THIS AGREEMENT entered into the 6th day of August, 2002.
Exhibit 10.5
THIS AGREEMENT entered into the 6th day of August, 2002.
| BETWEEN: | XXXXXXXX RESOURCES INC. | |||
| a corporation incorporated under | ||||
| the laws of Canada | ||||
| (hereinafter called the “Xxxxxxxx”) | ||||
| -and- | ||||
| XXXXX XXXX, | ||||
| of the City of Montréal, | ||||
| in the Province of Québec | ||||
| (hereinafter called the “Employee”) |
WHEREAS the Employee has been employed by a predecessor company since April, 1996 and has been an executive officer of Xxxxxxxx since January, 2001;
AND WHEREAS Xxxxxxxx wishes to enter into this agreement to provide certain terms and conditions of the Employee’s continued employment as Executive Vice President and Chief Administrative Officer of Xxxxxxxx, including certain rights in the event of a Change of Control, as more particularly described herein;
NOW THEREFORE THIS AGREEMENT WITNESSETH that for other good and valuable consideration, and the sum of one dollar ($1.00) now paid by each party hereto to the other (the receipt whereof is hereby by each of them acknowledged), the parties here covenant and agree as follows:
1. The Employee shall be employed as Executive Vice President and Chief Administrative Officer of Xxxxxxxx on a full time basis and shall perform such duties and exercise such powers as are from time to time assigned to the Employee. The Employee shall also serve as a director, officer or employee of such affiliates or associates of Xxxxxxxx as Xxxxxxxx may from time to time require. The Employee shall devote her full time and attention to the affairs of Xxxxxxxx and its affiliates and associates.
2. The Employee shall be paid an annual salary of $110,000, payable bi-weekly in arrears. Salary reviews shall be carried out by the Compensation Committee of the Board of Directors on a periodic basis.
3. While employed by Xxxxxxxx, the Employee shall be entitled to health and other benefits, as set out on Schedule A which are provided to senior employees by Xxxxxxxx under its benefit plans subject to such eligibility and other requirements as may apply. Xxxxxxxx shall provide pension benefits through participation in a Xxxxxxxx Pension Plan or at Xxxxxxxx’x option, through contributions made to the Employee’s RRSP, such pension benefits to be in accordance with Xxxxxxxx’x policy for senior employees.
4. The Employee shall be entitled to four weeks annual vacation to be taken at such time as Xxxxxxxx may prescribe. Only two weeks of this vacation entitlement may be carried forward from year to year provided that no vacation entitlement may be carried forward for more than one year.
5. Subject to the provisions of paragraph 9 hereof, the employee’s employment under this agreement may be terminated as follows:
| (a) | by the Employee, upon three months notice in writing; | ||
| (b) | in the event of a Change of Control, as defined in paragraph 13, the Employee shall have the right, within six months thereof on thirty days notice in writing to Xxxxxxxx, to resign her position as Executive Vice President and Chief Administrative Officer and any other directorships or offices that she may hold as a result of her employment with Xxxxxxxx and upon such resignation to be paid forthwith twenty-four months salary by way of lump sum payment plus benefits as set out in paragraphs 7 and 8 below. In addition, the employee shall be entitled to have an additional twenty-four months of pension benefits as described in paragraph 3 of this Agreement added to her pension benefits entitlement. Such pension benefit is to be calculated on the basis that the Employee had been employed for the additional twenty-four months at a salary equal to that paid to the Employee at the time of such resignation; | ||
| (c) | by Xxxxxxxx, for cause, at any time forthwith, without notice or payment in lieu of notice. For greater certainty, cause shall not include the refusal of the Employee to accept either a relocation from her existing city of residence or a change in the nature of employment that would lessen the status, authority or responsibility of the Employee; or | ||
| (d) | by Xxxxxxxx, upon payment forthwith of a lump sum amount equal to twenty-four months salary in lieu of notice plus benefits as set out in paragraphs 7 and 8 below. |
6. For the purposes of this agreement, the salary payable to the Employee under subparagraphs 5(b) or (d) is in lieu of notice or other compensation to which the Employee may otherwise be entitled and the Employee shall be under no obligation to act to mitigate any payment due hereunder or otherwise suffer a reduction of any payment due hereunder to the Employee by virtue of any compensation or payments which the Employee may receive after cessation of employment by Xxxxxxxx from any other source whatsoever.
7. In the event that the Employee resigns under subparagraph 5(b) or the Employee’s employment is terminated under subparagraph 5(d), the Employee shall be entitled to continuation of the benefits set out in paragraph 3 for twenty-four months from the date of resignation or termination or payment forthwith by Xxxxxxxx of a lump sum amount in lieu thereof.
