EXHIBIT 4.42
EMPLOYMENT AGREEMENT
THIS AGREEMENT effective the 25th day of January, 2005.
BETWEEN:
PINE VALLEY MINING CORPORATION, having an office at 000-000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx
(the "Company")
AND:
XXXXXX RIP, of 0000 Xxxxxxx Xxxxxxxx, Xxxxx Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxx
(the "Executive")
WHEREAS the Executive has agreed to a contract of employment with the Company,
and the Company has agreed to contract for the services of the Executive, on the
terms and conditions set forth in this Agreement.
NOW THEREFORE in consideration of the mutual terms and conditions in this
Agreement, and the payment by the Employer to the Executive of $10.00, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. POSITION, SERVICES AND TERM
1.1 POSITION
The Company will employ the Executive and the Executive will serve the
Company as Vice President, Finance and Chief Financial Officer. The
Executive will report to the President of the Company or such other person
designated from time to time by the Company.
Despite this Agreement, the employment of the Executive with the Company is
subject to the Company conducting reference checks, criminal records
checks, securities records checks and such other inquiries as the Company
considers appropriate about the Executive (the "Inquiries") and receiving
in response thereto information about the Executive that is satisfactory to
the Company in its discretion. The Executive consents to the Inquiries
being conducted by the Company, and will provide any necessary consents to
any third party to facilitate the Inquiries, and consents to the Company
using any information received as a result of the Inquiries to determine
the suitability of the Executive for employment with the Company.
1.2 SERVICES
The Executive will exercise the powers normally or usually associated with
the position of Vice President, Finance and Chief Financial Officer and
such other duties and powers as the Company may assign to the Executive
from time to time (the "Services").
1.3 TERM
The Executive will commence providing the Services to the Company on
February 14, 2005, or such other date as mutually agreed, (the" Start
Date") and the employment of the Executive with the Company will continue
until the employment is terminated by either party providing reasonable
notice (or, in the case of the Company, by providing Salary in lieu of
notice) of termination to the other party, by the death or retirement of
the Executive or by mutual agreement, subject to the provisions of this
Agreement (the "Term").
1.4 TRAVEL
The Executive acknowledges that effective performance of the Services may
require that the Executive travel from time to time as required by the
Company,
1.5 POLICIES AND PRACTICES
The Executive will comply with the policies, practices, directions and
instructions, written or oral, of the Company from time to time in effect.
2. EXECUTIVE OBLIGATIONS
2.1 EFFORT AND LOYALTY
The Executive will perform the Services in a competent and faithful manner
and will devote the time and effort necessary to properly and fully perform
the Services. The Executive owes a duty of loyalty to the Company and will
at all times use his best efforts to promote the interests of the Company.
2.2 FIDUCIARY
The Executive acknowledges that by virtue of the employment contemplated by
this Agreement, the Executive will be in a fiduciary relationship with the
Company and will owe fiduciary obligations to Company. The provisions of
this Agreement are additional to and do not amend, replace or otherwise
reduce those obligations.
3. COMPENSATION AND BENEFITS
3.1 SALARY
The Company will pay the Executive an annual salary of CDN$100,000 (the
"Salary"), payable in bi-weekly installments less all required or permitted
withholdings and
remittances. The Company will review the Salary from time to time during
the Term and may, in its sole discretion, increase the Salary.
3.2 OTHER COMPENSATION
Within 30 days of commencing work with the Company, the Company will
provide to the Executive a one time signing bonus of $7,500 less all
required or permitted withholdings and remittances.
The Executive will be eligible for a pro rata annual bonus of up to 25% of
that portion of the Salary that is paid to the Executive for the period
from the Start Date to March 31, 2005 and an annual bonus of up to 25% of
the Salary for the April 1, 2005 to March 31, 2006 fiscal year of the
Company. Both potential bonuses will be based on the performance of the
Executive assessed against the requirements set out in Schedule A to this
Agreement. The Company will have the discretion to assess to what extent
and how well the Executive performed the requirements but will act
reasonably. The terms and conditions of a bonus plan, if any, after the
2005/06 fiscal year of the Company will be at the discretion of the
Company.
The Executive will be eligible to participate in the RRSP plan the Company
intends to implement in the first quarter of 2005 or as soon as practicable
thereafter, subject to the terms and conditions of that plan.
As soon as practicable after the Executive signs this Agreement and the
Inquiries are completed, the Company will provide to the Executive a
one-time grant of share options to purchase 300,000 shares of the Company
at the market price in effect on the date the options are granted. The
options will vest in eight equal amounts commencing on the three month
anniversary of the date the Executive starts work and continuing every
three months thereafter until fully vested. The options expire no later
than five years after the grant date. Despite the foregoing, this grant of
options is subject to the terms of the Company's Share Option Plan and the
approval of the Board of Directors of the Company.
