EMPLOYMENT AGREEMENT
BETWEEN:
LOWER
LAKES TOWING LTD.
(the
"Company")
- and
–
XXXXX
XXXXXXXX
(the
"Executive")
(collectively
referred to as the "Parties")
RECITALS:
A. The
Executive has been employed with the Company in the position of President and
Chief Executive Officer since August 1, 1995.
B. The
Executive has specialized knowledge and valuable skills and experience, which
are critical to the management of the Company and its affiliates, Lower Lakes
Transportation Company and Grand River Navigation Company, Inc. (each a "Member
Company"), and to the continuing success of the business of the Company and the
Member Companies.
C. The
Company wishes to secure the continued services of the Executive under the terms
of this Agreement and the Executive wishes to provide continued services under
the terms of this Agreement.
NOW THEREFORE, for value
received the Parties agree as follows:
1. DUTIES
AND RESPONSIBILITIES
1.1 Positions, Duties and
Responsibilities
(a) The
Company confirms the continuing appointment of the Executive in the position of
President and recognizes for all purposes the Executive's past service with the
Company. The Executive will be responsible for the general supervision and
control over the day to day operations of the Company and each Member Company
(to the extent permissible under laws and regulations applicable to the business
of each such Member Company), and shall have such duties and responsibilities
consistent therewith, including those duties and responsibilities set out in
Schedule A to this Agreement. All senior management of the Company and each
Member Company (to the extent permissible under laws and regulations applicable
to the business of each such member Company) will report directly to the
Executive. The Executive will report to the Board of Directors of the Company as
required by law (and the Board of Directors of each such Member Company, as
applicable in accordance with law). However, ultimately, the
Executive will have a direct line reporting relationship with the Company’s
parent, Rand Logistics, Inc. (“Rand”) and to its President and its CEO, which
shall have overall decision making authority for the Company and each Member
Company. The Executive will continue to serve on the Board of Directors of the
Company. The Executive will also serve as the President of Lower Lakes
Transportation Company, and as an officer and director of each such other Member
Company and of Rand Logistics, Inc. ("Rand") to the extent desired by the Board
of Directors of each such other Member Company or Rand, in each case without
additional compensation therefor.
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(b) The
Executive shall devote all of his business time, attention and energies, on a
full time and exclusive basis, to the business and affairs of the Company and
the Member Companies, shall use his best efforts to advance the best interests
of the Company and the Member Companies, and shall not during the Term be
engaged in any other business activities, whether or not such business
activities are pursued for gain, profit or other pecuniary advantage, without
approval of the Board of Directors of the Company; provided, however, that, it
shall not be a violation of this Agreement for the Executive to (i) serve on
corporate, civic or charitable boards or committees or (ii) manage passive
personal investments, in either case so long as any such activities do not
interfere with the performance of his responsibilities as an employee of the
Company in accordance with this Agreement or adversely affect or negatively
reflect upon the Company or the Member Companies.
(c) Irrespective
of anything else in this agreement to the contrary, the Executive agrees to
comply with the Rand Xxxxxxx Xxxxxxx Policy and Procedure in place from time to
time a copy of which is attached to this Agreement updated to March 19,
2008.
1.2 Reassignment
The
Company shall not reassign the Executive to another position within the Company
or within a Member Company, or alter the duties, responsibilities, title, or
reporting lines of the Executive in a manner inconsistent with this Agreement or
past practice. The Company shall not change the location of the Executive's
employment unless the Executive agrees to such change.
1.3 Travel
The
Executive shall be employed at the Company's location in Port Dover, Ontario.
The Executive shall be available for such business-related travel as may be
required for the purposes of carrying out the Executive's duties and
responsibilities.
1.4 Healthcare
Program
The
Executive shall participate in the Annual Executive Program of the Cleveland
Clinic in Toronto, or such similar program as may be offered by other
institutions, as may be agreed between the parties. The Company shall
pay such fees or other charges as may be incurred as a result of Executive’s
participation in the program commencing Fiscal 2010.
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2. TERM
OF EMPLOYMENT
(a) This Agreement will
commence on October 8, 2009 and will continue for a fixed term, ending March 31,
2014 (the "Term") subject to paragraph 2 (b) and Section 9 of this Agreement.