8. The Employee’s outstanding rights if any at the time of resignation or termination under Xxxxxxxx’x Employee Incentive Plan shall continue for twenty-four months from the date of resignation or termination except that the Employee’s right under any stock options outstanding at the time of resignation or termination shall immediately become fully exercisable and shall
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expire at the close of business on the ninetieth day following the date of resignation or termination or the next business day if the ninetieth day is not a business day. Should the Employee exercise outstanding options, Xxxxxxxx shall deliver the share certificate(s) representing the shares issued pursuant to the exercise of options against payment to Xxxxxxxx of the aggregate exercise price at a closing to be held within five (5) business days of receipt by Xxxxxxxx of notice of exercise of option in writing. If the Employee has not previously elected to participate in the share purchase plan of the Employee Incentive Plan, she shall be deemed not to have any outstanding rights under such plan.
9. In the event that the Employee becomes permanently disabled, the Employee or Xxxxxxxx may terminate this agreement by giving 90 days notice in writing provided that the Employee shall be entitled to receive long term disability benefits under Xxxxxxxx’x long term disability policy and provided that Xxxxxxxx agrees to pay to the Employee, a monthly amount equal to the amount of the Employee’s monthly salary not covered by the benefits under Xxxxxxxx’x long term disability policy along with the other benefits to which the Employee would be entitled for twenty-four months from the date that the Employee becomes permanently disabled. In the event that the Employee is not entitled to receive long term disability benefits under Xxxxxxxx’x long term disability policy or Xxxxxxxx will not agree to pay the Employee the amount not covered by the long term disability policy of Xxxxxxxx, then Xxxxxxxx will only be entitled to terminate this agreement pursuant to subparagraph 5(d). For the purposes of this paragraph, permanent disability means any medical condition, as determined by a legally qualified medical practitioner selected by Xxxxxxxx which to a substantial degree, prevents or impairs the Employee from performing her obligations and duties and has existed for a continuous period of more than 120 days in any 365 consecutive days or for periods aggregating 185 days in any 365 consecutive days and in the opinion of the medical practitioner is like to continue.
10. It is agreed by the Employee and Xxxxxxxx that the notice periods and payments provided in paragraph 5 are reasonable and fair, given all the circumstances, and that no other notice periods, express or implied, shall apply.
11. In the event that the Employee exercises her right of resignation under subparagraph 5(b), or is terminated under subparagraph 5(d), subject to any restriction in the right of Xxxxxxxx to grant an indemnity to the Employee pursuant to the provisions of the Canada Business Corporations Act, Xxxxxxxx hereby agrees to indemnify and save the Employee, her heirs, executors, administrators and other legal personal representatives, harmless from and against any and all losses, claims, actions, suits, proceedings, damages, liabilities, charges, or expenses of whatsoever nature or kind, (including, without limitation, any investigation expenses or other expenses and disbursements incurred in connection with testifying or otherwise participating in any legal or other proceedings before any court or regulatory authority) , that the Employee may sustain or incur, arising from or connected with or in respect of any actions, suits or proceedings proposed, commenced or prosecuted against the Employee or to which the Employee may be or may become subject, by reason of or in respect of, anything done or permitted by the Employee in or about the execution of the duties of the Employee in her role as an executive officer or employee of Xxxxxxxx, or any of its associated or affiliated companies, or by reason of her acting or having acted as an executive officer of Xxxxxxxx, or any of its associated or affiliated companies and from all other costs, charges and expenses that the Employee may sustain or incur by reason of or arising from or in any manner connected with or in relation to her employment by Xxxxxxxx or the affairs thereof.
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In case any action or other proceedings is brought against the Employee, in respect of which indemnity may be sought hereunder, the Employee shall give Xxxxxxxx prompt notice of any such action or other proceeding of which the Employee has knowledge, and Xxxxxxxx shall undertake the investigation and defence thereof on behalf of the Employee, including employment of counsel acceptable to the Employee and payment of all fees and expenses.
No admission of liability and no settlement of any action or other proceedings brought against the Employee shall be made without the consent of Xxxxxxxx and the Employee, such consent not to be unreasonably withheld.
Notwithstanding that Xxxxxxxx agrees to undertake the investigation and defence of any action or other proceeding brought against the Employee, the Employee shall have the right to employ separate counsel in any such proceeding and participate in the defence thereof, but Xxxxxxxx shall not be liable to pay the fees and expenses of such counsel unless:
| (a) | employment of such counsel has been authorized by Xxxxxxxx, or | ||
| (b) | Xxxxxxxx has not assumed the defense of the action or other proceedings within a reasonable period of time after receiving notice thereof, or | ||
| (c) | the named parties to any such action or other proceedings include Xxxxxxxx and the Employee, and the Employee shall have been advised by counsel that there may be a conflict of interest between Xxxxxxxx and the Employee, or | ||
| (d) | there are one or more legal defences available to the Employee which are different from or in addition to those available to Xxxxxxxx. |
The indemnity herein provided to the Employee shall not apply in the event and to the extent that a court of competent jurisdiction in a final judgement shall determine that the Employee was guilty of gross negligence or fraud.
