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EXHIBIT 10.4
EXECUTIVE EMPLOYMENT CONTRACT
THIS AGREEMENT is dated as of February 7, 1996.
BETWEEN:
GULF CANADA RESOURCES LIMITED
(hereinafter called the "Corporation")
OF THE FIRST PART
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XXXXXX X. XXXXXXX
(hereinafter called the "Executive")
OF THE SECOND PART
WHEREAS
(a) The Executive is an officer of the Corporation and is
considered by the Board of Directors of the Corporation to be
a valued employee of the Corporation and has acquired
outstanding and special skills and abilities and an extensive
background in and knowledge of the Corporation's business and
the industry in which it is engaged;
(b) The Board of Directors recognizes that it is essential, in the
best interests of the Corporation, that the Corporation retain
the continuing dedication of the Executive to his office and
employment and that the past service of the Executive to the
Corporation requires that the Executive receive fair
treatment, particularly in the event of an actual or
constructive termination of his employment with the
Corporation;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
mutual covenants herein contained and in consideration of the Executive
remaining in office and in the employment of the Corporation at the present
time and throughout the period of material change of ownership or organization
of the Corporation, it is hereby agreed as follows:
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1. DEFINITIONS
In this Agreement:
(a) "affiliate" means:
(i) one body corporate is an affiliate of another body
corporate if one of them is the subsidiary of the
other or both are subsidiaries of the same body
corporate or each of them is under the control of the
same person; and
(ii) two bodies corporate that are an affiliate of the
same body corporate at the same time are affiliates
of each other.
(b) "associate" has the meaning ascribed to that term in the
Canada Business Corporations Act.
(c) "change of control" means or shall be deemed to have occurred
if and when:
(i) the acquisition, by whatever means (including without
limitation, amalgamation, consolidation, liquidation,
arrangement or merger), by a person (or two or more
persons who in such acquisition have acted jointly or
in concert or intend to exercise jointly or in
concert any voting rights attaching to the securities
acquired), directly or indirectly, of the beneficial
ownership of such number of voting securities or
rights to voting securities of the Corporation, which
together with such person's then owned voting
securities and rights to voting securities, if any,
represent (assuming the full exercise of such rights
to voting securities) more than 20% of the combined
voting power of the Corporation's then outstanding
voting securities, together with the voting
securities acquired and such person's previously
owned rights to voting securities; or
(ii) individuals who were members of the Board of
Directors of the Corporation immediately prior to a
meeting of the shareholders of the Corporation
involving a contest for or on an item of business
relating to the election of directors shall not
constitute a majority of the Board of Directors
following such election.
(d) "Compensation Committee" means the Committee of the Board of
Directors of the Corporation from time to time appointed to
fix the
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remuneration of executives of the Corporation or, if such
Committee has not been appointed, means the Board of Directors
of the Corporation.
(e) "constructive dismissal" means, unless consented to by the
Executive in writing, any action by the Corporation which
constitutes constructive dismissal of the Executive,
including, without limiting the generality of the foregoing:
(i) any material reduction in the Executive's office,
titles, positions, duties, responsibilities, powers
or reporting relationships;
(ii) any reduction in the annual salary of the Executive;
(iii) a requirement to relocate to another province, state
or country; and
(iv) any reduction in the value of the Executive's
employee benefits plans and programmes, including,
without limiting the generality of the foregoing,
bonus arrangements.
(f) "confidential information" means information, processes,
know-how, data, trade secrets, techniques, knowledge and other
confidential information not generally known to the public
relating to or connected with the business or corporate
affairs and operations of the Corporation and its affiliates.
(g) "control" has the meaning ascribed to that term in the Canada
Business Corporations Act.
