EMPLOYMENT AGREEMENT
Exhibit 10.2
THIS EMPLOYMENT AGREEMENT, made as of the 17th day of June 2006 or such earlier date that the
parties agree (the “Effective date”) (the “Agreement”) by and between GOLDEN STAR
RESOURCES LTD. or its nominee (the “Company”) and XXXXX XXXXXXX (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 shall employ the Employee, and the Employee shall serve in the employ of the
Company and render exclusive and full-time services to the Company in such other offices of the
Company or its affiliates as may be designated by the Board of Directors or the President and Chief
Executive Officer, on the terms and conditions set forth in this Agreement and subject to the
direction of the President and Chief Executive Officer.
(b) Initially the Employee shall be employed as Vice President, Operations and then, upon the
earlier of (i) the commencement of a Vice President Operations (Ghana), and (ii) the Employee
having obtained a visa allowing him to work in the United States and relocated to Denver, Colorado,
shall be employed as Chief Operating Officer.
(c) The Employee shall not serve as a director, general partner or manager of any other entity
without the prior written consent of the Board of Directors.
(d) The Employees principal place of business with respect to his services to the Company shall be
the Bogoso/Prestea mine in Ghana and, subject to the Employee’s confirmation as Chief Operating
Officer, in the Company’s head office in Denver Colorado. The Employee acknowledges that he will be
required from time to time to travel and perform his duties in other locations and the Employee
shall undertake such 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. Unless the Employee’s employment is
terminated as provided in Section 5, the term of the Employee’s employment under this Agreement
(the “Term”) shall be for one (1) year from the Effective Date. The Term shall be extended
automatically for successive one-year periods on each successive anniversary of the Effective Date,
unless the Employee or the Company provides written notice to the other at least three (3) months
prior to the anniversary of the Effective Date of his or its intention not to extend the Term, in
which case the Term shall end on that anniversary of the Effective Date.
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If the Company notifies the Employee of its intent not to extend the Term, the Agreement and the
Employee’s employment shall be deemed to have been terminated without cause pursuant to Section
5(b)(ii) and the Employee shall be entitled to the payments and other benefits set forth in Section
5(b)(ii).
3. Services
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. The
Employee shall assume and perform to the best of his abilities the responsibilities of Vice
President Operations or Chief Operating Officer of the Company (as set forth in the Bylaws of the
Company), as the case applies, as well as such other responsibilities as may be assigned to him by
the President and Chief Executive Officer of the Company and as are appropriate to the offices he
holds. The Employee will engage in no other business or activity for compensation except for the
management of his personal investments and any business or activity with respect to which he has
received the prior written consent of the Board of Directors. The Employee shall report to the
President and Chief Executive Officer.
4. Compensation and Benefits
4.1 The Employee shall be entitled to the following permanent benefits:
(a) The Company shall pay to the Employee, and the Employee hereby accepts, a salary (the “Base
Salary”) at the rate of U.S.$250,000 per annum. The Employee’s salary may be increased from
time to time by the Board of Directors of the Company during the term of the Agreement and, upon
any increase, such increased salary shall then become the Base Salary. The Base Salary shall be
payable in equal monthly installments in arrears;
(b) The Employee shall be entitled to participate in the Company’s Amended and Restated Stock
Option Plan and in any successor option plan. Subject to the approval of the Board of Directors,
the Employee shall be awarded a grant of options. The number of options to be granted shall be that
number of options determined by dividing U.S.$150,000 (60% of increase in salary) by the value of
one option on the day of grant. The value of each option shall be determined using a Black Scholes
valuation;
(c) The Employee shall be entitled to participate in the Company’s Executive Management Performance
Bonus Plan and in any successor bonus plan. The target bonus level shall be 40% of Base Salary but
this may vary between 0% and 80% depending on results and performance; and
(d) The Company shall 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 and in accordance with
such documentation and verification as the President and Chief Executive Officer of the Company may
from time to time require.