The Term may be extended upon mutual written agreement of the Parties
(“Successive Term”). Notwithstanding Subsection 9.2 of this Agreement, if
at or near the end of the Term the parties agree in writing to negotiate or
continue to negotiate the terms of an extension or a further extension of this
Agreement, the Term or Successive Term shall be extended and the terms of this
Agreement or successive agreement shall remain in effect until such date that
one of the parties notifies the other in writing that negotiations for an
extension or renewal are at an end at which date the Term shall be at an
end.
(b) In
the event of a Change of Control of Rand, the Term set out in paragraph 2 (a)
will be adjusted for all purposes of this Agreement (including, for greater
certainty, Subsection 9.2) and shall end on a date that is 18 months from the
date of Change of Control if such date is earlier than the end of the
Term. “Change of Control” shall mean (A) the consummation of a
merger, or a sale of voting stock by the shareholders of Rand, in each case
following which the holders of voting stock of Rand immediately prior to the
consummation of such transaction do not hold at least 50.1% of the voting stock
of the surviving entity, (B) the sale of all or substantially all the assets of
Rand, or (C) a series of related transactions which has the effects referred to
in clause (A) or (B) of this sentence.
3. BASE
SALARY
The
Executive will continue to be paid an annual salary in the amount of Cdn
$206,813. Effective April 1, 2010, the base annual salary shall increase to the
amount of $250,000 plus the lower of: (i) an amount equivalent to a rise in the
Consumer Price Index as determined by Statistics Canada for the prior 12 months
based on Cdn $250,000; or (ii) 3% of Cdn $250,000. The base salary in effect
will increase annually, commencing April 1, 2011 by the lower of: (i) an amount
equivalent to a rise in the Consumer Price Index as determined by Statistics
Canada for the prior 12 months; or (ii) 3% of base salary on a year over year
basis. Notwithstanding the forgoing, the base salary will be reviewed
on an annual basis by the Board of Directors of the Company with input from the
Executive and Rand. The Company, at its sole discretion, may decide to increase
base salary in a greater amount in any given year. The base salary in effect at
any given time will be the “Base Salary”. The Executive's Base Salary will be
payable in accordance with Company practices and procedures as they may exist
from time to time.
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4. BONUS
4.1 Signing
Bonus
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(a)
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Bonus
Amount
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The
Executive will be paid a signing bonus of Cdn $328,000 (the “Signing Bonus”) on
execution of this Agreement.
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(b)
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Repayment
on Voluntary or for Cause
Termination
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Should
the Executive be terminated for Cause or should the Executive terminate his
employment voluntarily without Good Reason as defined in this Agreement
(collectively called “Bonus Termination”), the Executive will repay to the
Company the Signing Bonus as follows:
100% of
the Signing Bonus if Bonus Termination occurs before March 31,
2010;
80% of
the Signing Bonus if Bonus Termination occurs before March 31,
2011;
60% of
the Signing Bonus if Bonus Termination occurs before March 31,
2012;
40% of
the Signing Bonus if Bonus Termination occurs before March 31, 2013;
and
20% of
the Signing Bonus if Bonus Termination occurs before March 31,
2014.
Without
limiting or affecting any other rights and remedies that the Company might have
at law, the Executive specifically authorizes and permits the Company to set-off
and deduct as against any amount that the Executive is obligated to repay under
this provision, any amount that the Company may owe or come to owe to the
Executive, including, without limiting the forgoing, amounts payable to the
Executive on account of Base Salary, bonus, shares, stock options and vacation
pay.
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(c)
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Vesting
on Change of Control
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Irrespective
of the forgoing, in the event of a Change of Control of Rand, the Signing Bonus
will be fully vested and shall not be clawed back on the basis set out in
paragraph 4.1 (b). Change of Control has the meaning set out in section 2 (b) of
this Agreement.