(h) "executive superannuation undertakings" refers, for purposes
of section 2.6(c) of this Agreement, to a commitment given by
the Corporation in recognition of the fact that the retirement
benefits under the registered pension plans of the Corporation
and its affiliates are subject to a maximum pension limitation
as fixed from time to time under the Income Tax Act (Canada)
and the rules and regulations promulgated by Revenue Canada,
Taxation, from time to time thereunder. To the extent that
this limitation applies with respect to the registered pension
plans of the Corporation or its affiliates for service prior
to January 1, 1996, the Corporation has undertaken to pay a
supplemental retirement allowance sufficient to provide the
Executive with an annual pension equal to the annual pension
to which the Executive would be entitled under the registered
pension plans of the Corporation and its affiliates if such
limitation did not apply to such plans. For service from
January 1, 1996 onwards, once the Revenue Canada contribution
limit has been reached,
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contributions of the same amount as required under the pension
plan will be paid to the Executive semi-monthly.
(i) "person" has the meaning ascribed to that term in the Canada
Business Corporations Act.
(j) "subsidiary" of a corporation means, at any time, a
corporation of which the corporation has control at that time,
whether directly or indirectly through one or more
subisdiaries.
2. EMPLOYMENT
2.1 Position, Duties and Responsibilities of Executive
The Executive shall have such responsibilities and powers as the Board
of Directors or the by-laws of the Corporation or the Executive's superiors may
from time to time prescribe. The Executive shall devote the whole of his time
to the Executive's duties hereunder and shall use his best efforts to promote
the interests of the Corporation. The executive shall, during the term of this
agreement:
(a) perform such managerial duties and responsibilities for the
Corporation as may be assigned to him by the Chief Executive
Officer and by the Board of Directors of the Corporation, and
at no additional remuneration, shall serve in such other
comparable positions with affiliates and associates of the
Corporation as the Board of Directors of the Corporation may
from time to time determine; and
(b) accept such office or offices to which he may be elected or
appointed by the Chief Executive Officer or by the Board of
Directors of the Corporation in addition to those of
Vice-President and Controller, provided that the performance
of the duties of such offices shall be consistent with the
scope of the duties assigned in accordance with or as provided
for in section 2.1(a) above.
2.2 Term of Agreement
The term of this Agreement shall commence on the date hereof, and
shall continue in effect to and including the earlier of:
(a) the date of voluntary retirement of the Executive in
accordance with the retirement policies established for senior
employees of the Corporation; or
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(b) the voluntary resignation of the Executive other than a
voluntary resignation pursuant to either section 2.6(b)(ii)
or section 2.6(b)(iii) hereof.
2.3 Termination of Agreement upon Disability of Executive
If at the end of any month the Executive is and has been for a period
of more than twelve (12) consecutive months unable to perform the duties
specified pursuant to this Agreement in the normal and regular manner due to
mental or physical disability, this Agreement may be terminated by the
Corporation on 30 days' notice. Notwithstanding anything contained in this
Section 2.3, the Executive shall be entitled to all benefits provided under the
disability and pension plans of the Corporation or its affiliates applicable to
the Executive at the date of this Agreement.
2.4 Termination of Agreement upon Death of Executive
If the Executive dies, this Agreement shall be terminated immediately
on the date of the Executive's death. Provided that the Executive is insurable
at reasonable premium rates, the Corporation shall cause to be obtained and
maintained during the term of this Agreement a life insurance policy naming
beneficiaries specified by the Executive, which life insurance policy shall
provide a lump sum payment of not less than two times the Executive's salary to
such beneficiaries in the event that the Executive dies during the term of this
Agreement. This insurance policy shall be in addition to and not in
substitution for any insurance policies provided to the Executive under the
Corporation's benefit plans and programmes.
2.5 Termination of Agreement by the Corporation for Cause
The Corporation may terminate this Agreement at any time without
notice in the event the Executive shall be convicted of a criminal act of
dishonesty resulting or intended to result directly or indirectly in gain or
personal enrichment of the Executive at the expense of the Corporation, or for
other sufficient cause pursuant to written notice setting forth particulars of
such cause.
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2.6 Severance Entitlement Upon Termination of Employment of the Executive
(a) The provisions of sub-section 2.6(c) shall not apply to, and
the Executive shall not be entitled to receive any severance
payments or other benefits as provided for in this Agreement
as a result of any circumstance where the termination of the
Executive's employment arises from the occurrence of any event
described in any of sections 2.2, 2.3, 2.4 or 2.5 hereof.
