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Exhibit 10(l)
THIS AGREEMENT made as of the 1st day of October, 1999.
B E T W E E N:
ZEMEX CORPORATION (hereinafter called the
"Corporation")
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XXXXXXX X. XXXXXX (hereinafter called the "Executive")
WITNESSES THAT:
WHEREAS the Executive is presently employed by the Corporation;
AND WHEREAS the Corporation and the Executive are desirous of having certain
rights and benefits in the event that the Executive is dismissed or the
Executive elects to terminate his employment relationship with the Corporation
in the manner set out herein;
AND WHEREAS the Corporation wishes to retain the benefit of the Executive's
employment with the Corporation and to ensure that the Executive is able to
carry out his responsibilities with the Corporation free from any distractions
associated with any change in the ownership of the Corporation or its assets;
NOW THEREFORE in consideration of the premises and the mutual covenants and
agreements hereinafter contained, and for other good and valuable consideration
(the receipt and sufficiency of which is hereby acknowledged by the parties
hereto), it is agreed by and between the parties hereto as follows:
SECTION 1 DEFINITIONS: Terms used in this Agreement but not otherwise
defined herein have the meanings set forth below:
(a) "BENEFIT PLANS" means any stock option or stock purchase plan,
employee loan, insurance, long-term disability, medical, dental and
other executive and employee benefit plans, including any pension or
similar plans, perquisites and privileges, such as club dues,
automobile expenses and similar items, as may be provided at the time
to the Executive by the Corporation;
(b) "CHANGE IN CONTROL" means a transaction or series of transactions
whereby directly or indirectly:
(i) any person or combination of persons (other than
any combination of Dundee Bancorp Inc. or any affiliate
thereof and Xxxxxxx X. Xxxxxx or a corporation controlled by
any one or more of such persons) acting jointly or in concert
obtains a sufficient number of securities of the Corporation
to affect materially the control of the Corporation; or
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(ii) the Corporation shall consolidate or merge with or into,
amalgamate with, or enter into a statutory arrangement with,
any other person (other than a subsidiary of the Corporation)
or any other person (other than a subsidiary of the
Corporation) shall consolidate or merge with or into, or
amalgamate with or enter into a statutory arrangement with, the
Corporation, and, in connection therewith, all or part of the
outstanding voting shares shall be changed in any way,
reclassified or converted into, exchanged or otherwise acquired
for shares or other securities of the Corporation or any other
person or for cash or any other property; or
(iii) the Corporation shall be liquidated or dissolved or shall sell
or otherwise transfer, including by way of the grant of a
leasehold interest (or one or more of its subsidiaries shall
sell or otherwise transfer, including by way of the grant of a
leasehold interest) property or assets (A) aggregating more
than 50% of the consolidated assets (measured by either book
value or fair market value) of the Corporation and its
subsidiaries as at the end of the most recently completed
financial year of the Corporation or (B) which during the most
recently completed financial year of the Corporation generated,
or during the then current financial year of the Corporation
are expected to generate, more than 50% of the consolidated
operating income or cash flow of the Corporation and its
subsidiaries, to any other person or persons (other than the
Corporation or one or more of its subsidiaries); or
(iv) the Corporation shall issue shares of common stock from the
treasury of the Corporation in a sufficient number to affect
materially the control of the Corporation; or
(v) the Incumbent Directors cease to represent a
majority of the members of the Board of Directors of the
Corporation;
for the purposes of Sections 1(b)(i) and (iv), a person or
combination of persons acting jointly or in concert and beneficially
owning shares or other securities in excess of the number which,
directly or following conversion thereof, would entitle the holders
thereof to cast 20% or more of the votes attaching to all shares of
the Corporation which may be cast to elect directors of the
Corporation, shall be deemed to be in a position to affect
materially the control of the Corporation;
(c) "EXPIRY DATE" means 24 months after a Change in Control
occurs; and
(d) "INCUMBENT DIRECTORS" means the members of the Board of Directors
holding office at the date of this Agreement and any additional
Directors appointed by or with the consent of the Incumbent
Directors.
SECTION 2 RIGHTS UPON OCCURRENCE OF CHANGE IN CONTROL: If a Change in
Control occurs, the Executive shall be entitled to elect to terminate his
employment with the Corporation unilaterally and to receive a
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payment from the Corporation in an amount equal to the aggregate of (a) 300% of
his current annual base salary applicable at the date of a notice of election to
terminate given to the Corporation by such Executive pursuant to Section 3 plus
(b) 300% of the average of the annual bonus, if any, payable to him and (c) 300%
of the deemed interest benefit ascribed to the Executive for tax purposes on his
interest-free share purchase loans with the Corporation, in the case of (b) and
(c) being in respect of each of the three fiscal years of the Corporation ended
immediately prior to the date of a notice of election to terminate given to the
Corporation by such Executive pursuant to Section 3
SECTION 3 TERMINATION RIGHTS CONDITIONAL: All termination rights of the
Executive provided for in Section 2 are conditional upon the Executive electing
to exercise such rights by notice given to the Corporation on or before the
Expiry Date and are exercisable only if the Executive does not resign from his
employment with the Corporation (other than at the request of the Corporation)
and does not actively seek alternative employment, in each case for at least
three months following the date of the Change of Control.