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4.2 During Appointment As Vice President Operations
While based in Ghana as Vice President Operations and until the Employee’s confirmation as Chief
Operating Officer and relocation to Denver, the Employee shall, in addition to the permanent
benefits detailed in Section 4.1, be entitled to the following benefits:
(a) Furnished and equipped accommodation at the Bogoso/Prestea mine of a type and standard
commensurate with the position. Any domestic employees would be at the cost of the Employee;
(b) Vehicle for the Employee’s work related and personal use commensurate with the position;
(c) Golden Star expatriate medical and dental health plans (subject to any limitations or
conditions of the plan or any limitations posed by law);
(d) Golden Star expatriate life and disability insurance plans (subject to any limitations or
conditions of the plan or any limitations posed by law); and
(e) The Employee shall be entitled to paid vacation at the rate of 60 calendar days per year during
each year of employment hereunder at such time or times as may be selected by the Employee and
approved by the President and Chief Executive Officer in accordance with the Company’s policies and
reasonable operating requirements. The Employee will qualify for two business class return airfares
to the Employee’s point of engagement for the Employee and the Employees spouse per year of
employment.
While based in Accra, Ghana, the employment shall also be governed by the General Conditions of
Contract, dated January 1, 2005, which apply to the Company’s expatriate employees. In the event of
a conflict between the conditions in this Employment Contract and the General Conditions of
Contract, dated January 1, 2005, the latter shall take precedence.
4.3 Denver Based Benefits
Upon the Employee’s confirmation as Chief Operating Officer and relocation to Denver, Colorado, the
Employee shall, in addition to the permanent benefits detailed at Section 4.1, be entitled to the
following benefits:
(a) The Company shall 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 and in accordance with
such documentation and verification as the President and Chief Executive Officer of the Company may
from time to time require;
(b) Relocation of the Employee and his spouse and personal effects from United Kingdom/Ghana to the
United states. Both the Employee and the Employee’s spouse would travel business class;
(c) The Employee shall be entitled to participate in such of the Company’s benefit and deferred
compensation plans as are from time to time available to executive officers of the Company,
including medical and dental health plans, life and disability insurance plans, supplemental
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retirement programs and other fringe benefit plans (provided, however, that the Employee’s benefits
may be modified or the Employee may be denied participation in any such plan because of a condition
or restriction imposed by law or regulation or third-party insurer or other provider relating to
participation);
(d) The Employee shall be entitled to participate in any and all applicable group savings or
retirement plans, or other fringe benefits of the Company as established by the Company from time
to time in which executive officers are eligible to participate, provided that the Employee
shall have fulfilled all eligibility requirements for such benefits;
(e) 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 and approved by the President
and Chief Executive Officer, and as are in accordance with the Company’s policies and reasonable
operating requirements; and
(f) The Employee shall be entitled to all statutory holidays applicable to all employees of the
Company in Denver (ten holidays per year).
5. Termination
The Agreement and Employee’s employment may be terminated in the following manner. In each case,
the Company shall have no obligations to the Employee following termination pursuant to Section 5,
other than as set forth in this Agreement and as provided in any benefit plans in which the
Employee is a participant at the date of termination.