12. In the event that the Employee exercises her right of resignation under subparagraph 5(b) or is terminated under subparagraph 5(d), Xxxxxxxx hereby agrees, effective the date of such resignation, to release, remise, acquit and forever discharge the Employee, her heirs, executors, administrators and other legal personal representatives and all of the Employee’s respective lands, assets, properties, estates and effects whatsoever and wheresoever situate, of and from any and all liabilities of every nature and kind, whether contingent or otherwise, debts, sum and sums of money, accounts, dues, contracts, agreements, indemnity, covenants, whether express or implied, claims, demands, legal costs, interest, loss or injury of every kind or nature whatsoever, actions, suits damages, causes of action, manner of actions, claims, counter-claims and demands whatsoever and however arising either at law or in equity or otherwise, against the Employee which Xxxxxxxx ever had, has at the date of such resignation or which Xxxxxxxx, its successors or assigns or any of them, at any time thereafter can, shall, or may have, for or by reason of, or in any way arising from, any cause, matter or thing whatsoever existing up to the date of such resignation, including, without limitation, any matter arising out of or in any way related to or connected with or by reason of the Employee’s having been an executive officer or employee of Xxxxxxxx, or any of its associated or affiliated companies, or by virtue of the employment of the Employee by Xxxxxxxx. The release and discharge provided herein shall not apply in circumstances in which a court of competent jurisdiction in a final judgment shall determine that the Employee was guilty of gross negligence or fraud.
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For greater certainty, this release and discharge does not waive Xxxxxxxx’x right to collect money loaned to the Employee which is validly owing and outstanding at the time of exercise of the right of resignation or termination of employment.
13. For purposes of this agreement, “Change of Control” means at any time from the effective date of this agreement:
| (a) | a change of one-third or more of the directors of Xxxxxxxx unless approved by a majority of the Board of Directors; or | ||
| (b) | any acquisition of thirty per cent (30%) or more of the common shares of Xxxxxxxx, or voting rights in respect thereof, by any person or company which is accompanied by a request by that person for representation on the Board of Directors of Xxxxxxxx and which acquisition is not approved by a majority of the directors of Xxxxxxxx. |
14. Any notice or other communication required or permitted to be given or made hereunder shall be in writing and shall be well and sufficiently given or made if (a) enclosed in a sealed envelope and delivered in person to the party hereto to whom it is addressed (or in the case of Xxxxxxxx, to the receptionist or other responsible employee, not being the Employee) at the relevant address set forth below; or (b) telexed, telegraphed, telecopied or sent by other means of recorded electronic communication if to Xxxxxxxx, addressed to the President, Xxxxx 0000, 0000 Xxxxxxxxxx, Xxxxxxxx, Xxxxxx X0X 0X0 and if to the Employee, addressed to her at her most recent address as shown on the records of Xxxxxxxx. Any notice or other communication so given or made shall be deemed to have been given or made and to have been received on the day of delivery, if delivered, and the day of sending, if sent by telex, telegraph, telecopy or other means of recorded electronic communication, provided such delivery or sending is during normal business hours on a business day or if not on the next business day thereafter. Either party hereto may change her or its address for notice by notice to the other party hereto given in the manner aforesaid.
15. No provision of this agreement may be modified or amended unless such modification or amendment is authorized by the Board of Directors or a Committee thereof and is agreed to in writing, signed by the Employee and Xxxxxxxx. No waiver by either party hereto or any breach by the other party hereto of any condition or provision of this agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the time or any prior or subsequent time.
16. This agreement contains all of the terms and conditions agreed by the parties hereto and supersedes all prior agreements and understandings. No agreements or representations, oral or otherwise, express or implied, with respect to the employment of the Employee by Xxxxxxxx have been made by either party which are not set forth expressly in this agreement.
17. This agreement may not be assigned by either party without consent.
18. This agreement shall enure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators and successors.
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19. This agreement shall be subject to and governed by the laws of the Province of Québec. The Courts of Québec shall have exclusive jurisdiction with respect to any dispute or other matter arising hereunder.
20. The invalidity, illegality or unenforceability of any provision hereof shall not in any way affect or impair the validity, legality or enforceability of the remaining provisions hereof. The French version of the Agreement shall govern all disputes.
21. The legal fees and other costs and expenses pertaining to the enforcement of this agreement or any of the terms hereof shall be borne by Xxxxxxxx and shall be paid forthwith upon demand by the Employee on submission of duly receipted accounts.
22. The Employee acknowledges and agrees that she has been given full opportunity to obtain independent legal advice with respect to this agreement and executes this agreement voluntarily and with full knowledge of the rights granted and obligations imposed hereby.
IN WITNESS WHEREOF Xxxxxxxx has hereunto affixed its corporate seal under the hands of its proper officers in that behalf duly authorized and the Employee has hereto affixed her hand and seal.
| XXXXXXXX RESOURCES INC. | ||||
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| Xxxxx X. Xxxxxxx | ||||
| President and Chief Executive Officer | ||||
Witness as to the signature |
XXXXX XXXX |
l.s | ||
| of the Employee |
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