EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of the 8th day of November, 1999 (the
"Effective Date") (the "Agreement") by and between GOLDEN STAR RESOURCES LTD.
(the "Company") and XXXXX X. XXXXXX (the "Employee").
WHEREAS the Company wishes to have the benefit of the Employee's
services; and
WHEREAS the Employee wishes to be so employed.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Employment
a) The Company hereby employs the Employee, and the Employee hereby agrees, to
render exclusive and full-time services to the Company as Vice-President and
Chief Financial Officer of the Company from the Effective Date on the terms and
conditions set forth in this Agreement and subject to the direction of (i) the
President and Chief Executive Officer as to all matters and (ii) the Board of
Directors of the Company when requested and where required in the fulfillment of
the Employee's responsibilities. It is understood by the Company that as of the
Effective Date the Employee is a director of Minera Andes Inc., Latitude
Minerals Corp., Addwest Minerals International, Inc. and Golden Phoenix Minerals
Corp. It is understood and accepted by the Company that the Employee will
continue to act as a director of these companies during the term of his
Agreement with the Company. The Employee is also currently acting as Chief
Financial Officer of Minera Andes Inc. The Employee will resign as CFO of Minera
Andes Inc. upon completion of its current public offering.
b) The Employee shall be principally employed at the Company's principal place
of business within the metropolis of Denver in the State of Colorado. The
Employee acknowledges that he may be required from time to time to travel and
perform his duties in other locations and the Employee shall undertake such
reasonable amount of travel away from his principal place of employment as may
reasonably be necessary for the business of the Company.
2. Term of Employment
The Agreement shall become effective on the Effective Date and continue in full
force and effect indefinitely from year to year, unless either party give prior
written notice to the other of its election to terminate the Agreement, as
herein provided in section 5.
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3. Services
a) The Employee shall devote his entire business time, best efforts, skills and
attention to the Company in fulfilling his duties and responsibilities hereunder
faithfully and diligently, provided that the Employee shall have the right to
spend a reasonable amount of time up and until January 1, 2000, to unwind his
previous contractual relationship with Minera Andes Inc. as mentioned above.
b) The Employee shall promptly report to the President and Chief Executive
Officer, the Chairman of the Board of Directors and to the Compliance Officer of
the Company all matters and transactions of which he is aware that may result in
a violation of laws, regulations or the Company's policies or in which a
potential conflict of interest between the Employee and the Company may arise
and the Employee shall not proceed with such matters or transactions until the
Board's approval thereof is obtained. The Employee shall similarly report any
violations or potential conflict of interest he is aware of between any employee
of the Company or its subsidiaries and the Company. For purposes of
clarification, this subsection is not intended to limit in any way the
Employee's other fiduciary obligations to the Company that may arise in law or
equity.
4. Compensation and Benefits
a) For all services to be rendered by the Employee hereunder, the Company shall
pay to the Employee, and the Employee hereby accepts, a minimum base salary (the
"Salary") of US$120,000 per annum effective from the Effective Date. The Salary
may be increased by the Board of Directors of the Company during the term of the
Agreement and, when increased, such higher amount shall then be the minimum base
annual salary hereunder; such minimum base annual salary shall not at any given
time be reduced below the highest minimum base annual salary fixed from time to
time by the Board of the Directors of the Company. The Salary shall be payable
in equal semi-monthly installments in arrears.
b) As an incentive to join the Company, the Employee was granted under the
Company's Stock Option Plan on November 9, 1999, a stock option to purchase
150,000 of the Company at a price of CDN$1.45. The stock options so granted
shall vest as to one-third of the shares on the Probation Period Termination
Date (as defined below), as to an additional one-third on the first anniversary
date of the grant of the options, and as to the remaining one-third on the
second anniversary date of the grant of the options. In addition, the Employee
shall be entitled to participate in the Company's 1997 Stock Option Plan (copy
of which is attached hereto as Schedule A) or any successor stock option plan.
c) The Employee shall be entitled to participate in the Company's Stock Bonus
Plan (a copy of which is attached hereto as Schedule B) or any successor stock
bonus plan. In the next few months, the Board of Directors of the Company will
review the Company's compensation system for senior executive officers to take
into account the fact that, with the completion of the Bogoso
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acquisition, the Company is now generating cash flow. The objective of the
review will be to determine whether senior management should receive in the
future, in addition or in lieu of stock bonuses, cash bonuses. The bonuses would
be granted on the basis of individual performance and would be a function of the
availability of cash flow from the Company's operations. The Employee shall be
entitled to participate in the new compensation system when and as adopted by
the Board.
d) The Employee shall be entitled to participate in any and all group insurance,
hospital, major medical and disability benefits, savings or retirement plans, or
other fringe benefits of the Company as established by the Company from time to
time for management personnel, provided that the Employee shall have fulfilled
all eligibility requirements for such benefits.
e) The Company shall, subject to approval by the President and Chief Executive
Officer of the Company, reimburse the Employee for all reasonable and documented
travel, entertainment and other business expenses actually and properly incurred
by him in connection to his duties hereunder. The Employee shall render expense
accounts requesting reimbursements of his expenses hereunder within a reasonable
period of time following such expense.
f) The Employee shall be entitled to four weeks of paid vacation during each
year of employment hereunder at such time or times as may be selected by the
Employee, approved by the President and Chief Executive Officer, and as are in
accordance with the Company's policies and requirements subject to reasonable
operating requirements of the Company.
g) The Employee shall have the right at the Company's expense, but subject to
availability, to one paid parking space in the garage where the Company's
offices are located.
