EXHIBIT 10.8
EMPLOYMENT AGREEMENT
Employment agreement (the "AGREEMENT") dated May 14, 2004 by and between
STEELBANK INC. (the "CORPORATION"), amalgamated pursuant to the laws of the
Province of Ontario, and Xxxxx Xxxxxx (the "EMPLOYEE").
RECITALS:
(a) Pursuant to a share purchase agreement among the Employee, Xxxx
Xxxxxxx and Xxxxxxx Xxxxxxxxx (collectively, the "VENDORS"), BST
Acquisition Ltd. (the "PURCHASER") and Tarpon Industries, Inc. (the
"PRINCIPAL") dated April 2, 2004 as amended by amending agreement
dated May 5, 2004 (the "PURCHASE AGREEMENT"), the Vendors have
agreed to sell to the Purchaser and the Purchaser has agreed, inter
alia, to purchase from the Vendors all of the issued and outstanding
shares in the capital of the Corporation;
(b) Immediately prior to the execution of this Agreement, the Employee
was employed by and was a senior officer of the Corporation;
(c) One of the conditions to completing the transaction contemplated by
the Purchase Agreement is that the parties hereto execute and
deliver this Agreement;
(d) The Employee has decided to continue to be employed by the
Corporation all in accordance with the terms and conditions
contained in this Agreement;
(e) As consideration for the signing of the Agreement, the Employee
acquires the right to participate in the Corporation's Management
Bonus Plan (the "MANAGEMENT BONUS PLAN") and is granted additional
rights pursuant to the Corporation's and the Principal's Stock
Option Plans pursuant to the provisions of Exhibits 6.3(1)(A),
6.3(1)(B) and 6.3(1)(C) of the Purchase Agreement (the "STOCK OPTION
PLANS");
(f) All currency references herein are in Canadian funds unless
indicated otherwise; and
(g) The word "AFFILIATE" as used herein shall have the meaning ascribed
thereto in the Business Corporations Act (Ontario).
In consideration of the foregoing and the mutual agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto do hereby agree as follows:
SCOPE OF EMPLOYMENT
SECTION 1 TITLE AND DUTIES
On the terms and subject to the conditions hereinafter set forth, the
Employee shall continue to render services as Senior Sales Manager for the
Corporation, as follows:
(a) The Employee's duties shall be consistent with the general duties of
a person performing such services.
(b) The Employee shall devote all of the time and attention reasonably
necessary to carry out the duties of his position. The Employee's
services to the Corporation shall be rendered by him to the best of
his ability. During the Term, the Employee shall not (i) render
employment or other business-related services to any person, firm or
corporation other than the Corporation (or its Affiliated entities),
either within or outside of business hours; (ii) have any ownership
interest, direct or indirect, in any business that is competitive
with the business of the Corporation, other than ownership of not
more than one (1%) percent of the outstanding shares in the capital
of a corporation, the shares of which are listed on a recognized
stock exchange, and provided that such ownership by the Employee is
a purely passive investment; or (iii) become a director, officer or
agent of any other corporation, without the express written consent
of the board of directors of the Corporation (the "BOARD OF
DIRECTORS"), such consent not to be unreasonably withheld.
(c) The Employee shall, at all times in the performance of his
employment duties hereunder, perform all such duties in a manner
conducive to the efficient management of the Corporation.
(d) The Employee acknowledges that the effective performance of his
duties requires the highest level of integrity and the Corporation's
complete confidence in the Employee's relationship with other
employees of the Corporation and with all persons dealt with in the
course of the Employee's employment. The Employee shall diligently
serve the Corporation during the continuance of the Employee's
employment to promote the interests of the Corporation (and its
Affiliates).
The Corporation covenants and agrees to conduct itself with the highest
degree of integrity and to consistently supply the Employee throughout the
Term with all such support as may be reasonably required by him for the
performance of his employment duties hereunder. Notwithstanding anything
contained herein to the contrary, nothing in this Agreement shall
permit the Corporation to make substantive changes to the Employee's
responsibilities, duties or the current geographic location of employment
without the Employee's prior written consent.
