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EXHIBIT 2.8
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT made the 31st day of July, 1996 BETWEEN: MERIDIAN GOLD
COMPANY (hereinafter referred to as the "Company") OF THE FIRST PART and XXXXX
X. XXXXXXX (hereinafter referred to as the "Executive") OF THE SECOND PART
(hereinafter collectively referred to as the "Parties").
WHEREAS the Company wishes to retain the services of the Executive and
the Executive wishes to be retained by the Company on the terms and conditions
specified herein;
AND WHEREAS the Executive has worked for the business of the Company and
its predecessor since 1987;
AND WHEREAS the Company and the Executive desire to enter into a written
agreement which contains the agreed-upon terms and conditions of employment;
NOW THEREFORE for the good and valuable consideration of the mutual
covenants and agreements hereinafter contained, the Parties mutually covenant
and agree as follows:
EMPLOYMENT
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The Company hereby agrees to employ the Executive in the position of
President and Chief Executive Officer ("President"), and the Executive hereby
accepts such employment.
The Executive shall serve the Company in the capacity of President to
perform such duties and exercise such powers as may be reasonably required of
him or be vested in him by the Board of Directors of the Company. During his
employment hereunder, the Executive shall devote his full time and attention and
exert his best efforts, knowledge, skill and energy to his employment hereunder
and will not, without the prior written consent of the Board of Directors,
assume other employment or engage in any other business.
Term -
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The term of the Executive's employment shall commence on August
1, 1996, and shall, upon written notice from one party to the
other given no later than March 1, 2001, terminate on September
1, 2001, unless terminated sooner pursuant to Paragraph 7.
If neither party gives to the other notice of termination
pursuant to subparagraph 1.3(a) above, the term of the
Executive's employment shall be automatically renewed for a
second term, which shall automatically terminate on September 1,
2006, unless terminated sooner pursuant to Paragraph 7.
COMPENSATION
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Base Salary - During the first year of his employment, the Executive
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shall receive an annual base salary of U.S. $170,000 (less required statutory
and other deductions authorized by the Executive), which base salary shall be
paid in accordance with the Company's normal payroll practices. The Executive's
base salary shall be reviewed by the Compensation Committee of the Board of
Directors on an annual basis during thereafter. Any adjustment to the
Executive's base salary shall be determined in the sole discretion of the Board
of Directors of the Company ("Board of Directors") based on the recommendations
of the Compensation Committee.
Bonus - If the Board of Directors of the Company determines to establish
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a bonus plan for any of its employees, the Executive shall be entitled to
participate in such bonus plan in accordance with its terms.
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Stock Options - If the Board of Directors of the Company determines to
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establish a stock option plan for any of its employees, the Executive shall be
entitled to participate in such stock option plan in accordance with its terms.
BENEFITS AND VACATION
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While employed by the Company, the Company shall make available to the
Executive the benefits under the Company's employee benefits program which, in
its sole discretion, it makes available to other employees of the Company from
time to time. These benefits include, without limitation, participation in the
Company Salaried Employees' Retirement Plan (the "Pension Plan") and Salaried
Employees' Equivalent Retirement Plan (collectively the "Retirement Plans").
As an employee whose age plus years of service at the effective date of
any Involuntary Termination will equal or exceed 65, the Executive will be
entitled to have his early retirement benefit under the Retirement Plans
computed in accordance with the current section 7(c) of the FMC Pension Plan
(which is attached as Schedule "A") even if at the date of such termination he
is not age 55 or more.
While employed by the Company:
the Executive shall be entitled to five weeks' vacation per year,
to be scheduled at the mutual convenience of the parties; and
the Executive shall be entitled to the regular holidays schedule
recognized by the Company location at which he works.
The Company will provide the Executive with the following benefits until
at least October 8, 1998:
Medical and Dental Insurance;
Life Insurance.
and shall provide benefits substantially similar to the insurance that was
provided by the Executive's employer as of May 1, 1996 under the FMC employee
benefits program, provided that the Company is able to purchase such insurance.
