Exhibit 10.5
Employment Agreement
AMENDED AND RESTATED EXECUTIVE
EMPLOYMENT AGREEMENT
This Amended and Restated Employment
Agreement, dated as of September 9, 2009 (the “
Agreement ”), made between Dollarama L.P. (together
with any permitted assignee, collectively referred to as the
“ Employer ”) and Geoffrey Robillard (the
“ Executive ”).
RECITALS
WHEREAS the Employer and the
Executive entered into an Executive Employment Agreement on
November 18, 2004 (the “ Employment Agreement
”);
WHEREAS, the Executive has been and
is expected to continue to be an important contributor to the
Business (as defined below) and has and will acquire knowledge of
highly confidential information pertaining to the Business and the
affairs of the Employer;
WHEREAS, the Executive has
experience and expertise that qualify him to continue to provide
the direction and leadership required by the Employer and its
Affiliates (as defined below);
WHEREAS the Employer wishes to
continue to employ the Executive, for an indeterminate
term;
WHEREAS the parties agree that the
Employer, its Affiliates and their successors and assigns require
protection of their legitimate business interests; and
WHEREAS the Executive and the
Employer desire to enter into this Agreement setting forth the
terms and conditions of employment of the Executive in his current
capacity as Senior Vice-President, Imports and the Executive wishes
to accept such continued employment.
AGREEMENT
NOW, THEREFORE, in consideration of
the foregoing premises and the mutual promises, terms, provisions
and conditions set forth in this Agreement, the parties hereby
agree:
1. Preamble . The above
preamble forms an integral part of this Agreement.
2. Amended and restated
Agreement . This Agreement amends, restates and replaces in its
entirety the Employment Agreement.
3. Term . This Agreement
comes into effect on the date hereof and is concluded for an
indeterminate term, unless terminated in accordance with
Section 6 (the “ Term ”).
4. Capacity and Performance
.
(a) During the Term, the Executive
shall continue to serve the Employer as its Senior Vice-President,
Import and as President of Aris Import Inc. (“ Aris
”), for so long as Aris is a subsidiary of the Employer,
during the Term with such customary responsibilities, duties and
authority as may from time to time be assigned to the Executive by
the Chief
Executive Officer of the Employer
(the “ Chief Executive Officer ”) and the Boards
of Directors of Dollarama GP Inc. and Aris (collectively and
individually referred to as the “ Board ”). In
addition and without further compensation, the Executive shall
continue to serve as a director and/or officer of one or more of
the Employer’s operating subsidiaries, including Aris, if so
elected or appointed from time to time, provided that the Employer
shall provide to the Executive at all times, and pay all of the
costs of, directors’ and officers’ liability insurance
coverage with respect to such service as required by Section 5
hereof.
(b) During the Term, the Executive
shall continue to be employed by the Employer on a full-time basis
and shall perform such duties and responsibilities on behalf of the
Employer and its Affiliates as may be designated from time to time
by the Chief Executive Officer or the Board. The Executive shall
continue to be based at the principal office of the Employer in the
City of Montreal, Quebec, subject to all travel requirements as the
Chief Executive Officer or the Board may require in connection with
the Business.
(c) During the Term, the Executive
shall continue to devote his full business time and his best
efforts, business judgment, skill and knowledge exclusively to the
advancement of the Business and interests of the Employer and its
Affiliates and to the discharge of his duties and responsibilities
hereunder. The Executive shall not engage in any other business
activity or serve in any industry, trade, professional,
governmental or academic position during the Term, except as may be
approved by the Chief Executive Officer and the Board. The
foregoing provisions of this Section 4(c) shall not, however,
preclude the Executive from devoting a reasonable amount of time to
engaging in civic, charitable or religious activities or devoting a
reasonable amount of time to private investment activities and/or
serving as a director, officer or trustee of family-owned
companies, trusts or foundations, provided in each case that such
involvement is in compliance with the provisions of
Section 9(a) hereof and does not otherwise conflict with the
Executive’s responsibilities to the Employer.
5. Compensation and Benefits
. As compensation for all services performed by the Executive under
and during the Term and subject to performance of the
Executive’s duties and of the obligations of the Executive to
the Employer and its Affiliates, pursuant to this Agreement or
otherwise:
(a) Base Salary . The
Employer shall continue to pay the Executive a base salary at the
rate of two million dollars per annum, less all applicable
withholdings, payable in accordance with the payroll practices of
the Employer for its executives (the “ Base Salary
”).
(b) Annual Bonus . With
respect to each of the Employer’s fiscal years that begins on
or after February 1, 2009, the Executive will be eligible to
receive a bonus (the “ Annual Bonus ”) with a
target of 50% of his Base Salary. The Annual Bonus will be based on
the achievement of targets which shall be determined by the
Board.
For greater certainty, no notice,
pay in lieu of notice, statutory notice, severance pay or any other
payment whatsoever that is given or that ought to have been given
under this Agreement or any applicable law in respect of the
Executive’s termination of employment will be utilized in
determining entitlement to payment of the Annual Bonus.
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(c) Other Benefits . During
the Term and subject to any contribution therefor generally
required of executives of the Employer, the Executive shall be
entitled to participate in any and all employee benefit plans from
time to time in effect for executives of the Employer generally.