SECTION 4 RIGHTS UPON DISMISSAL WITHOUT CAUSE: The Executive shall be
entitled to a payment by the Corporation of an amount calculated as provided for
in Section 2 (except that his annual base salary as referred to in Section 2(a)
shall be that applicable immediately prior to the date of his dismissal) if the
Executive is dismissed from his employment with the Corporation without cause
after a Change in Control and on or before the Expiry Date. The Corporation
shall not dismiss the Executive for any reason unless such dismissal is
specifically approved by the Board of Directors of the Corporation. Likewise,
the Corporation shall have the right to dismiss the Executive from his
employment with the Corporation without cause after a Change in Control and on
or before the Expiry Date, subject to paying the Executive the amount calculated
as provided for in Section 2.
SECTION 5 PAYMENTS UNDER THIS AGREEMENT: Any payment to be made by the
Corporation pursuant to the terms of this Agreement shall be made by the
Corporation in cash in a lump sum within five business days of the giving of
notice by the Executive pursuant to Section 3, or within five business days of
the dismissal from the Executive's employment as referred to in Section 4, as
the case may be. Any payment to be made under Section 2 or 4 shall be
calculated, in the case of Section 2, at the date of giving notice pursuant to
Section 3 and, in the case of Section 4, at the date of dismissal.
Notwithstanding the foregoing provisions of this Section 5, at the option of the
Executive a payment, or any part thereof as shall be specified by the Executive,
to be made to the Executive shall be deferred to such date or dates as shall be
designated in writing by the Executive. Any payment so deferred shall bear
simple interest at the rate of 6% per annum calculated from the date payment of
the amount otherwise should have been made until the date of payment in full.
The Corporation shall list the items making up a payment calculated as provided
for in Section 2 and shall support the calculation of such amount.
SECTION 6 PAYMENTS IN LIEU OF ALL OTHER DAMAGE CLAIMS ETC.: All payments
provided for herein shall be in lieu of all other notice or damage claims as
regards dismissal or termination of the Executive's employment with the
Corporation or any subsidiary of the Corporation after a Change in Control and
on or before the Expiry Date. The arrangements provided for herein shall not be
considered in any judicial determination of appropriate damages at common law
for dismissal without cause, other than as provided for in this Agreement. At
the request of either party, the parties shall exchange mutual signed releases
of liability conforming to the substantive provisions of this Agreement.
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SECTION 7 AGREEMENT SUPPLEMENTAL: This Agreement shall be supplemental to
any other contract of employment or otherwise, whether written or oral, that
exists between the Corporation or any subsidiary of the Corporation and the
Executive, except insofar as any such contract relates to the termination of the
employment relationship between the Corporation or any subsidiary of the
Corporation and the Executive, in which case this Agreement shall supersede the
termination provisions of any such other contract of employment or otherwise
including, without limitation, the termination agreement between the Executive
and a predecessor of the Corporation dated October 1, 1998.
SECTION 8 BENEFIT PLANS: In the event that the Executive is entitled to a
payment pursuant to Section 2 or 4, the Executive shall be entitled to have all
Benefit Plans as constituted at the date of the giving of notice by the
Executive pursuant to Section 3, or the dismissal from the Executive's
employment, as the case may be, continued for a period of 36 months after the
date of the giving of notice by the Executive pursuant to Section 3, or the
dismissal from the Executive's employment, as the case may be, or for any longer
period available under any Benefit Plans when coverage is provided from a source
other than the Corporation. Notwithstanding the foregoing provisions of this
Section 8, at the option of the Executive the cost to the Corporation of such
Benefit Plans, or any part of the benefits under any such Benefit Plans as shall
be specified by the Executive, shall be converted to a lump sum amount and shall
be paid to the Executive immediately or shall be deferred to such date or dates
as shall be designated in writing by the Executive. Any payment so deferred
shall bear simple interest at the rate of 6% per annum calculated from the date
payment of the amount otherwise should have been made until the date of payment
in full.
SECTION 9 STOCK OPTION AND STOCK PURCHASE PLANS: If the Executive is
entitled to a payment pursuant to Section 2 or 4, the term during which any
stock option granted to the Executive by the Corporation or any subsidiary of
the Corporation may be exercised shall be extended to the later of the expiry
date of the option or 12 months after the date of the giving of notice by the
Executive pursuant to Section 3, or the dismissal from the Executive's
employment as referred to in Section 4, as the case may be; provided that the
maximum term of any such option shall not exceed six years from the date of
grant of the option or such longer period as shall be permitted under the terms
of the Corporation's stock option plan. In addition, in such event any
provisions of the stock option or the stock purchase plan restricting the number
of shares which may be purchased before a particular date shall be waived and
the options shall be fully vested immediately. If the Executive is entitled to a
payment pursuant to Section 2 or 4, all shares owned by the Executive and held
in any stock purchase plan shall immediately be released to the Executive,
subject to the Executive making any payments required under the plan. The terms
of any stock option plan, stock purchase plan or agreement therefor shall be
deemed amended to reflect the provisions of this Section 9.