OTHER EXECUTIVE BENEFITS
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The Company will provide the Executive with an automobile, subject to
such conditions as the Company may establish from time to time.
While employed by the Company, the Company will provide the Executive
with Long Term Disability coverage substantially similar to the Long Term
Disability coverage which the Executive had elected to receive in May, 1996
under the FMC employee benefits program.
REIMBURSEMENT OF EXPENSES
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The Executive shall be reimbursed for all expenses incurred by him in
compliance with Company policies, as may be modified from time to time.
OFFICER OF THE COMPANY
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So long as the Board of Directors, in its sole discretion, shall desire,
the Executive shall serve as a officer of the Company or any subsidiary or
affiliate, without any additional remuneration to the Executive.
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TERMINATION
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In the event the Executive's employment with the Company is terminated
by reason of the Executive's death,
by reason of the Executive becoming Permanently Disabled as
described in subparagraph 7.3, or
for Cause,
then except as otherwise provided in subparagraphs 3.1, 3.2, 3.4 and 7.3, all
obligations of the Company hereunder shall terminate. If the Executive's
employment with the Company shall terminate for Cause, or due to death,
disability or Voluntary Termination, any portion of his fixed salary pursuant to
subparagraph 2.1 which is earned but unpaid as of the date of death shall be
paid to the Executive, or his designated beneficiary in the event of his death,
or if known to his then living spouse, or if none, to the duly appointed
personal representative of his estate.
If the Executive's employment with the Company shall terminate by reason
of an Involuntary Termination, the Executive shall be entitled to payment
(within 14 days of the Termination Date) of any portion of his fixed salary
pursuant to subparagraph 2.1 which is earned but unpaid as of the Termination
Date and to severance pay and benefits as follows:
Severance Pay. The Company shall, not later than 14 days after
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the Termination Date, pay to the Executive a lump sum amount
equal to the Executive's Regular Monthly Compensation multiplied
by 24.
Medical and Dental Benefits. The Company must, at the election of
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the Executive made within ten days after the Termination Date,
either:
not later than 14 days after the Termination Date, pay to
the Executive a lump sum amount equal to the aggregate
cost to the Company (without discount or present
valuation) of the Regular Employee Benefits for the
Termination Period; or
continue to make the contributions necessary to maintain
the Executive's coverage pursuant to the Regular Employee
Benefits until the earlier of (i) the end of the
Termination Period, or (ii) the month after the Executive
obtains comparable replacement benefits at any alternative
employment.
Incentive. The Company will pay to the Executive the Current
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Year's Incentive Plan(s) Amount prorated in proportion to the
number of months in the year before the Termination Date and on a
percentage basis comparable to the average of the preceding two
years' Plan.
Outplacement Assistance. Professional executive outplacement
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services will be provided to the Executive at the Company's
expense. The cost of such services will not exceed 15% of the
Executive's annual base salary.
Automobile. The Company will ensure that the Executive retains
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possession of the automobile supplied by the Company immediately
prior to the Termination Date, and the Company shall continue to
pay for the leasing cost of such automobile for the shorter of
the balance of the lease or the Termination Period and the
Company will permit the Executive to purchase the automobile
provided that the Executive notify the Company of his intention
to purchase the automobile seven days prior to the earlier of the
expiry of the lease or the end of the Termination Period. The
purchase price shall be the depreciated value of the automobile
as quoted to the Company by the company which leased the
automobile to the Company plus applicable taxes.
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If the Involuntary Termination occurs on or before August, 1997
and if the Executive notifies the Company he intends to sell
either his home in Modesto, California or Reno, Nevada (but not
both), the Company will provide marketing assistance and realtor
fees to a maximum of $25,000.
