid, return receipt
requested, addressed to the Executive at his residence or to
the Company at its usual place of business, and all such
notices shall be deemed effective at the time of delivery or
at the time delivery is refused by the addressee upon
presentation.
(d) AMENDMENT/WAIVER. No provision of this Agreement may be
amended, waived, modified, extended or discharged unless such
amendment, waiver, extension or discharge is agreed to in
writing signed by both the Company and the Executive.
(e) APPLICABLE LAW. This Agreement and the rights and obligations
of the parties hereunder shall be construed, interpreted, and
enforced in accordance with the laws of the Province of
Ontario.
(f) SEVERABILITY. The Executive hereby expressly agrees that all
of the covenants in this Agreement are reasonable and
necessary in order to protect the Company and its business. If
any provision or any part of any provision of this Agreement
shall be invalid or unenforceable under applicable law, such
part shall be ineffective only to the extent of such
invalidity or unenforceability and shall not affect in any way
the validity or enforceability of the remaining provisions of
this Agreement, or the remaining parts of such provision.
(g) SUCCESSOR OF INTERESTS. In the event the Company merges or
consolidates with or into any other corporation or
corporations, or sells or otherwise transfers substantially
all of its assets to another corporation, the provisions of
this Agreement shall be binding upon and inure to the benefit
of the corporation surviving or resulting from the merger or
consolidation or to which the assets are sold or transferred
and, prior to the consummation of any such event, the Company
shall obtain the express written assumption of this Agreement
by the other corporation (other than in the case of a merger
after which the Company is the surviving entity). All
references herein to the Company refer with equal force and
effect to any corporate or other successor of the corporation
that acquires directly or indirectly by merger, consolidation,
purchase or otherwise, all or substantially all of the assets
of the Company.
(h) NO MITIGATION. The Executive shall not be required to mitigate
amounts payable pursuant to Section (11) hereof by seeking
other employment or otherwise.
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16. INDEMNIFICATION. The Company shall indemnify the Executive to the full
extent permitted by law and the By-laws of the Company for all
expenses, costs, liabilities and legal fees which the Executive may
incur in the discharge of all his duties hereunder, including, without
limitation, the right to be paid in advance by the Company for his
expenses in defending a civil or criminal action, proceeding or
investigation prior to the final disposition thereof. The Executive
shall be insured under the Company's Directors' and Officers' Liability
Insurance Policy as in effect from time to time. Notwithstanding any
other provision of this Agreement to the contrary, any termination of
the Executive's employment or of this Agreement shall have no effect on
the continuing operations of this Section (16).
17. AUTHORITY. The execution, delivery and performance of this Agreement
has been duly authorized by the Company and this Agreement represents
the valid, legal and binding obligation of the Company, enforceable
against the Company according to its terms.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its own behalf and has caused its corporate seal to be affixed, and
the Executive has executed this Agreement on his own behalf intending to be
legally bound, as of the date first written above.
DYNACARE INC.
BY: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx
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