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EXHIBIT 10.4
THIS AGREEMENT entered into the 1st day of December, 1996.
BETWEEN: XXXXXXXX RESOURCES INC.
a corporation incorporated under
the laws of Canada
(hereinafter called the "XXXXXXXX")
-and-
XXXX X. IRELAND
of the City of Toronto, in the
Municipality of Metropolitan Toronto
(hereinafter called the "EMPLOYEE")
WHEREAS the Employee is employed as an executive officer of Xxxxxxxx
pursuant to an Employment Agreement dated the 1st day of October, 1994
(the "1994 Agreement");
AND WHEREAS Xxxxxxxx wishes to enter into this agreement with the
Employee to replace the 1994 Agreement and to amend certain terms and
conditions of his continued employment as Vice President, Finance of
Xxxxxxxx, including certain rights in the event of a Change of Control,
as more particularly described herein;
NOW THEREFORE THIS AGREEMENT WITNESSETH that for other good and
valuable consideration, and the sum of one dollar ($1.00) now paid by each party
hereto to the other (the receipt whereof is hereby by each of them
acknowledged), the parties here covenant and agree as follows:
1. The Employee shall be employed as Vice President, Finance of Xxxxxxxx on a
full time basis and shall perform such duties and exercise such powers as are
from time to time assigned to the Employee. The Employee shall also serve as a
director, officer or employee of such affiliates or associates of Xxxxxxxx as
Xxxxxxxx may from time to time require. The Employee shall devote his full time
and attention to the affairs of Xxxxxxxx and its affiliates and associates.
2. The Employee shall be paid an annual salary of $130,000, payable monthly in
arrears. Salary reviews shall be carried out by the Compensation Committee of
the Board of Directors on a periodic basis.
3. While employed by Xxxxxxxx, the Employee shall be entitled to health and
other benefits, as set out on Schedule A which are provided to senior employees
by Xxxxxxxx under its benefit plans subject to such eligibility and other
requirements as may apply. Xxxxxxxx shall provide pension benefits through
participation in a Xxxxxxxx Pension Plan or at Xxxxxxxx'x option, through
contributions made to the Employee's RRSP, such pension benefits to be in
accordance with Xxxxxxxx'x policy for senior employees.
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4. The Employee shall be entitled to four weeks annual vacation to be taken at
such time as Xxxxxxxx may prescribe. Only two weeks of this vacation entitlement
may be carried forward from year to year provided that no vacation entitlement
may be carried forward for more than one year.
5. Subject to the provisions of paragraph 8 hereof, the employee's employment
under this agreement may be terminated as follows:
(a) by the Employee, upon three months notice in writing;
(b) in the event of a Change of Control, as defined in paragraph 13, the
Employee shall have the right, within six months thereof on thirty days
notice in writing to Xxxxxxxx, to resign his position as Vice President,
Finance and any other directorships or offices that he may hold as a
result of his employment with Xxxxxxxx and upon such resignation to be
paid forthwith twenty-four months salary by way of lump sum payment plus
benefits as set out in paragraphs 7 and 8 below. In addition, the
employee shall be entitled to have an additional twenty-four months of
credited service from the date of resignation added to his pension
entitlement under the Pension Plan. Such credited service is to be
calculated on the basis that the Employee had been employed for the
additional twenty-four months at a salary equal to that paid to the
Employee at the time of such resignation;
(c) by Xxxxxxxx, for cause, at any time forthwith, without notice
or payment in lieu of notice. For greater certainty, cause
shall not include the refusal of the Employee to accept either
a relocation from his existing city of residence or a change
in the nature of employment that would lessen the status,
authority or responsibility of the Employee; or
(d) by Xxxxxxxx, upon payment forthwith of a lump sum amount equal
to twenty-four months salary in lieu of notice plus benefits
as set out in paragraphs 7 and 8 below.
