EXHIBIT 10.1
EMPLOYMENT AGREEMENT entered into in Xxxxxxxx, Xxxxxx, Xxxxxx as of March 1st,
2005 by and
Between: MAAX-KSD CORPORATION, a company incorporated under
the laws of the province of Quebec, having its head
office at 000 Xxxxxxxx Xxxx, P.O. Box 544,
Southampton, Pennsylvania, USA,
("MAAX")
and: Xxxxxx Xxxxxxx, domiciled and residing at 0000
Xxxxxxx Xxxx Xx., Xxxxxxxxxx, XX, 00000, XXX;
(the "Employee")
1. Term
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1.1 The Employee agrees that his employment with MAAX is for an unspecified
duration that constitutes at-will employment, and that either the
Employee or MAAX can terminate this relationship at any time, with or
without cause. However, in the event of any involuntary termination of
the employment other than for cause (as defined herein), the Employee
shall be entitled to the severance compensation set forth in section 8
hereof.
2. Title and Responsibilities
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The Employee will serve in the position of Vice President and Sector
Head - Bathroom Sector and will henceforth perform duties for MAAX
Corporation and its subsidiaries. Job Responsibilities
>> Place of work shall be Southampton, Pennsylvania;
>> Responsible for general management of MAAX Bathroom Sector;
o 18 plants
o $M450 Sales revenue per year (FY2005)
o $M63 of EBITDA
o Employees: 2,900
>> Preparation and execution of Sector Business Plan accompanied
by financial budgets to meet MAAX Bathroom Sector goals and
objectives;
>> Leadership and management of human resources throughout all
Bathroom Sector plants and distribution centers;
>> Financial performance for his sector;
o EBITDA
o Working Capital
>> Sales and Marketing strategies for his sector;
>> Manufacturing. logistics and distribution strategies for his
sector;
>> Product development implementation within MAAX strategic
direction;
>> Business relationships with customers;
>> Member of MAAX Executive Committee;
>> Reports to President and CEO.
3. Compensation
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During the Term, as compensation for performing the services required
by this Agreement, the Employee shall be compensated as follows:
3.1 Base compensation
>> In consideration of the Employee's services, effective March
1st, 2005, the Employee will be paid a base salary of three
hundred thousand dollars US Funds ($US300,000), payable
twice-monthly in accordance with MAAX's standard payroll
practices. As with other managers of MAAX, the Employee's base
salary will be reviewed annually by the Board of Directors of
MAAX, as appropriate.
3.2 Performance Compensation
>> In addition to a base compensation, the Employee is entitled
to a performance compensation of up to 50% of his annual
salary (3.1 above) paid annually (Upon Board approval which is
usually in the month of May following the end of fiscal year);
>> Performance compensation targets are established on an annual
basis by MAAX Board of Directors. The target bonus has three
(3) main components:
a) MAAX Consolidated Adjusted Earnings Before Interest,
Tax, Depreciation and Amortization (EBITDA)
o Payment scale starts at 95% of previous year
EBITDA to the budgeted yearly EBITDA;
Represents 40% of total bonus target.
b) Working Capital Ratios for MAAX consolidated which
includes
o Trade receivable;
o Raw material inventory;
o Finished Goods and WIP Inventory; and
o Trade payables;
Represents 40% of total bonus target.
c) Strategic initiatives for MAAX represent 20% of total
bonus target (Ex: LEAN Thinking implementation, SAP
implementation, etc.)
4. Employee Benefits
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4.1 You will be entitled to participate in the company's full benefit
program; which includes life insurance, sick leave, short/long term
disability as well as a 401K plan.
4.2 The Employee shall have the right to four (4) weeks of paid vacation
per each calendar year during the Term. Any vacation that is not taken
in a given calendar year shall accrue and carry over to the following
year. Accrued vacation cannot be monetarily compensated.
4.3 During the Term, in order to facilitate the performance of the
Employee's duties hereunder and otherwise for the convenience of the
Company, the Company shall provide the Employee with a monthly
automobile allowance of up to eight hundred ($US800) dollars. The
Company shall also be responsible for and shall pay for all costs
associated with the use of such automobile, including, without
limitation, insurance, fuel, maintenance and repairs.
4.4 Share options: The Employee has been allocated eighteen thousand six
hundred thirty-seven (18,637) options under the Company's share options
plan. 30% of the options granted under the plan will vest rateably over
five (5) years (20% per year).
70% of the options granted under the plan are performance vesting
options. (See stock option plan agreement for details of this plan).
4.5 The Employee is entitled to hold an equity position within MAAX
Corporation. You have chosen to invest the equivalent of fifteen
thousand one hundred eighty-three (15,183) shares and/or roll over
options. (See MAAX shareholders agreement for details).
5. Expenses
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5.1 All normal expenses associated with business as approved by the
President & CEO consistent with MAAX policies.
6. Non-competition, confidentiality and Invention Assignment
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6.1 The Employee agrees that his employment is contingent upon his
execution and delivery to MAAX of the Non-Competition, Confidentiality
and Invention Assignment Agreement attached hereto as Schedule A.
