Exhibit 10.9
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the day of ,2001
AMONG:
THE BUCK A DAY COMPANY INC.,
a corporation incorporated under the laws of Ontario,
(hereinafter referred to as the "Corporation,
OF THE FIRST PART,
- and -
XXXXX XXXXXXX
of the Town of Newmarket, in the Province of Ontario
(hereinafter referred to as the "Executive")
OF THE SECOND PART.
WHEREAS the Corporation wishes to retain the services of the Executive to
provide the services hereinafter described during the term hereinafter set out:
NOW THEREFORE THIS AGREEMENT WITNESSES that 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 employ the Executive for a period of three years,
from November 1, 2001 to and including October 31, 2004, unless such employment
shall be terminated earlier as hereinafter provided. Upon the expiry of the term
of this agreement on October 31, 2004, and on each anniversary of such date
falling thereafter, the term of this agreement shall automatically be extended
for one additional year on the same terms and conditions except as to annual
salary unless, not less than six months prior to any such anniversary, either
the Executive or the Corporation shall have given written notice to the other
that it does not wish to further extend this agreement.
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2. DUTIES
The Executive shall serve the Corporation and any subsidiaries of the
Corporation in such capacity or capacities and shall perform such duties and
exercise such powers pertaining to the management and operation of the
Corporation [and any subsidiaries and associates of the Corporation (as those
terms are defined in the Canada Business Corporations Act] as may be determined
from time to time by the Chairman consistent with the office of the Vice
President, Operations. Without limitation of the foregoing, the Executive shall
occupy the office of the Vice President, Operations of the Corporation.
3. REPORTING PROCEDURES
The Executive shall report to the Chairman of the Board of Directors. The
Executive shall report fully on the management, operations and business affairs
of the Corporation and advise to the best of his ability and in accordance with
reasonable business standards on business matters that may arise from time to
time during the term of this agreement.
4. REMUNERATION
(a) The annual base salary payable to the Executive for his services
hereunder for the first year of the term of this agreement shall be Eighty
Thousand Dollars ($80,000.00), exclusive of bonuses, benefits and other
compensation. The annual base salary payable to the Executive for his services
hereunder for each successive year of the term of this agreement, exclusive of
bonuses, benefits and other compensation, shall increase by ten percent (10%) of
the annual base salary for the immediately preceding year. The annual base
salary payable to the Executive pursuant to the provisions of this section 4
shall be payable in equal semi-monthly installments in arrears on the 1st and
15th day of each month or in such other manner as may be mutually agreed upon,
less, in any case, any deductions or withholdings required by law.
(b) the Corporation shall provide the Executive with employee benefits
comparable to those provided by the Corporation from time to time to other
senior executives of the Corporation and shall permit the Executive to
participate in any share option plan, share purchase pan, retirement plan or
similar plan offered by the Corporation from time to time to its senior
executives in the manner and to the extent authorized by the Chairman of the
Corporation.
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5. NO FURTHER SALARY ADJUSTMENTS
Other than as herein provided, there shall be no cost-of-living increase
or merit increase in the annual base salary unless agreed to in writing by the
Corporation.
6. VACATION
The Executive shall be entitled to four weeks' paid vacation per fiscal
year of the Corporation at a time approved in advance by the Chairman, which
approval shall not be unreasonably withheld but shall take into account the
staffing requirements of the Corporation and the need for the timely performance
of the Executive's responsibilities. In the event that the Executive decides not
to take all the vacation to which he is entitled in any fiscal year, the
Executive shall be entitled to take up to one week of such vacation in the
consecutive following fiscal year at a time approved in advance by the Chairman.
7. AUTOMOBILE
The Executive shall be supplied with a purchased or leased car selected by
the Corporation to be used by him for the Corporation's business. The
Corporation shall pay or reimburse the Executive for all reasonable operating
costs of this vehicle, including leasing costs, insurance, maintenance, gas and
oil, properly incurred or to be incurred in connection with the Executive
carrying out his duties hereunder. The Executive shall supply the Corporation
with the originals of all invoices or statements in respect of which the
Executive seeks reimbursement.