(b) The provisions of sub-section 2.6(c) shall, except as
specifically provided in sub-section 2.6(a) hereof, apply in
all circumstances where the Executive's employment with the
Corporation terminates, including, without limiting the
generality of the foregoing, any of the following
circumstances:
(i) where the Corporation terminates the employment of
the Executive for any reason other than for cause;
or,
(ii) where the Executive, by notice in writing to the
Corporation, terminates his employment with the
Corporation within ninety (90) days following
constructive dismissal of the Executive;
(iii) where the Executive, by notice in writing to the
Corporation, terminates his employment with the
Corporation within ninety (90) days following a
change of control of the Corporation as described in
section 1(c)(i).
(c) In the event of the termination of the Executive's employment
as provided in sub-section 2.6(b) hereof, the following
provisions shall apply:
(i) the Executive shall be entitled to receive and the
Corporation shall forthwith pay to the Executive, a
retiring allowance (hereinafter called the "Retiring
Allowance") in an undiscounted cash amount equal to
one (1) month's base salary multiplied by the number
of years of service of the Executive with the
Corporation subject to a minimum entitlement and
payment equal to twenty-four (24) months' base salary
and a maximum entitlement and payment equal to thirty
(30) months' base salary;
(ii) in addition, the Executive shall be entitled to
receive and the Corporation shall forthwith pay to
the Executive an undiscounted cash amount equal to
the value to the Executive of all those benefits
plans and programmes provided by the Corporation and
listed in Schedule "A" attached hereto for a period
of time equal to one (1)
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month for every year of service of the Executive with
the Corporation with a minimum entitlement and
payment equal to twenty-four (24) months of benefits
value and a maximum entitlement and payment equal to
thirty (30) months of benefits value. All amounts
payable under this sub-section 2(c)(ii) shall be
determined by a Fellow of the Canadian Institute of
Actuaries acceptable to the Corporation and the
Executive;
(iii) in addition, the Executive shall be entitled to
receive and the Corporation shall forthwith pay to
the Executive an undiscounted amount equal to the
product obtained by multiplying by two (2) the
Executive's target bonus under the Corporation's
Total Compensation Plan or such other similar plan
that may have replaced the Total Compensation Plan
for the year in which his employment is terminated;
(iv) the Executive shall also be entitled to receive on
termination the normal and any supplementary pension
benefits in effect on the date of this Agreement
according to the terms of the Corporation's
registered pension plans and executive superannuation
undertakings, or according to similar provisions of
any successor plan, of which the Executive is a
member at the date of termination of the Executive's
employment (collectively hereinafter called the
"Plans"). The Executive's total pension entitlement
shall be determined on the basis that the Executive
had two (2) additional years of credited service and
age under the Plans in which he is participating at
his date of termination of employment over and above
his actual age or years of credited service. In
addition, such additional years of credited service
shall be included for the purpose of determining
final or best average earnings assuming that the
Executive's monthly base salary at the date of
termination of employment would have continued
unchanged during the period of additional credited
service. Any portion of the total pension entitlement
of the Executive not eligible to be paid under the
provisions of the registered pension plans of the
Corporation shall be payable as supplementary
payments in accordance with the
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executive superannuation undertakings. If the
Executive has not vested in any or all of the Plans
on the date of termination of his employment, he
shall be or shall be deemed to be vested in any of
the Plans in which he is not vested on the date of
termination of his employment;
(v) all options for the purchase of shares of the
Corporation which have been granted by the
Corporation to the Executive prior to January 31,
1995 under the Executive Stock Option Plan (1990) or
(1994) but not yet vested shall immediately vest on
the date of termination of the Executive and the
Executive shall be entitled to exercise all such
options for the purchase of shares of the Corporation
for a period of five (5) years from the date of
termination of the Executive whether the options
vested on or before the date of termination of the
Executive;
(vi) all options for the purchase of shares of the
Corporation granted by the Corporation to the
Executive since January 1, 1995 under the Incentive
Stock Option Plan (1994) or otherwise (including,
without limitation, those options granted to the
Executive on January 31, 1995) to the date of
termination of the Executive but not yet vested shall
immediately vest on the date of termination of the
Executive and the Executive shall be entitled to
exercise any or all such options for the purchase of
shares of the Corporation for a period of one (1)
year from the date of termination of the Executive
whether such options vested on or before the date of
termination of the Executive;
(vii) the Corporation and the Executive agree that the
provisions of section 2.6(c) are fair and reasonable
and that the amounts payable by the Corporation to
the Executive pursuant to section 2.6(c) are
reasonable estimates of the damages which will be
suffered by the Executive in the event of the
termination of his employment with the Corporation in
any and all of the circumstances set out in section
2.6(b) and shall not be construed as a penalty; and,
(viii) all amounts paid by the Corporation to the Executive
pursuant to section 2.6(c) shall satisfy and forever
discharge all liabilities, claims
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or actions that the Executive may or shall have
against the Corporation arising from the termination
of employment of the Executive whether at common law
or under statute or otherwise and such payment shall
be made against delivery by the Executive to the
Corporation of a release in form and terms reasonably
satisfactory to the Corporation and the Executive.
