EXHIBIT 10.10
THIS EXECUTIVE RETIREMENT ALLOWANCE PLAN AND TRUST AGREEMENT is made as of the
1st day of January, 2004.
BETWEEN:
KINROSS GOLD CORPORATION,
a corporation governed by the laws of Province of Ontario,
(the "COMPANY"),
- and -
THOSE EXECUTIVES OF THE COMPANY
LISTED IN SCHEDULE "B" TO THIS AGREEMENT,
(the "EXECUTIVES"),
- and -
XX XXXXXXXXX,
of the CITY OF TORONTO, in the Province of Ontario
(the "TRUSTEE").
RECITALS:
A. The Company by the terms of this Agreement shall establish the ERA
Plan (defined below); and
B. The Trustee has agreed to act as the first trustee of the ERA Plan
Fund (defined below) under this Agreement for the purposes of (a)
receiving payments from time to time from the Company or from the
issuer of the ERA Plan Letter of Credit (defined below), as the case
may be, (b) holding each such ERA Plan Letter of Credit and any
amounts drawn under the ERA Plan Letter of Credit at any time, and (c)
making payments out of such proceeds as contemplated by the ERA Plan
and this Agreement.
IN CONSIDERATION OF THE PAYMENT OF $10 DOLLARS OF LAWFUL MONEY OF CANADA (and
for other good and valuable consideration, the receipt and sufficiency of which
are acknowledged by the Parties), the Parties agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
For purposes of this Agreement, the following words and terms with the initial
letter or letters thereof capitalized shall have the following meanings:
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"ADVISOR" has the meaning attributed to it in section 4.4(d).
"AGREEMENT" means this agreement, including any and all amendments and
schedules hereto.
"APPLICABLE LAWS" means domestic or foreign legislation or regulations
and policies or administrative practices of any domestic or foreign
regulatory authority as may from time to time apply to the ERA Plan
Fund.
"BANK" means a bank listed in Schedule I of the BANK ACT (Canada).
"BENEFICIARY DESIGNATION" has the meaning attributed to it in section
2.2(a).
"BUSINESS DAY" means any day other than a Saturday, Sunday, statutory
holiday in Ontario or other day on which the principal Banks in Toronto
are not open for business during normal banking hours.
"CHANGE OF CONTROL" means the occurrence of any one or more of the
following events:
(a) a consolidation, merger, amalgamation, arrangement or
other reorganization or acquisition involving the
Company or any of its affiliates (as such is defined
in the BUSINESS CORPORATIONS ACT (Ontario)) and
another corporation or other entity, as a result of
which the holders of common shares of the Company
prior to the completion of the transaction hold less
than 50% of the outstanding common shares of the
successor corporation after completion of the
transaction;
(b) the sale, lease, exchange or other disposition, in a
single transaction or a series of related
transactions, of assets, rights or properties of the
Company and/or any of its subsidiaries which have an
aggregate book value greater than 30% of the book
value of the assets, rights and properties of the
Company and its subsidiaries on a consolidated basis
to any other person or entity, other than a
disposition to a wholly-owned subsidiary of the
Company in the course of a reorganization of the
assets of the Company and its subsidiaries;
(c) a resolution is adopted to wind-up, dissolve or
liquidate the Company;
(d) any person, entity or group of persons or entities
acting jointly or in concert (an "ACQUIROR") acquires
or acquires control (including, without limitation,
the right to vote or direct the voting) of Voting
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Securities of the Company which, when added to the
Voting Securities owned of record or beneficially by
the Acquiror or which the Acquiror has the right to
vote or in respect of which the Acquiror has the
right to direct the voting, would entitle the
Acquiror and/or associates and/or affiliates of the
Acquiror (as such terms are defined in the BUSINESS
CORPORATIONS ACT (Ontario) to assist or to direct the
casting of 20% or more of the votes attached to all
of the Company's outstanding Voting Securities which
may be cast to elect directors of the Company or the
successor company (regardless of whether a meeting
has been called to elect directors);
(e) as a result of or in connection with: (i) the
contested election of directors, or; (ii) a
consolidation, merger, amalgamation, arrangement of
other reorganization or acquisitions involving the
Company of any of its affiliates and another company
or other entity , the nominees named in the most
recent management information circular of the Company
for election to the board of directors of the Company
shall not constitute a majority of the board of
directors; or
(f) the board of directors of the Company adopts a
resolution to the effect that a Change of Control as
defined herein has occurred or is imminent.
For the purposes of the foregoing "VOTING SECURITIES" means common
shares of the Company and any other shares entitled to vote for the
election of directors and shall include any security, whether or not
issued by the Company, which are not shares entitled to vote for the
election of directors but are convertible into or exchangeable for
shares which are entitled to vote for the election of directors
including any options or rights to purchase such shares or securities.
"COMPANY" means Kinross Gold Corporation, its successors and assigns.
"CONTRIBUTION" means the amount, net of RCA Tax, which is remitted to
the Trustee for the ERA Plan Fund from time to time by the Company,
including, without limitation, the payment by the Company each year to
the Trustee, as aforesaid, necessary to fund the Company's reasonable
estimate of each of (a) the cost of the upcoming year's ERA Plan Letter
of Credit, and (b) the ERA Plan Fund's administrative costs, including
the reasonable fees and disbursements of the Trustee.
"EFFECTIVE DATE" means January 1, 2004.
"ERA PLAN" has the meaning attributed to it in section 2.1.
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"ERA PLAN FUND ACCOUNT" has the meaning attributed to it in section
3.2.
"ERA PLAN FUND" means all Property held by the Trustee from time to
time under this Agreement, including income and capital proceeds from
Property received by the Trustee, less all distributions and payments
made under this Agreement. Any RCA Tax refund is the property of the
Company and not part of the ERA Plan Fund.
"ERA PLAN LETTER OF CREDIT" means:
(i) the Initial ERA Plan Letter of Credit; or
(ii) any renewal or replacement of the Initial ERA Plan Letter
of Credit,
in force from time to time during the term of this Agreement, the terms
of which satisfy the requirements of section 5.4.
"EXECUTIVE" means an executive of the Company listed in Schedule "B"
hereto who has complied with the requirements of section 2.2(a).
"EVENT OF DEFAULT" means an event, or sequence of events, described in
section 7.1.
"EXPIRY DATE" means the date of expiry of any ERA Plan Letter of Credit
held by the Trustee from time to time.
"FISCAL YEAR" means the period ending on December 31 of the year in
question.
"INITIAL FEE" means the amount, net of RCA Tax, paid to the Trustee
pursuant to section 3.1(a).
"INITIAL ERA PLAN LETTER OF CREDIT" has the meaning given in section
3.1(a).
"INSTRUCTIONS" has the meaning given in section 6.2(a).
"LC BENEFIT ELECTION NOTICE" has the meaning attributed to it in
section 2.2(b).
"LC PARTICIPATING EXECUTIVE" has the meaning attributed to it in
section 2.2(c).
"PARTIES" means the Company, the Trustee and the Executives (and any
Person in whose favour any Executive has made an outstanding
Beneficiary Designation).
"PAYMENT PERIOD ELECTION" has the meaning attributed to it in section
2.2(a).
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"PERSON" is to be broadly interpreted and shall include an individual,
a corporation, a limited liability company, an unlimited liability
company, a partnership, a trust, an incorporated organization, a joint
venture, the government of a country or any political subdivision of a
country, or an agency or department of any such government and the
executors, administrators or other legal representatives of an
individual in such capacity.
"PROPERTY" means all tangible and intangible assets and property of any
nature or kind forming part of the ERA Plan Fund and for greater
certainty includes cash and securities and any ERA Plan Letter of
Credit held pursuant to the terms of this Agreement.
"RCA TAX" means the refundable tax payable under the Tax Act in respect
of retirement compensation arrangements.
"RENEWAL DATE" means, at any time, forty-five (45) days prior to the
expiry of the then currently outstanding ERA Plan Letter of Credit.
"RENEWAL FEE" has the meaning given in section 5.2(a).
"TAX ACT" means the INCOME TAX ACT (Canada) and all regulations and
policies made thereunder, as amended and/or restated from time to time.
For greater certainty, any reference in this Agreement to a provision
of the Tax Act includes any successor provision thereto.
"TRUSTEE" means Xx Xxxxxxxxx and any Person appointed from time to time
to replace the Trustee under section 4.3 and his/her duly appointed
successors.
1.2 HEADINGS
The headings of all articles, sections, and paragraphs in the ESA Plan are
inserted for convenience of reference only and shall not affect the construction
or interpretation of this Agreement.
1.3 CONTEXT AND CONSTRUCTION
Whenever the singular or masculine are used in this Agreement, the same shall be
construed as being the plural or feminine or neuter or vice versa where the
context so requires.
1.4 REFERENCE TO THE ERA PLAN AND TO THIS AGREEMENT
The words "hereto", "herein", "hereby", "hereunder", "hereof" and similar
expressions mean or refer to this Agreement and to the ERA Plan as a whole and
not to any particular article, section, paragraph or other part hereof.
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1.5 CANADIAN FUNDS
Unless otherwise specifically provided, all references to dollar amounts in the
ERA Plan are references to lawful money of Canada.