8. EXPENSES
The Executive shall be reimbursed for all reasonable travel and other
out-of-pocket expenses actually and properly incurred by the Executive from time
to time in connection with carrying out his duties hereunder. For all such
Expense the Executive shall furnish to the Corporation originals of all invoices
or statements in respect of which the Executive seeks reimbursement.
9. TERMINATION
This agreement may be immediately terminated by the Corporation by notice
to the Executive if the Executive becomes permanently disabled provided however
annual base salary shall be paid as set out in Article 11. The Executive shall
be deemed to have become permanently disabled if in any year during the
employment period, because of ill health, physical or mental disability, or for
other causes beyond the control of the Executive, the Executive has been
continuously unable or unwilling or has failed to perform the Executive's duties
for 120 consecutive days, or if, during any year of the employment period the
Executive has been unable or unwilling or has failed to perform his duties for a
total of 180 days, consecutive or
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not. The term "any year of the employment period" means any period of 12
consecutive months during the employment period.
This agreement shall terminate without notice upon the death of the
Executive.
10. SEVERANCE PAYMENTS
(a) If the Executive's employment is terminated for any reason including
death, the Executive or spouse of the Executive shall be entitled to receive the
greater of:
(i) the total of:
(A) 24 months' salary at the then applicable base salary rate;
(B) the present value, as determined by the Chairman, acting
reasonably, of the benefits described in section 4(b) that would be
enjoyed by the Executive during the consecutive 24 months assuming his
employment was not terminated and assuming the then current level of
benefits were continued for those 24 months; and
(C) the present value, as determined by the Chairman, acting
reasonably, of the amounts that would have been paid by the Corporation or
reimbursed to the Executive pursuant to section 8 during the consecutive
24 months assuming that his employment had not been termination; and
(ii) the salary otherwise payable to the Executive for the unexpired term
of this agreement together with the other amounts described in clause 11(b)(i),
mutatis mutandis, provided that in no case will the Executive receive less than
the amount to which he is entitled under the Employment Standards Act (Ontario).
The payment described in this subsection 11(b) is the only severance payment the
Executive will receive in the event of the termination of this agreement for
reasons contemplated in this subsection 11(b).
(b) The Executive's employment is terminated as a result of the permanent
disability or death of the Executive, the Executive or his estate, as
applicable, shall be entitled to receive, within 30 days of the date of such
termination, the balance of the base salary that would otherwise be paid to the
Executive during the remainder of the term of this agreement. The Executive
agrees to reasonably comply with all requirements necessary for the Corporation
to obtain life insurance for the term of this agreement.
(c) For the purposes of this section 11, whenever a payment is to be
determined with reference to the remaining term of this agreement, if less than
six
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months remain in the term of this agreement and no party has given notice of its
intention not to renew this agreement as contemplated by Section 1, the
"remaining term of this agreement" shall include the remainder of the then
existing term of this agreement plus the renewal period.
11. CONFIDENTIALITY
The Executive acknowledges and agrees that:
(a) in the course of performing his duties and responsibilities as an
officer of the Corporation, 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 products, services, operations and marketing 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
(which, for all purposes of this agreement, shall be deemed to include, without
limitation, IBM 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 Executive
or any competitor of the Corporation or any of its subsidiaries would be highly
detrimental to the interest of the Corporation;
(b) in the course of performing his duties and responsibilities for the
Corporation, the Executive has been and will continue in the future to be a
representative of the Corporation to its customers, clients and suppliers and as
such has had and will continue in the future to have significant responsibility
for maintaining and enhancing the goodwill of the Corporation with such
customers, clients and suppliers and would not have, except by virtue of his
employment with the Corporation, developed a close and direct relationship with
the customers, clients and suppliers of the Corporation;
(c) The Executive, as an officer of the Corporation, owes fiduciary duties
to the Corporation, including the duty to act in the best interest of the
Corporation; and
(d) 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 Executive and the
customers, clients and suppliers of the Corporation by virtue of the Executive's
employment with the Corporation constitute proprietary rights of the
Corporation, which the Corporation is entitled to protect.