6. For the purposes of this agreement, the salary payable to the Employee under
subparagraphs 5(b) or (d) is in lieu of notice or other compensation to which
the Employee may otherwise be entitled and the Employee shall be under no
obligation to act to mitigate any payment due hereunder or otherwise suffer a
reduction of any payment due hereunder to the Employee by virtue of any
compensation or payments which the Employee may receive after cessation of
employment by Xxxxxxxx from any other source whatsoever.
7. In the event that the Employee resigns under subparagraph 5(b) or the
Employee's employment is terminated under subparagraph 5(d), the Employee shall
be entitled to continuation of the benefits set out in paragraph 3 for
twenty-four months from the date of resignation or termination or payment
forthwith by Xxxxxxxx of a lump sum amount in lieu thereof.
8. The Employee's outstanding rights if any at the time of resignation or
termination under Xxxxxxxx'x Employee Incentive Plan shall continue for
twenty-four months from the date of
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resignation or termination except that the Employee's right under any stock
options outstanding at the time of resignation or termination shall immediately
become fully exercisable and shall expire at the close of business on the
ninetieth day following the date of resignation or termination or the next
business day if the ninetieth day is not a business day. Should the Employee
exercise outstanding options, Xxxxxxxx shall deliver the share certificate(s)
representing the shares issued pursuant to the exercise of options against
payment to Xxxxxxxx of the aggregate exercise price at a closing to be held
within five (5) business days of receipt by Xxxxxxxx of notice of exercise of
option in writing. If the Employee has not previously elected to participate in
the share purchase plan of the Employee Incentive Plan, he shall be deemed not
to have any outstanding rights under such plan.
9. In the event that the Employee becomes permanently disabled, the Employee or
Xxxxxxxx may terminate this agreement by giving 90 days notice in writing
provided that the Employee shall be entitled to receive long term disability
benefits under Xxxxxxxx'x long term disability policy and provided that Xxxxxxxx
agrees to pay to the Employee, a monthly amount equal to the amount of the
Employee's monthly salary not covered by the benefits under Xxxxxxxx'x long term
disability policy along with the other benefits to which the Employee would be
entitled for twenty-four months from the date that the Employee becomes
permanently disabled. In the event that the Employee is not entitled to receive
long term disability benefits under Xxxxxxxx'x long term disability policy or
Xxxxxxxx will not agree to pay the Employee the amount not covered by the long
term disability policy of Xxxxxxxx, then Xxxxxxxx will only be entitled to
terminate this agreement pursuant to subparagraph 5(d). For the purposes of this
paragraph, permanent disability means any medical condition, as determined by a
legally qualified medical practitioner selected by Xxxxxxxx which to a
substantial degree, prevents or impairs the Employee from performing his
obligations and duties and has existed for a continuous period of more than 120
days in any 365 consecutive days or for periods aggregating 185 days in any 365
consecutive days and in the opinion of the medical practitioner is like to
continue.
10. It is agreed by the Employee and Xxxxxxxx that the notice periods and
payments provided in paragraph 5 are reasonable and fair, given all the
circumstances, and that no other notice periods, express or implied, shall
apply.
11. In the event that the Employee exercises his right of resignation under
subparagraph 5(b), or is terminated under subparagraph 5(d) subject to any
restriction in the right of Xxxxxxxx to grant an indemnity to the Employee
pursuant to the provisions of the Canada Business Corporations Act, Xxxxxxxx
hereby agrees to indemnify and save the Employee, his heirs, executors,
administrators and other legal personal representatives, harmless from and
against any and all losses, claims, actions, suits, proceedings, damages,
liabilities, charges, or expenses of whatsoever nature or kind, (including,
without limitation, any investigation expenses or other expenses and
disbursements incurred in connection with testifying or otherwise participating
in any legal or other proceedings before any court or regulatory authority) ,
that the Employee may sustain or incur, arising from or connected with or in
respect of any actions, suits or proceedings proposed, commenced or prosecuted
against the Employee or to which the Employee may be or may become subject, by
reason of or in respect of, anything done or permitted by the Employee in or
about the execution of the duties of the Employee in his role as an executive
officer or
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employee of Xxxxxxxx, or any of its associated or affiliated companies, or by
reason of his acting or having acted as an executive officer of Xxxxxxxx, or any
of its associated or affiliated companies and from all other costs, charges and
expenses that the Employee may sustain or incur by reason of or arising from or
in any manner connected with or in relation to his employment by Xxxxxxxx or the
affairs thereof.
