EXHIBIT 10.3
AMENDED AND RESTATED AGREEMENT
THIS AGREEMENT made the 22nd day of November, 2000.
BETWEEN:
DYNACARE INC., a corporation
incorporated under the laws of Ontario,
(hereinafter referred to as the "Corporation"),
OF THE FIRST PART,
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XXXXXX X. XXXXXX, of the City
of Toronto, in the Province
of Ontario,
(hereinafter referred to as the "Chairman Emeritus"),
OF THE SECOND PART.
WHEREAS the Chairman Emeritus is currently employed by the Corporation
pursuant to the terms of an employment agreement between the Chairman Emeritus
and the Corporation made the 4" day of March, 1997 (the "Employment Agreement");
and
WHEREAS the Corporation and the Chairman Emeritus now wish to enter into
an AMENDED AND RESTATED Agreement on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the parties
agree as follows:
1. TERM
The Corporation shall retain the services of the Chairman Emeritus for a
period of two years commencing on the date hereof (the "Term"), unless such
appointment shall be terminated earlier as hereinafter provided.
2. DUTIES
The Chairman Emeritus shall not be an officer of the Company, and shall
only perform and exercise and shall only be required to perform and exercise
such duties and such powers as may be assigned to the Chairman Emeritus from
time to time by the board of directors of the Corporation. The Corporation
acknowledges that the Chairman Emeritus shall not be required to devote
substantial time and attention to the business and affairs of the Corporation in
satisfaction of his obligations hereunder.
3. PAYMENTS AND OTHER BENEFITS
(a) The amount to be paid to the Chairman Emeritus for his services
hereunder shall be U.S.$100,000 per annum, which shall include any
directors fees to which the Chairman Emeritus may from time to
time be entitled with respect to serving as a Director of the
Corporation, such amount to be paid in equal bi-weekly instalments
in arrears or in such other manner as may be mutually agreed upon,
less, in any case, any deductions or withholdings required by law.
(b) BENEFITS. The Corporation shall provide the Chairman Emeritus with
health and medical benefits equivalent to those currently provided
by the Corporation to the Chairman Emeritus. The Chairman Emeritus
shall not be permitted to participate in any stock option plan,
share purchase plan, retirement plan or similar plan offered by
the Corporation.
(c) OFFICE AND ASSISTANT. The Company will, at its own expense,
provide the Chairman Emeritus with the use of an office and an
assistant at the Company's Toronto head office.
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4. TERMINATION
(a) FOR CAUSE. The Corporation may terminate this Agreement without
notice or any payment in lieu of notice for just and sufficient
cause recognized by law as such which, without limiting the
generality of the foregoing, shall include:
(i) if the Chairman Emeritus is convicted of a criminal offence
involving fraud or dishonesty;
(ii) if the Chairman Emeritus makes any personal profit arising
out of or in connection with a transaction to which the
Corporation is a party or with which it is associated
without making disclosure to and obtaining the prior
written consent of the Corporation; or
(iii) if the Chairman Emeritus fails to honour his fiduciary
duties to the Corporation, including the duty to act in the
best interests of the Corporation.
(b) FOR DISABILITY/DEATH.
(i) This Agreement may be terminated on 30 days' notice by the
Corporation to the Chairman Emeritus if the Chairman
Emeritus becomes permanently disabled. The Chairman
Emeritus shall be deemed to have become permanently
disabled if in any year during the term of this Agreement,
because of ill health, physical or mental disability, or
for other causes beyond the control of the Chairman
Emeritus, the Chairman Emeritus has been continuously
unable or unwilling or has failed to perform the Chairman
Emeritus' duties for 180 consecutive days, or if, during
any twelve month period, the Chairman Emeritus has been
unable or unwilling or has failed to perform his duties for
a total of 210 days, consecutive or not.
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(ii) This Agreement shall terminate without notice upon the
death of the Chairman Emeritus.
(c) WITHOUT CAUSE. The Corporation may terminate this Agreement at any
time without cause provided that in such event the Chairman
Emeritus shall be entitled to receive the notice and severance
payments set out in subsection 5(b) below.