1.6 SCHEDULES
The following are the Schedules annexed hereto and incorporated by reference and
deemed to be part of this Agreement:
Schedule "A" - ERA Plan
Schedule "B" - Page by Page Executive Entitlements -
Designations and Elections Record
Schedule "C" - LC Benefit Election Notice
Schedule "D" - Beneficiary Designation
Schedule "E" - Payment Period Election
Schedule "F" ERA Plan Letter of Credit Draw Terms
ARTICLE 2
THE ERA PLAN
2.1 ESTABLISHMENT OF THE ERA PLAN
The board of directors has authorized, and the Company hereby constitutes, the
executive retirement allowance plan described in Schedule "A" hereto, such
executive retirement allowance plan, as the same may be amended, supplemented,
restated or replaced from time to time is referred to in this Agreement as the
"ERA PLAN".
2.2 EXECUTIVES AND LC PARTICIPATING EXECUTIVES
(a) The Company shall have the sole right from time to time to nominate one or
more of its executives as Persons entitled to participate in the ERA Plan. The
Company shall give each such executive notice in writing that he/she has been
so nominated, together with information regarding the benefits that the
nominated executive would have under the ERA Plan. An executive so nominated
shall not be a member of the ERA Plan until such time as he/she has executed
and delivered to the Company and the Trustee each of (i) a confirmation
regarding receipt of a copy of this Agreement (including the ERA Plan), (ii) an
acknowledgment addressed to the Company and the Trustee of the benefits under
the ERA Plan conferred on the nominated executive in question in form and
substance acceptable to the Company, among other matters, confirming that the
Executive is bound by the terms of this Agreement and the ERA Plan as if a
signatory to both; and (iii) for any Executive who then wishes to do so at that
time, any or all of (A) a duly completed LC Benefit Election Notice provided
for in section 2.2(b), (B) a beneficiary designation provided for in section
5.5 of the ERA Plan (a "BENEFICIARY DESIGNATION") in the form annexed hereto as
Schedule "D"; and (C) a Payment Period
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election contemplated by section 4.1(b) of the ERA Plan in the form annexed
hereto as Schedule "E" ("PAYMENT PERIOD ELECTION").
(b) Each Executive who at any time executes and delivers a notice in writing
addressed to the Company and the Trustee in the form annexed hereto as Schedule
"C" (the "LC BENEFIT ELECTION NOTICE") shall be entitled to receive the benefit
of (i) the ERA Plan Letter of Credit in effect at the time the LC Benefit
Election Notice is given by the Executive, and (ii) any replacement or
substitute ERA Plan Letter of Credit issued at any time after the date on which
the Executive in question delivers his/her LC Benefit Election Notice, each to
the extent and in the manner set out in section 2.3 of the ERA Plan.
(c) Upon receipt of any LC Benefit Election Notice, Beneficiary Designation or
Payment Period Election by an Executive, the Company shall cause an endorsement
to be made on Schedule "B" of this Agreement to reflect the foregoing and the
date on which it was made. Each Executive who executes and delivers a LC
Benefit Election Notice is referred to in this Agreement as a "LC PARTICIPATING
EXECUTIVE", and shall, from and after the giving of the said LC Benefit
Election Notice be entitled to share (based on his/her vested entitlements
under the ERA Plan) in the proceeds (if any) at any time received by the
Trustee as the named beneficiary and owner of the then current ERA Plan Letter
of Credit or any renewal or replacement ERA Plan Letter of Credit to the extent
provided for in section 2.3 of the ERA Plan.
(d) Each Executive agrees to provide such personal information (including,
without limitation, the full name, social insurance number and mailing address
from time to time of the Executive and any beneficiary designated by him/her
under section 5.5 of the ERA Plan) as the Company and the Trustee may
reasonably require for the purposes of this Agreement, including the operation
of the ERA Plan.
(e) The Company shall forthwith advise the Trustee in writing of any additions,
deletions or changes to the list of Executives, the list of LC Participation
Executives, Hire Date determinations made by the Company under section 3.1 of
the ERA Plan, Beneficiary Designations and Payment Period Elections endorsed on
Schedule "B" from time to time. The Trustee shall be entitled to rely on the
information so provided to him/her by the Company from time to time for all
purposes of this Agreement including, without limitation, the payment of any
amounts to be paid by the Trustee to Executives or the Persons listed in any
applicable Executive Beneficiary Designation, and the Trustee shall not be under
any duty to make enquiries with respect to the accuracy of the information
provided in such listing from time to time.
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ARTICLE 3
THE ERA PLAN FUND
3.1 ESTABLISHMENT OF THE ERA PLAN FUND
The Company shall, with effect as of the Effective Date, pay the Initial Fee to
the Trustee, and deliver to the Trustee each of the following documents, and
shall thereby constitute and establish the ERA Plan Fund:
(a) an amount (the "INITIAL FEE") equal to the sum required to
fund the cost to the Trustee of purchasing the first ERA Plan
Letter of Credit (the "INITIAL ERA PLAN LETTER OF CREDIT")
which satisfies the requirements of section 5.4;
(b) confirmation from the Company addressed to the Trustee that an
Initial ERA Plan Letter of Credit has been arranged with the
Bank named in such confirmation, together with instructions by
the Company to the Trustee to so purchase the Initial ERA Plan
Letter of Credit;
(c) a certificate from the Company addressed to the Trustee as to
the face amount for the Initial ERA Plan Letter of Credit, the
proceeds of which would be sufficient, if called, to fund the
Company's reasonable estimate of each of (i) all payments to
be made under the ERA Plan then vested (or which the Company
anticipates will vest at any time during the term of the
Initial ERA Plan Letter of Credit) and (ii) future
administrative expenses of the ERA Plan Fund, apart from those
expenses forming part of section 3.1(e);
(d) confirmation addressed by the Company to the Trustee that the
RCA Tax, equivalent in amount to the Initial Fee, has been
remitted by the Company to the Receiver-General for Canada
under the Tax Act; and
(e) an amount equal to the Company's reasonable estimate of the
fees and disbursements of the Trustee related to the
establishment of the ERA Plan Fund and the Trustee' services
in connection with the maintenance of the ERA Plan Fund during
the term of the Initial ERA Plan Letter of Credit.
3.2 CONTRIBUTIONS TO THE ERA PLAN FUND
In addition to the obligation of the Company to make all Retirement Allowance
payments to the Executives, when due, under the ERA Plan, the Company agrees to
make annual Contributions to the Trustee on account of the ERA Plan Fund and
such other Contributions as may be required from time to time by the terms of
this Agreement. The Trustee shall open and maintain (until all duties of the
Trustee under
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this Agreement have been satisfied in full) a bank account (the "ERA PLAN FUND
ACCOUNT") with a Bank selected by the Trustee into which all monies received by
the Trustee, as trustee of the ERA Plan, including (without limitation) all
Contributions, shall be deposited. The ERA Plan Fund Account shall at all times
be maintained at a Bank other than the Bank that is the issuer of the then
outstanding ERA Plan Letter of Credit. The Trustee shall forthwith on opening
the ERA Plan Fund Account provide full particulars thereof in writing to the
Company. The Trustee agrees to provide all information at any time requested
from it in writing by the Company in respect of the ERA Plan Fund Account, and
the Trustee hereby authorizes the Company to deal directly with the Bank in
obtaining all information regarding the records of the Bank in respect of the
ERA Plan Fund Account. This covenant of the Trustee shall survive the
termination of this Agreement.
3.3 CONTRIBUTION AND PAYMENT LIMITATIONS ON THE OBLIGATIONS OF THE TRUSTEE
Except as expressly provided in this Agreement, the Trustee shall have no
responsibility for the monitoring or for collecting any Contribution to, or for
verifying that the amount of any Contribution received by him/her is sufficient
to pay the amounts which may be payable as expenses of the ERA Plan Fund or
amounts at any time payable to Executives under the ERA Plan. Furthermore, the
Trustee shall have no responsibility to verify that any applicable RCA Tax has
been withheld and remitted by the Company.
3.4 ADEQUACY OF THE ERA PLAN FUND
The Trustee shall have no responsibility for any Property until such Property
is in fact received by the Trustee and the Trustee shall have no responsibility
for the adequacy of the ERA Plan Fund to meet and discharge the present or
future liabilities of either of the ERA Plan or the Company to the Executives
under this Agreement.
ARTICLE 4
THE TRUSTEE
4.1 TRUSTEE ACCEPTANCE
The Company hereby appoints the Trustee as the trustee of the ERA Plan Fund. The
Trustee hereby accepts the said appointment and the trusts imposed by this
Agreement and the ERA Plan, and the Trustee hereby agrees to be bound by the
terms of this Agreement, including the terms of the ERA Plan.
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4.2 REMOVAL AND RESIGNATION
The Company may remove the Trustee as trustee of the ERA Plan Fund at any time
upon sixty (60) days' notice in writing to the Trustee. The Trustee may resign
at any time upon sixty (60) days' notice in writing to the Company. The
aforementioned notice periods may be waived or reduced by at any time the mutual
agreement between the Company and the Trustee.
4.3 SUCCESSOR TRUSTEE
(a) Upon removal or resignation of the Trustee, the Company shall appoint a
successor trustee who, upon acceptance of such appointment, shall execute and
deliver an acknowledgement in favour of the Company (and in form and content
acceptable to it) agreeing to be bound by and act in accordance with the
provisions of this Agreement and the ERA Plan. The Trustee, after settlement of
his/her accounts or reservation of assets sufficient to settle such accounts,
and after the successor trustee agrees to assume such appointment, shall assign
and transfer and pay over to such successor trustee the Property of the ERA Plan
Fund, less an amount equal to the charges and expenses owed to the Trustee under
the terms of this Agreement. The successor trustee who accepts such appointment
shall have the same powers and duties as those conferred on the Trustee.