4.2 Bonus
Plan
The
Executive shall be a "Participant" in the Management Bonus Program Agreement
(the "Bonus Plan"), on the terms set out below and be paid an amount
(“Performance Bonus”) from fiscal year to fiscal year as set out
below:
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(a)
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Fiscal
2009 – The amount of Cdn $157,000 to be paid by November 2,
2009;
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(b) Fiscal
2010 to end of Term - An amount not less than 40% of Base Salary if the Company
achieves a target to be set on an annual basis by the Board of Directors with
input from the Executive and Rand. Financial results for meeting such targets
will be measured from the Company's Audited Financial Statements for the fiscal
year ending March 31. Bonus will be paid no later than the following September
30. For greater certainty, although the Budget has been established
for fiscal 2010, the Target for Bonus purposes will be different and will be
determined as set out in the following paragraph.
The Bonus
Plan in this 4.2(b) shall be adopted no later than the three month anniversary
of the date of this Agreement, and shall be in form and substance acceptable to
the Company or Member Company and reasonably satisfactory to the Executive. In
the event that the Company or a Member Company fails to adopt a Bonus Plan that
is reasonably satisfactory to the Executive on or prior to the three month
anniversary of the date hereof, the Company or Member Company, as applicable,
shall be obligated to retain, at its expense, the services of a reputable and
recognized executive compensation consultant, which consultant shall, within
mutually agreeable parameters and objectives established by the Company or
Member Company and the Executive (which shall include a bonus plan structure
that (i) provides for the commencement of bonus payments upon achievement of
100% of targeted EBITDA to be determined with the Executive's input, (ii)
appropriately recognizes operational factors such as vessel accidents, capital
expenditure levels, fuel and other operating costs and efficiencies) and (iii)
provides for the ratable accrual of entitlements over the relevant fiscal year),
recommend the terms of the Bonus Plan for adoption by the Company or Member
Company, which recommendation shall be adopted by the Company or Member
Company.
4.3 Equity
Compensation
(a) Stock
Options
The
Executive will be permitted to participate in Rand’s Stock Option Plan according
to its terms at a level decided by Rand.
(b) Restricted
Shares
(i) The
Executive will receive 39,660 restricted shares of Rand (the “Restricted
Shares”) under the terms of a Restricted Share Award Agreement between the
Executive and Rand (the “Restricted Share Award Agreement”), such grant to be
made and shares to be issued within 30 days of the date of this
Agreement.
(ii) The
Executive understands that the award of Restricted Shares is governed by the
Restricted Share Award Agreement, including terms restricting transferability of
the shares and a term that Rand may retain custody of the Restricted Shares
until the restrictions thereon have lapsed and all of the terms and conditions
applicable to the grant have been satisfied.
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(iii) After
the grant of Restricted Shares is made by Rand under the terms of the Restricted
Share Award Agreement, the Company shall pay the Executive a cash amount
equivalent to the fair market value (being the average of the high and low
trading price of Rand’s shares) of 46.41% of 74,000 Restricted Shares as at the
Grant Date set out in the Restricted Share Award Agreement (the “Cash Tax
Withholding”). The Executive authorizes and directs the Company to remit the
entire Cash Tax Withholding to the Canada Revenue Agency on account of the
Executive’s Canadian income tax obligations relating to the award of Restricted
Shares and the Cash Tax Withholding payment.
(iv) Should
the Executive be terminated for Cause or should the Executive terminate his
employment voluntarily without Good Reason as defined in this Agreement, the
Executive will repay to the Company the Cash Tax Withholding as
follows:
100% of
the Cash Tax Withholding if termination occurs before March 31,
2010;
80% of
the Cash Tax Withholding if termination occurs before March 31,
2011;
60% of
the Cash Tax Withholding if termination occurs before March 31,
2012;
40% of
the Cash Tax Withholding if termination occurs before March 31, 2013;
and
20% of
the Cash Tax Withholding if termination occurs before March 31,
2014.
(v) Without
limiting or affecting any other rights and remedies that the Company might have
at law, the Executive specifically authorizes and permits the Company to set-off
and deduct as against any amount that the Executive is obligated to repay under
this provision, any amount that the Company may owe or come to owe to the
Executive, including, without limiting the forgoing, amounts payable to the
Executive on account of Base Salary, bonus, shares, stock options and vacation
pay.
(vi) Irrespective
of the forgoing, in the event of a Change of Control of Rand, the Cash Tax
Withholding will be fully vested and shall not be clawed back on the basis set
out in subparagraph 4.3 (b) (iv). Change of Control has the meaning set out in
section 2 (b) of this Agreement.
