Exhibit 10.9
[MAAX LOGO]
EMPLOYMENT AGREEMENT entered into in Sainte-Marie, Quebec, as of December 1st,
2003 by and
between: MAAX-KSD Corporation, a Pennsylvania corporation
(the "Company")
and: Daniel Stewart domiciled and residing at 2013 Country Club Dr,
Doylestown, PA 18901, USA
("Executive")
and: MAAX Inc., incorporated under the laws of the province of Quebec,
having its head office at 640, Cameron, Sainte-Marie, Quebec, G6E
1B2 represented hereunder by Mr. Andre Heroux, its President and
CEO, duly authorized as he so declares;
1. TERM
The term of this Agreement shall be for an initial period of thirty-six
(36) months beginning March 1st, 2004 and expiring on February 28, 2007. A
90-day written notice must be given by either party to terminate or renew
this Agreement.
2. COMPENSATION
During the Term, as compensation for performing the services required by
this Agreement, Executive shall be compensated as follows:
(a) Base Compensation: The Company shall pay to Executive an annual base
salary (the "Base Compensation") during the Initial Term of one
hundred ninety-five thousand ($195,000) dollars.
(b) Performance Compensation: In addition to Base Compensation,
Executive shall receive bonus compensation ("Performance
Compensation") equal to 1.25% of the Company's "EBITDA" for each of
the Company's fiscal years during the Term in which the Company's
EBITDA equals or exceeds nine million ($9,000,000) dollars,
beginning with the fiscal year from March 1st, 2004 through February
28, 2007. The Performance Compensation shall be payable quarterly,
within 30 days after the end of each fiscal quarter. The term
"EBITDA" means the Company's
SIEGE SOCIAL / HEAD OFFICE
640, Cameron
Sainte-Marie, Quebec G6E 1B2 Canada
Tel.: (418) 387-4155
Fax: (418) 386-4520
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EMPLOYMENT AGREEMENT
Daniel Stewart
December 2003
earnings before interest, income taxes, depreciation, amortization
expenses, goodwill, depreciation and corporate fees. Calculations
are determined in accordance with generally accepted accounting
principles consistent with the past accounting practices.
Estimates:
2004-2005 Net sales estimates $80,000,000 EBITDA $12,000,000
2005-2006 Net sales estimates $85,500,000 EBITDA $15,000,000
2006-2007 Net sales estimates $90,900,000 EBITDA $16,000,000
3. EMPLOYEE BENEFITS
(a) The Company will support up to eleven thousand five hundred
($11,500) dollars to the Executive to participate in the Company's
health insurance plan, or other health, life, or disability
insurance at the option of the employee on an annual basis (for
Executive and his family).
(b) Executive shall have the right to four weeks of paid vacation during
each calendar year during the Term. Any vacation that is not taken
in a given calendar year shall accrue and carry over to the
following year only but cannot be monetarily compensated if not
taken during such period.
(c) During the Term, in order to facilitate the performance of the
Executive's duties hereunder and otherwise for the convenience of
the Company, the Company shall provide Executive with a monthly
automobile allowance of, up to eight hundred ($800) dollars. The
Company shall also be responsible for and shall pay for all costs
associated with the use of such automobile, including, without
limitation, insurance, fuel, maintenance and repairs.
(d) Employee's principal duties shall be VPGM of MAAX Keystone
Operations. He shall also oversee the MAAX Home Depot business
within MAAX sectors to monitor
- Business relationship with Home Depot
- Overall marketing Agreements with Home Depot
- Customer service levels with Home Depot
- Profitability margins with Home Depot
(e) Employee's work location will be MAAX Southampton for the MAAX
Keystone operations.
SIEGE SOCIAL / HEAD OFFICE
640, Cameron
Sainte-Marie, Quebec G6E 1B2 Canada
Tel.: (418) 387-4155
Fax: (418) 386-4520
2
EMPLOYMENT AGREEMENT
Daniel Stewart
December 2003
4. EXPENSES
All normal expenses associated with business as approved by the President
& CEO consistent with MAAX policies.
5. TERMINATION AND TERMINATION BENEFITS
(a) Expiration of the Contract: Upon the expiration of the Contract, the
Executive shall be paid (in a lump sum on the date of termination)
his Base Compensation through the date of termination plus any
Performance Compensation payable to him at prorata for any prior
fiscal quarters which have not been paid.
(b) Termination by the Company
With Cause: The Company may terminate Executive's employment, with
"Cause," prior to the expiration of the Term. In such event, the
Executive shall be paid his Base Compensation through the date of
termination plus any Performance Compensation payable to him at
prorata for any prior fiscal quarters, which have not been paid, and
be provided with the benefits up to the effective date of such
termination. Termination for cause shall be defined as employee's
intentional act to harm the company, to commit fraud with respect to
the operations of the company, or if the employee is convicted of
fraud or a felony regardless of whether the employee was acting
within the course and scope of his employment of personally.
Disability: If due to illness, physical or mental disability, or
other incapacity ("Disability"), the Executive shall fail, for a
total of any six (6) consecutive months, to perform the principal
duties required by this Agreement, the Company may terminate
Executive's employment (effective upon the end of such period) upon
30 days' prior written notice to Executive. In such event, Executive
shall be paid (in a lump sum on the date of termination) his Base
Compensation through the date of termination, any Performance
Compensation payable to him for any prior fiscal quarters which have
not been paid, plus a severance amount equal to Base Compensation
for a period of 90 days, less all amounts received from any insurer
according to the health benefits company program.