(b) In the event a successor trustee is not appointed within sixty (60) days of
receipt of the Trustee's written notice of resignation, the Trustee, at the
expense of the ERA Plan Fund, shall have the right to seek appointment of a
successor trustee from a court of competent jurisdiction or to appoint a
successor trustee himself/herself. The Trustee shall have no duties,
responsibilities or liability whatsoever with respect to the acts or omissions
of any successor trustee.
(c) Upon the earlier of the issuance of approval by the successor trustee that
the Property of the ERA Plan Fund is in order and sixty (60) days from the date
of delivery of the Property of the ERA Plan Fund and all records pertinent
thereto, the Trustee shall be forever released and discharged from any liability
or accountability as respects the propriety of his/her acts as trustee under
this Agreement or in respect of the ERA Plan Fund.
4.4 POWERS AND DUTIES OF THE TRUSTEE
In carrying out its responsibilities under this Agreement, the Trustee is
authorized to exercise the following powers to the extent not inconsistent with
the express terms of this Agreement:
(a) HOLD EACH ERA PLAN LETTER OF CREDIT - To receive and hold each
ERA Plan Letter of Credit in trust.
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(b) RECEIVE AND HOLD ALL OTHER PROPERTY - To accept, and retain
for such time as it may deem advisable, any other Property
received or acquired by it hereunder, in trust, to keep such
portion of the ERA Plan Fund in cash as the Trustee, from time
to time, may deem to be in the best interests of the ERA Plan
Fund, and to retain such cash balances on deposit in the ERA
Plan Fund Account.
(c) EXECUTION OF INSTRUMENTS - To make, execute, acknowledge and
deliver any and all documents of transfer and conveyance and
any and all other instruments that may be necessary or
appropriate to carry out the intention of the provisions of
this Agreement and the ERA Plan.
(d) EMPLOYMENT OF, AND RELIANCE ON, ADVISORS - To select, retain,
employ and supervise agents, advisors and counsel and other
Persons (any of whom may also act for the Company or an
Affiliate of the Company) (each an "ADVISOR"), to rely on the
advise of each such Advisor (unless manifestly wrong) and to
pay their reasonable expenses and compensation from the ERA
Plan Fund.
(e) SETTLEMENT OF CLAIMS AND DEBTS - To settle, compromise, or
submit to arbitration any claims, debts or damages due or
owing to or from the ERA Plan Fund, to commence or defend
suits or legal or administrative proceedings, provided that
the Trustee shall not be obligated to do any of the foregoing
unless it has first been indemnified by the Company to its
satisfaction against any expenses or liabilities which it may
incur as a result thereof.
(f) POWER TO DO ANY NECESSARY ACT - To do all such acts, take all
such proceedings, and exercise all such rights and privileges,
although not specifically mentioned herein, as the Trustee may
deem necessary to administer the ERA Plan and the ERA Plan
Fund and to carry out the purposes of this Agreement.
Unless otherwise provided, the powers described in this section 4.4 may be
exercised by the Trustee with or without Instructions, but where the Trustee
acts on Instructions, the Trustee shall be fully indemnified under section 4.6
and section 5.5.
4.5 COMPENSATION AND EXPENSES
The Trustee shall be entitled to such compensation as may from time to time be
mutually agreed upon by the Trustee and the Company. The compensation and all
reasonable disbursements and expenses incurred by the Trustee (including but not
limited to fees and expenses reasonably incurred for any Advisor employed by the
Trustee in accordance with this Agreement) shall be paid by the Company and if
not, shall constitute a charge on the Property in priority to the claims of any
other Person against the ERA Plan Fund.
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4.6 INDEMNIFICATION
The Trustee, his/her heirs and personal representatives are hereby indemnified
and held harmless from and against any and all taxes, charges, costs, expenses,
damages, claims, losses, fines, penalties, interest, demands and liabilities, of
any kind, to which his/her may become subject, including the fees and expenses
of legal counsel or other professionals, for or in respect of anything done or
omitted to be done by anyone in connection with this Agreement and for or in
respect of anything done or omitted to be done by any prior trustee or other
funding agent or custodian or their agents, save and except to the extent caused
by the Trustee's own gross negligence, wilful misconduct or lack of good faith.
The foregoing is an obligation of the Company and, until paid by the Company,
shall constitute a charge on the Property in priority to the claims of any other
Person against the ERA Plan Fund.
ARTICLE 5
ERA PLAN LETTERS OF CREDIT
5.1 APPLICATION OF INITIAL FEE
Subject to compliance by the Company with section 3.1, the Trustee agrees to
apply the Initial Fee to acquire from a Bank the Initial ERA Plan Letter of
Credit as directed by the Company pursuant to the Instructions.
5.2 FURTHER CONTRIBUTIONS
Throughout the term of this Agreement, on or before the Renewal Date of the
then current ERA Plan Letter of Credit, the Company shall deliver to the
Trustee:
(a) an amount (the "RENEWAL FEE") necessary to pay the cost to
renew, or replace, the then existing ERA Plan Letter of Credit
on or before its Expiry Date which renewed or replacement ERA
Plan Letter of Credit shall satisfy the requirements of
section 5.4;
(b) confirmation from the Company addressed to the Trustee that a
renewal or replacement ERA Plan Letter of Credit has been
arranged with the Bank named in such confirmation, together
with Instructions by the Company to the Trustee to so renew
the existing, or to purchase a replacement, ERA Plan Letter of
Credit;
(c) a certificate from the Company addressed to the Trustee as to
the face amount for the renewed or replacement ERA Plan Letter
of Credit, the proceeds of which would be sufficient, if
called, to fund the Company's reasonable estimate of each of
(i) all payments to be made under the ERA Plan then vested (or
which the Company anticipates may vest at any time
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during the term of the current year's renewed or replacement
ERA Plan Letter of Credit) and (ii) future administrative
expenses of the ERA Plan Fund, apart from those expenses
forming part of section 5.2(e);
(d) confirmation addressed by the Company to the Trustee that the
RCA Tax, equivalent in amount to the Renewal Fee, has been
remitted by the Company to the Receiver-General for Canada
under the Tax Act; and
(e) an amount equal to the Company's reasonable estimate of the
fees and disbursements of the Trustee related to the Trustee'
services in connection with the maintenance of the ERA Plan
Fund until the expiry of the renewal or replacement of the
then current ERA Plan Letter of Credit.
5.3 ISSUANCE OF RENEWAL OR REPLACEMENT ERA PLAN LETTER OF CREDIT
Subject to compliance by the Company with section 5.2, prior to the Expiry Date
of the then current ERA Plan Letter of Credit, the Trustee agrees to apply the
Contribution received from the Company thereunder to purchase from the Bank a
renewed or replacement ERA Plan Letter of Credit as directed by the Company
pursuant to the Instructions. If the Company fails to make any contribution in
a timely manner as contemplated by section 5.2(a), the Trustee shall initiate a
call against the issuer of the then current ERA Plan Letter of Credit. All
payments received by the Trustee from the issuer shall be deposited in the ERA
Plan Fund Account and the Trustee shall distribute all such proceeds as set out
in section 2.3 of the ERA Plan.
5.4 REQUIREMENTS FOR EACH ERA PLAN LETTER OF CREDIT
The Company shall ensure that each ERA Plan Letter of Credit shall:
(a) be issued by a Bank in favour of the Trustee;
(b) expire on the first anniversary of the date of its issuance or
renewal (as the case may be);
(c) be unsecured;
(d) permit partial drawings thereunder;
(e) be an irrevocable "standby" letter of credit which obligates
the Bank to pay any demand for payment made by the Trustee
upon the occurrence of an Event of Default with draw terms
substantially in accordance with those set out in Schedule "F"
hereto;
(f) provide that the Bank notify the Trustee not less than
thirty (30) days prior to the expiry of the Letter of Credit
of its pending expiry; and
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(g) be in an amount that is at least equal to the sum of the
Company's reasonable current estimate of (i) all payments to
be made under the ERA Plan then vested (or which the Company
anticipates may vest at any time during the term of the
Initial ERA Plan Letter of Credit) and (ii) the future
administrative expenses of the ERA Plan Fund, including the
resulting RCA Tax payable on such administrative cost reserve.
5.5 COMPANY INDEMNITY
The Company agrees to indemnify and hold harmless the Trustee and each of the
Executives from and against any loss or cost suffered by any of them
attributable to RCA Tax levied as a result of the failure by the Company to
honour its obligations under section 5.4 or any call against the ERA Plan
Letter of Credit that is not in compliance with the provisions of this
Agreement or the ERA Plan.
ARTICLE 6
INSTRUCTIONS
6.1 COMPANY REPRESENTATIVES
(a) The Company shall from time to time furnish the Trustee with a written list
of those Persons authorized to direct the Trustee and to otherwise act on
behalf of the Company under the terms of this Agreement.
(b) The Trustee shall be entitled to rely on, and shall be fully protected in
giving effect to, Instructions from Persons whose names appear on the then
current list referred to in section 6.1(a) until it has been notified by the
Company of a change of the identity or authority of a Person appearing on the
then current list referred to in section 6.1(a).
6.2 INSTRUCTIONS
(a) For the purposes of this Agreement, an "INSTRUCTION" shall mean:
(i) an instruction from the Company sent by personal delivery
(including courier), facsimile, or by ordinary mail (except in
the case of a postal disruption) to the address of the
recipient as provided in Article 11; or
(ii) an instruction communicated by Company in such other form of
communication as from time to time may be agreed upon by the
Company and the Trustee.