3.3 BENEFITS
During the Term, the Company will make available to the Executive the
insured benefit plans customarily available to employees (the "Benefits").
The terms and conditions of the Benefits will be determined by the plans or
policies from time to time established or purchased by the Company. The
Company retains the right to establish new Benefits and to alter or delete
any Benefits from time to time and at any time in its sole discretion.
3.4 VACATION
In addition to statutory holidays, the Executive is entitled to four weeks'
paid vacation within each calendar year, pro-rated for any partial calendar
year, during the Term.
The Executive will schedule vacation at such time or times as the Company
and the Executive mutually agree. Failing such agreement, the Company may
set the vacation time or times based on business considerations.
3.5 EXPENSES
Upon submission of appropriate receipts and written accounts, the Company
will reimburse the Executive for all reasonable expenses actually and
properly incurred by him in connection with his duties hereunder in
accordance with the policies, practices or directions of the Company from
time to time in effect. The Company will reimburse the Executive for the
cost of the B.C. Institute of Chartered Accountants annual fees and for the
reasonable cost of training that the Executive is required to take to
maintain his professional standing with the B.C. Institute of Chartered
Accountants.
4. CONFIDENTIALITY
4.1 ACCESS TO CONFIDENTIAL INFORMATION
The Executive acknowledges that in the course of carrying out, performing
and fulfilling the Executive's obligations to the Company, the Executive
will have access to and be entrusted with Confidential Information, and
that the disclosure of the Confidential Information to competitors or
clients of the Company or to the general public will be highly detrimental
to the best interests and business of the Company.
4.2 DEFINITION
"Confidential Information" means trade secrets and information that is not
generally known to the public or that would be reasonably considered
confidential and proprietary to the Company and its business partners, and
includes but is not limited to:
(a) exploration data, property information, trade secrets, know-how,
concepts, ideas whether patentable or not, strategy, planning,
methods, processes, formulae, apparatus, standards, product
specifications, processing procedures;
(b) revenue, costs, pricing and other financial data;
(c) customer, supplier, or business partner information (including without
limitation, names, preferences, financial information, addresses or
telephone numbers);
(d) all access codes, systems software applications, software/systems
source and object codes, data, documentation, program files, flow
charts, operational procedures, locations of operations, merchant
numbers and merchant support and verification numbers; and
(e) the private affairs of the Company or any other information which the
Executive may acquire during the Term with respect to the business and
affairs of the Company, whether acquired in the course of employment
or incidentally.
4.3 EXCLUSIONS
Notwithstanding the provisions of Section 4.2, "Confidential Information"
does not include information or data which the Executive can prove:
(a) is generally in the public domain at the date of its disclosure to the
Executive, or which thereafter enters the public domain through no
fault of the Executive or of any other person owing an obligation of
confidentiality to the Company (but only after it enters the public
domain); or
(b) was in the Executive's possession on a non-confidential basis prior to
being disclosed under this Agreement;
provided that information which comprises part of the Confidential
Information will not be included within the foregoing exceptions merely
because individual parts of the information were within the public domain,
or were within the Executive's prior possession, unless the combination of
such Confidential Information and excepted information itself was in the
public domain, or in the Executive's prior possession.
4.4 USE AND DISCLOSURE
The Executive acknowledges that he will receive the Confidential
Information solely for the purpose of carrying out the duties of the
Executive as an employee of the Company. Except as may be specifically
required in the course of carrying out such duties, the Executive will not,
during the Term or at any time thereafter:
(a) disclose any Confidential Information to any person or entity; or
(b) use or exploit, directly or indirectly, the Confidential Information
for any purpose other than the proper purposes of the Company.
Despite the foregoing, if the Executive is required by law to disclose any
Confidential Information then the Executive will promptly notify the
Company that the Executive may be required to disclose Confidential
Information and the Executive will consult with and cooperate with the
Company in any attempt to resist or narrow such disclosure and/or to obtain
an order or other assurance that such information will be accorded
confidential treatment. Notwithstanding any disclosure required by law, the
Confidential Information disclosed will, for all other purposes, continue
to be treated as Confidential Information under this Agreement.
4.5 RETURN OF CONFIDENTIAL INFORMATION
Upon the termination of the Executive's employment with the Company for any
reason, or upon the written request of the Company at any time, the
Executive will return immediately to the Company all Confidential
Information then in the Executive's possession or under his control.