5. RETIREMENT
PLANS AND PENSION
The
Company will make annual contributions to the Executive's Registered Retirement
Savings Plan in an amount equivalent to 6.5% of Base Salary.
6. OTHER
BENEFITS
The
Executive shall be entitled to participate in or receive fully paid benefits
under any health and accident plan or any other employee benefit plan or
arrangement made available now or in the future by the Company to its executives
and key management personnel but such benefits must be at least equivalent to
those provided to the Executive in the fiscal year ended March 31, 2009, or as
may be provided to the Company’s Class 1 employees if such benefits are
greater.
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7. VACATION
The
Executive will continue to be entitled to five weeks paid (at then current Base
Salary) vacation per calendar year. Unused vacation days may not be carried over
from one calendar year to the next, and any unused vacation days as of the end
of a calendar year shall be forfeited by the Executive. The Executive will
arrange vacation time to suit the essential business needs of the
Company.
8. PERQUISITES
AND EXPENSES
8.1 Automobile
The
Company will continue to lease an automobile for the Executive (the "Lease") to
be used at the Executive's discretion at a maximum monthly cost to the Company
of not more than Cdn $950.00 as of April 1, 2009 (which may increase on an
annual basis based on the average Consumer Price Index for the prior 12 months
as published by Statistics Canada). In addition to the Lease, the Company will
pay all related expenses (maintenance and repair, service, insurance, gasoline,
etc.) related to all use of such automobile.
8.2 Reimbursement of
Expenses
The
Company recognizes that the Executive will incur expenses in the performance of
the Executive's duties. The Company shall reimburse the Executive for any
reasonable out-of-pocket expenses incurred in the course of employment,
including reasonable travel and entertainment expenses.
8.3 Professional
Dues
The
Company will pay for or reimburse the Executive for reasonable Professional
Society Dues or fees and reasonable Recertification costs.
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9.
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TERMINATION
OF EMPLOYMENT; NON-COMPETITION; NON-
SOLICITATION
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9.1
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Terminations Resulting
in No Further Obligation by the Company to the
Executive
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The
Company shall have no further obligations to the Executive hereunder, or under
statute, common law or otherwise, in the event of the following terminations of
employment:
(a) Voluntary
Resignation or Resignation Without Notice
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In the
event the Executive voluntarily resigns without: (i) Good Reason; or (ii)
without at least sixty (60) days advance written notice to the Company even if
there is Good Reason.
(b) Cause
In the
event the Executive's employment is terminated for Cause, which term for the
purposes of this Agreement shall mean (i) conviction of the Executive of a
criminal offence involving fraud, larceny, misappropriation of funds,
embezzlement or dishonesty; (ii) receipt by or on behalf of Executive or any
member of Executive's immediate family of any personal profit arising out of in
connection with a transaction to which the Company or a Member Company is party
without making full prior disclosure to the Company or such Member Company;
(iii) any misfeasance, nonfeasance or malfeasance by Executive which causes
material harm to the Company or a Member Company; (iv) breach by the Executive
of any material term of this Agreement, or failure of the Executive to follow
and carry out the lawful instructions of the Board of Directors of the Company
or of a Member Company, in each case after notice and reasonable opportunity for
the Executive to cure such breach or failure; (v) the Executive having been
under the influence of drugs (other than prescription medicine or other
medically-related drugs to the extent that they are taken in accordance with
their directions) or alcohol during the performance of his duties under this
Agreement (it being understood that the Executive will attend industry functions
at which alcohol will be consumed by the Executive), or while otherwise under
the influence of drugs or alcohol, engages in inappropriate conduct; or (vi) the
Executive having engaged in behavior that would constitute grounds for liability
for sexual harassment or discrimination.