Unless otherwise expressly provided, each Instruction shall continue in full
force and effect until superseded or cancelled by another Instruction.
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(b) Notwithstanding any error in the transmission of an Instruction or that an
Instruction may not be genuine, it shall constitute an Instruction for the
purposes of this Agreement if believed by the Trustee, acting reasonably and in
good faith, to be genuine. However, the Trustee may in his/her sole discretion
decline to act upon any Instructions:
(i) that are insufficient or incomplete;
(ii) that are not received by the Trustee in sufficient time to
permit the Trustee, acting diligently, to give effect to such
Instructions; or
(iii) where the Trustee have reasonable grounds for concluding that
the same have not been accurately transmitted or are not
genuine.
If the Trustee declines to give effect to any Instruction for any reason set
out above, he/she shall in a timely manner notify the Company in writing to
that effect.
6.3 EFFECTIVE DELIVERY OF NOTICES TO THE TRUSTEE
Instructions by delivery or ordinary mail shall not be deemed to be received by
the Trustee until they are actually received.
6.4 RELIANCE ON INSTRUCTIONS
The Trustee shall not be liable and shall be fully indemnified by the Company
and the ERA Plan Fund in accordance with section 4.6 and with section 5.5 for
any action taken by the Trustee in reliance upon Instructions or omitted to be
taken in the absence of Instructions. For greater certainty, notwithstanding
any term of this Agreement or principle of law or fiduciary responsibility
which would otherwise apply to the Trustee, the Trustee shall be under no
obligation to make any inquiries or to question any Instruction given to it in
accordance with the terms of this Agreement, whether or not any such Trustee
has reason to believe that any obligation or agreement affecting any of the
Executives may have been breached.
ARTICLE 7
EVENTS OF DEFAULT
7.1 EVENTS OF DEFAULT
Any of the following events shall be an "EVENT OF DEFAULT" for the purposes of
this Agreement:
(a) the expiry of a period of ten (10) days after the Trustee
receives written notice from an Executive that the Executive
has not received a payment under the ERA Plan when due
(together with a statement as to the
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amount of arrears then due and owing to him/her), provided
the Company has in good faith within such period neither (i)
disputed by notice in writing to the Executive and the
Trustee that the payment in question is due and owing in the
circumstances nor (ii) provided evidence to the Trustee that
payment in question has been made;
(b) the Company has failed to fulfil its obligations under
sections 3.1 or 5.2 (in each case excluding clause (e)
thereof);
(c) any Executive, the Company or the taxation authorities has
provided written notice to the Trustee that a Person,
obligated to do so at law, has failed to withhold and remit
RCA Tax on any Contribution;
(d) the Trustee shall have failed to receive a renewed or
replacement ERA Plan Letter of Credit on or before the
Renewal Date in compliance with the provisions of this
Agreement and the ERA Plan and with draw terms substantially
in compliance with those set out in Schedule "F"; or
(e) the Company has failed to pay to the Trustee the fees and
expenses payable to him/her under this Agreement when such
payment is due.
An Executive who provides notice to the Trustee under section 7.1(a) above,
shall at the same time provide a copy of such notice to the Company.
7.2 DEMAND ON ERA PLAN LETTER OF CREDIT
(a) Within two (2) Business Days after receipt of a notice from an Executive
under section 7.1(a), the Trustee shall provide the Company with a copy of such
notice and advise the Company that he/she intends to demand payment under the
ERA Plan Letter of Credit immediately following the expiry of the 10-day period
referred to in section 7.1(a).
(b) Immediately following the expiry of the 10 day period referred to in section
7.1(a), if the Event of Default has not been rectified or disputed by the
Company in good faith by notice in writing to the Executive stating the reasons
for the failure of the Company to make the payment(s) in question, the Trustee
shall demand payment under the ERA Plan Letter of Credit in full. Unless the
dispute between the Company and the Executive has been resolved by agreement in
writing within 10 days of delivery by the Company of the said notice, the
dispute shall be submitted for arbitration dispute resolution in accordance with
the terms of section 12.7. The Trustee shall not call on the ERA Plan Letter of
Credit as a result of such non-payment by the Corporation (reserving the right
of the Trustee to call on the ERA Plan Letter of Credit on any other basis
provided for by its terms) while the dispute is being so arbitrated.
(c) On the expiry of fifteen (15) days from the date on which the Company
becomes aware of an occurrence of an Event of Default under any provision of
section 7.1 other
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than clause (a), if the Event of Default in question has not been rectified by
the Company, the Trustee may at any time thereafter demand payment in full under
the ERA Plan Letter of Credit. The Trustee agrees to distribute the proceeds
received by him/her in compliance with the provisions of section 2.3 of the ERA
Plan following receipt of any such payment from the issuer of the ERA Plan
Letter of Credit.
ARTICLE 8
ERA PLAN FUND PAYMENTS
8.1 PAYMENTS FROM THE ERA PLAN FUND
The Trustee shall comply with the provisions of the ERA Plan (including,
without limitation, those of Article V thereof) in making payments out of the
ERA Plan Fund.
8.2 PAYMENT TO MINORS AND INCOMPETENT PERSONS
If any Person entitled to receive any payment from the ERA Plan Fund is at the
time of such payment a minor or is incompetent to receive such payment or to
give a valid release therefor, on Instructions the payment may be made by the
Trustee for the Person's benefit to a parent or legal or DE FACTO guardian in
the case of a minor or to a legally appointed representative of the incompetent
person. Any such payment shall operate as a complete discharge of all liability
therefor and the Trustee shall have no responsibility to follow the application
of such payment.
8.3 UNCLAIMED PAYMENTS
If any payment from the ERA Plan Fund is returned to the Trustee unclaimed, the
Trustee shall forthwith notify the Company of such fact, giving full particulars
thereof, and shall deposit the amount of such payment to the ERA Plan Fund
Account and shall make no further payments to the payee of such amounts until it
receives Instructions to do so.
8.4 ASSIGNMENTS, SEIZURES, GARNISHMENTS
The Trustee shall notify the Company upon the receipt by it of any assignment or
attempted assignment or notice thereof, or of any involuntary assignment,
seizure, garnishment or any process of law or execution or notice thereof, in
respect of any amount payable out of the ERA Plan Fund or in respect of any
Executive's interest in the ERA Plan Fund.
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ARTICLE 9
REPORTING AND RECORDKEEPING
9.1 ACCOUNTS AND RECORDS
The Trustee shall keep accurate accounts of all receipts, deposits,
disbursements and other transactions made in connection with the ERA Plan Fund
or the ERA Plan. All records relating thereto shall be open to inspection and
audit during normal business hours by any person designated by the Company,
provided reasonable notice is given to the Trustee. The Company shall (a) keep
an accurate list of all Executives; (b) keep accurate records of all LC Benefit
Participation Notices, Beneficiary Designations and Payment Elections received
by it from time to time from Executives; (c) make all required notations in
respect of each of the foregoing clauses in Schedule "B" to this Agreement; and
(d) give the Trustee timely written notice of each of the matters referred to
in this section 9.1.
9.2 ACCESS TO ACCOUNTS AND RECORDS BY THIRD PARTIES
To the extent the Trustee is legally allowed or required to permit any Persons
other than those authorized by the Company to have access to accounts and
records relating to the ERA Plan Fund or the ERA Plan, the Company agrees that
the Trustee shall provide such Persons with such access. No Persons other than
each of the Executives, the Company or those Persons entitled by Applicable Laws
shall have the right to receive any accounting from the Trustee in respect of
the Property or the receipt and disbursement of funds from the ERA Plan Fund.
9.3 COPIES OF RECORDS
Neither the Trustee nor the Company shall be obligated to provide copies of any
documents created pursuant to section 9.1 unless and until it has received from
the Person requesting such copies a reasonable fee to cover the reasonable costs
incurred by the Trustee or the Company in providing such copies.
9.4 STATEMENTS
The Trustee shall furnish to the Company within ninety (90) days following the
close of each Fiscal Year or such other period as may be agreed upon between the
Trustee and the Company, and within ninety (90) days after the removal or
resignation of the Trustee or the termination of the ERA Plan or of this
Agreement, a written statement of account setting forth all receipts,
disbursements and other transactions affected by it during such period. The
Company shall review all statements of account for accuracy. Upon the expiration
of ninety (90) days from the date such statement is provided or upon the prior
approval of the Company, the Trustee shall be forever released and discharged
from liability or accountability to anyone with respect to the propriety of its
acts and transactions shown in such statement, except for any acts or
transactions objected to by the Company in writing and delivered to the Trustee
within such ninety (90) day period.
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9.5 TAX FILINGS
The Trustee shall prepare and file or issue on a timely basis all income tax
returns and forms which a trustee of a retirement compensation arrangement trust
is required to file or issue by virtue of the Tax Act In connection with the
Trustee's obligations with respect to RCA Tax. In particular, the Trustee shall
calculate the RCA Tax of the ERA Plan Fund at the end of each taxation year and
shall remit to the Receiver-General under the Tax Act out of the ERA Plan Fund
the amount of tax, if any, payable by it for the year or claim a refund of RCA
Tax owing to the ERA Plan Fund, if applicable. The Trustee shall further
withhold and report under the Tax Act or other Applicable Laws in respect of any
distributions at any time and from time to time from the ERA Plan Fund. The
Company shall file, or cause to be filed, any and all returns and forms required
to be filed by it with respect to the ERA Plan Fund under Applicable Laws.