SECTION 10 DESIGNATION OF BENEFICIARY: If the Executive dies prior to
satisfaction of all of the Corporation's obligations under this Agreement, any
remaining amounts payable to the Executive by the Corporation shall be paid to
the person or persons (a "Beneficiary") previously designated by the Executive
to the Corporation for such purposes. Any such designation of a Beneficiary
shall be made in writing, signed by the Executive and dated and filed with the
Secretary of the Corporation. In the event that no such designation is made, all
such remaining amounts shall be paid by the Corporation to the Estate of the
Executive. If the Executive has exercised the option pursuant to Section 5 or 8
to defer a payment, or any part thereof, to be made to or for the benefit of the
Executive, the Beneficiary or the Executor of the Estate,
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as the case may be, shall have the further option to require payment in full of
any such remaining amounts to the Beneficiary or the Executor, as the case may
be, by giving notice to that effect to the Corporation.
SECTION 11 ASSIGNMENT AND ASSUMPTION: This Agreement automatically shall be
assigned by the Corporation to any successor corporation of the Corporation and
shall be binding upon such successor corporation. For the purposes of this
Section 11, "successor corporation" shall include any person referred to in
Subsection 1(b)(ii) or (iii). The Corporation shall ensure that the successor
corporation shall continue the provisions of this Agreement as if it were the
original party in place of the Corporation; provided however that the
Corporation shall not thereby be relieved of any obligation to the Executive
pursuant to this Agreement. In the event of a transaction or series of
transactions as described in Subsection 1(b)(ii) or (iii), appropriate
arrangements shall be made by the Corporation for the successor corporation to
honour this Agreement as if the Executive had exercised his maximum rights
hereunder as of the effective date of such transaction.
SECTION 12 FURTHER ASSURANCES: Each of the parties hereto agrees to do and
execute or cause to be made, done or executed all such further and other things,
acts, deeds, documents, assignments and assurances as may be necessary or
reasonably required to carry out the intent and purpose of this Agreement fully
and effectually. Without limiting the generality of the foregoing, the
Corporation shall take all reasonable steps in order to structure the payment or
payments provided for in this Agreement in the manner most advantageous to the
Executive with respect to the provisions of the Income Tax Act (Canada), the
Internal Revenue Code (United States of America) or any similar legislation in
place in any other jurisdiction of the Executive's residence.
SECTION 13 REVIEW OF AGREEMENT: In the event of a threatened or pending
Change in Control of the Corporation, and following an actual Change in Control
of the Corporation, the Corporation in either case shall enter into a review of
the terms of this Agreement and shall implement any amendments hereto which are
agreed to by both parties.
SECTION 14 OUTPLACEMENT SERVICES: If the Executive is entitled to receive a
payment pursuant to Section 2 or 4, the Corporation shall pay the reasonable
costs (to a maximum of 10% of the annual base salary of the Executive as used
for the calculation of such payment) of the services for the Executive of a
suitable outplacement counselling service selected by the Corporation.
Notwithstanding the foregoing provisions of this Section 15, at the option of
the Executive the cost to the Corporation of such outplacement services shall be
converted to a lump sum amount and shall be paid to the Executive immediately.
SECTION 15 GENDER: Whenever the context of this Agreement so requires or
permits, the masculine gender includes the feminine gender.
SECTION 16 NOTICE: Any notice, election or designation to be made by the
Executive pursuant to this Agreement shall be in writing and shall be hand
delivered to the Corporation at the following address:
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Zemex Corporation
Canada Trust Tower, BCE Place
000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Chairman of the Board
SECTION 17 TERM: This Agreement shall commence as of the date first above
written and shall terminate on December 31, 2004 unless extended with the mutual
agreement of the parties hereto and approved by the Board of Directors of the
Corporation; provided that if a Change of Control occurs on or before December
31, 2004 the term of this Agreement automatically shall be extended to the
Expiry Date.
SECTION 18 GOVERNING LAW: This Agreement shall be governed by and construed
in accordance with the laws of the Province of Ontario. The parties agree to
attorn to the jurisdiction of, and to submit any dispute arising out of this
Agreement to the Courts of the Province of Ontario.
IN WITNESS WHEREOF the parties hereto have caused this agreement to be executed
as of the date first above written.
ZEMEX CORPORATION
per: c/s
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Xxxx X. Xxxxxxx
Director
SIGNED, SEALED & DELIVERED )
in the presence of )
)
)
)
)
) l/s
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Witness ) Xxxxxxx X. Xxxxxx
)