(a) Upon Retirement:
| (i) | Except as provided otherwise in Section 5(a)(ii), Employee’s employment shall automatically terminate upon the Employee’s sixty-fifth birthday. | ||
| (ii) | Upon recommendation from the President and Chief Executive Officer, the Board of Directors may, on or before the Employee’s sixty-fifth birthday and each subsequent birthday, approve the extension of his employment and this Agreement for one year, until his next birthday. | ||
| (iii) | At the time of termination, the Employee shall be paid in a lump sum payment all accrued salary, any benefits then due and payable under any plans of the Company in which the Employee is a participant (in accordance with the provisions of the applicable plan), accrued vacation pay and reimbursement of any appropriate business expenses incurred by the Employee in connection with his duties hereunder, all to the effective date of termination (“Accrued Compensation”). |
(b) By the Company:
| (i) | for cause, immediately upon notice in writing from the Company to the Employee. For purposes of this Agreement, “cause” shall mean: (1) unless resulting from disability as defined in Section 5(b)(iv), the Employee’s material breach of any terms of this Agreement, if such material breach has not been cured within thirty (30) days following |
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| written notice of such breach to the Employee from the Company setting forth with specificity the nature of the breach or, if cure cannot reasonably be effected within such 30 day period, if the Employee does not commence to cure the breach within such 30-day period and thereafter pursue such cure continuously and with due diligence until cure has been fully effected; (2) the Employee’s willful dishonesty towards, fraud upon, crime against, bad faith action with respect to, deliberate or attempted injury to, or gross misconduct or material noncompliance with the Company’s policies and procedures which is materially injurious to the Company; (3) the Employee’s conviction for any felony crime (whether in connection with the Company’s affairs or otherwise); or (4) the Employee’s failure to comply with any lawful directive of the Board of Directors, the failure to comply with which is stated in such directive to be grounds for termination. At the time of termination, the Company shall pay the Accrued Compensation to the Employee. | |||
| (ii) | without cause, at any time upon the giving of seven days prior written notice by the Company to the Employee or the Company’s election not to extend the Term of the Agreement pursuant to Section 2. The Company shall pay to the Employee in cash or cash equivalent acceptable to the Employee, in a lump sum at the time of termination, Accrued Compensation plus severance compensation (“One Year Severance Compensation”) in an amount equal to one times the sum of (1) the Employee’s then current Base Salary, (2) the average of the target bonus for the Employee for the current year and the bonus paid to the Employee for the previous year, (3) the amount of employer contributions contributed to the Employee’s account for the most recent plan year before the termination date, under Administaff Retirement Services (ARS) 401k Plan or any successor plan and (4) the amount paid by the Company for welfare benefits on behalf of the Employee for the most recent year. | ||
| (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 to pay Accrued Compensation up to and including the end of the month in which death occurred. | ||
| (iv) | at any time upon 90-day notice in writing from the Company to the Employee, if the Employee shall by reason of disability have failed to perform his duties under the Agreement. During the 90-day notice period, the Employee shall be considered a full-time employee of the Company. The Employee’s disability means his incapacity due to physical or mental illness such that he is unable to perform his previously assigned duties where (1) such incapacity has been determined to exist by either (x) the Company’s disability insurance carrier or (y) the concurring opinions of two licensed physicians (one selected by the Company and one by the Employee) or (2) the Employee has failed for any three consecutive 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 this Agreement by reason of physical or mental illness, as determined by the Board of Directors. Any such separation for disability shall be only as not prohibited by the Americans with Disabilities Act. The Company shall pay to the Employee in a lump sum at the time of termination (x) Accrued Compensation, (y) such other payments as may be then due under any disability insurance policy of the Company in accordance with the terms of such policy and (z) payment to the Employee of an amount equal to the cost of |
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| COBRA coverage for the Employee to continue to participate in applicable benefit plans for one year. |
(c) By the Employee:
| (i) | for material breach of this Agreement by the Company, immediately upon notice in writing from the Employee to the Company, in which case the Employee shall have no further obligation to the Company, and the Company shall make a lump sum payment to the Employee in cash or cash equivalent acceptable to the Employee at the time of termination, of Accrued Compensation plus One Year Severance Compensation. For purposes of this clause, “material breach” shall include: |
| (aa) | the reduction by the Company of the Employee’s Base Salary or other benefits; | ||
| (bb) | the non-payment of compensation and provision of benefits when, as and if due within 10 business days of written notice to the Company by the Employee that such payment was not made when due; | ||
| (cc) | the material reduction by the Company of the Employee’s responsibilities or title; and | ||
| (dd) | the failure of a successor entity to adopt this Agreement. |
| (ii) | voluntarily, if Sections 5(b)(i), 5(b)(ii), 5(c)(i) or 6 are not applicable, at any time upon three months’ notice in writing to the Company, in which case the Company shall pay to the Employee in a lump sum at the time of termination Accrued Compensation up to and including the date of termination. The Company may waive the requirement of written notice or the notice period in whole or in part, in which case the Company shall pay to the Employee in a lump sum at the time of termination an amount equal to Accrued Compensation through the date on which termination would have occurred had the notice not been waived. |
(d) Upon any termination of employment as set forth in this Section 5 or 6, 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 or other affiliated company of the Company and any entity in which Employee holds office at the direction of the Company) and, except 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 return to the Company all books of account, computer files, maps, records, reports and other documents, materials and property of the Company in the possession or control of the Employee. |
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(e) All amounts payable in cash or cash equivalent acceptable to Employee under this Section 5
shall, within seven days of termination, 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
(a) In the event of a Termination Upon a Change in Control, the Company shall immediately pay
to the Employee in a lump sum payment Accrued Compensation and Change of Control Severance. For the
avoidance of doubt, a Termination Upon a Change of Control shall not constitute a termination under
Section 5 of this Agreement, and the Employee shall not be entitled to any payment or benefits
under Section 5. The Company shall have no further obligation to the Employee except as provided
under this Agreement and in any benefit plans in effect at the date of termination which are
applicable to Employee.