For
greater certainty, under this subsection 9.1, the Executive will receive no
Performance Bonus or pro-rated Performance Bonus and no Separation Package or
Change of Control Package but the Executive will continue to be bound by
subsections 9.5, 9.6, 9.7 and 9.8 of this Agreement
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9.2
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Termination by the
Company without Cause or Failure to Renew upon Expiry of the
Term
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(a) Without Cause and Failure to
Renew: Subject to paragraph 9.2 (b), the Company may terminate
the Executive's employment without Cause: (i) at any time prior to
the expiry of the Term; or (ii) upon the expiry of the term and each successive
expiry of the Term where the Company decides not to renew this Agreement
(including a situation where the Company and the Executive cannot agree on the
terms of a renewal), in each case by providing the Executive with (A) any then
accrued but unpaid Base Salary and Performance Bonus as of the date of
termination or non-renewal and any outstanding reimbursable expenses incurred by
the Executive prior to the date of termination or non-renewal, (B) payment, in
equal monthly payments, of the Executive's Base Salary in effect at the time of
termination or non-renewal for a period of twenty four (24) months, and (C)
continuation of benefits provided pursuant to Sections 5 and 6 for the payment
period (the foregoing clause (A), (B) and (C) being referred to as the
"Separation Package"). The Separation Package will terminate and all
obligations of the Company thereunder will end should the Executive breach any
of subsections 9.5, 9.6, 9.7 or 9.8 of this Agreement. In the case of
a termination without Cause prior to the end of the Term, the Executive will
also be entitled to receive the balance of any Restricted Shares in accordance
with the terms of the Rand Restricted Share Award Agreement.
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(b) Change of
Control: In the special circumstances of a Change of Control, the
Company may terminate the Executive's employment without Cause at or after a
Change of Control or a non-renewal this Agreement at or after a Change of
Control by providing the Executive with (A) any then accrued but unpaid Base
Salary and Performance Bonus as of the date of termination or non-renewal and
any outstanding reimbursable expenses incurred by the Executive prior to the
date of termination or non-renewal, (B) payment, in equal monthly payments, of
the Executive's Base Salary in effect at the time of termination or non-renewal
for a period of twenty four (24) months, (C) continuation of benefits provided
pursuant to Sections 5 and 6 for the payment period, and (D) a special bonus
(“Change of Control Bonus”) calculated as 30% on an annual basis of the
Executive’s Base Salary as at the date of termination and payable in equal
monthly installments for a period of twenty four (24 months) (the foregoing
clause (A), (B), (C) and (D) being referred to as the "Change of Control
Package"). The Change of Control Package will terminate and all
obligations of the Company thereunder will end should the Executive breach any
of subsections 9.5, 9.6, 9.7 or 9.8 of this Agreement. In the case of
a termination without Cause prior to the end of the Term, the Executive will
also be entitled to receive the balance of any Restricted Shares in accordance
with the terms of the Rand Restricted Share Award Agreement.
(c) The
Executive shall receive the Change of Control Package or the Separation Package,
as the case may be, without the requirement to mitigate and, subject to breach
of subparagraphs 9.5, 9.6, 9.7 or 9.8 of this Agreement, alternative employment
will not reduce the Executive’s entitlements under the Separation
Package.
(d) The
first payment of continuing salary described as component “(B)” of the
Separation Package or the Change of Control Package (which in the case of the
Change of Control Package, will include installment payments of the Change of
Control Bonus), as the case may be, shall be made within 30 days of the date of
Termination and the second and each subsequent monthly payment will be made on
or before the day which is the same calendar day of the first payment (e.g. : if
the first payment is made on the 5th of
the month, each subsequent payment will be made on or before the 5th of
each following month). Should the Company fail to make a
payment by the date due or fail to continue or to pay any other component of the
Separation Package or Change of Control Package (unless agreed in writing
between the parties), the Executive may advise the Company in writing of the
default and after receipt of the notice of default in writing the Company shall
have 30 days to cure such default. Should the Company fail to cure
the default within the required time, the Executive shall be relieved,
notwithstanding anything else in this Agreement, of the Executive’s obligation
under subsections 9.5 and 9.6 of this Agreement. Irrespective of
default, continuing default or failure to honour some or all of the components
of the Separation Package or the Change of Control Package as the case may be,
the Executive shall not be relieved of Executive’s other continuing obligations
under subsections 9.7 or 9.8 of this Agreement. In respect of this
paragraph it shall not be a breach of subsection 9.7 of this Agreement for the
Executive to interview an employee of the Company or employ an employee of the
Company responding to a general advertisement for open employment positions as
long as the Executive took no personal active steps, directly or indirectly to
solicit or entice that employee to apply for or seek the position.