2.7 Executive Superannuation Funding
The Corporation shall maintain in place and continue to fund the
obligations of the Corporation to the Executive under the executive
superannuation undertakings for service prior to January 1, 1996 referred to in
section 2.6(c)(iv) substantially in accordance with the terms of the Retirement
Compensation Arrangement Trust Agreement made as of January 25, 1995 between
the Corporation and The Canada Trust Company.
2.8 Directors' and Officers' Liability Insurance
Unless otherwise agreed between the parties hereto, Gulf shall
purchase and maintain, or cause to be purchased and maintained, while the
Executive remains an officer of Gulf and for a period of 10 years thereafter,
directors' and officers' errors and omissions insurance for the benefit of the
Executive on terms no less favourable in terms of coverage, and amounts, to the
extent available on reasonable commercial terms, than such insurance maintained
in effect by the Corporation on the date hereof.
3. INTEGRATION
Except for the Executive's rights to continued participation in the
Corporation's employee benefit plans, including, without limitation, the
Corporation's or its affiliates' stock option plans and savings plans and
conditions of employment generally available to other Executives of the
Corporation or its affiliates, this Agreement contains the entire agreement
between the parties and supersedes all prior oral and written agreements,
understandings, commitments and practices between the parties, including all
prior employment agreements, whether or not fully performed by the Executive
before the date of this Agreement. No amendments to this Agreement may be made
except in writing signed by both parties.
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4. CONFIDENTIAL INFORMATION
In the event of termination of employment of the Executive, the
Executive agrees to keep confidential all information of a confidential or
proprietary nature concerning the Corporation, its subsidiaries and affiliates
and their respective operations, assets, finances, business and affairs and
further agrees not to use such information for personal advantage or the
advantage of an employer, provided that nothing herein shall prevent disclosure
of information which is publicly available or which is required to be disclosed
under appropriate statues, rules of law or legal process.
5. SEVERABILITY
The invalidity and unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provisions of this
Agreement, which shall remain in full force and effect.
6. BENEFIT OF AGREEMENT
This Agreement shall enure to and be binding upon the Corporation and
its successors and the Executive and his legal representatives but otherwise it
is not assignable. It shall be a condition of any transfer by the Corporation
of the Executive to any affiliate or associate of the Corporation that, on
request of the Executive, such affiliate or associate agree to observe all the
covenants of and be bound by all obligations imposed on the Corporation under
this Agreement. The failure to do so shall be deemed to constitute a
constructive dismissal of the Executive for the purposes of section 2.6.
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7. CHOICE OF LAW
This Agreement shall be governed and interpreted in accordance with
the laws of the Province of Alberta, which Province shall be the sole and
proper forum with respect to any suit brought with respect to this Agreement.
8. COPY OF AGREEMENT
The Executive hereby acknowledges having received a copy of this
Agreement duly signed by the Corporation.
IN WITNESS WHEREOF the parties hereto have duly executed and delivered
this Agreement.
GULF CANADA RESOURCES LIMITED
/s/ Xxxxx Xxxxx
/s/ Xxxxxxx Xxxxxxxxxx
/s/ Xxxxx Xxxxxx /s/ Xxxxxx Xxxxxxx
------------------------------ XXXXXX X. XXXXXXX
Witness