7. No Conflicting Employment
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7.1 The Employee agrees that, during the term of his employment with MAAX,
he will not engage in any other employment, occupation, consulting or
other business activity related to the business in which MAAX is now
involved or becomes involved during the term of his employment, nor
will he engage in any other activities that conflict with his
obligations to MAAX.
8. Termination and Severance
-------------------------
8.1 In the event that the Employee employment with MAAX is involuntarily
terminated other than "for cause" (as defined herein), the Employee
shall be entitled to a severance payment equal to twelve (12) months of
the Employee's then current base salary plus one year target bonus
amount as set forth in section 3.
8.2 For purposes of the foregoing, termination "for cause" shall mean (i)
the wilful failure by the Employee substantially to perform his
material duties after a written demand for substantial improvement in
performance is delivered to the Employee by the Board of Directors of
MAAX or the CEO which specifically identifies the manner in which MAAX
believes that the Employee should perform his duties and the Employee
fails to rectify the deficiency within a 90-day period, (ii) the
failure (in any material respect) by the Employee to follow reasonable
policies or directives established by MAAX after written notice to the
Employee by the CEO of MAAX that the Employee is not following such
policies or directives and the Employee fails to rectify the deficiency
immediately, (iii) conduct that is materially detrimental to MAAX and
the Employee fails to rectify such deficiency immediately of having
received written notice from MAAX regarding the same, or (iv) the
conviction of the Employee of any crime involving the property or
business of MAAX or an illegal activity or action detrimental to MAAX.
8.3 If the Employee employment is terminated for cause or if the Employee
resigns his employment voluntarily, no compensation or other payments
will be paid or provided to the Employee for any period following the
date when such a termination of employment is effective and any rights
the Employee may have under any benefit plans of MAAX shall be
determined under the provisions of those plans. If the employment of
the Employee terminates as a result of his death or disability, no
compensation or payments will be made to the Employee other than those
to which the Employee is otherwise entitled under applicable benefit
plans, if any, of MAAX.
9. General Provisions
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9.1 This Agreement will be governed by the laws of the Sate of
Pennsylvania, applicable to Agreements made and to be performed
entirely within such state.
9.2 This Agreement sets forth the entire Agreement and understanding
between MAAX and the Employee relating to his employment and supersedes
all prior verbal discussions between them. Any subsequent change or
changes in the Employee duties, salary or compensation will not affect
the validity or scope of this Agreement.
9.3 If one or more of the provisions in this Agreement are deemed void by
law, then the remaining provisions will continue in full force and
effect.
9.4 This Agreement will be binding upon the Employee's heirs, executors,
administrators and other legal representatives and will be for the
benefit of MAAX and its successors and assigns.
9.5 The Employee warrants that there is no Agreement between him and any
other party that would conflict with his obligations under this
Agreement or otherwise as an employee of MAAX.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement at the place and as of the date first written above.
MAAX KSD
by: /s/ XXXXX XXXXXX
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Xxxxx Xxxxxx, President and CEO
The Employee
/s/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx
SCHEDULE A
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MAAX KSD
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CONFIDENTIALITY, OWNERSHIP OF FILES AND
OTHER PROPERTY, OWNERSHIP OF INTELLECTUAL
PROPERTY, NON-COMPETITION AND
NON-SOLICITATION AGREEMENT
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SECTION I - CONFIDENTIALITY
1.1 The Employee acknowledges that he has received and will receive or
conceive, in performing or in the course of his duties during his
employment with MAAX KSD and the subsidiaries of MAAX Corporation ("the
Company"), confidential information pertaining to the activities, the
technologies, the operations and the business, past, present and
future, of the Company or its subsidiaries or related or associated
companies, which information is not in the public domain. The Employee
acknowledges that such confidential information belongs to the Company
and that its disclosure or unauthorized use could be prejudicial to the
Company and contrary to its interests.
Accordingly, the Employee agrees to respect the confidentiality of such
information and not to make use of or disclose or discuss it to or with
any person, other than in the course of his duties with the Company,
without the explicit prior written authorization of the Company.
This undertaking to respect the confidentiality of such information and
not to make use of or disclose or discuss it to or with any person
shall continue to have full effect notwithstanding the termination of
the Employee's employment with the Company, so long as such
confidential information does not become public as a result of an act
by the Company or a third party which act does not involve the fault of
one its employees.
1.2 The term "confidential information" includes among other things:
1.2.1 products, formulae, processes and composition of products, as
well as raw materials and ingredients, of whatever kind, that
are used in their manufacture;
1.2.2 technical knowledge and methods, quality control processes,
inspection methods, laboratory and testing methods,
information processing programs and systems; manufacturing
processes, plans, drawings, tests, test reports and software;
1.2.3 equipment, machinery, devices, tools, instruments and
accessories;
1.2.4 financial information, production cost data, marketing
strategies, raw materials supplies, supplier, staff and
customer lists and related information, marketing plans, sales
techniques and policies, including pricing policies, sales and
distribution data and present and future expansion plans; and
1.2.5 research, experiments, inventions, discoveries, developments,
improvements, ideas, industrial secrets and know-how.
