EXHIBIT 10.11
FORM OF CONSULTING AGREEMENT effective as of the first (1st) day of March, 2004.
BETWEEN: MAAX INC.;
("COMPANY")
AND: ________, _________, residing at
________________________________
("CONSULTANT")
RECITALS:
A. The Consultant, prior to this day, was engaged by Gestion Camada Inc.
by virtue of various agreements made between the Consultant and Gestion
Camada Inc., including, without limitation, an employment agreement
dated January 10, 2001, as amended, which agreements have terminated as
of February 29, 2004 (collectively, the "TERMINATED AGREEMENTS");
B. The Company wishes to engage the Consultant as an independent
contractor to perform certain consulting services for the Company.
IN CONSIDERATION of the mutual covenants and agreements contained in this
Agreement and for other good and valuable consideration (the receipt and
adequacy of which are acknowledged), the parties agree as follows:
1. INTERPRETATION.
1.1 In this Agreement, including the Recitals to this Agreement, unless the
context otherwise requires:
(1) "AGREEMENT" means this consulting agreement as amended from time to time
in accordance with its provisions.
(2) "BUSINESS DAY" means any day, except Saturdays and Sundays, on which banks
are generally open for business in, except for the purposes of Section
13.2, Montreal, Quebec, and for purposes of Section 13.2, in the place
specified in that Section.
(3) "CONFIDENTIAL INFORMATION" means all information relating to the business
and affairs of the Company and all information supplied by a third party
to the Company in confidence, which, at the time is confidential in nature
(whether or not specifically identified as confidential), is known or
should be known by the Consultant as being confidential and has been or is
from time to time used by, developed by, made known to or otherwise
learned by, the Consultant through the use of any of the Company's
facilities or resources, in the course of conducting the business and
affairs of the Company or in the course of performing its services and
duties under this Agreement, and includes: (i) all
intellectual property, including trade secrets; (ii) all information
treated as proprietary by the Company; and (iii) all confidential facts
relating to the Company. Notwithstanding the foregoing, "Confidential
Information" does not include any information that at the time has become
generally available to the public other than as a result of disclosure by
the Consultant, was available to the Consultant on a non-confidential
basis before the date of this Agreement or becomes available to the
Consultant on a non-confidential basis from a Person (other than the
Company or any of its representatives) who is not, to the knowledge of the
Consultant, otherwise bound by confidentiality obligations to the Company
or otherwise prohibited from transmitting the information to the
Consultant.
(4) "PERSON" is to be broadly interpreted and includes an individual, a
company, a corporation, a partnership, a joint venture, a trust, an
association, an unincorporated organization, a regulatory body or agency,
a governmental authority or agency, an executor or administrator or other
legal or personal representative, or any other juridical entity.
(5) "TERM" means the three (3) month period following the date of this
Agreement subject to renewal in accordance with Section 9.
(6) "TRANSMISSION" has the meaning attributed to that term in Section 13.
1.2 In this Agreement:
(a) the division into Sections and the insertion of headings are for
convenience of reference only and do not affect the construction or
interpretation of this Agreement;
(b) the expressions "hereof", "herein", "hereto", "hereunder", "hereby"
and similar expressions refer to this Agreement and not to any
particular portion of this Agreement; and
(c) unless specified otherwise or the context otherwise requires:
(i) references to any Section are references to the Section of
this Agreement;
(ii) "including" or "includes" means "including (or includes) but
is not limited to" and shall not be construed to limit any
general statement preceding it to the specific or similar
items or matters immediately following it;
(iii) references to any legislation, statutory instrument or
regulation or a section thereof, unless otherwise specified,
is a reference to the legislation, statutory instrument,
regulation or section as amended, restated and re-enacted from
time to time; and
(iv) words in the singular include the plural and vice-versa and
words in one gender include all genders.
2
2. ENGAGEMENT BY THE COMPANY AND CONSULTING PERIOD
The Company engages the Consultant for the Term to perform such services
as the Consultant shall reasonably be directed to perform by the President and
CEO of the Company, up to a maximum of twenty (20) working days during the Term.
3. ACCEPTANCE OF ENGAGEMENT BY CONSULTANT
The Consultant accepts the engagement and shall render the services and
perform the duties described in Section 2. In the performance of the duties and
services under this Agreement, the Consultant shall act honestly and in good
faith with a view to the best interests of the Company. While the Consultant
shall not be obligated to provide services to the Company on an exclusive basis,
the Consultant shall perform the duties and services under this Agreement on a
timely basis.
