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EXHIBIT 10.8
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THIS EMPLOYMENT AGREEMENT entered into as of January 1, 1999
BETWEEN: XXXXXX X. XXXXXXXXX, Executive, residing at
000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx, X0X 0X0
(hereinafter referred to as the "Executive")
AND: WOOD XXXXX INC., a corporation incorporated
under the Canada Business Corporations Act
(hereinafter referred to as the "Corporation")
WHEREAS the Corporation desires to continue to employ the Executive, and
the Executive desires to continue such employment, upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants
and agreements herein contained and for other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged, the
parties, intending legally to be bound, hereby agree as follows:
1. EMPLOYMENT
The Corporation hereby continues the employment of the Executive as the
Chairman of the Board, President and Chief Executive Officer of the Corporation
commencing January 1, 1999 (the "Employment Date").
2. DUTIES OF THE EXECUTIVE
The Executive shall devote his full time and attention to, and use his
best efforts to promote, the business and affairs of the Corporation and shall
perform duties and have such responsibilities as are customarily performed and
enjoyed by persons employed in comparable positions, subject, however, to the
direction and control of the board of directors of the Corporation.
3. TERM
3.1 The initial term of the employment of the Executive pursuant to this
Agreement shall be a 3 year fixed term (the "Initial Term"), beginning
on the Employment Date;
3.2 The Executive shall be entitled to terminate this Agreement any time
by giving prior written notice of three (3) months;
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3.3 The term of employment of the Executive pursuant to this Agreement shall be
automatically renewed for 1 year (a "Renewal Term") upon the expiry of the
Initial Term and on each anniversary of the Employment Date thereafter,
unless the Corporation gives notice of intention not to renew:
(i) in the case of the Initial Term, 6 months prior to the expiry of the
Initial Term;
(ii) in the case of a Renewal Term, 3 months prior to the expiry of such
Renewal Term.
3.4 Notwithstanding the foregoing, this Agreement shall terminate immediately
in the event of:
(i) the termination of the employment of the Executive by the Corporation
with Cause;
(ii) the Permanent Disability (as hereinafter defined) of the Executive;
(iii) the death of the Executive;
(iv) the dismissal of the Executive without Cause by the Corporation
during the Initial Term or a Renewal Term; or
(v) the resignation of the Executive in connection with a Change in
Control of Xxxxx Corporation in the 3 months following such Change in
Control due to (a) a significant reduction in his duties and
responsibilities, (b) a significant reduction in base salary or (c) a
relocation to a city which the Executive does not accept;
provided that, in the case of termination due to an event described in
paragraph 3.4(iv) or 3.4(v), the obligation of the Corporation to pay the
amounts set out in Section 5.1 and to provide the benefits set out in
Section 10 shall survive such termination.
4. SALARY
4.1 The Corporation agrees to pay the Executive for the services rendered
by him as Chairman of the Board, President and Chief Executive Officer
of the Corporation in accordance with this Agreement, and the
Executive agrees to accept as compensation a base salary at the annual
rate of $410,000 in lawful money of
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Canada, payable in equal bi-weekly instalments, less deductions and
withholdings in accordance with the Corporation's usual payroll
policies and applicable laws.
4.2 The base salary for each year of the term of this Agreement after the
first year shall be subject to annual review and adjustment by the
board of directors of the Corporation.
5. SEVERANCE
5.1 Notwithstanding Sections 3.1 and 3.3, the Executive shall be entitled
to receive, as severance compensation, for a period of 18 months
following:
(i) the dismissal of the Executive without Cause by the Corporation
during the Initial Term or a Renewal Term;
(ii) the resignation of the Executive in connection with a Change in
Control of Xxxxx Corporation in the 3 months following such
Change in Control due to (a) a significant reduction in his
duties and responsibilities, (b) a significant reduction in base
salary or (c) a relocation to a city which the Executive does
not accept; or
(iii) the non-renewal of the employment of the Executive following a
notice by the Corporation of its intention not to renew such
employment in accordance with Section 3.3;
the payment of an amount equal to his base salary immediately prior to
such termination payable in equal by-weekly instalments, less
deductions and withholdings as well as any medical benefits to which
the Executive was entitled immediately prior to such termination.
6. BONUS COMPENSATION
In addition to the compensation described in Section 4.1 and Section 4.2
above, the Executive shall be entitled to bonus compensation on an annual basis
at the discretion of the board of directors of the Corporation.