(i) “Termination Upon a Change in Control” shall mean a termination of the Employee
without cause within 12 months following a Change in Control (as defined below) or a
termination by the Employee for Good Reason within 12 months following a Change in Control.
(ii) “Good Reason” shall mean any of the following (without the Employee’s express
written consent):
(1) the assignment to the Employee by the Company of duties inconsistent with,
or a substantial alteration in the nature or status of, the Employee’s
responsibilities immediately prior to a Change in Control;
(2) a reduction by the Company in the Employee’s compensation or benefits as in
effect on the date of a Change in Control;
(3) a relocation of the Company’s principal offices to a location outside the
Denver, Colorado metropolitan area, or the Employee’s relocation to any place other
than the Denver, Colorado offices of the Company, except for reasonably required
travel by the Employee on the Company’s business provided that this clause shall
have no effect while the Employee is based in Accra, Ghana and until such time that
the Employee is required to, and relocates to Denver, Colorado;
(4) any material breach by the Company of any provision of this Agreement, if
such material breach has not been cured within thirty (30) days following written
notice of such breach by the Employee to the Company setting forth with specificity
the nature of the breach; or
(5) any failure by the Company to obtain the assumption and performance of this
Agreement by any successor (by merger, consolidation or otherwise) or assign of the
Company.
(iii) A “Change in Control” shall be deemed to have occurred if (1) any “person” or
“group” (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of
1934), other than a trustee or other fiduciary holding securities under an employee
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benefit plan of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3
under the 1934 Act), directly or indirectly, of more than thirty percent (30%) of the then
outstanding voting stock of the Company; or (2) persons who are Incumbent Directors cease to
constitute a majority of the Board of Directors; or (3) the stockholders of the Company
approve a merger, consolidation or amalgamation of the Company with any other corporation,
other than a merger, consolidation or amalgamation which would result in the voting
securities of the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of the
surviving entity) at least fifty percent (50%) of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after such
merger, consolidation or amalgamation, or (4) the stockholders approve a plan of complete
liquidation of the Company or the sale or disposition by the Company of all or substantially
all of the Company’s assets in one or a series of related transactions.
(iv) “Incumbent Director” means any person who serves on the Board of Directors of the
Company as of the date of this Agreement and any person who is added to the Board thereafter
with the approval of a majority of the persons who are then Incumbent Directors.
(v) “Change of Control Severance” means an amount equal to (a) two times the sum of (1)
the Employee’s Base Salary for the calendar year in which the termination became effective,
(2) the average of the target bonus for the Employee for the current calendar year and the
bonus paid to the Employee for the previous year, (3) the amount of employer contributions
contributed to the Employee’s account for the most recent plan year before the termination
date, under Administaff Retirement Services (ARS) 401k Plan or any successor plan, and (4)
the amount paid by the Company for welfare benefits on behalf of the Employee for the most
recent year, plus (b) a portion of the target bonus for the Employee for the current
calendar year which is pro rata to the portion of such year prior to the Employee’s Change
of Control Termination.