In acknowledgment of the matters described above and in consideration of
the payments to be received by the Executive pursuant to this agreement, the
Executive hereby agrees that he will not, for three years from the date hereof,
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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 as a
result of disclosure by the Executive.
12. NON-SOLICITATION
The Executive hereby agrees that he will not, during the period commencing
on the date hereof and ending three years following the expiration of the term
of this agreement, be a party to or abet any solicitation of customers, clients
or suppliers of the Corporation or any of its subsidiaries, to transfer business
from the Corporation or any of its subsidiaries to any other person, or seek in
any way to persuade or entice any employee of the Corporation or any of its
subsidiaries to leave that employment or to be a party to or abet any such
action.
13. DISCLOSURE
During the employment period, the Executive shall promptly disclose to the
Chairman full information concerning any interest, direct or indirect, of the
Executive (as owner, shareholder, partner, lender or other investor, director,
officer, employee, consultant or otherwise) or any member of his family in any
business that is reasonably known to the Executive to purchase or otherwise
obtain services or products form, or to sell or otherwise provide services or
products to the corporation or to any of its suppliers or customers.
14. PLACE OF EMPLOYMENT
The Corporation shall not move or otherwise relocate the place of business
at which the Executive reports to work more than 50 kilometers from the current
place of business at 000 Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxx X0X 0X0.
15. 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 Executive shall at all times remain
the property of the Corporation or such subsidiary or associate, as the case may
be. On termination of the Executive's employment for any reason, the Executive
agrees to deliver promptly to the Corporation all such property of the
Corporation in the possession of the Executive or directly or indirectly under
the control of the Executive. The Executive agrees not to make for his personal
or business use or that of any other party, reproductions or copies of any such
property or other property of the Corporation.
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16. GOVERNING LAW
This agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario.
17. SEVERABILITY
If any provision of this agreement, including the breadth or scope of such
provision, shall be held by any court of competent jurisdiction to be invalid or
unenforceable, in whole or in part, such invalidity or unenforceability shall
not affect the validity or enforceability of the remaining provisions, or part
thereof, of this agreement and such remaining provisions, or part thereof, shall
remain enforceable and binding.
18. ENFORCEABILITY
The Executive hereby confirms and agrees that the covenants and
restrictions pertaining to the Executive contained in this agreement, including,
without limitation, those contained in sections 12 and 13 hereof, are reasonable
and valid and hereby further acknowledges and agrees that the Corporation would
suffer irreparable injury in the event of any breach by the Executive of his
obligations under any such covenant or restriction. Accordingly, the Executive
hereby acknowledges and agrees that damages would be an inadequate remedy at law
in connection with any such breach and that the Corporation shall therefore be
entitled in lieu of any action for damages, temporary and permanent injunctive
relief enjoining and restraining the Executive from any such breach.
19. NO ASSIGNMENT
The Executive may not assign, pledge or encumber the Executive's interest
in this agreement nor assign any of the rights or duties of the Executive under
this agreement without the prior written consent of the Corporation.
20. SUCCESSORS
This agreement shall be binding on and enure to the benefit of the
successors and assigns of the Corporation and the heirs, executors, personal
legal representatives and permitted assigns of the Executive.
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21. NOTICES
Any notice or other communication 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, lock-out or otherwise, a notice sent by prepaid registered mail shall
be deemed to have been received three business days after the resumption of
postal service. Notices shall be addressed as follows:
(a) If to the Corporation:
The Buck A Day Company Inc.
000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx X0X 0X0
Fax: 000-000-0000
(b) If to the Executive
Xxxxx Xxxxxxx
000 Xxxxx Xxxxxx, Xxxx X
Xxxxxxxxx, Xxxxxxx X0X 0X0
Fax:
22. LEGAL ADVICE
The Executive 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.
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IN WITNESS WHEREOF the parties have executed this agreement as of the date
first above written
SIGNED, SEALED AND DELIVERED ) THE BUCK A DAY COMPANY INC.
in the presence of: )
)
)
/s/ ) Per: /s/
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) A.S.O.
) /s/ Xxxxx Xxxxxxx
-------------------------------- ) -------------------------------------
) XXXXX XXXXXXX
)
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