Such participation shall be subject to the terms of the applicable
plan documents and generally applicable Employer policies. The
Employer may alter, modify, add to or delete its employee benefit
plans at any time as it, in its sole judgment, determines to be
appropriate and the whole subject to applicable law. The Executive
shall be entitled to paid vacation consistent with the
Employer’s vacation policy and reasonable holidays and
illness days in accordance with the Employer’s policies as
may be established and modified from time to time.
(d) Short-term Disability .
Subject to Section 6(b), in the event the Executive becomes
disabled during the Term through any illness, injury, accident or
condition of either a physical or psychological nature, and, as a
result, is unable to perform all his duties and responsibilities
hereunder, the Employer will pay to the Executive the equivalent of
the Executive’s Base Salary for the lesser of:
(i) a period of one hundred and
nineteen consecutive days; or
(ii) until terminated in accordance
with Section 6(b) of this Agreement.
(e) Directors’ and
Officers’ Insurance . The Employer shall provide to the
Executive the benefit of at all times during the Term, and pay all
of the costs of the directors’ and officers’ liability
insurance policy or policies obtained by the Employer, which shall
cover the Executive for his service hereunder, whether as director,
and/or officer of the Employer or Aris or as director and/or
officer of any of the Employer’ s or Aris’
Affiliates.
(f) Business Expenses . The
Employer shall pay or reimburse the Executive for all reasonable,
customary and necessary business expenses incurred or paid by the
Executive in the performance of his duties and responsibilities
hereunder in accordance with the Employer’s expense
reimbursement policy.
6. Termination of Employment and
Severance Benefits . The Executive’s employment hereunder
shall terminate under the following circumstances:
(a) Death . In the event of
the Executive’s death, the Executive’s employment
hereunder shall immediately and automatically terminate. In such
event, the Employer shall pay to the Executive’s designated
beneficiary or, if no beneficiary has been designated by the
Executive, to his estate, (i) the Base Salary earned but not
paid through the date of termination, and (ii) any business
expenses incurred by the Executive but not reimbursed on the date
of termination, and (iii) any bonus compensation (other than
Annual Bonus with respect to the fiscal year in which the date of
termination occurs) awarded but unpaid on the date of termination
(collectively, “ Final Compensation ”); and
(iv) the portion of the Annual Bonus earned for the fiscal
year in which the date of termination occurs, prorated for the time
of the Executive’s employment during the relevant fiscal year
(the “ Prorated Bonus ”), it being understood
that the Prorated Bonus will be paid following the end of the
relevant fiscal year or such other time as per the Employer’s
normal practices.
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(b) Disability
(i) The Employer may terminate the
Executive’s employment hereunder, upon written notice to the
Executive, in the event that the Executive becomes disabled during
his employment hereunder through any illness, injury, accident or
condition of either a physical or psychological nature and, as a
result, is unable to perform substantially all of his duties and
responsibilities hereunder, with or without reasonable
accommodation, for ninety (90) days during any period of one
hundred eighty (180) consecutive calendar days. In the event
of such termination, the Employer shall have no further obligation
to the Executive, other than for payment of Final Compensation and
any Prorated Bonus.
(ii) The Board may designate another
employee to act in the Executive’s place during any period of
the Executive’s disability. While receiving disability income
payments under Employer’s disability income plan, the
Executive shall continue to participate in Employer benefit plans,
if any, in accordance with the terms of such plans, until the
termination of his employment.
(c) By the Employer for Cause
. The Employer may terminate the Executive’s employment
hereunder immediately for Cause at any time upon notice to the
Executive setting forth in reasonable detail the nature of such
Cause.
Upon the giving of notice of
termination of the Executive’s employment hereunder for
Cause, the Employer shall have no further obligation to the
Executive, other than for Final Compensation and any requirement of
applicable law.
(d) By the Employer Other than
for Cause . The Employer may terminate the Executive’s
employment at any time, other than for Cause, Death and Disability
as follows:
(i) provided the Executive continues
to fulfill the remainder of his obligations towards the Employer,
by paying to the Executive an amount of one million dollars as an
indemnity of notice of termination of employment (the “
Indemnity ”). Notwithstanding the immediate
termination of the Executive’s employment, it is understood
that the Indemnity shall be payable over a period of three years
following the termination of the Executive’s employment in
equal quarterly installments; and
(ii) in addition, and provided the
Executive continues to fulfill the remainder of his obligations
towards the Employer, by paying to the Executive an amount of two
million dollars in consideration of the non-competition covenant
undertaken by the Executive (the “ Non-Compete
Consideration ”). The Non-Compete Consideration shall be
payable over a period of three years in equal quarterly
installments. The Non-Compete Consideration is to be paid as
consideration for the non-competition covenant set forth in
Section 9 below and not as an indemnity of termination of
employment. In the event of a breach of the said non-competition
covenant, or in the event that the said non-competition covenant is
determined by a Court of competent
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jurisdiction to be invalid, illegal
or unenforceable in any respect, the Non-Compete Consideration
shall be forfeited and any amount already paid shall be immediately
returned by the Executive to the Employer.
Any obligation of the Employer to
the Executive hereunder is conditional, however, upon the Executive
signing a release, reasonably acceptable to the Employer of any and
all claims related to the employment of the Executive or the
termination thereof.
(e) By the Executive for
Constructive Termination . The Executive may terminate his
employment hereunder immediately for Constructive Termination at
any time upon written notice to the Employer setting forth in
reasonable detail the nature of the Constructive Termination. In
the event of such termination, the Employer shall (i) pay the
Executive’s Final Compensation and any Prorated Bonus, and
(ii) conditional upon the Executive continuing to fulfill
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