4. NATURE OF RELATIONSHIP
4.1 The parties acknowledge that, (a) the relationship of the Consultant to the
Company is that of an independent contractor; (b) the Consultant is not an
employee, dependent contractor or agent of the Company; (c) the Company and the
Consultant are not partners or joint venturers with each other; and (d) nothing
in this Agreement shall be construed as (i) making the Company and the
Consultant partners or joint venturers; (ii) making the Consultant an agent,
employee or dependent contractor of the Company; or (iii) imposing any liability
as partner, joint venturer, principal, agent, dependent contractor or employee
of the Company or the Consultant, as the case may be.
4.2 Without limiting the generality of Section 4.1, the Consultant shall have no
authority to act, or to hold the Consultant out, as agent of the Company or any
of its Subsidiaries, or to bind the Company or any of its Subsidiaries to any
third party and the Consultant shall so inform all third parties with whom the
Consultant deals in the performance of the services and duties under this
Agreement. The Consultant shall not use the name of the Company or any of its
Subsidiaries in any advertisement or promotional or marketing material or,
without the use of any such name, suggest or imply in any such material that the
Consultant has a relationship with the Company or any of its Subsidiaries.
5. COMPENSATION
5.1 As compensation for its services under this Agreement, the Company shall pay
to the Consultant an aggregate amount of $20,000 for the Term payable in three
(3) equal monthly instalments, on the last Business Day of each month of the
Term. The Consultant shall be entitled to participate in, and receive benefits
under, the Company's group insurance plan until the earlier of June 30, 2004 and
the closing of that certain transaction involving the purchase by J.W. Childs,
Borealis and OMERS of all of the outstanding common shares of the Company.
Interest shall be charged on any overdue payments at the rate of 10% per annum,
calculated and compounded monthly from the due date on the outstanding daily
amount. Any payment to the Consultant pursuant to this Section 5.1 shall be made
by negotiable cheque or official bank draft, in each case drawn on a Canadian
chartered bank.
3
5.2 The amounts to be paid by the Company to the Consultant set out in Section
5.1 are exclusive of goods and services tax and provincial sales tax. As an
independent contractor, the Consultant shall be responsible for the payment of
all income taxes attributable to any payments made under this Agreement. The
Consultant shall indemnify and save harmless the Company from any and all fees,
assessments, levies, rates, taxes, interest, penalties or other charges made,
demanded, assessed or otherwise claimed by any provincial or federal government
or other body of competent jurisdiction in respect of any monies paid to the
Consultant under this Agreement, except goods and services and provincial sales
taxes. Without limiting the foregoing, if the Company is assessed or reassessed
by any applicable federal or provincial authority or if any claim is made
against the Company respecting any failure by the Company to deduct or withhold
any amount required by law, the Consultant shall pay to the Company the amount
of money that may be required by the applicable authority to be paid by the
Company to satisfy fully any claim made by the authority against the Company.
5.3 Where goods and services tax or Quebec sales tax is applicable in respect of
fees or other amounts payable to the Consultant pursuant to this Agreement, the
Consultant shall within ten (10) Business Days of each such payment provide to
the Company such receipts or other documents as are required in order for the
Company to claim input tax credits or other relief in respect of such tax.
6. EXPENSES
The Company shall reimburse the Consultant his reasonable expenses
incurred in connection with the performance of the services contemplated in this
Agreement, the whole in accordance with the past practices of the Company.
7. CONFIDENTIALITY AND OWNERSHIP RIGHTS
7.1 Subject to Section 7.2, during and at all times after the Term, the
Consultant shall hold in confidence and keep confidential all Confidential
Information and shall not use for the benefit of the Consultant or others
(except in connection with the business and affairs of the Company in the course
of providing its services under this Agreement) any Confidential Information and
shall not disclose any Confidential Information to any person except in the
course of providing its services under this Agreement to a Person who is
employed by the Company or with the Company's prior consent.
7.2 The prohibition in Section 7.1 shall not apply to the disclosure or use of
Confidential Information where the disclosure or use is required by applicable
law, regulation, judgement or order of any regulatory or governmental authority
or agency.
7.3 All documents, records, software programs, working papers, notes, memoranda,
files and other records of or containers of Confidential Information made or
compiled by the Consultant at any time or made available to the Consultant at
any time in the course of providing services under this Agreement or during the
course of providing services under the Terminated Agreements, including all
copies thereof, shall be the property of the Company and belong solely to it,
and shall be held by the Consultant solely for the benefit of the Company and
shall be
4
delivered to the Company by the Consultant on the termination of this Agreement
or at any other time on request by the Company.