SECTION 2 TERM.
The term of the Employee's employment with the Corporation shall be as of
and from May 14, 2004 (the "EFFECTIVE DATE") and shall continue in effect for a
period of three (3) years from such date (the "TERM"), subject to extension or
earlier termination as hereinafter provided. If either party wishes to renew
this Agreement for a further term of one (1) year beyond the Term or any renewal
term, as the case may be, then such party shall deliver written notice to the
other to that effect not later than six (6) months and not sooner than nine (9)
months prior to the end of the Term or any renewal term, as the case may be.
Subsequent to the delivery of any such notice, the Corporation and the Employee
shall have until ninety (90) days prior to the end of the Term or renewal term,
as the case may be, to agree upon the Base Salary applicable to such renewal
term and failing such agreement for any reason whatsoever, this Agreement shall
end as of the last day of the Term or applicable renewal term, as the case may
be. Further, in the event that neither party delivers written notice requesting
to renew this Agreement in accordance with the foregoing, then this Agreement
shall end as of the last day of the Term or applicable renewal term, as the case
may be.
REMUNERATION AND BENEFITS
SECTION 3 REMUNERATION AND BENEFITS.
As remuneration for the services rendered by the Employee pursuant to this
Agreement, the Corporation agrees to pay the Employee as follows:
(a) BASE SALARY. The Corporation shall pay the Employee an annual base
salary of $100,000.00 per annum for the period commencing on the
Effective Date and ending on the earlier of (i) December 10, 2004
and (ii) the completion of the initial public offering of the shares
of the Principal, and thereafter an annual base salary of one
hundred and thirty thousand dollars ($130,000.00) per annum (in each
case, the "BASE SALARY"), payable in instalments (less all required
statutory deductions including withholding taxes), on such dates as
the Corporation makes its general payroll payments, provided that
such instalments shall not be paid less frequently than once each
and every month throughout the Term.
(b) MANAGEMENT BONUS. The Employee may, at his option, participate in
the Management Bonus Plan, pursuant to the terms and provisions of
such Plan, as amended from time to time, beginning in his third year
of employment. The Employee's percentage participation in any Total
Bonus Award Pool (as such term is defined in such Plan) shall be
specified in a separate writing to be provided by the Corporation
from time to time.
(c) EMPLOYMENT BENEFITS. The Employee shall be entitled to continue to
fully participate in all pension, profit sharing, insurance
(including but not limited to health, medical, dental, disability
insurance, and life insurance (the beneficiary under such life
insurance coverage being as designated by the Employee; and the
Employee's immediate family being eligible, at the Employee's
option, for inclusion in such health, medical and dental insurance
coverage)), and all other fringe benefit programs maintained by the
Corporation for the benefit of its employees as set forth in the
existing policies of the Corporation, as each or all may be modified
from time to time by the Board of Directors (the "EMPLOYMENT
BENEFITS"), all to the same extent as participated in by the
Employee prior to the date hereof.
(d) EXPENSE ALLOWANCES. The Corporation will pay or reimburse the
Employee, promptly upon presentation of applicable invoices and/or
receipts, for all travel expenses, business expenses, promotion
expenses, and entertainment expenses reasonably incurred by the
Employee in connection with the Corporation's business and approved
of, in advance whenever practicable, by the Corporation, acting
reasonably. The Corporation shall promptly pay or reimburse the
Employee for all golf and/or health club memberships incurred by
the Employee (to a maximum of $7,000.00 per annum) and all cellular
and other wireless telecommunication charges (for regular and long
distance charges) incurred by the Employee throughout the Term.