(b) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined
that any payment or distribution by the Company to or for the benefit of the Employee (whether paid
or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise,
but determined without regard to any additional payments required under this Section 6(b)) (a
“Payment”) would be subject to the excise tax imposed by Section 4999 of the U.S. Tax Code or any
interest or penalties are incurred by the Employee with respect to such excise tax (such excise
tax, together with any such interest and penalties, are hereinafter collectively referred to as the
“Excise Tax”), then the Employee shall be entitled to receive an additional payment (a “Gross-Up
Payment”) in an amount such that after payment by the Employee of all taxes imposed upon the
Gross-Up Payment (including any state and federal income taxes and Excise Taxes, and interest and
penalties imposed with respect to such taxes), the Employee retains an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon the Payment. Notwithstanding the foregoing provisions
of this Section 6(b), if it shall be determined that the Employee is entitled to a Gross-Up
Payment, but that the Payments do not exceed by more than $50,000 the greatest amount (the “Reduced
Amount”) that could be paid to the Employee such that the receipt of Payments could not give rise
to any excise tax, then no Gross-Up Payment shall be made to the Employee and the Payments, in the
aggregate, shall be reduced to the Reduced Amount.
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If the Employee receives a Gross-Up Payment pursuant to Section 6(b), the Employee shall take any
position requested by the Company on the Employee’s federal income tax return with respect to the
treatment of the Payment from the Company and any Gross-up Payment (such position being, a
“Requested Position”), provided the Company shall, at the request of the Employee, provide the
Employee with an opinion from a nationally recognized accounting or law firm that there is
“substantial authority” for the Requested Position within the meaning of IRC Section 6662. The
Company shall indemnify the Employee for any tax, penalty and interest incurred by the employee as
a result of taking the Requested Position. The amount for which the Employee is indemnified under
the preceding sentence (the “Indemnified Amount”) shall be computed on an after-tax basis, taking
into account any income or other taxes. The Employee shall keep the Company informed of all
developments in any audit with respect to a Requested Position. Upon payment of the Indemnified
Amount, or (if the Indemnified Amount is not yet payable) upon the Company’s written affirmation,
in form and substance reasonably satisfactory to the Employee, of the Company’s obligation to
indemnify the Employee with respect to the Requested Position, the Company shall be entitled, at
its sole expense, to control the contest regarding the disallowance or proposed disallowance of the
Requested Position, and the Employee agrees to cooperate in connection with such contest,
including, without limitation, executing powers of attorney and other documents at the reasonable
request of the Company. The Indemnified Amount shall be payable whenever an amount is payable to
the Internal Revenue Service as a result of the disallowance of a Requested Opinion. Following
payment by the Company of the Indemnified Amount, if the Requested Position is sustained by the
Internal Revenue Service or the courts, the Company shall be entitled to any resulting refund of
taxes, interest and penalties that were properly attributable to the Indemnified Amount.
(c) In the event of a Termination Upon a Change of Control, the Company shall, at its sole expense,
provide the Employee with outplacement services, the scope and provider of which shall be selected
by the Employee in his sole discretion and the cost of which shall not exceed an amount equal to
10% of the Employee’s then current Base Salary.
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 12 months from the date of termination of the Employee (a) upon a
Change of Control or (b) 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 terminate the Agreement or the employment of the Employee 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 confidential and proprietary information and, accordingly,
acknowledges that he is a party to and continues to be bound by the Confidentiality and Restrictive
Covenant Agreement dated as of June 17, 2005 between the Company and the Employee.
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9. Company Policies
The Employee agrees to comply with the written policies of the Company, including the Code of
Ethics for Directors, Senior Executive and Financial Officers and other Executive Officers and the
Business Conduct and Ethics Policy (including the Xxxxxxx Xxxxxxx Policy). The Company shall
promptly notify the Employee of any modifications to its policies.
10. 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 a court or other body of competent jurisdiction determine that any provision of this
Agreement is invalid or unenforceable, such provision shall be adjusted rather than voided, if
possible, so that it is enforceable to the maximum extent possible, and all other provisions of the
Agreement shall be deemed valid and enforceable to the extent possible.