If, during the Executive's employment with the Company the Executive
becomes Permanently Disabled, the Company shall have the right, on not less than
60 days' written notice to the Executive, to terminate the Executive's
employment. In the event that the Executive's employment is terminated on
account of Disability, the Executive shall continue to be eligible for long-term
disability benefits in accordance with the provision of the long-term disability
policy then in effect and the Retirement Plans benefits will be payable as
described therein. Except for such long-term disability benefits and the
Retirement Plans benefits, the Executive shall not be entitled to receive any
further compensation or benefits pursuant to this Agreement other than those
accrued to the date of the Executive's termination hereunder.
Any unused and accrued vacation will be paid with the final check
following any termination of employment with the Company.
RESTRICTIVE COVENANT
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During the Executive's employment with the Company and for a period of
two years following the termination of the Executive's employment with the
Company for any reason, including termination occasioned by the expiration of
this Agreement, the Executive shall not interfere with the relationship between
the Company and any of its employees, agents or representatives.
NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
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The Executive acknowledges that the Company may disclose certain
confidential information to the Executive during the term of this Agreement to
enable him to perform his duties hereunder. The Executive hereby covenants and
agrees that he will not, without the prior written consent of the Company,
during the term of this Agreement or at any time thereafter, disclose or permit
to be disclosed to any third party by any method whatsoever any of the
confidential information of the Company. For purposes of this Agreement,
"confidential information shall include, but not be limited to, any scientific
or technical information, design, process, procedure, formula, improvement,
confidential business or financial information, records notes memoranda, data,
ideas, processes, methods, techniques, systems, patents, models, devices,
programs, customer software, writings, research, or personnel or customer
information.
The foregoing paragraph shall not be applicable if and to the extent
Executive is required to testify in a judicial or regulatory proceeding pursuant
to an order of a judge or administrative law judge issued after Executive and
his legal counsel urge that the aforementioned confidentiality be preserved.
The Executive agrees promptly to reduce to writing to disclose and
assign, and hereby does assign, to the Company, its parent, subsidiaries,
successors, assigns and nominees, all inventions, discoveries, improvements,
copyrightable material, trademarks, programs, computer software and ideas
concerning the same, capable of use in connection with the business of the
Company, which employee may make or conceive, either solely or jointly with
others, during the period of his employment by the Company, its parent,
subsidiaries or successors.
The Executive agrees, without charge to the Company and at the Company's
expense, to execute, acknowledge and deliver to the Company all such papers,
including applications for patents, application soft copyright and trademark
registrations, and assignments thereof, as may be necessary, and at all times to
assist the Company, its parent, subsidiaries, successors, assigns and nominees
in every proper way to patent or register said programs, computer software,
ideas, inventions, discoveries, improvements, copyrightable material or
trademarks in any and all countries and to vest title thereto in the Company,
its parent, subsidiaries, successors, assigns or nominees.
The Executive will promptly report to the Company all discoveries,
inventions, or improvements of whatsoever nature conceived or made by him at any
time he was employed by the Company, its parent, subsidiaries
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or successors. All such discoveries, inventions and improvements which are
applicable in any way to the Company's business shall be the sole and exclusive
property of the Company.
The covenants set forth in this paragraph which are made by the
Executive are in consideration of the employment, or continuing employment of,
and the compensation paid to, the Executive during his employment by the
Company. The foregoing covenants will not prohibit Executive from disclosing
confidential or other information to other employees of the company or third
parties to the extent that such disclosure is necessary to the performance of
his duties under this Agreement.
ADDITIONAL REMEDIES
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The Executive recognizes that irreparable injury will result to the
Company and to its business and properties in the event of any breach Executive
of any of the provisions of Paragraphs 8 and 9 of this Agreement or either of
them, and that the Executive's continued employment is predicated on the
commitments undertaken by him pursuant to said paragraphs. In the event of any
breach of any of the Executive's commitments pursuant to Paragraphs 8 and 9 or
either of them, the Company shall be entitled, in addition to any other remedies
and damages available, to injunctive relief to restrain the violation of such
commitments by the Executive or by any person or persons acting for or with the
Executive in any capacity whatsoever.