ARTICLE 10
TERMINATION
10.1 TERMINATION OF THE AGREEMENT AND DISTRIBUTION OF PROPERTY OF THE ERA
PLAN FUND
(a) This Agreement (and the ERA Plan) may be terminated at any time by notice in
writing executed by the Company and addressed to each of the Executives then
listed in Schedule "B" whose entitlements have not already been paid in full
provided either (i) all such Executives have consented in writing to such
termination or (ii) the Company has at least one (1) month prior to the
effective date of such termination provided written notice to the Executives
that it has established an alternate arrangement that provides equal or better
benefits or rights than is then provided to the Executives under this Agreement
and the ERA Plan and provided information regarding such new arrangements.
(b) This Agreement (and the ERA Plan) shall automatically terminate if, at any
time following the initial funding of the ERA Plan Fund, all if its Property has
been distributed and no Property (including any ERA Plan Letter of Credit)
remains in the ERA Plan Fund and no RCA Tax due in respect of the ERA Plan,
whether or not there any Executive still has at that time a claim for an unpaid
entitlement under the ERA Plan.
(c) This Agreement (and the ERA Plan) may be terminated by notice in writing by
the Company to the Trustee at any time following payment in full of all
entitlements of all Executives then listed in Schedule "B".
(d) Upon termination of this Agreement (and the ERA Plan), where the ERA Plan
has any Property, unless such Property is to be transferred into the substitute
arrangements referred to in section 10.1(a)(ii), the Trustee shall make the
following distribution of the Property in accordance with Instructions, provided
that:
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(i) any fees and expenses payable under this Agreement from the
ERA Plan Fund shall first be deducted and paid;
(ii) a final trust information and tax return shall be filed as
required under Applicable Laws and all necessary clearance
certificates obtained; and
(iii) the provisions of this Agreement shall survive termination
until all Property comprising the ERA Plan Fund has been paid
out or distributed.
(e) Subject to its right to set-off the amount of any proper claim the Trustee
has under this Agreement against any RCA Tax refund paid to it in trust, the
Trustee shall forthwith on receipt pay any such refund to the Company less the
Trustee's reasonable estimate of such set-off claim.
ARTICLE 11
NOTICES
11.1 NOTICES TO COMPANY
Any notice under this Agreement to the Company shall be in writing addressed to
the Company as follows:
Kinross Gold Corporation
00 Xxxx Xxxxxx Xxxx
Xxxxxx Plaza - 52nd Floor
Toronto, ON M5H 3Y2
Attention: Xx. Xx Xxxxxxxxx
Senior Vice President, Human Resources
Telephone: 000.000.0000
Facsimile: 416.365.0896
11.2 NOTICES TO TRUSTEE
Any notice under this Agreement to the Trustee shall be in writing addressed to
the Trustee at the address set opposite the Trustee's name in Schedule "B", as
the same may be amended from time to time by notice by the Trustee to the
Company in writing.
11.3 NOTICE TO THE EXECUTIVES
Any notice to the Executives under this Agreement shall be in writing
addressed to the Executives at the address as set forth opposite their names
in Schedule "B", as
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amended from time to time by notice in writing by the Executive in question to
each of the Company and the Trustee.
11.4 DELIVERY
Notices given hereunder may be sent by personal delivery (including courier)
during normal business hours or may be sent by ordinary mail or by facsimile.
Any such notice shall be deemed to have been delivered at the time of personal
delivery or on the fifth (5th) Business Day following the day of mailing. If
delivery by mail is likely to be delayed by a postal strike or slowdown, any
notice already sent or not delivered shall be deemed to have been given when it
would be delivered in the ordinary course of the mail allowing for such strike
or slowdown. All subsequent notices sent during the course of the postal strike
or slowdown, shall be sent by personal delivery or facsimile. If notice is sent
by facsimile, it shall be deemed to be delivered on the day of receipt if sent
before 5 p.m. (local time of the recipient) on a Business Day or on the next
Business Day if sent after 5 p.m. or not on a Business Day. Any party may
change its address by giving notice to the other party in the manner set forth
in this section 11.4.
ARTICLE 12
MISCELLANEOUS
12.1 REPRESENTATIONS
The Company and the Trustee each represents that it/he/she has the power and
authority to enter into and perform its obligations under this Agreement and
that the Agreement is valid and binding on it/him/her and enforceable in
accordance with its terms.
12.2 RESIDENCY
The Company and the Trustee each represent that it/he/she is a resident of
Canada within the meaning of the Tax Act.
12.3 FORCE MAJEURE
Notwithstanding anything in this Agreement to the contrary, the Trustee shall
not be liable for his/her failure to perform under this Agreement or for any
losses to the ERA Plan Fund resulting from any event beyond the reasonable
control of the Trustee, his/her agents or sub-custodians, including but not
limited to, nationalization, strikes, expropriation, devaluation, seizure, or
similar action by any governmental authority, DE FACTO or DE JURE; or
enactment, promulgation, imposition or enforcement by any such governmental
authority of currency restrictions, exchange controls, levies or other charges
affecting the ERA Plan Fund; or the breakdown, failure or malfunction of any
utilities or telecommunications systems; or any order or regulation of any
banking or securities industry, including changes in market rules and market
conditions affecting
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the execution or settlement of transactions; or acts of war, terrorism,
insurrection or revolution; or acts of God or any similar or third party event.
The provisions of this section 12.3 shall survive the termination of this
Agreement.
12.4 CLAIMS BY EXECUTIVES
No Executive shall have any claim against the Trustee or the ERA Plan Fund
except by or through the Company.
12.5 EXECUTIVE RIGHTS
Nothing in this Agreement shall be construed to give an Executive or any
Executive's beneficiary or legal representative any right, title or interest in
or to any assets, profit, earnings or accretions to the ERA Plan Fund, it being
understood such Persons have only a beneficial interest in the ERA Plan Fund to
the extent provided for in the provisions of this Agreement.
12.6 SET-OFF
The Company acknowledges and agrees that the Trustee may set-off against any
Property held in the ERA Plan Fund any amount owing by the ERA Plan Fund to the
Trustee pursuant to this Agreement.
12.7 DISPUTE RESOLUTION
(a) In the event of any disputes arising out of or relating to this Agreement or
the ERA Plan that is not resolved by the Parties, such dispute shall be referred
to final and binding arbitration, before a single arbitrator, under the
commercial arbitration rules of the ARBITRATIONS ACT, 1991 (Ontario). The
arbitrator shall be selected jointly by the Company and the Trustee. If they are
unable to reach agreement on selection of the arbitrator, the arbitrator shall
be selected by a Judge of the Ontario Court (General Division). Judgment upon
the award rendered by the arbitrator shall be final, binding and conclusive upon
the Parties and their respective heirs, personal representatives, successors and
permitted assigns, and may be entered in any court of competent jurisdiction.
(b) If any civil action, arbitration or other legal proceeding is brought for
the enforcement of this Agreement (or the ERA Plan) or as a result of an alleged
dispute, breach, default or misrepresentation in connection with any provision
of this Agreement, the successful or prevailing party or parties shall be
entitled to recover reasonable solicitor's fees, sales taxes, court costs and
all expenses even if not taxable as court costs (including, without limitation,
all such fees, taxes, costs and expenses incidental to arbitration, appellate,
bankruptcy and post-judgment proceedings), incurred in that civil action,
arbitration or legal proceeding, in addition to any other relief to which such
party or parties may be entitled. Solicitor's fees shall include, without
limitation, paralegal fees, investigative fees, administrative costs, sales and
use taxes and all other charges billed by counsel to the prevailing party.
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12.8 SUCCESSORS AND PERMITTED ASSIGNS
This Agreement shall enure to the benefit of and be binding upon the Parties
and their respective heirs, personal representatives, successors and permitted
assigns. No Executive shall have the right to assign any of his/her rights
under this Agreement or the ERA Plan, including any right to receive any
Retirement Allowance (apart from making or rescinding one or more Beneficiary
Designations from time to time under section 5.5 of the ERA Plan) without the
prior written consent of the Company (which consent may be arbitrarily withheld
by the Company in its sole discretion).
12.9 INDEMNITIES
Any indemnity granted under this Agreement shall survive the termination of
this Agreement.
12.10 WAIVER
Any waiver of, or consent to depart from, the requirements of any provision of
this Agreement shall be effective only if it is in writing and signed by the
parties giving it, and only in the specific instance and for the specific
purpose for which it has been given. No failure on the part of any party to
exercise, and no delay in exercising any right under this Agreement shall
operate as a waiver of such right. No single or partial exercise of any such
right shall preclude any other or further exercise of any other right.
12.11 SEVERABILITY
If any term, condition or provision of this Agreement (or of the ERA Plan) is
determined to be void or unenforceable, in whole or in part, such determination
shall not affect the validity of any other term, condition or provision or part
thereof.
12.12 ENTIRE AGREEMENT
(a) This Agreement shall constitute the entire agreement between the Parties
with respect to all matters herein and its execution has not been induced by,
nor do any of the Parties rely upon or regard as material, any representations
or promises whatsoever not incorporated herein or made by a party hereto.
(b) Except as provided by this Agreement, no Party makes any representations,
warranties or other agreements in connection with the subject matter of this
Agreement or the ERA Plan.
(c) No supplement, modification, waiver or termination of this Agreement or the
ERA Plan shall be binding unless executed in writing.
(d) All titles and headings contained in this document are for convenience only
and do not form part of this Agreement.