(e) AUTOMOBILE ALLOWANCE. The Corporation will pay or reimburse the
Employee, promptly upon presentation of applicable invoices and/or
receipts, for the Employee's vehicle lease payments and/or finance
charges (including but not limited to principal and interest)
relating to the Employee's vehicle, all to a maximum of $12,000.00
per annum. The Corporation shall, throughout the Term, pay the
Employee a depreciation allowance for his vehicle in the amount of
Fifteen Cents ($0.15) per every kilometre travelled by such vehicle
in excess of 25,000 kilometres (per annum), up to $4,200.00 per
annum, payable at the end of each year of the Term and upon earlier
termination of the Term. The Corporation shall, throughout the Term,
pay or reimburse the Employee, promptly upon presentation of
applicable invoices and/or receipts, for all operating-related
costs and charges incurred by the Employee in connection with his
vehicle, including but not limited to all costs and charges for
parking, maintenance, repair, service, insurance, gasoline and other
fuel.
(f) VACATION. During the first two (2) years of the Term, the Employee
shall be entitled to four (4) weeks' paid vacation per annum;
thereafter the Employee shall be entitled to five (5) weeks' paid
vacation per annum.
(g) STOCK OPTIONS. The Corporation shall ensure at its own cost that the
Employee shall be eligible to participate, at the Employee's option,
as a participant in the Stock Option Plans beginning in the third
year of his employment.
TERMINATION OF EMPLOYMENT
SECTION 4 TERMINATION AND RELATED PAYMENTS.
The Employee's employment may be terminated in the following manner and in
the following circumstances:
(a) DEATH OR DISABILITY. In the event of the Employee's death during the
Term, the Employee's employment with the Corporation automatically
terminates on the date of the Employee's death. In the event of the
Employee's Disability, provided that such Disability cannot be
accommodated by the Corporation (acting reasonably) or such
accommodation would constitute undue hardship to the Corporation,
the Corporation may terminate the Employee's employment with the
Corporation by written notice to the Employee. For the purposes of
this Agreement, the term "DISABILITY" means the Employee's inability
to substantially fulfill his duties on behalf of the Corporation for
a continuous period of at least three (3) months or more or the
Employee's inability to substantially fulfill his duties on behalf
of the Corporation for an aggregate period of six (6) months or more
during any consecutive twenty-four (24) month period; and if there
is any disagreement between the Corporation and the Employee as to
the Employee's Disability or as to the date any such Disability
began or ended, the same shall be determined by a physician mutually
acceptable to the Corporation and the Employee whose determination
shall be conclusive evidence of any such Disability and of the date
any such Disability began or ended.
In the event that the Employee's employment terminates for death or
Disability in accordance with this Section 4(a), this Agreement
shall terminate without further obligations to the Employee provided
that the Employee shall, in addition to any entitlement to
disability benefits that the Employee is entitled to receive in
accordance with the relevant benefit programs maintained by the
Corporation, only be entitled to receive from the Corporation an
amount equal to the sum of: (i) any
and all earned but unpaid Base Salary up to the last day of the
Employee's employment with the Corporation; (ii) the value of
vacation accrued but unused to the last day of the Employee's
employment with the Corporation; (iii) any and all amounts payable
by the Corporation pursuant to Sections 3(d) or 3(e) hereof
(collectively, "BUSINESS EXPENSES"); and (iv) any and all accrued
but unpaid amounts due to the Employee under the Management Bonus
Plan and the Stock Option Plans (subject to the respective terms and
conditions thereof) in respect of any period prior to the fiscal
year in which such death or Disability occurred.
(b) TERMINATION BY THE CORPORATION WITH CAUSE. The Employee's employment
may be terminated by the Corporation for Cause (as hereinafter
defined). For the purposes of this Agreement, "CAUSE" means:
(i) The Employee's material and repeated failure to perform his
duties hereunder in a manner satisfactory to the Board of
Directors (acting reasonably and in the good faith), after
written notice of such failure to the Employee;
(ii) The Employee's fraud or embezzlement of funds or property of
the Corporation;
(iii) The Employee's pleading guilty to, confessing to (in writing,
signed by the Employee, addressed to the Corporation, and
delivered by the Employee to the Corporation) or conviction
for a criminal offence (but only if a criminal offence
pursuant to the Criminal Code of Canada) during the Term,
which criminal offence, in the judgment of the Board of
Directors (acting in good faith), would result in material
damage to the business of the Corporation or bring it into
disrepute if the Employee's employment were not terminated; or
(iv) Any other act or omission of the Employee which would in law
permit the Corporation to, without notice or pay in lieu of
notice, terminate the employment of the Employee.