In case any action or other proceedings is brought against the
Employee, in respect of which indemnity may be sought hereunder, the Employee
shall give Xxxxxxxx prompt notice of any such action or other proceeding of
which the Employee has knowledge, and Xxxxxxxx shall undertake the investigation
and defence thereof on behalf of the Employee, including employment of counsel
acceptable to the Employee and payment of all fees and expenses.
No admission of liability and no settlement of any action or other
proceedings brought against the Employee shall be made without the consent of
Xxxxxxxx and the Employee, such consent not to be unreasonably withheld.
Notwithstanding that Xxxxxxxx agrees to undertake the investigation and
defence of any action or other proceeding brought against the Employee, the
Employee shall have the right to employ separate counsel in any such proceeding
and participate in the defence thereof, but Xxxxxxxx shall not be liable to pay
the fees and expenses of such counsel unless:
(a) employment of such counsel has been authorized by Xxxxxxxx, or
(b) Xxxxxxxx has not assumed the defence of the action or other
proceedings within a reasonable period of time after receiving
notice thereof, or
(c) the named parties to any such action or other proceedings
include Xxxxxxxx and the Employee, and the Employee shall have
been advised by counsel that there may be a conflict of
interest between Xxxxxxxx and the Employee, or
(d) there are one or more legal defences available to the Employee
which are different from or in addition to those available to
Xxxxxxxx.
The indemnity herein provided to the Employee shall not apply in the
event and to the extent that a court of competent jurisdiction in a final
judgement shall determine that the Employee was guilty of gross negligence or
fraud.
12. In the event that the Employee exercises his right of resignation under
subparagraph 5(b) or is terminated under subparagraph 5(d), Xxxxxxxx hereby
agrees, effective the date of such resignation, to release, remise, acquit and
forever discharge the Employee, his heirs, executors, administrators and other
legal personal representatives and all of the Employee's respective lands,
assets, properties, estates and effects whatsoever and wheresoever situate, of
and from any and all liabilities of every nature and kind, whether contingent or
otherwise, debts, sum and sums of money, accounts, dues, contracts, agreements,
indemnity, covenants, whether express or implied, claims, demands, legal costs,
interest, loss or injury of every kind or nature
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whatsoever, actions, suits damages, causes of action, manner of actions, claims,
counter-claims and demands whatsoever and however arising either at law or in
equity or otherwise, against the Employee which Xxxxxxxx ever had, has at the
date of such resignation or which Xxxxxxxx, its successors or assigns or any of
them, at any time thereafter can, shall, or may have, for or by reason of, or in
any way arising from, any cause, matter or thing whatsoever existing up to the
date of such resignation, including, without limitation, any matter arising out
of or in any way related to or connected with or by reason of the Employee's
having been an executive officer or employee of Xxxxxxxx, or any of its
associated or affiliated companies, or by virtue of the employment of the
Employee by Xxxxxxxx. The release and discharge provided herein shall not apply
in circumstances in which a court of competent jurisdiction in a final judgment
shall determine that the Employee was guilty of gross negligence or fraud.
For greater certainty, this release and discharge does not waive
Xxxxxxxx'x right to collect money loaned to the Employee which is validly owing
and outstanding at the time of exercise of the right of resignation or
termination of employment.
