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EXHIBIT 10.62
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of January 1, 2000, by and between Glamis
Gold Ltd. (hereinafter referred to as the "Company") and Xxxxx X. Xxxxxxxx
(hereinafter referred to as the "Executive", with the Company and the Executive
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;
WHEREAS the Executive has worked for the Company or one or more of
its affiliates since June, 1999;
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:
1. EMPLOYMENT
1.1 Position. The Company hereby agrees to employ the Executive in
the position of Vice President and Chief Operating Officer ("COO"), and the
Executive hereby accepts such employment.
1.2 Services. The Executive shall serve the Company in the capacity
of COO to perform such duties and exercise such powers as may be reasonably
required of him or be vested in him by President and CEO, including but not
limited to those duties described in Exhibit A attached hereto and made a part
hereof (the "Services"). 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 President and CEO, assume other employment or engage in any other
business.
2. TERM
The term of the Executive's employment pursuant to this Agreement
shall commence on the date hereof and shall continue on a month-to-month basis
until terminated pursuant to the provisions of this Agreement.
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3. COMPENSATION
3.1 Base Salary. During the term of his employment, the Executive
shall receive an annual base salary of not less than U.S. $180,000 (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 President and CEO on each
anniversary of the Executive's commencement of employment with the Company.
3.2 Bonus. If the Company determines to establish a bonus plan for any
of its employees, the Executive shall be entitled to participate in such bonus
plan in accordance with its terms.
3.3 Share Purchase Options. The Parties recognize the existing grant
to the Executive of share purchase options for 100,000 common shares of the
Company ("Shares") under the Company's Amended Share Purchase Option Plan dated
as of September 30, 1995, including any amendments or modifications thereof, or
any successor plan that may be adopted by the Board of Directors of the Company
(the "Plan"), in accordance with the rules and regulations of applicable
regulatory authorities and the Plan, subject to the following conditions:
(a) the share purchase options have been priced as of June 1,
1999 but will not be exercisable until approval by the
shareholders of revisions to the Plan at the annual
shareholders meeting in May, 2000;
(b) subject to the provisions of subsection (a) above, fifty
percent (50%) of the share purchase options will be vested
immediately and the remaining fifty percent (50%) will be
vested on June 1, 2000; and
(c) upon the full exercise of the existing share purchase
options, the Executive will, subject to the then prevailing
policies and practices of the Company's Compensation
Committee, be granted another share purchase option in
respect of not less than 100,000 Shares.
4. BENEFITS AND VACATION
4.1 Benefits. While employed by the Company, the Company shall make
available to the Executive the benefits under the Company's employee benefits
programs 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 Glamis Gold, Inc. Profit Sharing and Retirement Plan and
the Glamis Gold, Inc. Group Insurance Benefits Plan.
4.2 Vacation. While employed by the Company, the Executive shall be
entitled to four weeks' vacation per year, to be scheduled at the mutual
convenience of the parties; provided however, that the Executive will forfeit,
without compensation, his right to any part of such vacation entitlement not
used in a calendar year. The Executive shall be entitled to the regular holiday
schedule recognized by the Company location at which he works.
5. REIMBURSEMENT OF EXPENSES
The Executive shall be reimbursed for all expenses incurred by him in
compliance with
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Company policies, as may be modified from time to time.
6. OFFICER OF THE COMPANY
So long as the President and CEO, in his sole discretion, shall
desire, the Executive shall serve as an officer of the Company and an officer or
member of the board of directors of any subsidiary or affiliate, without any
additional remuneration to the Executive.
7. TERMINATION
The following will govern termination of Executive's employment with
the Company:
7.1 Voluntary Termination. The Executive may voluntarily terminate
his employment at any time upon delivery to the Company of a notice to terminate
the Services on a day not less than 60 days after delivery of the notice. In
such case, the Services will terminate at the expiration of such 60-day or
longer period.
7.2 Termination by Company. The Company may terminate the Services
without notice and without any payment in lieu of notice if:
(a) The Executive willfully refuses to perform the Services
hereunder;
(b) The Executive materially breaches Paragraph 8 or
Paragraph 9 of this Agreement;
(c) The Executive engages in acts of dishonesty or fraud in
connection with his services hereunder; or
(d) 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 shall occur on the date set forth in the notice from the Company.
7.3 Termination for Cause. In addition to those matters referred to
in section 7.2, the Company may, at its sole option, terminate the Services for
Cause by providing three months' written notice to the Executive or a payment in
lieu of such notice. In such case, any outstanding share purchase options held
by the Executive shall expire on the 30th day following the effective date of
termination. As used in this section 7.3, "Cause" shall mean a good faith
determination by the Company that (a) the Executive has failed to perform his
duties in a satisfactory manner, (b) the Executive has been advised of the
deficiencies in his performance and has been unwilling
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or unable to correct the deficiencies within a reasonable time and (c) the
deficient performance of the Executive has had or, if allowed to continue, can
be reasonably expected to have, a material adverse effect on the business of the
Company.
7.4 Involuntary Termination. The Services may be terminated by reason
of Involuntary Termination. "Involuntary Termination" means:
(a) The termination of the Executive's employment by the
Company, except pursuant to sections 7.2 or 7.3 (it being the intent and
understanding of the Parties that the Company may terminate the Executive's
employment other than for the reasons specified in sections 7.2 and 7.3 at any
time and for any reason, in which case Executive shall be entitled to severance
as provided herein); or
(b) Resignation from employment by the Executive, at his
sole discretion, following a Change of Control, provided that the resignation
occurs within twelve (12) months from the Change of Control.