In any such case of Cause, the Corporation may, at its option,
terminate the Employee's employment with the Corporation by written
notice to the Employee specifying in detail the applicable Cause for
termination, and in the case of such termination the Employee shall
only be entitled to receive an amount equal to the sum of: (i) any
and all earned but unpaid Base Salary up to the date of termination;
(ii) the value of vacation accrued but unused to the date of
termination, and (iii) any and all Business Expenses incurred by the
Employee up to the date of termination and reimbursable in
accordance with the terms of this Agreement.
(c) TERMINATION BY THE CORPORATION WITHOUT CAUSE. If the Corporation
terminates the Employee's employment without Cause, then the
Corporation shall:
(i) pay to the Employee (a) any and all earned but unpaid Base
Salary for services rendered by the Employee to the date of
termination, (b) any and all Business Expenses incurred by the
Employee up to the date of termination and reimbursable in
accordance with the terms of this Agreement, (c) the value of
vacation accrued but unused by the Employee to the date of
termination, and (d) any and all accrued but unpaid amounts
due to the Employee under the Management Bonus Plan and the
Stock Option Plans (subject to the respective terms and
conditions thereof) in respect of any period prior to the
fiscal year in which such termination occurred; and
(ii) also pay to the Employee, his Base Salary (less statutory
deductions and withholdings) for a period calculated as being
the lesser of (A) the unexpired remainder of the Term, and (B)
one (1) year; and
(iii) continue, if possible, the Employee's entitlement to the
Employment Benefits described in Section 3(c) hereof (but not
any other provisions of Section 3 hereof) until the earlier of
(i) the end of the minimum period required for notice of
termination or payment in lieu of notice under applicable
employment standards legislation at the time of the
termination of the Employee's employment, or (ii) the date
that the Employee becomes covered under the benefit plans of a
subsequent employer, provided that the Employee continues to
pay his applicable share of the insurance premiums during such
period.
(d) RESIGNATION BY THE EMPLOYEE. The Employee may at any time, for any
reason whatsoever, terminate his employment with the Corporation by
providing the Corporation with at least ninety (90) days' prior
written notice. In the event that the Employee terminates his
employment in accordance with the terms of this Section 4(d), the
Employee shall only be entitled to receive (i) any and all earned
but unpaid Base Salary up to the date of termination, (ii) the value
of vacation accrued but unused to the date of termination; and (iii)
any
and all Business Expenses incurred by the Employee up to the date of
termination and reimbursable in accordance with the terms of this
Agreement.
SECTION 5 ACKNOWLEDGEMENTS.
(1) The Employee acknowledges and accepts that the terms set out in this
Agreement, provided that such terms are satisfied by the Corporation, are
in lieu of (and not in addition to) and in full satisfaction of any and
all other claims and entitlements which the Employee has or may have upon
the termination of his employment for any reason contemplated hereunder
(including, without limitation, all amounts required either by contract,
statute or at common law to be paid, including pay in lieu of notice,
termination pay, severance pay, incentive compensation, vacation pay,
pension and any and all other outstanding amounts) and the compliance by
the Corporation with these terms will effect a full and complete release
of the Corporation and its Affiliates, associates, and related companies
and each of its and their respective officers, directors, employees,
servants and agents and their successors and assigns from any and all
claims which the Employee may have for whatever reason or cause in
connection with the Employee's employment and the termination of it, other
than those obligations specifically set out in this Agreement.