5. Termination
The Agreement may be terminated in the following manner in the specified
circumstances:
a) By the Company:
(i) for cause, immediately upon notice in writing from the Company to the
Employee, in which case the Company shall have no further obligation
to the Employee other than any compensation and benefits due the
Employee up to and including the date of termination. For purposes of
this Agreement, "cause" shall mean:
(aa) the willful and continued failure of the Employee to perform
substantially the Employee's duties with the Company or one
of its affiliates (other than any such failure resulting
from temporary incapacity due to physical or mental
illness), after a demand in writing for substantial
performance is delivered to the Employee by the President
and Chief Executive Officer of the Company which
specifically identifies the manner in which the Board
believes that the Employee has not substantially performed
the Employee's duties; or
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(bb) the willful engaging by the Employee in illegal conduct or
gross misconduct which is materially injurious to the
Company;
(ii) without cause, (A) at any time on or prior to February 8, 2000, upon
(x) the giving of written notice by the Company to the Employee and
(y) the payment by the Company to the Employee in cash or cash
equivalent acceptable to the Employee, in a lump sum at the time of
termination, of an amount equal to the Salary the Employee would have
been entitled to receive for a period of one month after such
termination had the termination not occurred, or (B) at any time
after February 8, 2000, upon (x) the giving of written notice by the
Company to the Employee and (y) the payment by the Company to the
Employee in cash or cash equivalent acceptable to the Employee, in a
lump sum at the time of termination, of an amount equal to the Salary
the Employee would have been entitled to receive for a period of
three months after such termination had the termination not occurred.
(iii) immediately and without notice upon the death of the Employee, in
which case; the Company shall have no further obligation to the
Employee's estate or representatives other than any compensation due
the Employee up to and including the date of death and other than as
provided in any benefit plans in effect at the date of death which
are applicable to the Employee;
(iv) at any time upon 90-day notice in writing from the Company to the
Employee, if the Employee shall by reason of illness or mental or
physical disability or incapacity fail for any three consecutive
calendar months in any calendar year or for six months in the
aggregate in any two successive calendar years to have performed
substantially all of his duties under the Agreement, in which case
the Company shall have no further obligation to the Employee other
than any compensation and benefits due to the Employee up to and
including the date of termination. During the 90-day notice period,
the Employee shall be considered a full-time employee of the Company.
The Employee shall thereafter be entitled to such other payments as
may be due under any disability insurance policy of the Company in
accordance with the terms of such policy.
b) By the Employee at any time (i) on or prior to February 8, 2000 (the
"Probation Period Termination Date"), upon one month notice in writing to the
Company or (ii) after February 8, 2000, upon three months' notice in writing to
the Company, in which cases the Company shall have no further obligation to the
Employee other than any compensation and benefits due the Employee up to and
including the date of termination. The Company may waive the notice in whole or
in part.
c) Upon any termination of employment as set forth in this Section 5, the
Employee shall, unless otherwise advised by the Company, do the following:
(i) immediately resign all offices held (including directorships, if any)
in the Company (and any subsidiary company or other affiliated
company of the Company) and except
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as provided in this Agreement, the Employee shall not be entitled to
receive any additional severance payment or additional compensation
for loss of office or otherwise by reason of the resignation. If the
Employee fails to resign as described herein, the Company is
irrevocably authorized to appoint any other person in his name and on
his behalf to sign any documents or do any things necessary or
requisite to give effect to such resignation; and
(ii) promptly turn over to the Company all books of account, computer
files, maps, records, reports and other documents, materials and
property used by the Employee in the performance of his duties or
otherwise, belonging to the Company.
d) All amounts payable under this Section 5 shall, at the option of the Company,
be delivered to the Employee personally or be mailed to the Employee at the
address referred to in Section 11(d).
6. Change of Control
If the Employee's employment by the Company is terminated upon the occurrence of
a Change in Control (as hereinafter defined) of the Company, then the Employee
shall be entitled to receive in a lump sum at the time of termination, an amount
equal to the salary and benefits the Employee would have been entitled to
receive for a period of three months after such termination had the Change of
Control not occurred, plus one additional month of salary and benefits for each
additional full year worked for the Company from the Effective Date to the date
of termination, provided that at no time shall the amount paid exceed 12 months
of salary and benefits. For purposes of this Agreement a Change in Control means
(i) the acquisition by any person of a sufficient number of the outstanding
voting securities of the Company to materially affect the control of the
Company; (ii) a majority of the Board of Directors of the Company shall be
individuals who are not nominated by the Board of Directors of the Company;
(iii) the Company is merged or consolidated with any person (and the Company is
not the surviving corporation); (iv) all or substantially all of the assets of
the Company are acquired by another person; or (v) the Employee's office,
station or duties as provided for in this Agreement are materially reduced or
adversely changed as a result of the occurrence of one of the events mentioned
above in this paragraph in (i), (ii), (iii) and (iv).