13. For purposes of this agreement, "CHANGE OF CONTROL" means at any time from
the Effective Date of this agreement:
(a) a change of one-third or more of the directors of Xxxxxxxx
unless approved by a majority of the Board of Directors; or
(b) any acquisition of twenty per cent (20%) or more of the common
shares of Xxxxxxxx, or voting rights in respect thereof, by
any person or company which is accompanied by a request by
that person for representation on the Board of Directors of
Xxxxxxxx and which acquisition is not approved by a majority
of the directors of Xxxxxxxx;
14. Any notice or other communication required or permitted to be given or made
hereunder shall be in writing and shall be well and sufficiently given or made
if (a) enclosed in a sealed envelope and delivered in person to the party hereto
to whom it is addressed (or in the case of Xxxxxxxx, to the receptionist or
other responsible employee, not being the Employee) at the relevant address set
forth below; or (b) telexed, telegraphed, telecopied or sent by other means of
recorded electronic communication if to Xxxxxxxx, addressed to the President,
Suite 1910, 000 Xxxxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx X0X 0X0 and if to the
Employee, addressed to him at his most recent address as shown on the records of
Xxxxxxxx.
Any notice or other communication so given or made shall be deemed to
have been given or made and to have been received on the day of delivery, if
delivered, and the day of sending, if sent by telex, telegraph, telecopy or
other means of recorded electronic communication, provided such delivery or
sending is during normal business hours on a business day or if not on the next
business day thereafter. Either party hereto may change his or its address for
notice by notice to the other party hereto given in the manner aforesaid.
15. No provision of this agreement may be modified or amended unless such
modification or
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amendment is authorized by the Board of Directors or a Committee thereof and is
agreed to in writing, signed by the Employee and Xxxxxxxx. No waiver by either
party hereto or any breach by the other party hereto of any condition or
provision of this agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the time or any
prior or subsequent time.
16. This agreement contains all of the terms and conditions agreed by the
parties hereto and supersedes all prior agreements and understandings. No
agreements or representations, oral or otherwise, express or implied, with
respect to the employment of the Employee by Xxxxxxxx have been made by either
party which are not set forth expressly in this agreement.
17. This agreement may not be assigned by either party without consent.
18. This agreement shall enure to the benefit of and be binding upon the parties
hereto and their respective heirs, executors, administrators and successors.
19. This agreement shall be subject to and governed by the laws of the Province
of Ontario. The Courts of Ontario shall have exclusive jurisdiction with respect
to any dispute or other matter arising hereunder.
20. The invalidity, illegality or unenforceability of any provision hereof shall
not in any way affect or impair the validity, legality or enforceability of the
remaining provisions hereof.
21. The legal fees and other costs and expenses pertaining to the enforcement of
this agreement or any of the terms hereof shall be borne by Xxxxxxxx and shall
be paid forthwith upon demand by the Employee on submission of duly receipted
accounts.
22. The Employee acknowledges and agrees that he has been given full opportunity
to obtain independent legal advice with respect to this agreement and executes
this agreement voluntarily and with full knowledge of the rights granted and
obligations imposed hereby.
IN WITNESS WHEREOF Xxxxxxxx has hereunto affixed its corporate seal
under the hands of its proper officers in that behalf duly authorized and the
Employee has hereto affixed his hand and seal.
XXXXXXXX RESOURCES INC.
/s/XXXXX X. XXXXXXXXX
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Xxxxx X. XxXxxxxxx, Chairman
c/s
/s/XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx, President and Chief
Executive Officer
/s/XXXXXXXX XXXXXX /s/XXXX X. IRELAND l.s
----------------------------- ----------------------------
WITNESS AS TO THE SIGNATURE XXXX X. IRELAND
OF THE EMPLOYEE
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SCHEDULE "A"
Health and other benefits of Xxxx X. Ireland
Car allowance of approximately $400/month
Travel insurance coverage of $500,000
Membership in the Board of Trade
Employee Incentive Plan - Share Incentive Plan - Stock Options
- participation under Share Purchase Plan and eligibility in
the Share Bonus Plan
Medical-dental and other benefits under policy with Metropolitan Life