(2) Upon any termination of this Agreement, the Corporation shall have the
right (but without duplication) to set-off amounts owing by the
Corporation to the Employee under this Agreement against any amounts owing
by the Employee to the Corporation or any of its Affiliates, pursuant to
the Purchase Agreement or any Ancillary Agreement (as such term is defined
in the Purchase Agreement).
(3) Upon any termination of this Agreement, the Employee shall have the right
(but without duplication) to set-off amounts owing by the Employee to the
Corporation against any amounts owing by the Corporation or any of its
Affiliates to the Employee including, without limitation, pursuant to the
Purchase Agreement or any Ancillary Agreement (as such term is defined in
the Purchase Agreement).
SECTION 6 CONFIDENTIALITY
(1) The Employee will not, during the Term and following the termination of
this Agreement, directly or indirectly, use or furnish to anyone (save and
except as otherwise required by law or in the ordinary course of
performing his employment duties for the Corporation in accordance with
the terms of this Agreement) any proprietary, secret or confidential
information or trade-secrets relating to the business of the Corporation
(or its Affiliates), including but not limited to, information relating to
processes, or contracts involved in
the business of the Corporation (or its Affiliates), or the design,
production, sale, or distribution of any products of the Corporation, or
the personnel of the Corporation or their compensation or employment
arrangements, or the identity of or products purchased, or prices paid by,
customers of the Corporation ("CONFIDENTIAL DATA"). The Employee expressly
acknowledges and agrees that all Confidential Data and all memoranda,
notes, records, charts, formulae, client lists, price lists, marketing
plans, financial information and other documents made, received, held or
used by the Employee during the course of his employment is the property
of the Corporation and shall be delivered by the Employee to the
Corporation upon request at any time during the course of employment and
upon the termination of his employment, if requested. The Employee
acknowledges that he is in a position of trust and subject to a fiduciary
duty to use the Confidential Data only in the performance of his
employment duties hereunder. Notwithstanding the foregoing provisions of
this Section, Confidential Data shall be deemed for all purposes of this
Agreement to not include any information or trade-secrets that become
publicly-known other than as a result of public disclosure by the
Employee.
(2) In the event of a violation, contravention, breach or threatened breach of
subsection (1) of this Section by the Employee, the Corporation shall be
entitled to injunctive relief where a Court having jurisdiction deems
appropriate under the circumstances. The right of the Corporation to
injunctive relief shall be in addition to any and all other remedies
available to it and shall not be construed to prevent the Corporation from
pursuing, either consecutively or concurrently, any and all other legal or
equitable remedies available to the Corporation including the recovery of
monetary damages, if applicable.
SECTION 7 ASSIGNMENT OF MATERIALS.
The Employee hereby assigns and transfers to the Corporation his entire
right, title and interest in and to all Inventions (as hereinafter defined). For
the purposes of this Agreement, "INVENTIONS" shall mean improvements, designs,
products, brochures, catalogs and related sales and marketing material, whether
or not capable of being patented or copywritten and whether or not reduced to
practice, made or conceived by the Employee (whether made solely by the Employee
or jointly with others), during the period of the Employee's employment with the
Corporation, which relate to the business, research and development of or
products sold by the Corporation, or result from any work performed by the
Employee for or on behalf of the Corporation during such period of employment.
The Employee agrees that all such materials are the sole property of the
Corporation. In addition, the Employee hereby irrevocably waives, in favour of
the Corporation, its successors, assigns and nominees, all moral rights arising
under the Copyright Act (Canada) as amended (or any successor legislation of
similar effect) or
similar legislation in any applicable jurisdiction, or at common law, to the
full extent that such rights may be waived in each respective jurisdiction, that
the Employee may have now or in the future with respect to the Inventions.
GENERAL
SECTION 8 REPRESENTATION.