5. NOTICE AND SEVERANCE PAYMENTS
(a) Upon termination of this Agreement: (i) for cause, (ii) by the
voluntary termination of this Agreement by the Chairman Emeritus,
or (iii) as a result of the permanent disability or death of the
Chairman Emeritus, the Chairman Emeritus shall not be entitled to
any severance payment.
(b) If this Agreement is terminated for any reason other than the
reasons set out in subsection 5(a) above, the Chairman Emeritus
shall be entitled to continue to receive the amounts payable as
set out in Subsection 3(a) for the balance of the Term.
In addition, during such period the Chairman Emeritus shall remain
entitled to and shall be provided with, health and medical
benefits equivalent to those being received by the Chairman
Emeritus pursuant to subsection 3(b) at the effective date of the
termination. The payments described in this subsection 5(b) are
the only notice and severance payments the Chairman Emeritus will
receive in the event of the termination of this Agreement for
reasons contemplated in this subsection 5(b) and is inclusive of
any entitlement under the Employment Standards Act (Ontario).
6. CONFIDENTIALITY
The Chairman Emeritus acknowledges and agrees that:
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(a) he has had and will continue in the future to have access to and
has been and will be entrusted with detailed confidential
information and trade secrets (printed or otherwise) concerning
past, present, future and contemplated projects, services,
operations, joint ventures, and bidding techniques and procedures
of the Corporation and its subsidiaries, including, without
limitation, information relating to addresses, preferences, needs
and requirements of past, present and prospective clients,
customers, suppliers and employees of the Corporation and its
subsidiaries (collectively, "Trade Secrets"), the disclosure of
any of which to competitors of the Corporation or to the general
public, or the use of same by the Chairman Emeritus or any
competitor of the Corporation or any of its subsidiaries, would be
highly detrimental to the interests of the Corporation;
(b) the Chairman Emeritus owes fiduciary duties to the Corporation,
including the duty to act in the best interests of the
Corporation; and
(c) the right to maintain the confidentiality of the Trade Secrets,
the right to preserve the goodwill of the Corporation and the
right to the benefit of any relationships that have developed
between the Chairman Emeritus and the customers, clients and
suppliers of the Corporation by virtue of the Chairman Emeritus'
appointment with the Corporation constitute proprietary rights of
the Corporation, which the Corporation is entitled to protect.
In acknowledgement of the matters described above and in consideration of
the payments to be received by the Chairman Emeritus pursuant to this Agreement,
the Chairman Emeritus hereby agrees that he will not, during the term of this
Agreement and after the expiration hereof, directly or indirectly disclose to
any person or in any way make use of (other than for the benefit of the
Corporation), in any manner, any of the Trade Secrets, provided that such Trade
Secrets shall be deemed not to include information that is or becomes generally
available to the public other than a result of disclosure by the Chairman
Emeritus.
7. NON-SOLICITATION AND NON-COMPETITION
(a) The Chairman Emeritus agrees that during the term of this
Agreement and for the period of two years next following the
termination of this Agreement, he will not on his own account or
as director, representative, employee, or agent for any person,
firm, or company be engaged directly or indirectly (except as a
shareholder in a publicly traded corporation holding less than 5%
of the issued and outstanding securities of any class of such
corporation) in any
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business which is engaged in activities similar to or competing
with those of the Corporation (presently being the provision of
clinical laboratory services in the United States and Canada,
including the ownership and operation of clinical laboratories and
the provision of clinical testing services to hospitals and other
health care providers under long term or other contractual
arrangements, including joint ventures).
(b) The Chairman Emeritus shall not, during the term of this Agreement
and for a period of two (2) years next following the termination
of this Agreement, for any reason whatsoever, solicit or seek to
obtain orders from or interfere with or endeavour to entice away
any client or customer of the Corporation with whom he has come in
contact, or of whom he has knowledge, during the course of his
service with the Corporation.
(c) The Corporation shall be entitled to counter any violation of this
section 7 by interim injunction without security and the Chairman
Emeritus shall incur full liability to the Corporation for any
violation.
(d) The termination of this Agreement for the purpose of this section
7 shall be the time when the Chairman Emeritus ceases receiving
remuneration from the Corporation, whether or not he has stopped
functioning at an earlier time.
(e) The covenants contained in this section 7 are separate and several
and the Chairman Emeritus acknowledges that the restrictions
herein contained on his activities after such termination of this
Agreement are reasonable to protect the business interests of the
Corporation and that such agreements are given for valuable
consideration and are valid and enforceable.