7. BENEFITS AND EXPENSES
7.1 The Executive shall, during the Initial Term and Renewal Terms of this
Agreement, be entitled to all such employment benefits as may, from
time to time, be made generally available to senior management
employees of the Corporation.
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7.2 Upon presentation of appropriate vouchers in accordance with the
Corporation's policies and practices, the Executive shall be
reimbursed for all reasonable expenses which are incurred by him in
the performance of his duties hereunder.
8. VEHICLE
The Corporation shall supply the Executive with a leased vehicle in
accordance with the Corporation's Executive Car Policy.
9. VACATIONS
The Executive shall be entitled to the greater of 4 weeks' paid vacation
or the number of weeks of paid vacation under the Corporation's vacation policy
per twelve month period ending April 30 during the Initial Term and any Renewal
Term. Unused vacations shall lapse at the end of each such twelve month period
and shall not carry over to any subsequent year. The vacations shall be taken
at times agreeable with the Corporation and consistent with the Executive's
duties. No payment shall be made to the Executive for vacation days which are
not taken.
10. CONTINUATION OF CERTAIN BENEFITS
Notwithstanding the termination of this Agreement for any reason other
than termination for Cause:
10.1 for the purposes of calculating the annual pension of the Executive
in accordance with Section 5.1 of the retirement arrangement made as
of June 27, 1994, as amended, between the Executive and the
Corporation attached hereto as Exhibit A (the "Retirement
Arrangement"), the Credited Service (as defined in the Retirement
Arrangement of the Executive) shall extend to December 31, 2003;
10.2 for the purposes of calculating any other retirement benefits to
which the Executive was entitled immediately prior to such
termination, the Executive shall be credited with service to
December 31, 2003;
10.3 the Corporation shall continue to make available to the Executive all
benefits referred to in Section 7.1 (excluding long term disability
benefits) and the use of a leased vehicle for the 18 month period
following such termination.
11. COVENANT NOT TO COMPETE
11.1 The Executive hereby covenants and agrees that he shall not, within
North America:
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(i) directly or indirectly engage in, or have any interest in
(either individually, or as a joint venturer, partner,
member of any firm, officer, director, stockholder, lender,
financial or other consultant or employee of any person,
firm, joint venture, partnership or corporation, or
otherwise) any person, firm, corporation or business that
engages in a business which is competitive, directly or
indirectly, with the business of the Corporation;
(ii) divert or attempt to divert or take advantage of any
business or opportunities of any type whatsoever which are
directly or indirectly competitive with the business of the
Corporation;
(iii) solicit or attempt to solicit any existing or future
customer or clients which use the services of or provide
services to the Corporation, except where such solicitation
or attempted solicitation concerns business activities
which are not directly competitive with the business of the
Corporation; or
(iv) solicit or induce or attempt to solicit or induce any
employee of the Corporation to leave or terminate such
employment;
(collectively, the "Covenant Not to Compete"), for a period
commencing on the Employment Date and terminating:
11.1.1 in the case of termination without Cause, on the later of
(i) 18 months following the termination of this Agreement,
and (ii) December 31, 2003; or
11.1.2 in the case of termination for Cause, on the later of (i)
18 months following the termination of this Agreement and
(ii) December 31, 2003.
11.2 The Executive confirms that the restrictive provisions of the Covenant
Not To Compete are reasonable and that a breach thereof will cause
the Corporation irreparable harm, and the Executive agrees that the
Corporation shall be entitled to equitable relief, including remedies
of injunction and specific performance, with respect to any breach
or attempted breach of the Covenant Not To Compete.
12. CERTAIN DEFINED TERMS
For purposes of this Agreement the following terms and phrases shall have
the following meanings:
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12.1 "Permanent Disability" shall means the inability of the Executive to
perform substantially all his duties and responsibilities to the
Corporation by reason of a physical or mental disability or infirmity
for either:
(i) a continuous period of nine months, or
(ii) 270 days during any consecutive twelve month period.
The date of such Permanent Disability shall be, in the case of clause
(i) above, the last day of such nine month period or in the case of
clause (ii) above, such date as determined in good faith by the board
of directors of the Corporation.