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(e) In
respect of the Separation Package or the Change of Control Package in this
subsection 9.2 and in subsection 9.3, accrued Performance Bonus means, and will
include: (a) any Performance Bonus as determined under paragraph 4.2 (b) of this
Agreement but unpaid for the prior fiscal year of the Company, to be payable by
the Company to the Executive by September 30 of the year of termination; and (b)
a prorated Performance Bonus in the fiscal year of termination that is the
number of completed months of employment in that fiscal year divided by 12 of
the amount of the annual Performance Bonus as calculated in paragraph 4.2 (b) of
this Agreement, to be payable by the Company to the Executive by September 30 of
the following fiscal year.
(f) Further
in respect of the Separation Package or the Change of Control Package in this
subsection 9.2 and in subsection 9.3, the Company may, at its sole discretion,
decide to: continue the policies of Long Term and Short Term Disability
insurance (“LTD” and “STD”) in place at the time of termination, if available;
pay conversion of policy premiums for the Executive’s conversion of the policies
in place, if available; pay the premiums of a replacement individual policy or
policies; or self insure either LTD or STD insurance on terms the
same as the terms of the policy or policies in effect at the time of
termination.
(g) Further
as to this subsection 9.2 and subsection 9.3, should the Executive become
injured or disabled during the period that he is entitled to the Separation
Package or the Change of Control Package, the Executive will receive STD or LTD
benefits commencing only after the 24 months continuing payments under the
Separation Package have been paid to the Executive.
9.3 Termination by the Executive
for Good Reason
Except
where the Executive does not provide at least 60 days notice, should the
Executive terminate his employment for Good Reason, as hereinafter defined, he
shall receive the Change of Control Package set out in paragraph 9.2 (b), with
the restrictions on STD and LTD contained in subsection 9.2, except that all
obligations of the Company under the Separation Package will end should the
Executive breach any of subsections 9.5, 9.6, 9.7 or 9.8 of this
Agreement. Failure of the Executive to terminate his employment on
the occurrence of any event which would constitute Good Reason shall not
constitute waiver of his right under this subsection 9.3 should Good Reason
continue. "Good Reason" is defined as the occurrence of any of the following
without the Executive's express written consent:
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a) the
Company assigning to the Executive duties or responsibilities inconsistent with
or inappropriate for his position as President with the Company, after notice to
the Company of, and reasonable opportunity of the Company to cure, such alleged
Good Reason;
b) failure
by the Company to permit the Executive to continue to participate in the Bonus
Plan in effect as determined in accordance with paragraph 4.2(b) of this
Agreement or to provide the Executive with benefits and other pension or
retirement plans in accordance with Sections 5 and 6 substantially consistent
with those plans in which the Executive has participated in periods immediately
prior to the Term;
c) the
Company relocating the Executive's principal office outside of Port Dover, but
only if the Company and the Executive cannot agree on terms and conditions under
which the Executive would relocate; or
d) any
breach by the Company of any material term of this Agreement after notice to the
Company of such breach and reasonable opportunity to cure such
breach.
9.4 Disability and
Death
(a) The
Executive shall, upon his Disability (as defined below), have the right to
receive the Separation Package as defined in paragraph 9.2 (a) of this Agreement
and those items of compensation as set out in paragraph 9.4 (b) that vest upon
Disability. Upon his death the Executive’s estate shall receive only any then
accrued but unpaid Base Salary, unpaid Performance Bonus and pro-rated
Performance Bonus in the year of death, any item of compensation that vests upon
the death of the Executive as set out in paragraph 9.4 (b) and any outstanding
reimbursable expenses incurred by the Executive prior to the date of death. For
purposes of this Agreement, a "Disability" shall occur: (i) immediately after
the Company has provided a written termination notice to the Executive supported
by a written statement from a reputable independent physician selected by the
Company to the effect that the Executive shall have become so incapacitated as
to be unable to resume, within 120 days, his employment hereunder by reason of
physical or mental illness or injury; or (ii) upon rendering of a written
termination notice by the Company after the Executive has been unable to
substantially perform his duties hereunder for 120 consecutive days (exclusive
of any vacation permitted under Section 7 hereof) or for 120 days in any 360 day
period by reason of any physical or mental illness or injury. The Executive
agrees to make himself available and to cooperate in any reasonable examination
by a reputable independent physician selected by the Company for the purposes of
a determination of Disability pursuant to this Section 9.4. A willful
failure to cooperate in a timely manner to a request for examination by the
independent physician will be considered cause for termination under paragraph
9.1 (b) of this Agreement.