NON-ASSIGNMENT
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This Agreement is personal to Executive and shall not be assigned by
him. Executive shall not hypothecate, delegate, encumber, alienate, transfer or
otherwise dispose of his rights and duties hereunder. The Company may assign
this Agreement without Executive's consent to any other entity who, in
connection with such assignment, acquires all or substantially all of the
Company's assets or into or with which the Company is merged or consolidated.
WAIVER
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The waiver by the Company of a breach by Executive of any provision of
this Agreement shall not be construed as a waiver of any subsequent breach by
Executive.
ARBITRATION, INTERPRETATION, ETC.
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Any controversy or claim arising out of or relating to this Agreement,
or the breach thereof, except a claimed violation of Sections 8 and 9, shall be
settled by arbitration in accordance with Title 9 of the U.S. Code and the
Employment Dispute Resolution Rules of the American Arbitration Association in
Reno, Nevada, and judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. All statutes of limitations
which would otherwise be applicable shall apply to any arbitration proceeding
pursuant to this paragraph. All reasonable legal costs of the Executive relative
to the arbitration proceedings shall be paid by the Company.
If any clause, phrase, provision or portion of this Agreement or the
application thereof to any person or circumstances shall be invalid or
unenforceable under any applicable law, such event shall not affect or render
invalid or unenforceable the remainder of this Agreement, which shall be
construed as if such invalid or unenforceable provision were omitted.
The division of this Agreement into Paragraphs, Articles and Sections
and the insertion of headings are for the convenience of reference only and
shall not affect the construction or interpretation of this Agreement. The terms
"this Agreement", "hereof", "hereunder" and similar expressions refer to this
Agreement and not to any particular Article, Section or other portion hereof and
include any agreement or instrument supplemental or ancillary hereto. Unless
something in the subject matter or context is inconsistent therewith, references
herein to Paragraphs, Articles, Sections and clauses are to Paragraphs,
Articles, Sections and clauses of this Agreement.
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In this Agreement, words importing the singular number only shall
include the plural and vice versa, and words importing the masculine gender
shall include the feminine and neuter genders and vice versa, and words
importing persons shall include individuals, partnerships, associations, trusts,
unincorporated organizations and corporations.
The Company shall withhold from any amounts payable under this Agreement
such taxes and other amounts as may be required to be withheld pursuant to any
applicable law or regulation.
In consideration of the payments provided for in subparagraph 7.2, the
Executive agrees to execute before a witness and deliver to the Company a
release in the form of the attached Schedule "B" and agrees to be bound by its
terms.
The Executive hereby acknowledges receipt of a copy of this Agreement
duly signed by the Company.
The Executive agrees that after any termination of his employment, he
will tender his resignation from any position he may hold as an officer or
director of the Company or any of its affiliated or associated companies.
BENEFIT
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The provisions of this Agreement shall inure to the benefit of the
Company, its successors and assigns, and shall be binding upon the Company and
Executive, its and his heirs, personal representatives and successors, including
without limitation Executive's estate and the executors, administrators, or
trustees of such estate.
RELEVANT LAW
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This Agreement shall be construed and enforced in accordance with the
laws of the State of Nevada.
NOTICES
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All notices, requests, demands and other communications in connection
with this Agreement shall be made in writing and shall be deemed to have been
given when delivered by hand or 72 hours after mailing at any general or branch
United States or Canadian Post Office, by registered or certified mail, postage
prepaid, addressed as follows, or to such other address as shall have been
designated in writing by the addressee:
(a) If to the Company:
0000 Xxxxxxxxx Xxx
Xxxx, XX 00000
(b) If to the Executive:
c/o Meridian Gold Company
0000 Xxxxxxxxx Xxx
Xxxx, XX 00000
ENTIRE AGREEMENT
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The parties hereto agree that this Agreement contains the whole
agreement and understanding of the parties and supersedes and replaces all oral
or written contracts or representations, in particular the Executive Incentive
and Severance Plan between FMC Gold Company and the Executive as it appears on
page A-18 of the Proxy Statement/Prospectus dated June 24, 1996 and that this
Agreement cannot be amended, modified or supplemented in any respect except by
subsequent written agreement signed by both parties hereto.
