Exhibit 10.2
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. and together
with any permitted assignee (collectively referred to as the
“ Employer ”) and Larry Rossy (the “
Executive ”).
RECITALS
WHEREAS S. Rossy Inc. and the
Executive entered into an Executive Employment Agreement on
October 4, 2004 (the “ Employment Agreement
”);
WHEREAS on November 18, 2004,
S. Rossy Inc. and the Executive consented to the assignment of the
Employment Agreement from S. Rossy Inc. to the Employer, in
accordance with Section 16 of 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 Employer wishes to
continue to employ the Executive, for an indeterminate
term;
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 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 Chief Executive Officer (the “ CEO
”) 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 CEO with such customary
responsibilities, duties and authority as may from time to time be
assigned to him by the Board of Directors of the Employer (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 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 Board. The duties to be performed by the Executive hereunder
shall continue to be performed primarily at the principal office of
the Employer in the City of Montreal, Quebec, subject to reasonable
travel requirements.
(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 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, 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 . Effective
from the Employer’s fiscal year beginning on February 1,
2009, the Employer shall pay the Executive a base salary at the
rate of four hundred thousand 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 150% of his Base Salary. The Annual Bonus will be based
on the achievement of targets which shall be determined by the
Board.
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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.
(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 as director and/or officer of any
of the Employer’s 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
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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 practice.
(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 written 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
by (a) paying to the Executive Final Compensation and any
Prorated Bonus; and (b) provided the Executive continues to
fulfill the remainder of his contractual obligations towards the
Employer, by providing the Executive with a written notice of
termination of employment of twenty-four months or severance pay in
lieu of notice representing the Executive’s Base Salary for
twenty-four months, payable by way of salary continuance in
accordance with the Employer’s payroll practices at the date
of termination or in a lump sum payment, at the sole discretion of
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
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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 his
contractual obligations toward the Employer, by way of salary
continuance, in accordance with the Employer’s payroll
practices at the time of Constructive Termination, the
Executive’s Base Salary for twenty-four months following
termination or an amount representing twenty-four months of the
Executive’s Base Salary, in a lump sum payment, at the sole
discretion of 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.
(f) By the Executive other than
for Constru