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12.13 EXECUTION OF COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, and said counterparts shall constitute but one and
the same instrument.
12.14 GOVERNING LAW
This Agreement shall be construed according to the laws of the Province of
Ontario. Any actions, proceedings, or claims against the Trustee shall be
commenced in the courts of the Province of Ontario.
IN WITNESS WHEREOF the parties have executed this Agreement as of the ___ day of
___________, 2005.
KINROSS GOLD CORPORATION
Per:
----------------------------------------
Name:
Title:
Per:
----------------------------------------
Name:
Title:
EACH OF THOSE PERSONS WHOSE NAME IS ENDORSED BY THE
COMPANY ON THE LIST IN SCHEDULE "B" HERETO
SIGNED, SEALED AND DELIVERED )
)
in the presence of: )
)
_________________________ ) ______________________________
)
SCHEDULE "A"
KINROSS GOLD CORPORATION
EXECUTIVE RETIREMENT ALLOWANCE PLAN
ARTICLE I
INTERPRETATION
1.1 DEFINITIONS
For the purposes of this ERA Plan, unless such word or term is otherwise defined
in the Agreement, the following words and terms with the initial letter or
letters thereof capitalized shall have the following meanings:
"ACCELERATED PAYMENT ELECTION" has the meaning attributed to it in
section 5.1(b) of this ERA Plan.
"AGREEMENT" means the executive retirement allowance plan and trust
agreement made as of the 1st day of January, 2004 to which this ERA
Plan is annexed as Schedule "A", including any and all amendments and
schedules thereto.
"CONTINUOUS SERVICE" means that number of full months falling at any
time from and after January 1, 2004 during which the Executive was
continuously employed by the Company.
"EARNINGS" means (a) for the period from and after January 1, 2004, the
amount of base annual salary for employment paid by the Company to the
Executive as indicated by the records of the Company plus the year-end
target bonus fixed by the Company at any time prior to the end of the
year in question pro-rated for any part year; and (b) for any period
prior to January 1, 2004, the amount of base salary for the year in
question plus the actual year-end bonus paid as indicated by the
records of the Company, or, pursuant to section 3.1 of this ERA Plan,
deemed paid by the Company to the Executive for the purposes of this
definition and endorsed on the record set out in Schedule "B" to the
Agreement (as the case may be), in each case prorated for any part
year.
"ERA PLAN MANAGEMENT COST ESTIMATE" has the meaning attributed to it in
section 2.3 of this ERA Plan.
"EXECUTIVE SEVERANCE CONTRACT" means a contract of employment or
executive severance agreement, if any, between the Company and any
Executive that governs all or any part of such Executive's employment
with the Company and its termination.
-2-
"INTEREST RATE" means for each quarter of each Fiscal Year, the average
annual Government of Canada Bond Yield (>30 Years) in effect on the day
immediately prior to the date on which such Fiscal Year quarter begins,
the said interest rate (amended at the end of each such Fiscal Year
quarter) shall apply for the purposes of calculating interest as
contemplated by the terms of this ERA Plan.
"HIRE DATE" means the date designated by the Company by endorsement in
writing as set out opposite the Executive's name on Schedule "B" to the
Agreement as the date on which the Executive was, or (pursuant to
section 3.1 of this ERA Plan) was deemed to have been hired.
"LC-FUNDED ERA PLAN PAYOUT" has the meaning attributed to it in section
2.3 of this ERA Plan.
"LC PAYMENT" has the meaning attributed to it in section 2.3 of this
ERA Plan.
"PAYOUT PERIOD" has the meaning attributed to it in section 4.1(b) of
this ERA Plan.
"RETIREMENT ALLOWANCE" means, for each Executive entitled thereto, the
entitlements provided by this ERA Plan in the amount calculated
pursuant to, and at the times set out in, Article IV.
"RETIREMENT DATE" has the meaning attributed to it in section 3.2 of
this ERA Plan.
1.2 INTERPRETATION
This ERA Plan shall be construed as if each of the provisions of the Agreement
were included in, and formed part hereof.
ARTICLE II
ERA PLAN UNFUNDED
2.1 COMPANY OBLIGATIONS
(a) Payment of the Retirement Allowance when due under this ERA Plan to each
Executive is the sole responsibility of the Company as set out in section 4.1 of
this ERA Plan. The ERA Plan is unfunded, apart from (i) any proceeds received by
the Trustee as a result of a call by him/her against the ERA Plan Letter of
Credit held by the Trustee and (ii) Contributions paid by the Company to the ERA
Plan Fund under the terms of the Agreement, including those annual Contributions
by the Company to fund the cost of any ERA Plan Letter of Credit and RCA Tax
under section 5.2(a) of the Agreement.
-3-
(b) As set out in section 4.1 of this ERA Plan, the Company agrees to pay to
each Executive (or to the Person in whose favour the Executive has made a
Beneficiary Designation) his/her Retirement Allowance as and when due under the
terms of this ERA Plan.
(c) Save as set out above and as provided in the Agreement, the Company shall
not be required to make any other contributions to the ERA Plan or to establish
or contribute to any fund, trust or account (other than the ERA Plan Fund) or to
make any advance or other funding arrangement of any kind or nature whatsoever
for the Retirement Allowances.
2.2 ERA PLAN LETTER OF CREDIT CALLS
(a) Calls on the ERA Plan Letter of Credit following an Event of Default shall
be governed by section 7.2 of the Agreement. For greater certainty, to the
extent the proceeds from any call on the ERA Plan Letter of Credit are
insufficient to fund the payment of the aggregate of all Retirement Allowances,
ERA Plan Management Costs and RCA Tax, the Company shall, upon application of
the proceeds of any such call on the ERA Plan Letter of Credit continue to be
obligated (and hereby agrees) to make the payment(s) in question in accordance
with the terms of the ERA Plan and the Agreement.
(b) If for any reason a lump sum payment of all of the entitlement of an
Executive (or his/her estate or any Person in whose favour he/she has made a
Beneficiary Designation) who is a LC Participating Executive shall at any time
become due and payable under the ERA Plan, with the consent of the Company set
out in an Instruction, the Trustee shall make a partial call on the ERA Letter
of Credit in an amount equal to such lump-sum payment. The Trustee shall apply
the proceeds of such partial draw in accordance with, and take those steps set
out in, the applicable clauses of section 2.3.
2.3 ERA PLAN LETTER OF CREDIT PROCEEDS
If the Trustee receives payment from the issuer of any ERA Plan Letter of Credit
(a "LC PAYMENT") for any reason, including, without limitation, payment
following an Event of Default under section 7.2 of the Agreement or payment on
Instruction under section 2.2 of this ERA Plan, the Trustee shall:
(a) forthwith deposit the full amount of the LC Payment into the
ERA Plan Fund Account;
(b) subject to any Instructions regarding the amount in question,
estimate the amount required by the Trustee to pay his/her
reasonable estimate of the costs to satisfy the remaining
requirements of this ERA Plan and the Agreement following the
distributions contemplated by this section 2.3 of this ERA
Plan (the "ERA PLAN MANAGEMENT COST Estimate") and set such
amount aside;
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(c) forthwith remit to the Receiver-General for Canada on account
of RCA Tax an amount equal to the ERA Plan Management Cost
Estimate;
(d) for partial calls contemplated by section 2.2(b) of this ERA
Plan, confirm the amount of the Retirement Allowance in
question (the subject "LC-FUNDED ERA PLAN PAYOUT"), withhold
and remit to the Receiver-General for Canada on behalf of such
Executive or Person in whose favour the Executive has made a
Beneficiary Designation, source deductions under the Tax Act
based on such LC-Funded ERA Plan Payout, obtain or generate
(as required by Applicable Laws) such documentation as may be
required by the Tax Act regarding compliance with applicable
RCA Tax procedures, and against receipt from such Executive
(or his/her beneficiary, as aforesaid) such executed receipts,
releases or other documentation as the Company and the Trustee
may reasonably require, pay to such Executive (or his/her
beneficiary, as aforesaid) his/her LC-Funded ERA Plan Payout
less the said amount withheld and remitted to by the Trustee
to the Receiver-General for Canada on his/her behalf;
(e) for a call by the Trustee of the full balance of the ERA
Plan Letter of Credit contemplated by section 7.2 of the
Agreement, confirm the amount equal to the aggregate of the
Retirement Allowance payments payable by the Company to each
Executive with unpaid entitlements (who was a LC-Participating
Executive at or prior to the date on which the ERA Plan Letter
of Credit in question was issued or renewed) and after
deducting the sum of the ERA Plan Management Cost Estimate and
the payment of RCA Tax under section 2.3(c) of this ERA Plan,
allocate from the remaining balance in the ERA Plan Account
(up to the aggregate of all Retirement Allowances for all such
LC-Participating Executives) among such LC-Participating
Executives (or their respective beneficiaries under
Beneficiary Designations) PRO RATA based on the ratio of each
such LC-Participating Executive's Retirement Allowance to the
aggregate of the Retirement Allowances of all such
LC-Participating Executives (the amount so determined for each
such LC-Participating Executive is referred to herein as
his/her "LC-FUNDED ERA PLAN PAYOUT");
(f) to the extent that there is any remaining balance in the ERA
Plan Fund following the payments contemplated by section
2.3(e) of this ERA Plan, the Trustee shall confirm the amount
that is equal to the aggregate of all Retirement Allowance
payments payable by the Company to each Executive (or their
respective beneficiaries under Beneficiary Designations) with
unpaid entitlements (who became a LC-Participating Executive
after the date on which the ERA Plan Letter of Credit in
question was issued or renewed) and allocate from the
remaining balance in the ERA Plan Account, if any, (up to the
aggregate of the Retirement Allowances for all such remaining
LC-Participating Executives) among
-5-
such remaining LC-Participating Executives PRO RATA based on
the ratio of each such remaining LC-Participating Executive's
Retirement Allowance to the aggregate of the Retirement
Allowances of all such remaining LC-Participating Executives
(the amount so determined for each such remaining
LC-Participating Executive is referred to herein as his/her
"LC-FUNDED ERA PLAN PAYOUT");
(g) for each LC-Participating Executive, or their respective
beneficiaries under Beneficiary Designations, (as the case may
be) withhold and remit to the Receiver-General for Canada on
his/her behalf, source deductions under the Tax Act based on
their respective LC-Funded ERA Plan Payout, obtain or generate
(as required by Applicable Laws) such documentation as may be
required by the Tax Act regarding compliance with applicable
RCA Tax procedures, and against receipt from each such
LC-Participating Executive (or their respective beneficiaries
under Beneficiary Designations) such executed receipts,
releases or other documentation as the Company and the Trustee
may reasonably require, pay to such LC-Participating Executive
(or their respective beneficiaries under Beneficiary
Designations) his/her LC-Funded ERA Plan Payout less the said
amount withheld and remitted to by the Trustee to the
Receiver-General for Canada on his/her behalf; and
(h) once payments required to be made by the Trustee in accordance
with the foregoing provisions of this section 2.3 of this ERA
Plan have been made, then the Trustee shall remit the balance
(if any) in the ERA Plan Fund to the Company (less the ERA
Plan Management Cost Estimate any the said amount set aside
for RCA Tax obligations).