(b) Should
the employment of the Executive be terminated by the Executive’s death or
Disability, the Signing Bonus and the Restricted Shares shall be fully
vested.
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9.5 Non-Competition
The
Executive further agrees that during his employment and for a period
of 24 months after termination of his employment for any reason, the
Executive will not in any way be associated with or involved, directly or
indirectly with, serve as an employee, officer, director, or in any advisory
capacity with, either individually or in partnership or jointly or in
conjunction with, any person, firm, trust, partnership, association, syndicate
or company, as principal, agent, shareholder, trustee or in any other manner
whatsoever otherwise carry on or be engaged in or be concerned with, or start up
or create, any person, firm, corporation or other entity within Canada or the
United States engaged in the marine transportation business on the Great Lakes
and the St. Xxxxxxxx Seaway, except as a shareholder holding less
than 5% of the outstanding shares of any such corporation whose
shares are listed and posted for trading on a recognized stock
exchange.
9.6 Non-Solicitation of
Customers
The
Executive shall not, during his employment or within 24 months following the
termination of his employment for any reason, directly or indirectly, solicit
any customer of the Company or any Member Company in order to attempt to direct
any such customer away from, or to do less business with, the Company or any
Member Company.
9.7 Non-Solicitation of
Employees
The
Executive shall not, during his employment or within 24 months following the
termination of his employment for any reason, directly or indirectly recruit,
solicit or endeavour to entice away from the Company or any Member Company any
individual who is an employee of, or service provider to, the Company or any
Member Company.
9.8 Non-Disclosure of
Confidential Information:
In
addition to the fiduciary duties that the Executive owes to the Company, each
Member Company and Rand, the Executive agrees that he will not, at any time
during or after the termination of his employment under this Agreement, use for
his own benefit, either directly or indirectly, or disclose or communicate in
any manner to any individual, corporation, or other entity, other than the
Company the relevant Member Company or Rand, any confidential information
acquired by him during his employment, regarding any actual or intended business
activity, product, service, plan or strategy of the Company, Member Company or
Rand. As used in this Agreement, “confidential information” shall include all
information disclosed to or known by the Executive as a consequence of or
developed through or during his employment by the Company or his association
with each Member Company or Rand including all knowledge, information and
materials regarding the Company's, the Member Companies’ or
Rand’s products, services, processes, know-how, customers, suppliers,
product and/or service development, business plans, and research, as well as
confidential information about financial, marketing, pricing, cost, compensation
or any other proprietary matters relating to the Company, each Member Company or
Rand whether or not subject to other protection (except that the intention of
this subsection is not to prevent the Executive from using his general skills
and knowledge of the Marine Industry, including customers, suppliers and pricing
after the expiry of the non-competition period set out in subsection 9.5 or such
knowledge known to the Executive prior to the Executive's employment by the
Company or association with each Member Company or Rand or information in the
public domain (unless improperly disclosed by the Executive)).
13
On
termination of employment, for any reason, the Executive agrees that he will
deliver copies of all documents in his possession containing Confidential
Information in any form or stored on any media to the Company, will return all
Company owned electronic equipment and will certify, if requested by the
Company, that all Confidential Information has been permanently deleted from any
privately owned electronic storage, computers and media.
9.9 Survival of
Terms
The
obligations of the Executive under sections 9.5, 9.6, 9.7, and 9.8 of this
Agreement shall survive the termination for any reason of this
Agreement.
10. CHANGES
TO AGREEMENT
Any
modifications or amendments to this Agreement must be in writing and signed by
all Parties or else they shall have no force and effect.
11. ENUREMENT
This
Agreement shall enure to the benefit of and be binding upon the Parties and
their respective successors and assigns, including without limitation, the
Executive's heirs, executors, administrators and personal
representatives.