7. Acceleration and Vesting of Stock Options
All of the stock options granted to the Employee under the stock option plan of
the Company or any of its subsidiary companies shall become immediately
exercisable and vested and shall remain exercisable for a period of twelve
months from the date of termination of the Employee if after the first
anniversary of the Effective Date (i) the Board of Directors of the Company
shall fail at any given time to elect the Employee as a Vice-President of the
Company or to an executive position possessing comparable duties and
responsibilities or (ii) should the Company discharge the Employee from his
right and duty to perform services hereunder at any time
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without cause. Notwithstanding any of the foregoing, under no circumstances
shall an option remain exercisable for more than 10 years after the date it was
granted.
8. Confidentiality and Restrictive Covenant
The Employee acknowledges that as a condition of his employment he is required
to maintain the confidentiality of the Company's affairs and, accordingly,
agrees to execute a Confidentiality and Restrictive Covenant Agreement in the
form attached hereto as Schedule C.
9. Business Conduct Policy and Policy for Public Disclosure
The Employee acknowledges receipt of the Business Conduct Policy and the Policy
for Public Disclosure and Dealing with the Financial Investment Community in the
form attached hereto as Schedule D and, having read and understood both
policies, agrees to abide by them in their entirety. The Company shall promptly
notify the Employee of any modifications to these policies.
10. Trading in Company Securities
The Employee acknowledges he may not purchase or sell any security of the
Company (directly or indirectly through accounts which he controls or in which
he has an interest) unless such purchase or sale has been approved in writing by
the Compliance Officer of the Company, and agrees that before purchasing or
selling any such Company security, he will seek his prior approval of such
transaction, such approval not to be unreasonably withheld.
11. Miscellaneous
a) The failure to insist upon strict compliance with any of the terms, covenants
or conditions of this Agreement shall not be deemed a waiver of such terms,
covenants or conditions and the waiver by either party of a breach of any
provision of this Agreement shall not operate as or be construed as a waiver of
any subsequent breach thereof.
b) Should any provision or provisions of this Agreement be illegal or not
enforceable, it or they shall be considered separate and severable from this
Agreement and its remaining provisions shall remain in force and be binding upon
the parties as though the provision or provisions had never been included.
c) This Agreement shall be governed by and construed in accordance with the laws
of the State of Colorado, and each of the parties attorns to the non-exclusive
jurisdiction of the courts of the State of Colorado.
d) Any and all notices referred to herein shall be in writing and may be
delivered by mail, by telecopy or by hand. Notice shall be deemed given five
days after mailing, if mailed in the United States by registered mail, on the
date of actual receipt if given by telecopy, or on the date of delivery, if
delivered by hand.
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Address for mailing, telecopy or delivery by hand shall be as follows:
o To the Employee:
0000 X. Xxxxxxx Xxx, #X
Xxxxxxxxx XX 00000-0000
Fax: 000 000 0000
o To the Company:
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx XX 00000-0000
Attention: President and CEO
Fax: 000 000 0000
or such other address as either party may from time to time designate in
writing.
e) In the event of any difference of opinion or dispute between the Employee and
the Company with respect to the construction or interpretation of this Agreement
or the alleged breach thereof which cannot be settled amicably by agreement of
the parties, such dispute shall be submitted to and determined by arbitration in
the city of Denver, Colorado in accordance with the rules of the American
Arbitration Association, and judgment upon the award shall be final, binding,
and conclusive upon the parties and may be entered in the highest court, state
or federal, having jurisdiction.
f) The rights and obligations of the Company under this Agreement are with the
prior written consent of the Employee assignable by the Company to any affiliate
of the Company, to any successor by merger to the Company and to any person that
acquires all or substantially all of the assets and business of the Company as a
going concern. This Agreement shall be binding upon and shall inure to the
benefit of the Company and its successors and assigns, and the Employee and his
legal representatives, heirs, legatees and distributees, but shall not be
assignable by the Employee.
g) This Agreement supersedes, except for a letter of clarification of even date
herewith, any and all prior written or oral employment agreements between the
Company and the Employee and constitutes the entire agreement between the
parties hereto. No modification, amendment or waiver of any of the provisions of
this Agreement shall be effective unless in writing and signed by both parties
hereto.
h) This Agreement may be executed by the parties hereto in counterparts, each of
which shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year appearing on page one of this Agreement.
GOLDEN STAR RESOURCES LTD.
By: /s/ XXXXX XXXXXXXX
---------------------------- -------------------------------
Name: Xxxxx Xxxxxxxx Witness
Title: President and CEO
/s/ XXXXX X. XXXXXX
------------------------------------ -------------------------------
Xxxxx X. Xxxxxx Witness
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