ARTICLE III
HIRE DATES - RETIREMENT DATES - CALCULATION OF INTEREST
3.1 HIRE DATES
Unless an earlier date is otherwise designated by the Company in its sole
discretion and endorsed opposite the name of the Executive on Schedule "B" to
the Agreement (with notice in writing to the affected Executive), the hiring
date (the "HIRE DATE") for each Executive for the purpose of calculating the
entitlements of each Executive to Retirement Allowances under section 4.1(a)(i)
of this ERA Plan shall be the date on which the employment of the Executive
began. An Executive need not have been an employee of the Company as at January
1, 2004 to have designated in his/her favour for purposes of section 4.1(a)(i)
of this ERA Plan a Hiring Date that predates January 1, 2004.
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3.2 RETIREMENT DATES
For the purpose of this Plan, an Executive's "RETIREMENT DATE" shall be the date
on which he/she leaves the employment of the Company.
3.3 CALCULATION OF INTEREST
For the purpose of this Plan, interest shall be calculated and compounded on the
Retirement Allowance in question for the periods fixed by the terms of this ERA
Plan at the end of each quarter of each Fiscal Year at the Interest Rate. To
give effect to the foregoing, the amount so calculated shall be added to the
Retirement Allowance in question and recorded on the books of the ERA Plan at
the end of each Fiscal Year quarter.
ARTICLE IV
RETIREMENT ALLOWANCES
4.1 RETIREMENT ALLOWANCES
(a) The Retirement Allowance for each Executive is the sum of the following
amounts calculated by the Company, acting reasonably:
(i) 15.0% of that part of the Executive's Earnings (if any)
attributable to the period determined as follows:
(A) determine the number of full months from the
Executive's Hire Date up to and including December
31, 2003 and divide that number by 2; and
(B) The period for the purposes of this section 4.1(a)(i)
shall be determined by counting back from December
31, 2003 that number of whole months that resulted
from the calculation under section 4.1(a)(i)(A).
that have vested in accordance with the provisions of section
4.2(a) of this ERA Plan. Interest shall accrue on the unpaid
balance of this part of each Executive's Retirement Allowance
from and after that date designated by the Company on Schedule
"B" opposite such Executive's name, calculated in accordance
with the provisions of section 3.3;
(ii) 15.0% of that part of the Executive's Earnings attributable to
his/her Continuous Service. Interest shall accrue on the
unpaid balance of this part of each Executive's Retirement
Allowance from and after that date on which this part of the
Executive's Retirement Allowance vests in
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accordance with the provisions of section 4.2(a) of this ERA
Plan, calculated in accordance with the provisions of section
3.3; and
(iii) following any Change in Control, 15.0% of any entitlement of
the Executive to a Severance Amount (as such term is defined
the employee's Executive Severance Agreement). Interest shall
accrue on the unpaid balance of this from and after that date
on which this part of the Executive's Retirement Allowance
vests in accordance with the provisions of section 4.2(a) of
this ERA Plan calculated in accordance with the provisions of
section 3.3.
The Trustee shall have the right to review and confirm the calculations made by
the Company for the Retirement Allowances of each of the Executives, and the
Company agrees to provide copies of all of its working papers and other
documents used by it in doing its calculations hereunder.
(b) Unless payment thereof is accelerated to a lump-sum payment obligation in
those circumstances described in sections 5.1 of this ERA Plan, the Company
agrees to pay to each Executive his/her Retirement Allowance by consecutive
monthly payments commencing in the month immediately following the month in
which his/her Retirement Date occurs and continuing thereafter for that period
of whole years, being not less than three or greater than 10 years (the
Executive's "PAYOUT PERIOD"), as the Executive in question may elect by notice
in writing to the Company at any time immediately prior to such Executive's
Retirement Date. If any Executive fails to so elect, he/she shall be irrevocably
deemed to have selected a period of 3 years.
4.2 VESTING OF ENTITLEMENTS
(a) For each Executive, for that part of his/her Retirement Allowance
(if any) provided for in section 4.1(a)(i) of this ERA Plan:
(i) the said entitlement shall vest and become a binding
obligation of the Company at the rate of 1/24 per month
commencing on the effective date on which the Executive in
question becomes a member of this ERA Plan. For those
Executives who were in the employ of the Company on January 1,
2004 who become members of the ERA Plan, the effective date
for the purposes of this section 4.2(a)(i) shall be January 1,
2004; and
(ii) upon either the happening of a Change in Control or a call by
the Trustee under the ERA Plan Letter of Credit under section
7.2 of the Agreement, any part of an Executive's Retirement
Allowance provided for in section 4.1(a)(i) of this ERA Plan
that has not vested in accordance with the provisions of
section 4.2(a)(i) of this ERA Plan, shall vest in full as of
the day immediately prior to the date on which the Change in
Control, or ERA Plan Letter of Credit call, occurred.
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(b) For each Executive, for that part of his/her Retirement Allowance provided
for in section 4.1(a)(ii) of this ERA Plan shall in respect of each month of
his/her Continuous Service vest at the end of such month.
(c) For each Executive, for that part of his/her Retirement Allowance provided
for in section 4.1(a)(iii) of this ERA Plan shall vest in full as of the day
immediately prior to the date on which the Change in Control.
(d) Notwithstanding vesting of entitlements under this section 4.2 of this ERA
Plan, each Executive may lose all his/her right, title and interest to
entitlements in those circumstances provided for in sections 4.3(b) and 6.1(b)
of this ERA Plan.
4.3 EFFECT OF TERMINATION OF EMPLOYMENT
If the employment of an Executive with the Company ends prior to his/her
Retirement Date:
(a) subject to the application of either of sections 5.1 and 5.2
of this ERA Plan, and subject to the loss of an entitlement to
a Retiring Allowance arising under the provisions of section
4.3(b) of this ERA Plan, the Executive will be entitled to
receive a Retiring Allowance equal to the amounts calculated
under section 4.1 of this ERA Plan which vested under section
4.2 of this ERA Plan on or prior to the date on which the
Executive's employment with the Company terminated; and
(b) for cause, including without limitation, for reasons of
misconduct, malpractice, gross negligence, wilful breach of
his/her obligations to the Company, all of the Executive's
Retirement Allowance entitlements conferred on him/her under
this ERA Plan and the Agreement (whether or not vested) and
all liability and obligations of the Company to such Executive
shall immediately cease and terminate.
4.4 LIMITATION
No right, benefit, term or condition imposed under any statute, order,
regulation, policy or guideline that provides at any time on or after the
Effective Date for a right, benefit, term or condition greater than the rights,
benefits, terms or conditions agreed to with each Executive under this ERA Plan
and the Agreement shall have the effect of increasing the obligations of the
Company hereunder unless and until agreed to in writing by the Company and the
Executive in question.
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ARTICLE V
PAYMENTS
5.1 FORM OF PAYMENT
(a) Unless payment of the Retirement Allowance is governed by another clause of
this section 5.1 or unless payment of all entitlements have been made following
a call under the ERA Plan Letter of Credit as provided for in section 2.3, in
the event of an Executive's retirement or a Company-initiated termination other
than for cause, a Retiring Allowance (provided the Executive in question remains
entitled thereto under the terms of the Agreement and this ERA Plan) shall be
payable to the Executive or to those Person(s) in whose favour he/she has made a
Beneficiary Election in the standard form of payment of monthly instalments as
contemplated by section 4.1(b) of this ERA Plan for the Payment Period fixed by
the Executive in question in his/her Payment Period Election under section
2.2(a) of the Agreement.
(b) Notwithstanding that an Executive has made a Payment Period Election, the
Executive may by notice in writing to the Company (the "ACCELERATED PAYMENT
ELECTION") elect at any time not later two months prior to his/her Retirement
Date to receive his/her Retirement Allowance in a lump sum. Payment shall be
made by the Company to the Executive within 30 days following the said
Retirement Date by way of lump sum in an amount equal to the Retirement
Allowance to the date of payment, as calculated by the Company, whose
determination of the foregoing shall be final and binding on the Parties, absent
manifest error.