SECTION II - OWNERSHIP OF FILES AND OTHER PROPERTY
2.1 Any file, sketch, drawing, letter, report, memo or other document, any
equipment, machinery, tool, instrument or other device, any diskette,
recording tape, compact disc or software or any other property which
comes into the Employee's possession during his employment with the
Company, in the performance or in the course of his duties, regardless
of whether he has participated in its preparation or design, how it may
have come into his possession and whether or not it is an original or a
copy, shall at all times remain the property of the Company and, upon
the termination of the Employee's employment, shall be returned to the
Company or its designated representative before the Employee leaves his
place of work. The Employee may not keep a copy or give one to a third
party
SECTION III - OWNERSHIP OF INTELLECTUAL PROPERTY
3.1 The Employee hereby assigns and agrees to assign to the Company all his
intellectual property rights as of their creation and to make full and
prompt disclosure to the Company of all information relating to
anything made or designed by him or that may be made or designed by him
during the period of his employment, whether alone or jointly with
other persons, or within a period of two (2) years following the
termination of his employment and resulting from or arising out of any
work performed by the Employee on behalf of the Company or connected
with any matter relating or possibly relating to any business in which
the Company or any of its subsidiaries or related or associated
companies is involved.
In addition, the Employee waives all moral rights in any document or
work realized during the period of his employment. The Employee
acknowledges that the Company has the right to use, modify or reproduce
any document or work realized by the Employee, at its entire
discretion, without the Employee's authorization and without his name
being mentioned.
3.2 At any time during the period of his employment or after the
termination of his employment, the Employee shall sign, acknowledge and
deliver, at the Company's expense, but without compensation other than
a reasonable sum for his time devoted thereto if his employment has
then terminated, any document required by the Company to give effect to
section 6.1, including patent applications and documents evidencing the
assignment of ownership. The Employee shall also provide such other
assistance as the Company may require with respect to any proceeding or
litigation relating to the protection or defence of intellectual
property rights belonging to the Company.
3.3 The full list of inventions, discoveries, developments, improvements,
processes and products, whether or not patented, made, designed or
invented by the Employee previous to his employment, and of all other
intellectual property rights belonging to the Employee connected with
any matter relating or possibly relating to any business in which the
Company or any of its subsidiaries or related or associated companies
is involved, is attached to this contract of employment. In the absence
of such list the Employee declares and certifies that he has not made,
designed or invented any invention, discovery, development,
improvement, process or product previous to his employment and that he
does not own any intellectual property rights connected with any matter
relating or possibly relating to any business in which the Company or
any of its subsidiaries or related or associated companies is involved.
3.4 This section shall be binding on the Employee's heirs, assigns and
legal representatives.
SECTION IV - NO COMPETITION AND NO SOLICITATION
4.1 The Employee shall not compete with the Company, directly or
indirectly. He shall not participate in any capacity whatsoever in a
business that competes with the Company, directly or indirectly,
including, without limitation, as an executive, director, officer,
employer, employee, principal, agent, fiduciary, administrator of the
property of another, associate, general partner, independent
contractor, franchisor, franchisee, distributor or consultant. In
addition, he shall not have any interest whatsoever in such a business,
including, without limitation, as owner, shareholder, partner, limited
partner, lender or silent partner. This covenant not to compete is
limited as follows :
4.1.1 As to the time period, to the duration of the Employee's
employment and for a period of twelve (12) months as of the
date of termination of his employment;
4.1.2 The Employee also undertakes, for the same period, not to
solicit customers of the Company, directly or indirectly, not
to permit the use of his name in order to solicit said
customers and not to do anything whatsoever to induce or
decide any person to put an end, in whole or in part, to his
business relations with the Company.
4.2 The Employee also undertakes, for the same period referred to
hereinabove in sub-sections 4.1.1 not to induce, attempt to induce or
otherwise solicit the personnel of the Company to leave their
employment with the Company and not to hire the personnel of the
Company for any business in which the Employee has an interest.
4.3 In the event of violation by the Employee of the undertakings set out
in this section 4, the Employee recognizes the right of the Company to
remedy such breaches, by way of an order of injunction or otherwise and
subject to the Company's right to claim the damages sustained.
4.4 The provisions of this section 4 are limited as to the time period, the
geographic area, the nature of the activities and as to the amount of
the penalty to what the parties deem necessary to protect the
legitimate interests of the Company. Should a Court decide that the
provisions of this section 4 are nevertheless abusive or unreasonable;
the parties' intention is that the scope of the obligations arising
there from should be reduced to the extent required, rather than
invalidated in their entirety.
SECTION V - INTERPRETATION
5.1 This agreement shall be governed by and interpreted in accordance with
the laws of the State of Pennsylvania.
SIGNED IN Xxxxxxxx, Xxxxxx, Xxxxxx on January 3, 2006.
/s/ XXXXXX XXXXXXX January 3, 2006
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Xxxxxx Xxxxxxx Date
/s/ XXXXX XXXXXX January 3, 2006
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Xxxxx Xxxxxx, President and CEO Date