(c) This Agreement shall be governed by and construed in accordance with the laws of the State of
Colorado, without reference to principles of conflict of laws, and each of the parties submits 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
facsimile transmission 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 facsimile
transmission, or on the date of delivery, if delivered by hand.
Address for mailing, telecopy or delivery by hand shall be as follows:
| • | To the Employee: |
||
| Xx. Xxxxx Xxxxxxx The Carriage House Killiow Park, Xxx Xxxxx Xxxxxxxx XX0 0XX Xxxxxx Xxxxxxx |
|||
| Fax: TBA |
| • | To the Company: |
||
| 00000 X. Xxxxxx Xxxxx, Xxxxx 000 Xxxxxxxxx XX 00000 XXXXXX XXXXXX Attention: President and CEO |
|||
| Fax: x0-000-000-0000 |
or such other address as either party may from time to time designate in writing.
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(e) The parties hereby agree that any dispute or controversy arising out of or relating to this
Agreement, the Employee’s employment with the Company, or the termination or cancellation of that
employment or this Agreement, including without limitation any claim by the Employee under any
federal, state or local law or statute regarding discrimination in employment, shall be settled by
arbitration by a single arbitrator in accordance with the Commercial Arbitration Rules of the
American Arbitration Association from time to time in force. The hearing on any such arbitration
shall be held in Denver, Colorado. If such Commercial Arbitration Rules and practices shall
conflict with the Colorado Rules of Civil Procedure or any other provisions of Colorado law then in
force, such Colorado rules and provisions shall govern. Arbitration of any such dispute or
controversy shall be a condition precedent to any legal action thereon. This submission and
agreement to arbitration shall be specifically enforceable.
Within thirty (30) days after the receipt by one party of a written notice to arbitrate delivered
by the other party, the parties shall mutually select the arbitrator. If the parties cannot agree
on such arbitrator, the selection of the arbitrator shall be made in accordance with the procedures
of the American Arbitration Association.
Awards shall be final and binding on all parties to the extent and in the manner provided by
Colorado law. Each award shall expressly entitle the prevailing party to recover such party’s
attorneys’ fees and costs, and the award shall specifically allocate such fees and costs between
the parties. All awards may be filed by any party with the Clerk of the District Court in the City
and County of Denver, Colorado, and an appropriate judgment entered thereon and execution issued
therefore. At the election of any party, said award may also be filed, and judgment entered thereon
and execution issued therefore, with the clerk of one or more other courts, state or federal,
having jurisdiction over the party against whom such an award is rendered or its property.
(f) This Agreement is personal to the Employee and without the prior written consent of the Company
shall not be assignable by the Employee, provided that a deceased Employee’s right to payment
hereunder may be assigned by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be binding upon the Company and its successors and
assigns.
The Company will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the
Company to assume expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession had taken place. As
used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor
to its business and/or assets that assumes and agrees to perform this Agreement by operation of
law, or otherwise.
(g) This Agreement supersedes any and all prior written and oral employment agreements between the
Company and the Employee and, together with the Confidentiality and Restrictive Covenant Agreement
between the Company and Employee dated November 21, 2005, represents the entire agreement between
the parties and may be amended, modified, superseded, or cancelled, and any of the terms hereof may
be waived, only by a written instrument executed by each party hereto or, in the case of a waiver,
by the party waiving compliance. The failure of any party at any time or
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times to require performance of any provisions hereof shall not affect the right at a later time to
enforce the same.
(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.
(i) All compensation and benefits to the Employee hereunder shall be reduced by all federal, state,
local and other withholdings and similar taxes and payments required by applicable law.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year
appearing on page one of this Agreement.
By: |
/s/ Xxxxx Xxxxxxxx | /s/ Xxxxx Xxxxxx | ||
Name:
|
Xxxxx Xxxxxxxx | Witness | ||
Title:
|
President and Chief Executive Officer | |||
| /s/ Xxxxx Xxxxxxx | ||||
| Xxxxx Xxxxxxx | Witness | |||
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