12. GOVERNING
LAW, VENUE
Except as
otherwise explicitly noted, this Agreement shall be governed by and construed in
accordance with the laws of Canada and the Province of Ontario (without giving
effect to the principles of conflicts of law). Each party to this Agreement
irrevocably agrees that any action or proceeding concerning or arising out of
the interpretation, enforcement and defense of the transactions contemplated by
this Agreement (whether brought against a party hereto or its respective
affiliates, directors, officers, shareholders, employees or agents) shall be
commenced exclusively in the courts located in the Province of Ontario. Each
party and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or inconvenient venue for such proceeding. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed to limit in
any way any right to serve process in any manner permitted by law. EACH PARTY
HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY.
14
13. NOTICES
13.1 Notice to
Executive
Any
notice required or permitted to be given to the Executive shall be deemed to
have been received if delivered personally to the Executive or sent by courier
to the Executive's home address last known to the Company.
13.2 Notice to
Company
Any
notice required or permitted to be given to the Company shall be deemed to have
been received if delivered personally to, sent by courier, or sent by facsimile
to:
000 Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
Attention:
Xxxxxxxx X. Xxxx, Chairman
Facsimile: 000-000-0000
Telephone:
000-000-0000
with a
copy to:
Hazzard
& Hore
Barristers
& Solicitors
1002 –
000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxx,
XX X0X 0X0
Attention:
Xxxxx X. Xxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
14. CURRENCY
All
dollar amounts set forth or referred to in this Agreement refer to Canadian
currency unless otherwise expressly stated.
15
15. WITHHOLDING
All
payments made by the Company to the Executive or for the benefit of the
Executive shall be less applicable withholdings and deductions, except as
instructed in respect of the Restricted Shares.
16 SAVINGS
CLAUSE
The
parties hereto agree that if, in any judicial proceeding, a court finds any
portion of this Agreement unenforceable, such portion shall be interpreted to
the maximum extent enforceable and the remainder of this Agreement shall be
unaffected and enforced with its terms or to the maximum extent permitted by
law.
Should
any provision in this Agreement not meet the minimum standards or requirements
of the Canada Labour Code as amended from time to time or said Act’s
Regulations, then the minimum standard or requirement of the Canada Labour Code
or its Regulations shall be substituted for the provision in this Agreement that
does not meet the minimum requirements or standards and such minimum requirement
or standard shall be incorporated and become part of this Agreement without
affecting any other part of this Agreement.
17. ENTIRE
AGREEMENT
This
Agreement constitutes the entire agreement between the parties with respect to
the subject matter herein and supersedes all prior agreements, negotiations and
discussions between the parties hereto, there being no extraneous
agreements.
IN WITNESS WHEREOF the Parties
have duly executed this Agreement this 8th day of October, 2009.
| /s/ | /s/ Xxxxx Xxxxxxxx | |||
|
Witness
|
XXXXX XXXXXXXX | |||
| LOWER LAKES TOWING LTD. | ||||
|
|
By:
|
/s/ Xxxxxx X. XxXxxx, Xx. | ||
| Xxxxxx X. XxXxxx, Xx. | ||||
| Vice President | ||||
16
SCHEDULE
A
Operations
|
o
|
Oversee
all aspects of operations.
|
|
o
|
Evaluation
of vessels.
|
|
o
|
Oversee
labour negotiations.
|
|
o
|
Review
and approval of monthly equipment, maintenance and capital
expenditures.
|
|
o
|
Problem
solving.
|
Sales &
Marketing
|
o
|
Lead
business development effort and sales
team.
|
|
o
|
Customer
relationship management and
development.
|
|
o
|
Pricing
for all products, customers and profitability
management.
|
|
o
|
Contract
negotiations with new and existing
customers.
|
|
o
|
Troubleshooting
and problem solving.
|
|
o
|
Direct
responsibility for key accounts.
|
|
o
|
Hire
of new personnel.
|
Administration &
Finance
|
o
|
Delegation
of duties to senior management.
|
|
o
|
Strategic
planning and implementation.
|
|
o
|
Oversee
accounting functions and IT
systems.
|
|
o
|
Accounts
payable and cheque approvals.
|
|
o
|
Budgeting.
|
|
o
|
Legal,
accounting and professional services
assistance.
|
|
o
|
Hiring
and firing of employees and determination of responsibilities of
employees.
|
|
o
|
Corporate
finance - support dealings with Company's bankers and other
lenders.
|