(c) If an Executive dies on or prior to his/her Retirement Date and if the
Executive has made a Beneficiary Designation, then the Retirement Allowance
shall be paid to the Person(s) named in the Beneficiary Designation during the
Executive's Payment Period.
(d) If an Executive dies on or prior to his/her Retirement Date and if there is
no Beneficiary Designation of the Executive then in effect, then the Retirement
Allowance shall be paid within 6 months of the death of the Executive to his/her
estate in a lump sum in the amount equal to the Retirement Allowance, as
determined by the Company, whose determination of the foregoing shall be final
and binding on the Parties and the Estate of the deceased Executive, absent
manifest error.
(e) If an Executive dies after his/her Retirement Date and if the Executive has
made a Beneficiary Designation, then the remaining Retirement Allowance shall be
paid to the Person(s) named in the Beneficiary Designation during the
Executive's Payment Period.
(f) If an Executive dies after his/her Retirement Date and if there is no
Beneficiary Designation of the Executive then in effect, then the remaining
Retirement Allowance shall be paid within 6 months of the death of the Executive
to his/her estate in a lump sum in the amount equal to the Retirement Allowance,
as determined by the Company, whose determination of the foregoing shall be
final and binding on the Parties and the Estate of the deceased Executive,
absent manifest error.
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5.2 PAYMENT MODIFICATION
Notwithstanding any other provision of this ERA Plan, the method of payment or
the period during which benefits hereunder are payable may be changed or
modified by agreement in writing between the Company and the Executive in
question.
5.3 INFORMATION TO BE PROVIDED BEFORE BENEFITS PAID
Payment of the Retiring Allowance under this ERA Plan shall not be made or
continued to be made until the Person entitled to payment delivers to the
Company such information as the Company reasonably requires.
5.4 PAYMENTS SUBJECT TO TAX WITHHOLDING, SET-OFFS, ETC.
The Company shall not, as a result of this ERA Plan, be liable for or subject to
the debts, contracts, liabilities, engagements or torts of any Executive. The
Company may require a retention by way of deduction or set-off out of any amount
that may be or is payable under this ERA Plan if:
(a) a statute so provides, or
(b) a court order so requires.
The amount to be set-off or deducted shall not exceed the amount specified in
the statute or court order.
5.5 BENEFICIARY DESIGNATIONS
A designation by any Executive of a beneficiary(ies) to receive the Retirement
Allowance entitlements under this ERA Plan shall be valid if it is:
(a) in writing in the form set out in Schedule "E", delivered to
the Company before the death of the Executive, and not revoked
by the Executive or by any operation of law, or
(b) made by will, where subsection (a) of this section 5.5 does
not apply.
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ARTICLE VI
OBLIGATIONS OF THE EXECUTIVE
6.1 BREACH OF COVENANT
(a) All obligations of the Company under this ERA Plan are expressly made
conditional upon the due observance and performance by the Executive of any and
all of the covenants contained in his/her Executive Severance Contract.
(b) If the Executive fails to fulfil or carry out any of the covenants
contained in the Executive Severance Contract, all such Executive's entitlements
hereunder and all liability and obligation of the Company under the ERA Plan and
the Agreement shall immediately cease and terminate.
ARTICLE VII
GENERAL
7.1 NO ENLARGEMENT OF EMPLOYMENT RIGHTS
(a) Nothing in this ERA Plan shall be construed to give to any Executive or to
any Person claiming through the Executive any right, title or interest in or to
any assets, profits, earnings, or property of the Company except as specifically
provided herein.
(b) This ERA Plan does not enlarge any rights, which the Executive may have as
an employee of the Company, save as specifically provided or in this ERA Plan or
the Agreement.
(c) The Agreement does not confer the right on any Executive to require the
Company to continue his/her Executive employment.
(d) If:
(i) the Agreement is terminated in whole or in part,
(ii) any provision of benefits under this ERA Plan is merged or
consolidated with the provision of benefits under any other
agreement,
(iii) the employment of an Executive is terminated, or
(iv) the employment status of the subject Executive changes,
the Executive in question shall have only such rights with respect to this ERA
Plan as are specifically defined and provided for in this ERA Plan, subject to
any statutory requirements which may apply to this ERA Plan at any time.
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7.2 RECORDS
Wherever the records of the Company are used for the purposes of this ERA Plan,
such records shall be conclusive of the facts set out therein.
7.3 ERA PLAN AMENDMENT
(a) The Company hereby reserves the right to amend the Agreement or terminate
this ERA Plan, in whole or in part, at such time and from time to time, in such
manner and to such extent as it may deem advisable, provided written notice is
given to each Executive and each such Executive agrees to the amendment or
termination.
(b) No amendment to the Agreement and no amendment or termination of this ERA
Plan by the Company shall:
(i) increase the obligations of any Executive under this ERA Plan,
(ii) reduce any Executive's future benefits under this ERA Plan, or
(iii) reduce any benefit under this ERA Plan below the amount that
would otherwise be required to be paid under this ERA Plan if
the Executive had terminated employment with the Company on
the date immediately prior to the date such amendment or
termination is made,
unless each Executive gives written consent thereto.
(c) Notwithstanding provisions of this section 7.3 of this ERA Plan, the Company
may make amendments of a technical nature to clarify its intent, to correct
errors or omissions in the Agreement or this ERA Plan or to maintain the
treatment under the Tax Act contemplated by this ERA Plan or the payments under
this ERA Plan.
(d) The Company shall inform the Executive within three months, or such other
reasonable time as the circumstances warrant, after the exercise by it of any of
the rights conferred on it by this section 7.3 of this ERA Plan.
SCHEDULE "B"
PAGE BY PAGE LISTING OF EXECUTIVE ENTITLEMENTS - DESIGNATIONS AND
ELECTIONS RECORD
EXECUTIVE NAME:____________________________
--------------- --------------- -------------- ------------- ---------------
HIRE DATE,
PRE-JANUARY LC RETIREMENT CONTRACT BENEFICIARY
1,2004 PARTICIPATION DATE AND PARTICULAR DESIGNATION
EARNINGS AND ELECTION PAYMENT
INTEREST DATE PERIOD
ACCRUAL DATE
--------------- --------------- -------------- ------------- ---------------
--------------- --------------- -------------- ------------- ---------------
SCHEDULE "C"
FORM OF LC BENEFIT ELECTION NOTICE
TO: KINROSS GOLD CORPORATION (the "COMPANY")
AND TO: [INSERT] (the "TRUSTEE")
RE. EXECUTIVE RETIREMENT ALLOWANCE PLAN (THE "ERA PLAN")
The undersigned Executive hereby gives to the Company of his/her election to be
treated as a LC Participating Executive (each of the foregoing capitalized terms
having the meaning ascribed thereto in the Executive Retirement Allowance Plan
and Trust Agreement dated as of June 1, 2004 constituting the ERA Plan) for all
purposes of the ERA Plan.
DATED the day of , .
SIGNED, SEALED AND DELIVERED )
In the presence of )
)
_______________________________ ) ________________________
Witness ) Executive
Name: ) Name:
)
)
SCHEDULE "D"
BENEFICIARY DESIGNATION
TO: KINROSS GOLD CORPORATION (the "COMPANY")
AND TO: [INSERT] (the "TRUSTEE")
RE. EXECUTIVE RETIREMENT ALLOWANCE PLAN (THE "ERA PLAN")
Pursuant to section 5.5 of the ERA Plan, undersigned Executive hereby designates
the following Persons as his/her beneficiary(ies) with all the attendant rights
and privileges conferred on such Persons under the ERA Plan and the Executive
Retirement Allowance Plan and Trust Agreement dated as of June 1, 2004
constituting the ERA Plan) for all purposes of the ERA Plan:
----------------- ----------------------- ------------------------
BENEFICIARY BENEFICIARY CONTACT BENEFICIARY INTEREST
NAME PARTICULARS PERCENTAGE/OTHER
----------------- ----------------------- ------------------------
----------------- ----------------------- ------------------------
----------------- ----------------------- ------------------------
----------------- ----------------------- ------------------------
DATED the day of , .
SIGNED, SEALED AND DELIVERED )
In the presence of )
)
_______________________________ ) ________________________
Witness ) Executive
Name: ) Name:
)
)
SCHEDULE "E"
PAYMENT PERIOD ELECTION
TO: KINROSS GOLD CORPORATION (the "COMPANY")
AND TO: [INSERT] (the "TRUSTEE")
RE. EXECUTIVE RETIREMENT ALLOWANCE PLAN (THE "ERA PLAN")
--------------------------------------------------------
The undersigned Executive hereby gives to the Company that he has selected a
period of ___________(1) years as the Payment Period for the Executive under the
terms of the ERA Plan (each of the foregoing capitalized terms having the
meaning ascribed thereto in the Executive Retirement Allowance Plan and Trust
Agreement dated as of June 1, 2004 constituting the ERA Plan).
DATED the day of , .
SIGNED, SEALED AND DELIVERED )
In the presence of )
)
_______________________________ ) ________________________
Witness ) Executive
Name: ) Name:
)
)
_________________________
(1) Must be one a number of whole years not less than 3 and not greater than 10.
SCHEDULE "F"
ERA PLAN LETTER OF CREDIT DRAW TERMS