7.5 Severance. 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 effective date of termination) of
severance pay and benefits as follows:
7.5.1 Severance Pay. The Company shall pay to the Executive a
lump sum amount equal to the Executive's annual base salary multiplied by two.
7.5.2 Benefits. The Company must, at the election of the
Executive made within ten days after the Termination Date, either:
(a) pay to the Executive a lump sum amount equal to the
aggregate cost to the Executive (without discount or present valuation and
grossed-up to account for income taxes payable by the Executive) of all employee
benefits then payable to or for the benefit of the Executive over the 24 month
period following the termination; or
(b) continue to make the contributions necessary to
maintain the Executive's coverage pursuant to the then-existing employee benefit
plans until the earlier of (i) the end of 24 months following the effective date
of termination of the Services, or (ii) the month after the Executive obtains
comparable replacement benefits at any alternative employment.
7.5.3 Incentive or Bonus. The Company will pay to the Executive
the amount of bonus or incentive pay, if any, paid to the Executive in the year
prior to the year of termination, prorated in proportion to the number of months
in the year before the termination and increased by a percentage equal to the
percentage increase in any such bonus over the preceding two years.
7.5.4 Outplacement Assistance. Professional executive
outplacement services will be provided to the Executive at the Company's
expense. The cost of such services will not exceed 10% of the Executive's annual
base salary.
7.5.5 Share Purchase Options. All share purchase options held by
the Executive at the
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time of any Involuntary Termination shall expire at the later of (i) the
expiration date of the options in accordance with the terms of their grant or
(ii) 24 months following the effective date of termination.
7.6 Termination by Reason of Permanent Disability. If, during the
Executive's employment with the Company the Executive becomes Permanently
Disabled, the Company shall have the right, on not less than three months'
written notice to the Executive, or payment in lieu of such notice, to terminate
the Executive's employment. In the event that the Executive's employment is
terminated on account of permanent 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. With this exception, 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.
As used herein, "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 180-day period
or for any period of 180 days (whether or not consecutive) in any consecutive
12-month period.
7.7 Termination by Reason of Death. In the event the Executive's
employment with the Company is terminated by reason of the Executive's death,
any portion of his fixed salary pursuant to section 3.1 which is earned but
unpaid as of the date of death shall be paid to the Executive's designated
beneficiary in the event of his death, or if none, to his then living spouse, or
if none, to the duly appointed personal representative of his estate. The
Executive's beneficiary, spouse or estate 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.
7.8 Accrued Salary. In the event of any termination of the
Executive's employment hereunder, any portion of his fixed salary pursuant to
section 3.1 which is earned but unpaid as of the date of termination for any
reason shall be paid to the Executive, along with payment for any vacation
benefits then accrued but unused, subject to withholding for statutory
deductions.
7.9 Share Purchase Options. Except as provided in sections 7.3 and
7.5.5 above, the time for expiration of all share purchase options held by the
Executive at the time of any termination of the Executive's employment shall be
governed by the terms of the Plan.
8. RESTRICTIVE COVENANT
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, representatives or parties with
whom it does business.
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9. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
9.1 Confidentiality. 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 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, confidential
business or financial information, records, data, ideas, processes, patents,
models, research, or personnel information.
9.2 Legal Process Exception. The foregoing section 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.
9.3 Intellectual Property. 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.
9.4 Patents, Trademarks, etc. 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.
9.5 Covenants. The covenants set forth in this section 9, 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.
10. ADDITIONAL REMEDIES
The Executive recognizes that irreparable injury will result to the
Company and to its business and properties in the event of any breach by the
Executive of any of the provisions of sections 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 sections 8 and 9 or
either of them, the Company shall be entitled, in addition to any other remedies
and damages
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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.
11. NON-ASSIGNMENT
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.
12. WAIVER
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.
13. ARBITRATION
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.
14. BENEFIT
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.
15. RELEVANT LAW
This Agreement shall be construed and enforced in accordance with the
laws of the State of Nevada.
16. NOTICES
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 Post Office, by registered or certified mail, postage prepaid,
addressed as follows, or to such other address as shall have
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been designated in writing by the addressee:
(a) If to the Company:
0000 Xxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
(b) If to the Executive:
c/o Glamis Gold Ltd.
0000 Xxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
17. ENTIRE AGREEMENT
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, and that this Agreement cannot be
amended, modified or supplemented in any respect except by subsequent written
agreement signed by both parties hereto.
18. FURTHER ASSURANCES
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.
19. MISCELLANEOUS
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.
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 positions he may hold as an officer or
director of the Company or any of its affiliated or associated companies.
20. DEFINITIONS
For the purposes of this Agreement,
20.1 "Change of Control" shall mean any of:
(a) 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
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Regulation C adopted under the Securities Act of 1933 (Federal).
(b) a merger or consolidation of the Company in which
Glamis Gold Ltd. is not the surviving entity in control of the merged company;
or
(c) 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.
IN WITNESS WHEREOF the Parties have executed this Agreement as of the
day and year first above written.
GLAMIS GOLD LTD. EXECUTIVE
By:
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Name: C. Xxxxx XxXxxxxx Xxxxx X. Xxxxxxxx
Title: President and CEO
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Social Security Number
By: I hereby designate
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Name: A. Xxx Xxxxx as Beneficiary pursuant to Section
Title: Chairman of the Board 7.7 of this Agreement
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Xxxxx X. Xxxxxxxx