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FURTHER ASSURANCES
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The parties hereto shall do such things and sign such documents as may
be necessary and desirable to give full effect and force to this Agreement.
DEFINITIONS
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For the purposes of this Agreement,
"Cause" shall be deemed to exist if, and only if:
the Executive willfully refuses to perform services hereunder;
the Executive materially breaches Paragraph 8 or Paragraph 9 of
this Agreement;
the Executive engages in acts of dishonesty or fraud in
connection with his services hereunder; or
the Executive engages in other serious misconduct of such a
nature that the continued employment of the Executive may
reasonably be expected to adversely affect the business or
properties of the Company,
provided that, if the Company determines that a reason constituting cause for
termination under clauses (a), (b) or (d) has occurred, it shall give the
Executive written notice thereof at least 14 days prior to the proposed date of
termination of employment. If the Executive shall take the necessary steps to
remedy the condition constituting Cause within 10 days after the receipt of such
notice, then a reason for termination for Cause shall be deemed not to have
occurred. If the Executive shall not remedy the condition constituting Cause
within such time period to the reasonable satisfaction of the Company, then
termination for Cause shall occur on the date set forth in the notice from the
Company.
"Change of Control" shall mean any of:
a sale, transfer or other disposition of all or substantially all
of the property or assets of the Company other than to an
affiliate, within the meaning of Rule 405 of Regulation C adopted
under the Securities Act of 1933 (Federal).
a merger or consolidation of the Company;
any change in the holding, direct or indirect of shares in the
capital of the Company as a result of which a person, or a group
of persons or persons acting jointly or in concert, or persons
associated or affiliated with any such person or group within the
meaning of section 13(d)(3) of the Securities Exchange Act of
1934 (Federal) are in a position to exercise effective control of
the Company, provided that for the purposes of this Agreement a
person or group of persons holding shares and/or other securities
in excess of the number which, directly or following conversion
thereof, would entitle the holders thereof to cast more than 30%
of the votes attaching to all shares in the capital of the
Company which may be cast to elect directors of the Company shall
be deemed to be in a position to exercise effective control of
the Company, and further provided that at the time of such
acquisition, no other person or group of persons shall hold
securities entitled to more than 30% of such votes;
Incumbent Directors no longer constituting at least a majority of
the Board at or prior to the conclusion of the first twelve (12)
months from the Effective Date.
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"Effective Date" means the date upon which this Agreement takes effect;
"Good Reason" means:
a reduction by the Company to the Executive's base salary;
the failure by the Company to continue in effect any Plan in
which the Employee participates, unless such Plan (a) is replaced
by a successor Plan providing to Executive substantially similar
compensation and benefits (which replacement Plan shall continue
to be subject to this provision) or (b) terminates as a result of
the normal expiration of such Plan in accordance with its terms;
or the taking of any other action, or the failure to act, by the
Company which would materially adversely affect the Executive's
continued participation in any of such Plans without the consent
of the Executive, including by materially reducing the
Executive's benefits in the future under any of such plans;
effecting a diminution in the position or duties and
responsibilities of the Executive; and
Company requiring the Executive to be based anywhere more than 45
miles from the location of the Executive's office immediately
prior to the date hereof;
provided, however, that the events set out above in this subparagraph 19.2 shall
be considered to be Good Reason only if the Executive either before or within 30
days following notification from the Company of the occurrence of any such
event, notifies the Company that the event is not acceptable to the Executive
and the Company does not, within 14 days after such notice, rescind or rectify
to the reasonable satisfaction of the Executive the event that was not
acceptable to the Executive. Failure to object to an event set out above shall
not, however, preclude the Executive from reliance on such event if the
Executive objects to a subsequent event or events in accordance with this
subparagraph 19.2.