The Employee represents that he is not a party to any written or other
contractual arrangement or agreement, including a non-competition agreement,
which would in any way affect the Employee's ability to perform his duties for
the Corporation pursuant to this Agreement. In addition, the Employee represents
that he is not in possession of any proprietary or other confidential
information belonging to any corporation that previously employed the Employee
other than the Corporation.
SECTION 9 NOTICE.
Any notice, direction or other communication to be given under this
Agreement shall be in writing and given by delivering it personally (if to the
Employee then to the Employee directly, and if to the Corporation then to any
officer or director of the Corporation) or sending it by facsimile addressed as
follows:
(a) TO THE CORPORATION AT:
c/o __________________________
Attention: President
Facsimile: ___________________
(b) TO THE EMPLOYEE AT:
______________________________
Any such communication shall be deemed to have been validly and
effectively given (i) if personally delivered, on the date of such
delivery if such date is a business day and such delivery was made prior
to 4:00 p.m. (Toronto time) and otherwise on the next business day, or
(ii) if transmitted by facsimile on the business day immediately next
following the date of transmission. Any party may change its address for
service from time to time by notice given in accordance with the foregoing
and any subsequent notice shall be sent to such party at its changed
address.
SECTION 10 NOTIFICATION.
Each party shall immediately notify the other, in writing, of any
violation, contravention or breach of this Agreement as soon as such party
becomes aware of any such event by the other party.
SECTION 11 WAIVERS.
No waiver of any provision of this Agreement shall be deemed to constitute
a waiver of any other provision (whether or not similar); nor shall such waiver
be binding unless executed in writing by the party to be bound by the waiver. No
failure on the part of the Employee or the Corporation to exercise, and no delay
in exercising any right under this Agreement shall operate as a waiver of such
right; nor shall any single or partial exercise of any such right preclude any
other or further exercise of such right or the exercise of any other right.
SECTION 12 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties with
respect to all of the subject matter hereof. This Agreement supersedes any prior
agreements, understandings, negotiations and discussions, whether oral or
written, between the parties regarding the subject matter hereof.
SECTION 13 SURVIVAL AND SEVERABILITY.
It is expressly agreed by the parties hereto that the provisions of
Section 5 and Section 6 shall survive the termination of the Employee's
employment. If any provision hereof shall be duly held by a court of competent
jurisdiction to be invalid, illegal or unenforceable at law, then such provision
shall be deemed severed from this Agreement and the remaining provisions shall
remain in full force and effect and binding.
SECTION 14 INDEPENDENT LEGAL ADVICE.
The Employee acknowledges that he has been advised to obtain, and that he
has obtained or has been afforded the opportunity to obtain independent legal
advice with respect to this Agreement and that he understands the nature and
consequences of this Agreement.
SECTION 15 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario and the federal laws of Canada applicable
therein. The Employee and the Corporation hereby irrevocably attorn and covenant
to submit in any suit, action or other legal proceeding arising out of or
related to this Agreement to the jurisdiction of the courts of the Province of
Ontario.
SECTION 16 COUNTERPARTS.
This Agreement may be executed in any number of counterparts (including
but not limited to counterparts by facsimile) and all such counterparts taken
together shall be deemed to constitute one and the same instrument.
SECTION 17 FURTHER ASSURANCES.
The Corporation and Employee agree that they shall, from time to time and
at all times, do all such further acts and execute and deliver all such further
documents and assurances as may be reasonably required in order to fully perform
and carry out the terms of this Agreement.
SECTION 18 AMENDMENTS.
No amendment of this Agreement shall be binding unless executed in writing
by both the Employee and the Corporation.
SECTION 19 SUCCESSORS AND ASSIGNS
This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, administrators, legal
representatives, successors, and permitted assigns.
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
/s/ Xxxxx Xxxxxx
--------------------------- --------------------------------
WITNESS XXXXX XXXXXX
STEELBANK INC.
By: /s/ Xxxxx Xxxxxxxx
----------------------------
Name:
Title: Director.
I have the authority to bind the
Corporation.