7.4 The Consultant shall during the Term promptly disclose to the Company in
writing all ideas, inventions, formulae and discoveries relating to the business
of the Company, whether or not conceived or developed on the premises of the
Company. The Consultant specifically acknowledges that those ideas, inventions,
formulae and discoveries shall be the property of the Company, which shall have
the exclusive right to any patents, trademarks, copyrights, licences or any
other protection which is issued on or which may arise with respect to those
ideas, inventions, formulae and discoveries. The Consultant assigns to the
Company all of the right, title and interest of the Consultant in those ideas,
inventions, formulae and discoveries and in any patent, trademark, copyright,
licence or any other protection which may be issued on or which may arise in
respect of, those ideas, inventions, formulae and discoveries.
7.5 The Consultant shall cause each of its representatives performing any of the
duties and services of the Consultant under this Agreement, prior to commencing
to perform those duties or services, to enter into an agreement with the Company
agreeing to be bound by the provisions of this Section 7 and the Consultant
shall be liable to the Company for any breach or contravention of that agreement
by the representative.
7.6 The obligations of the Consultant under this Section 7 are to remain in
effect in perpetuity and shall exist and continue in full force and effect
notwithstanding any breach or repudiation, or alleged breach or repudiation, by
the Company of this Agreement. The obligations contained in this Section 7 are
not in substitution for any obligations which the Consultant may now or
hereafter owe to the Company and which exist apart from this Section 7 and do
not replace any rights of the Company with respect to any such obligations.
8. REMEDIES
The Consultant specifically acknowledges that a breach or threatened
breach by the Consultant of any of the provisions of Section 7 would cause the
Company and its shareholders irreparable harm not compensable in damages alone.
The Consultant further acknowledges that it is essential to the effective
enforcement of this Agreement that in addition to any other remedies to which
the Company may be entitled, the Company be entitled to seek and obtain, in
summary manner, from any court having jurisdiction under Section 16, interim,
interlocutory and permanent injunctive relief without showing irreparable harm,
specific performance and other equitable remedies.
9. RENEWAL
This Agreement may be renewed by mutual agreement of the Company and the
Consultant. Any such renewal shall be on such terms and for such length of time
as the Company and the Consultant may agree in writing from time to time (each
such renewed period to be likewise referred to herein as the "TERM").
5
10. INDEMNIFICATION
The Company shall indemnify and save harmless the Consultant from any and
all costs, charges and expenses, including all amounts paid to settle an action
or to satisfy a judgement, reasonably incurred by the Consultant in respect of
any civil, criminal or administrative action or proceeding to which the
Consultant is party by reason of being or having been engaged by the Company
under this Agreement, other than an action by the Company as a result of a
breach or alleged breach by the Consultant of this Agreement or of any duty owed
by the Consultant to the Company, if (a) the Consultant acted honestly and in
good faith with a view to the best interests of the Company; and (b) in the case
of a criminal or administrative action or proceeding that is enforced by a
monetary penalty, the Consultant had reasonable grounds for believing that its
conduct was lawful.
11. RELEASE AND DISCHARGE
(a) Other than in respect of those matters set out in that certain
letter agreement between the Consultant and the Company dated March
5, 2004, the Consultant hereby releases and forever discharges the
Company from any and all actions, causes of action, claims, demands,
covenants, obligations, contracts, liabilities, costs and damages,
whether absolute or contingent and of any nature whatsoever (each, a
"CLAIM"), which the Consultant, as an officer, director, creditor,
consultant or employee of Gestion Camada Inc. or the Company, now
has or hereafter can, shall or may have, for or by reason of or in
any way arising out of any cause, matter or thing whatsoever
existing up to the date of this release and, including, without
limiting the generality of the foregoing, for or by reason of or in
any way arising out of any claim for indebtedness of the Company to
the Consultant, monies advanced, salary, wages, bonuses,
commissions, expenses, retirement or pension allowances, stock
option plans, fees or other remuneration by or of every nature and
kind whether authorized by law, agreement, resolution or otherwise,
including without limitation, the Terminated Agreements, except that
this release shall not apply to any Claims arising out of this
Agreement.
(b) The Consultant hereby agrees that at the expiry of the Term of the
Agreement or any renewal thereof, he will provide full and final
release and discharge to the Company for any Claims arising out of
this Agreement and hereby declares that good and valuable
consideration has been provided for such (the receipt and adequacy
of which is acknowledged) at the time of the execution of the
presents.
12. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter of this Agreement and supersedes all prior
correspondence, agreements, negotiations, discussions and understandings, if
any, written or oral and in particular the Terminated Agreements. Except as
specifically set out in this Agreement, there are no representations,
warranties, conditions or other agreements or acknowledgements, whether direct
or collateral, express or implied, written or oral, statutory or otherwise, that
form part of or affect this Agreement or which induced either party to enter
into this Agreement. No reliance is placed
6
on any representation, warranty, opinion, advice or assertion of fact made
either prior to, concurrently with, or after entering into, this Agreement, or
any amendment or supplement thereto, by the Company or its directors, officers,
employees, agents and other representatives and advisors to the Consultant or
its directors, officers, employees, agents and other representatives and
advisors, except to the extent the representation, warranty, opinion, advice or
assertion of fact has been reduced to writing and included as a term in this
Agreement, and the Consultant has not been induced to enter into this Agreement
or any amendment or supplement by reason of the representation, warranty,
opinion, advice or assertion of fact. There shall be no liability of any kind
whatsoever assessed in relation to the representation, warranty, opinion, advice
or assertion of fact, except as contemplated in this Section.
13. NOTICES
13.1 Any notice, demand or other communication (in this Section 13, a "NOTICE")
required or permitted to be given or made under this Agreement must be in
writing and is sufficiently given or made if (a) delivered in person and, if
applicable, left with a receptionist or other responsible employee of the
relevant Party at the applicable address set forth below; (b) sent by prepaid
courier service or (except in the case of actual or apprehended disruption of
postal service) mail; or (c) sent by facsimile transmission, with confirmation
of transmission by the transmitting equipment, a "TRANSMISSION");
in the case of a notice to the Company. addressed to it at:
MAAX Inc.
640 Cameron
Sainte-Marie, Quebec G6E 1B2
Attention: President & CEO
Telecopier: (418) 386-4520
Telephone: (418) 387-8055
and in the case of a notice to the Consultant, addressed to it at:
[name]
[address]
Telephone:
13.2 Any notice sent in accordance with this Section 13 shall be deemed to have
been received (a) if delivered prior to or during normal business hours on a
Business Day, on the date of delivery; (b) if sent by mail, on the fifth
Business Day after mailing in the place where the notice is received, or, in the
case of disruption of postal service, on the fifth Business Day after cessation
of such disruption; (c) if sent by facsimile during normal business hours on a
Business Day in the place where the transmission is received, on the same day
that it was received by Transmission, on production of a Transmission report
from the machine from which the facsimile was sent which indicates that the
facsimile was sent in its entirety to the relevant facsimile number of the
recipient; or (d) if sent in any other manner, actual receipt; except that any
notice delivered in person or sent by Transmission after normal business hours
on a Business
7
Day or not on a Business Day shall be deemed to have been received on the next
Business Day in the place where the notice is received. Either party may change
its address for notice by giving notice to the other party.
14. SEVERABILITY
Each provision of this Agreement is declared to constitute a separate and
distinct covenant and to be severable from all other such separate and distinct
covenants. If any provision of this Agreement or its application to either parry
or circumstance is restricted, prohibited or unenforceable, that provision shall
be ineffective only to the extent of that restriction, prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
and, if applicable, without affecting its application to the other Parties or
circumstances. To the extent permitted by applicable law, the parties waive any
provision of applicable law which renders any provision of this Agreement
invalid or unenforceable in any respect.
15. WAIVER OF RIGHTS
Except as expressly provided in this Agreement, any waiver of, or consent
to depart from, the requirements of any provision of this Agreement shall be
effective only if it is in writing and signed by the party giving it, and only
in the specific instance and for the specific purpose for which it has been
given. No failure on the part of any party to exercise, and no delay in
exercising, any right under this Agreement shall operate as a waiver of such
right. No single or partial exercise of any such right shall preclude any other
or further exercise of such right or the exercise of any other right.
16. JURISDICTION AND GOVERNING LAW
Each Party irrevocably and unconditionally attorns to the exclusive
jurisdiction of the courts of the province of Quebec. This Agreement and any
dispute arising from or in relation to this Agreement shall be governed by, and
interpreted and enforced in accordance with, the law of the province of Quebec
and the laws of Canada applicable therein.
17. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one agreement. To evidence the fact that it has executed this
Agreement, a party may send a copy of its executed counterpart to the other
party by Transmission and the signature transmitted by Transmission shall be
deemed to be its original signature for all purposes.
18. LANGUAGE
The Parties have required that this Agreement and all contracts, documents
or notices relating to this Agreement be in the English language. Les Parties
ont exige que cette convention et tout contrat, document ou avis y afferent
soient en langue anglaise.
8
IN WITNESS WHEREOF the parties have duly executed this Agreement.
MAAX INC.
Per: /s/ Andre Heroux
-------------------------------
Name: Andre Heroux
Title: President & CEO
-------------------------------
Name
9