"Permanently Disabled" means that the Executive, by reason of illness,
disease, mental or physical disability or similar cause as determined by a
qualified medical practitioner mutually agreed to by the Executive and the
Company ("Disability"), is permanently disabled so as to be unable to fulfil the
Executive's duties, responsibilities and obligations hereunder and such
Disability shall continue for any consecutive 365-day period or for any period
of 365 days (whether or not consecutive) in any consecutive 24-month period.
"Incumbent Directors" shall mean those persons who are directors of the
Company on the Effective Date and shall include any person who becomes a
director of the Company thereafter and whose election, or nomination for
election, by the Company's shareholders was approved by a majority of the
Incumbent Directors then on the Board of Directors.
"Involuntary Termination" means:
the termination of the Executive's employment by the Company,
except for Cause or pursuant to subparagraph 7.3;
the termination of the Executive's employment by the Executive
for Good Reason; or
termination of the Executive's employment on September 1, 2001
pursuant to the notice given by the Company under subparagraph
1.3(a);
resignation from employment by the Executive following a Change
of Control, provided that the resignation occurs within twelve
(12) months from the Change of Control;
provided, however, a reassignment of the Executive to a position reasonably
comparable in responsibilities and duties to the position created under this
Agreement with a subsidiary, affiliate or related entity to the Company (the
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"successor employer") will not constitute an Involuntary Termination under (a),
(b) and (c) above if the successor employer agrees to enter into an agreement
with the Executive that is substantially similar to this Agreement.
"Regular Monthly Compensation" shall mean one-twelfth (1/12) of the sum
of:
annual salary as at Termination Date, plus
either (i) the average of the awards of cash compensation (or if
such awards were not made in cash, the cash equivalent thereof)
paid or payable to the executive under any Incentive Plan(s) in
respect of the three calendar years completed immediately prior
to his termination from employment, or (ii) if the Executive has
not been employed for at least three calendar years before the
Termination Date, the Current Year's Incentive Plan(s) Amount.
"Incentive Plan(s)" shall mean executive compensation or bonus or
incentive plans established by the Company, and shall include any bonus or other
plans established both prior and subsequent to the date of this Agreement.
"Termination Period" shall mean the shorter of (i) the period starting
with the month in which the Executive's termination occurs and ending on the
last day of the 24th month thereafter, or (ii) the period starting with the
month in which the Executive's termination occurs and ending on his normal
retirement date (as defined in the Pension Plan).
"Voluntary Termination" means the resignation from employment by the
Executive except for "Good Reason".
"Termination Date" shall mean:
in the case of an Involuntary Termination as defined in
subparagraph 19.7(a), the effective date of termination of the
Executive's employment;
in the case of an Involuntary Termination as defined in
subparagraph 19.7(b), the date notice is given by the Executive
to the Company of the termination of the Executive's employment
by the Executive for Good Reason; and
(c) in the case of an Involuntary Termination as defined in
subparagraph 19.6(d), the date notice of resignation is given by
the Executive to the Company.
"Current Year's Incentive Plan(s) Amount" means the amount that would
otherwise be payable to the Executive under the Incentive Plan(s) in the year in
which the Termination Date occurs had the Executive remained employed to the end
of the Termination Period calculated on the basis that all targets and the
performance objectives under the Incentive Plan(s) were achieved.
"Regular Employee Benefits" means those medical or insurance benefits
which the Company provides to the Executive, including, without limitation, the
benefits set out in subparagraph 3.4, and short and long term disability
insurance.
IN WITNESS WHEREOF the Parties hereto have executed this
Agreement on the day and year first above written.
SIGNED, SEALED AND DELIVERED )
In the presence of: )
) ---------------------- l/s
) XXXXX X. XXXXXXX
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Witness )
MERIDIAN GOLD COMPANY
By: c/s
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