12.2 "Cause" shall mean:
(i) conviction of a crime involving the misappropriation of funds or
property of the Corporation or otherwise constituting a felony
under applicable law, or the entering of a plea of guilty or
nolo contendere in respect of the same; or
(ii) a determination by a majority of the members of the board of
directors of the Corporation that the Executive has neglected
his duties hereunder after written notice thereof from the
Corporation and failure to correct any alleged deficiency (as
determined by a majority of the members of the board of
directors of the Corporation) in 60 days; for such purposes, the
board of directors of the Corporation will be deemed not to
include a member who is a Related Party to the Executive;
(iii) a unanimous determination by the members of the board of
directors of the Corporation, other than the Executive, which
determination shall be final, binding and conclusive, that the
Executive has committed an act involving dishonesty or gross
negligence, or any other act which in the reasonable judgment of
such members of the board of directors of the Corporation could
materially harm the business reputation of the Corporation in
the community.
12.3 "Related Party" shall mean with respect to any person who is an
individual, a child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law or sister-in-law of that
person, including adoptive relationships.
12.4 "Change in Control" shall mean (i) the sale to a third party of
substantially all of the assets of Xxxxx Corporation on a
consolidated basis (provided that the sale of
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the assets of Xxxxx Health Care shall not be considered a Change in
Control for the purposes of this Agreement), (ii) a successful
takeover bid by a third party resulting in such third party holding a
majority of the outstanding voting shares of Xxxxx Corporation, or
(iii) the merger or amalgamation or Xxxxx Corporation with any other
entity such that all of the shareholders of Xxxxx Corporation
immediately prior to such merger or amalgamation cease, after giving
effect thereto, to hold the majority of voting shares of the resulting
merged or amalgamated corporation.
13. NOTICE
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given upon receipt of: hand delivery;
certified or registered mail, return receipt requested; or telecopy transmission
with confirmation of receipt:
13.1 If to the Corporation, to:
Wood Xxxxx Inc.
0000 00xx Xxxxxx
Xxxxxxx, Xxxxxx X0X 0X0
ATTENTION: VICE-CHAIRMAN
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxxx Corporation
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
ATTENTION: CHAIRMAN, COMPENSATION COMMITTEE
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
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13.2 If to the Executive, to:
Wood Xxxxx Inc.
0000 00xx Xxxxxx
Xxxxxxx, Xxxxxx X0X 0X0
ATTENTION: XXXXXX X. XXXXXXXXX
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
14. MISCELLANEOUS PROVISIONS
14.1 WITHHOLDING. The Corporation shall entitled to withhold the amount, if
any, of all taxed or other amounts which in accordance with the
applicable laws of any jurisdiction are required to be withheld by an
employer with respect to any amount paid to the Executive hereunder.
The Corporation, in its sole and absolute discretion, acting
reasonably, shall make all determinations as to whether it is
obligated to withhold any taxed or other amounts hereunder and the
amount thereof.
14.2 NO ASSIGNMENT. The Executive shall not, and shall not have any right
to, sell, assign, transfer or pledge any rights under this Agreement
by operation of law or otherwise.
14.3 SEVERABILITY. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal or unenforceable, such
provision shall be severed and enforced to the extent possible or
modified in such a way as to make it enforceable, and the invalidity,
illegality or unenforceability thereof shall not affect the validity,
legality or enforceability of the remaining provisions of this
Agreement.
14.4 SUCCESSORS. This Agreement and all the terms and provisions hereof
shall be binding upon and shall inure to the benefit of all of the
parties hereto, and their legal representatives, heirs, successors and
assigns, except as expressly herein otherwise provided.
14.5 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Quebec.
14.6 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be original, but all of which shall constitute one and the
same instrument.
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14.7 PRONOUNS AND HEADINGS. As used herein, all pronouns shall include
the masculine, feminine, neuter, singular and plural thereof
wherever the context and facts require such construction. The
headings, titles and subtitles herein are inserted for convenience
of reference only and are to be ignored in any construction of the
provisions hereof.
14.8 AMENDMENTS. This Agreement can be amended in any respect upon the
written agreement of all of the parties hereto.
14.9 JURISDICTION. Any judicial proceeding brought against any of the
parties to this Agreement with respect to any dispute arising out of
this Agreement or any matter related hereto may be brought in the
courts of the Province of Quebec, and by execution and delivery of
this Agreement, each of the parties to this Agreement accepts for
himself or itself the exclusive jurisdiction in the aforesaid
courts, and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Agreement.
14.10 LANGUAGE CLAUSE. The parties hereto have requested and hereby
confirm their request that this agreement and all notices relating
thereto be drafted in the English language. Les parties aux
presentes ont demande et par les presentes confirment leur demande
que le present contrat et tout avis y afferent soient rediges en
anglais.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date
first above written.
__________________________________________
XXXXXX X. XXXXXXXXX
WOOD XXXXX INC.
Per: X.X. XXXXX
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