For purposes of this Agreement, "Cause" shall mean an act of
dishonesty by Executive constituting a crime that resulted in or was
intended to result in gain to or personal enrichment of Executive at
Company's expense.
SIEGE SOCIAL / HEAD OFFICE
640, Cameron
Sainte-Marie, Quebec G6E 1B2 Canada
Tel.: (418) 387-4155
Fax: (418) 386-4520
3
EMPLOYMENT AGREEMENT
Daniel Stewart
December 2003
(c) Termination by the Company without "Cause": The Company may
terminate Executive's employment prior to the expiration of the
contract, without Cause, upon 30 days prior written notice to
Executive. Company's failure to comply with paragraph 3 shall be
deemed a termination by company without cause hereunder.
If the foregoing termination occurs during the Term, the Executive
shall be paid, in a lump sum payable on the date of termination of
employment, his Base Compensation for the remainder of the contract,
PLUS any Performance Compensation payable to him for any prior
fiscal quarters which have not been paid, PLUS an amount equal to
the total Performance Compensation the Executive would have earned
for the remainder of the Term if his employment had not been so
terminated without Cause, based upon an annual EBITDA for the
remaining term of the contract. Also the Executive shall be provided
all personal benefits to the end of the contract excluding
discretionary expenses. All provisions under paragraph six will
further be waived.
(d) Termination by Executive: Executive may terminate Executive's
employment prior to the expiration of the Term, upon 30 days prior
written notice to the Company. In such event, the Executive shall be
paid his Base Compensation through the date of termination plus any
Performance Compensation payable to him for any pro rata prior
fiscal quarters, which have not been paid.
(e) Change of control: Upon change of control of MAAX, in the case of
the Executive services are no longer required by the new owner, a 12
months severance package (base salary and performance compensation)
shall be paid to the Executive.
Death Benefit: In the event of Executive's death during the Term,
the Executive's estate shall be paid in a lump sum an amount equal
to his Base Compensation through the date of death, and Base
Compensation for an additional 90 days.
6. NONCOMPETITION, NONINTERFERENCE AND NONSOLICITATION
(a) During his employment and for a period of two years thereafter,
Executive shall not solicit, induce or encourage any person or
entity, who at the time of or within six months prior to termination
of Executive's employment, was a customer, employee, independent
contractor or supplier of the Company, to do business with Executive
in a business competitive with such Company.
(b) During his employment and for a period of two years following
Termination of Executive's employment for any reason, Executive
shall not use for his personal
SIEGE SOCIAL / HEAD OFFICE
640, Cameron
Sainte-Marie, Quebec G6E 1B2 Canada
Tel.: (418) 387-4155
Fax: (418) 386-4520
4
EMPLOYMENT AGREEMENT
Daniel Stewart
December 2003
benefit, or disclose, communicate or divulge to, or use for the
benefit of any person, firm, association or company, or third party,
other than the Company any information regarding the business
methods, policies, procedures, techniques, research or development
projects or results, trade secrets, or other knowledge or processes
of or developed by the Company.
7. MISCELLANEOUS
(a) Any and all references to dollar amounts in this Agreement refer to
U.S. dollars only.
(b) This Agreement constitutes the entire understanding between the
parties; any amendment or modification may only be accompanied by a
written document signed by all parties. MAAX Inc. is jointly
severally guaranteeing MAAX/KSD obligations under this Agreement.
(c) This Agreement is personal in nature and neither of the parties
shall, without written consent of the other, assign or transfer this
Agreement or any rights or obligations hereunder. This Agreement and
all of the provisions herein shall be binding upon and inure to the
benefit of, the parties hereto and their successors (including
successors by merger, consolidation or similar transactions),
permitted assigns, personal representatives, heirs, executors and
administrators.
(d) Any controversy or claim arising out of or relating to this
Agreement or the breach thereof or otherwise arising out of
Executive's employment or the termination of that employment shall,
to the fullest extent permitted by law, be settled by arbitration in
any forum agreed upon by the parties or, in the absence of such an
Agreement, under the auspices of the American Arbitration
Association (AAA) in Philadelphia, Pennsylvania, in accordance with
the employment dispute resolution rules of the AAA including but not
limited to, the rules and procedures applicable to the selection of
arbitrators.
(e) This Agreement shall be binding upon MAAX Inc. and MAAX KSD corp.,
its successors, assignees or affiliates.
(f) This Agreement may be signed by facsimile and in counterpart, which
shall be considered a legally binding original.
SIEGE SOCIAL / HEAD OFFICE
640, Cameron
Sainte-Marie, Quebec G6E 1B2 Canada
Tel.: (418) 387-4155
Fax: (418) 386-4520
5
EMPLOYMENT AGREEMENT
Daniel Stewart
December 2003
IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement
at the place and as of the date first written above.
MAAX Inc.
By: /s/ Andre Heroux
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Andre Heroux
President & CEO
Date:
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/s/ Dan Stewart
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Dan Stewart
Vice President, General Manager
MAAX KSD & MAAX Home Depot
Business Coordinator
Date:
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SIEGE SOCIAL / HEAD OFFICE
640, Cameron
Sainte-Marie, Quebec G6E 1B2 Canada
Tel.: (418) 387-4155
Fax: (418) 386-4520
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