4.6 NOTICES
Any notices, requests, demands or other communications that are required or
permitted to be given by one party to the other under this Agreement will
be given in writing by registered post, personal delivery or facsimile
addressed to the other party or delivered to such other party at the
address shown on page 1 hereof or at such other address within British
Columbia as either party may from time to time specify by notice in writing
given to the other party.
Demands or other communications will be deemed to have been received, if
sent by registered post, then on the date of acknowledged receipt in
writing by or on behalf of the addressee, if sent by facsimile, then on the
earlier of the date of transmission if received during normal business or
working hours of the recipient and the date of the first normal business
working hours after the date of transmission, or if sent by personal
delivery, then on the date when delivered to the addressee.
5. COLLECTION AND USE OF PERSONAL INFORMATION
The Executive acknowledges that the Company will collect, use and disclose
personal information only where reasonably necessary for security,
employment and business purposes. The Executive consents to the Company
collecting, using and disclosing personal information about the Executive
only where reasonably necessary for security, employment and business
purposes in accordance with applicable legislation and any privacy policy
of the Company that may be in effect from time to time.
6. SEVERABILITY
In the event that any provision or part of this agreement is deemed void or
invalid by a court of competent jurisdiction, the remaining provisions or
parts will be and remain in full force and effect.
7. REPRESENTATIONS
This Agreement contains the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior
agreements or understandings, whether oral or written and whether express
or implied, between the parties hereto. The Executive acknowledges and
agrees that any prior agreements or representations, whether oral or
written and whether express or implied, between the Executive and the
Company, are hereby terminated and the Executive has no rights or
entitlements under or arising from any such prior agreements or
representations against Company. The Executive hereby waives any right to
assert a claim in tort based on any pre-contractual representations,
negligent or otherwise, made by the Company.
8. WAIVER OR MODIFICATION OF AGREEMENT
No failure or delay of the Company in exercising any power or right
hereunder will operate as a waiver thereof nor will any single or partial
exercise of such right or power preclude any other right or power
hereunder. No amendment, modification or waiver of
any condition of this Agreement or consent to any departure by the
Executive therefrom will in any event be effective unless the same will be
in writing signed by the Company.
9. SURVIVAL
The obligations set out in paragraphs 2.2 and 4 to 15 inclusive will
survive the termination of the employment of the Executive and continue in
effect regardless of whether any party is or has been in compliance with
any provision in this Agreement. The parties will execute and deliver any
documents and perform any acts necessary to carry out the intent of this
Agreement.
10. DIRECTOR AND OFFICER ROLE
In the event of termination of the employment of the Executive by the
Company or by the Executive or by death or retirement, the Executive will,
as of the date of termination, resign from any officer and/or director
position with the Company.
11. GOVERNING LAW
This Agreement will be construed in accordance with and governed by the
laws of British Columbia and the laws of Canada applicable in British
Columbia.
12. HEADINGS
The headings used in this Employment Agreement are for convenience only and
are not to be construed in any way as additions to or limitations of the
covenants and agreements contained in it.
13. ENUREMENT
This Agreement will enure to the benefit of and be binding upon the
respective successors and permitted assigns of the parties.
14. TIME
Time is of the essence.
15. ASSIGNMENT
The Executive may not assign this agreement The Company may assign this
Agreement to any entity that is a successor to the business, or
substantially all of the business, of the Company or is an affiliated or
related the Company, within the meaning of the British Columbia Business
Corporations Act.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day
and year first above written.
PINE VALLEY MINING CORPORATION
Per:
/s/ Xxxxxxx X. Xxxx
----------------------------------------
CHAIRMAN
/s/ Xxxxxx Rip
----------------------------------------
XXXXXX RIP
EXHIBIT A
QUANTITATIVE QUALITATIVE
FACTORS FACTORS
RESPONSIBILITIES (75% WEIGHT) (25% WEIGHT)
---------------- ------------ ------------
Implement new accounting system by a date to be
decided X
Implement Sarbanes Oxley Compliance X
Prepare monthly reporting package for board by
the third week of each month X
Ensure company compliance with all financial
reporting deadlines
Participate in all required training to fulfill
job duties and to retain professional standing X
Coordinate activities of outside advisors (audit,
tax, legal) X
Draft MD&A to accompany financial reports X
Function as a leader for PVM X
Cash management, A/P, etc. X
Assist team in preparation of budgets
Present on earnings webcasts X
Prepare board packages X
Make presentations at investor and industry
conferences X
Assist in drafting and editing news releases X
Make recommendations on public disclosure issues