8. RETURN OF MATERIALS
All files, forms, brochures, books, materials, written correspondence,
memoranda, documents, manuals, computer disks, software products and lists
(including lists of customers, suppliers, products and prices) pertaining to the
business of the Corporation or any of its subsidiaries and associates that may
come into the possession or control of the Chairman Emeritus shall at all times
remain the property of the Corporation or such subsidiary or associate, as the
case may be. On termination of this Agreement for any reason, the Chairman
Emeritus agrees to deliver promptly to the Corporation all such property of the
Corporation in the possession of the Chairman Emeritus or directly or indirectly
under the control of the Chairman Emeritus.
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9. GENERAL PROVISIONS
(a) Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to
be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision
or any other jurisdiction, but this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained
herein.
(b) This Agreement and those documents expressly referred to herein
constitute the entire agreement and understanding among the
parties and supersede and preempt any prior understandings,
agreements or representations by or among the parties, written or
oral, which may be related to the subject matter hereof in any
way.
(c) This Agreement may be executed in separate counterparts, each of
which is deemed to be an original and all of which taken together
constitute one and the same agreement.
(d) All questions concerning the construction, validity and
interpretation of this Agreement and the exhibits hereto will be
governed by and construed in accordance with the internal laws of
Ontario, without giving effect to any choice of law or conflict of
law provision or rule (whether of Ontario or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than Ontario.
(e) Each of the parties to this Agreement will be entitled to enforce
its rights under this Agreement specifically, to recover damages
and costs (including legal fees) caused by any breach of any
provision of this Agreement and to exercise all other rights
existing in its favour. The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its
sole discretion apply to any court of competent jurisdiction for
specific performance and/or other injunctive relief in order to
enforce or prevent any violations of the provisions of this
Agreement.
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(f) Neither party may assign, pledge or encumber his or its interest
in this Agreement nor assign any of his or its rights or duties
under this Agreement without the prior written consent of the
other party.
(g) This Agreement shall be binding on and enure to the benefit of the
successors and permitted assigns of the Corporation and the heirs,
executors, personal legal representatives and permitted assigns of
the Chairman Emeritus.
(h) Any notice or other commune on required or permitted to be given
hereunder shall be in writing and either delivered by hand or
mailed by prepaid registered mail. At any time other than during a
general discontinuance of postal service due to strike, lock-out
or otherwise, a notice so mailed shall be deemed to have been
received three business days after the postmarked date thereof or,
if delivered by hand, shall be deemed to have been received at the
time it is delivered. If there is a general discontinuance of
postal service due to strike, lockout or otherwise, a notice sent
by prepaid registered mall shall be deemed to have been received
three business days after the resumption of postal service.
Notices shall be addressed as follows:
(i) If to the Corporation:
00 Xxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
with a copy to:
Golder, Thoma, Cressey, Rauner, Inc.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx
00000 6402
Attention: Xxxxx Xxxxxx
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(ii) If to the Chairman Emeritus:
00 Xxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X 1
Attention: Xxxxxx X. Xxxxxx
(i) The Chairman Emeritus hereby represents and warrants to the
Corporation and acknowledges and agrees that he had the
opportunity to seek and was not prevented nor discouraged by the
Corporation from seeking independent legal advice prior to the
execution and delivery of this Agreement and that, in the event
that he did not avail himself of that opportunity prior to signing
this Agreement, he did so voluntarily without any undue pressure
and agrees that his failure to obtain independent legal advice
shall not be used by him as a defence to the enforcement of his
obligations under this Agreement. The Chairman Emeritus further
acknowledges that he has read this Agreement, understands this
Agreement, and agrees to be bound by this Agreement.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the date first above written.
SIGNED, SEALED AND ) DYNACARE INC.
DELIVERED )
)
) By: /s/ Xxxxxx X. Xxxxxxx
) ----------------------------------
) Name: Xxxxxx X. Xxxxxxx
) Title: Chief Executive Officer
)
[ILLEGIBLE] ) /s/ Xxxxxx X. Xxxxxx
------------------------------------ ) -------------------------------------
Witness ) Xxxxxx X. Xxxxxx
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