EXECUTIVE EMPLOYMENT AGREEMENT made as of this March 16, 2009
Exhibit
10.23
made
as of this March 16, ▇▇▇▇
▇
▇ ▇ ▇ ▇ ▇ ▇:
▇▇▇▇ ▇. ▇▇▇▇▇
(hereinafter
the “Executive”)
and
VITRAN
CORPORATION INC.
(hereinafter
the “Company”).
WHEREAS
the Executive has been employed with the Company since September 11, 1989 and is
currently serving the Company in the capacity of President and Chief Executive
Officer;
AND
WHEREAS the Company has agreed to compensate the Executive in the event of a
change of control of the Company;
AND
WHEREAS it is in the best interests of the Company and the Executive to enter
into this agreement to reflect the Executive’s current employment arrangements
with the Company and additional benefits he will receive in the event that there
is a change of control of the Company.
NOW
THEREFORE IN CONSIDERATION of the mutual covenants and premises contained in
this agreement, the parties hereby agree as follows:
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1.
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EMPLOYMENT
POSITION
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The
Executive shall continue to serve the Company in the capacity of President and
Chief Executive Officer and shall perform such duties, and exercise such powers
as are incidental to such position and such other compatible duties and powers
as may from time to time be assigned to him by the board of directors of the
Company.
The
Executive agrees that he shall devote the whole of his time, attention and
ability to the business of the Company insofar as they are directed towards
business interests. He shall competently and faithfully serve the
Company and use his best efforts to promote the interests thereof.
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2.
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COMPENSATION
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(a)
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BASE
SALARY
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The
Executive shall receive a base annual gross salary of $563,000.00 (the “base
salary”). The base salary shall be payable in accordance with the
Company’s customary payment policy. The base salary shall be subject
to annual review. Any increases in the base salary will be at the
sole discretion of the board of directors of the Company.
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(b)
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BENEFITS
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The
Company will continue to provide the Executive with those benefits made
available by the Company generally to its senior executives as the same may
change from time to time, including without limitation, continued entitlement to
the Company’s bonus plan. The Executive shall also be entitled
to the following perquisites;
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(i)
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annual
dues in respect of the Executive club membership at the Mississauga Golf
and Country Club, including any expenses incurred at such club in
accordance with Company policy;
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(ii)
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the
continuance of a Company car allowance, all in accordance with Company
policy; and
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(iii)
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continued
entitlement to participate in the Company’s stock option
plan
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3.
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TERM AND
TERMINATION
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(a)
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TERM
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The
Executive shall continue to be employed as President and Chief Executive Officer
by the Company for an indefinite term.
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(b)
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TERMINATION
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This
agreement shall terminate in the following events:
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(i)
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by
mutual agreement of the parties;
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(ii)
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if
the Company has just cause at common law for termination, the Company may
terminate the Executive forthwith, with no notice or payment in lieu of
notice;
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(iii)
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if
the Executive is terminated by the Company and it does not have just cause
at common law for termination, the Executive shall be entitled to a lump
sum amount equivalent to 24 months compensation. The value of
one month’s compensation, for the purposes herein, shall be one-twelfth of
the total of the base salary, bonuses, taxable and non-taxable benefits
received by the Executive during the 12 months immediately prior to
termination. All outstanding options would
vest.
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(iv)
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in
the event that there is a change of control of the Company, and the
Executive either resigns or is terminated without cause at any time within
365 days of the change of control, the Company will pay to the Executive
an amount equivalent to 30 months compensation. The value of
one month compensation, for the purposes herein, shall be one-twelfth of
the total of the base salary, bonuses, taxable and non-taxable benefits
received by the Executive during the 12 months immediately prior to
termination. All outstanding options would
vest.
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A
“change of control” shall be deemed to have occurred if, as a result
of:
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(A)
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a
take over bid or acquisition any person, company, association, partnership
or any of them singly or under any voting trust or similar arrangement has
the legal ability to cause to be cast votes with respect to greater than
50% of the shares at any meeting of the shareholders called for the
purpose of electing the directors of the Company;
or
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(B)
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a
merger, consolidation or sale of all, or substantially all, of the assets
of the Company, the persons who were the directors of the Company
immediately before the transaction, cease to constitute a majority of the
board either directly, or indirectly, as a result of the
transaction.
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In
addition to the foregoing circumstances constituting a change in control of the
Company, the election at any time of three or more directors, (together or
separately), whose election is opposed by the then majority of the directors of
the Company shall be deemed, in itself, to be a change of control.
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4.
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COVENANTS OF THE
EXECUTIVE
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(a)
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CONFIDENTIALITY
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All
confidential records, material and information, and copies thereof, and any and
all trade secrets concerning the business or affairs of the Company, or any of
its affiliates, obtained by the Executive in the course and by the reason of his
employment shall remain the exclusive property of the Company. During
the Executive’s employment, and at all times thereafter, the Executive shall not
divulge the contents of such confidential records or any of such confidential
information or trade secrets to any person other than to the Company’s qualified
employees and the Executive shall not, following the termination of his
employment hereunder, for any reason use the contents of such confidential
records or other confidential information or trade secrets for any purpose
whatsoever.
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(b)
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NON-SOLICITATION OF
EMPLOYEES
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The
Executive shall not, at any time during a period of one year following the
termination of his employment with the Company without the prior written consent
of the Company, either directly or indirectly, on the Executive’s own behalf or
on behalf of others offer employment to or endeavour to entice away from the
Company, or any affiliate thereof, any person who is employed by the Company or
any such affiliate.
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(c)
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NON-SOLICITATION OF
CUSTOMERS
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For
a period of one year following the termination of his employment with the
Company the Executive shall not contact any customers of the Company, or any of
its subsidiaries, for the purpose of selling to those customers any products or
services which are the same as, or substantially similar to, or competitive with
the products and services sold by the Company or any of its subsidiaries at such
date.
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5.
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GENERAL CONTRACT
PROVISIONS
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(a)
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OTHER
ENTITLEMENTS
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For
the purposes of this agreement, it is agreed that no other notice of termination
or related entitlements, express or implied by law, shall apply, subject only to
such minimum notice entitlements as are prescribed by applicable employment
standards legislation.
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(b)
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SEVERABILITY
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In
the event that any provisions herein or parts thereof shall be deemed void or
invalid by a court of competent jurisdiction, the remaining provisions or parts
thereof shall be and remain in full force and effect.
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(c)
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WHOLE
AGREEMENT
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This
agreement constitutes and expresses the whole agreement of the parties hereto
with reference to the employment of the Executive by the Company. All
promises, representations, collateral agreements and understanding relative
thereto and not incorporated herein are hereby superseded and cancelled by this
agreement.
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(d)
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SUCCESSORS and
ASSIGNS
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This
agreement shall inure to the benefit of and be binding upon the Executive and
his heirs and personal representatives and the Company and its successors and
assigns. This agreement is personal to the Executive and may not be
assigned by him.
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(e)
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APPLICABLE
LAW
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This
Agreement shall be governed by and construed in accordance with the laws of the
Province of Ontario.
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VITRAN
CORPORATION
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THE
EXECUTIVE
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per:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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/s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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▇▇▇▇
▇. ▇▇▇▇▇
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