EXHIBIT 4.13
EMPLOYMENT AGREEMENT
BY AND BETWEEN
HALO RESOURCES LTD.
AND
XXXXX XXXXX
DATED
FEBRUARY 28, 2007
EMPLOYMENT AGREEMENT
THIS AGREEMENT made the 28th day of February, 2007.
BETWEEN:
HALO RESOURCES LTD., a corporation existing under the laws of
the Province of British Columbia
("Halo" or the "Corporation")
OF THE FIRST PART
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XXXXX XXXXX, of the City of Toronto, Ontario
(the "Executive")
OF THE SECOND PART
WHEREAS Halo wishes to employ the Executive and the Executive wishes to
be employed by Halo in connection with the continuing operation of the business
carried on by Halo (the "Business").
AND WHEREAS Halo and the Executive wish to set out the terms of the
Executive's employment.
NOW THEREFORE IN CONSIDERATION OF the payment of the sum of $1.00, the
covenants and agreements continued in this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
DEFINITIONS
1. In this Agreement, in addition to those terms defined above and unless
there is something in the subject matter inconsistent therewith, the terms set
forth below shall have the following corresponding meanings:
"Affiliate" means any Person which, directly or indirectly, controls or is
controlled by or is under common control with a Party, and the term "Affiliated"
has a corresponding meaning. For the purposes of this Agreement "control" and
"controlled" shall have the meanings ascribed thereto in the BUSINESS
CORPORATIONS ACT (Ontario).
"Agreement" means this agreement between the Parties.
"Associate" has the meaning ascribed thereto in the SECURITIES ACT (Ontario).
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"Board" means the board of directors of Halo from time to time.
"Change of Control" means the occurrence of any one or more of the following
events:
(a) less than 50% of the Board being composed of Continuing
Directors;
(b) any person, entity or group of persons or entities acting
jointly or in concert (an "Acquiror") acquires or acquires
control (including, without limitation, the right to vote or
direct the voting) of Voting Securities of the Corporation
which, when added to the Voting Securities owned of record or
beneficially by the Acquiror or which the Acquiror has the
right to vote or in respect of which the Acquiror has the
right to direct the voting, would entitle the Acquiror and/or
Associates and/or Affiliates of the Acquiror to cast or to
direct the casting of 40% or more of the votes attached to all
of the Corporation's outstanding Voting Securities which may
be cast to elect directors of the Corporation or the successor
corporation (regardless of whether a meeting has been called
to elect directors);
(c) the shareholders of the Corporation approve all necessary
resolutions required to permit any person to accomplish the
result set forth in paragraph (b), above, even if the
securities have not yet been issued to or transferred to that
Person;
(d) the Corporation shall sell or otherwise transfer, including by
way of the grant of a leasehold interest or joint venture
interest (or one or more subsidiaries of the Corporation shall
sell or otherwise transfer, including without limitation by
way of the grant of a leasehold interest or joint venture
interest) property or assets (A) aggregating more than 50% of
the consolidated assets (measured by either book value or fair
market value) of the Corporation and its subsidiaries as at
the end of the most recently completed financial year of the
Corporation or (B) which during the most recently completed
financial year of the Corporation generated, or during the
then current financial year of the Corporation are expected to
generate, more than 50% of the consolidated operating income
or cash flow of the Corporation and its subsidiaries, to any
other Person or Persons (other than one or more Affiliates of
the Corporation), in which case the Change in Control shall be
deemed to occur on the date of transfer of the assets
representing one dollar more than 50% of the consolidated
assets in the case of clause (A) or 50% of the consolidated
operating income or cash flow in the case of clause (B), as
the case may be;
(e) the shareholders of the Corporation approve all necessary
resolutions required to permit any person to accomplish the
result set forth in paragraph (d), above; or
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(f) the Corporation:
(i) becomes insolvent or generally not able to pay its
debts as they become due;
(ii) admits in writing its inability to pay its debts
generally or makes a general assignment for the
benefit of creditors;
(iii) institutes or has instituted against it any
proceeding seeking,
a. to adjudicate it bankrupt or insolvent;
b. liquidation, winding-up, reorganization,
arrangement, adjustment, protection, relief
or composition of it or its debts under any
law relating to bankruptcy, insolvency,
reorganization or relief of debtors
including any plan or compromise or
arrangement or other corporate proceeding
involving or affecting its creditors;
c. the entry of an order for the relief or the
appointment of a receiver, trustee or other
similar official for it or for any
substantial part of its properties and
assets, and in the case of any such
proceeding instituted against it (but not
instituted by it), either the proceeding
remains undismissed or unstayed for a period
of thirty (30) days, or any of the actions
sought in such proceeding (including the
entry of an order for relief against it or
the appointment of a receiver, trustee,
custodian or other similar official for it
or for any substantial part of its
properties and assets) occurs; or
(iv) takes any corporate action to authorize any of the
above actions.
For the purposes of the foregoing, "Voting Securities" means
Common Shares and any other shares entitled to vote for the
election of directors and shall include any security, whether
or not issued by the Corporation, which are not shares
entitled to vote for the election of directors but are
convertible into or exchangeable for shares which are entitled
to vote for the election of directors including any options or
rights to purchase such shares or securities.
"Common Shares" means the common shares in the capital of the Corporation.
"Continuing Director" shall mean either:
(a) an individual who is a member of the Board on the Effective
Date; or
(b) an individual who becomes a member of the Board subsequent to
the date of this Agreement with the agreement of at least a
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majority of the Continuing Directors who are members of the
Board at the date that the individual became a member of the
Board.
"Effective Date" means March 1, 2007.
"Employment" means the employment of the Executive in connection with the
Business and in accordance with the terms and conditions of this Agreement.
"Party" means a party to this Agreement, and "Parties" has a similar extended
meaning.
"Permanent Disability" means any physical or mental incapacity, disease or
affliction which:
(a) prevents the Executive from performing substantially all her
obligations as an executive officer of Halo; and
(b) has existed for a continuous period of one hundred and eighty
(180) days in any period of three hundred and sixty-five (365)
consecutive days.
"Person" includes any individual, partnership, joint venture, trust,
unincorporated organization or any other association, corporation, or any
government or any department or agency thereof.
"Plan" means the Halo Resources Ltd. Share Option Plan.
"Policies" means the Halo Corporate Disclosure Policy and the Halo Xxxxxxx
Xxxxxxx Policy, both of which are incorporated by reference in and form part of
this Agreement, and include such amendments as may occur from time to time.
"Securities Act" means the SECURITIES ACT (Ontario).
"Subsidiary" means a body corporate which is a subsidiary of the Corporation as
defined in the BUSINESS CORPORATIONS ACT (Ontario).
"Triggering Event" means any one of the following events which occurs without
the express agreement in writing of the Executive;
(i) a material adverse change in any of the duties,
powers, rights, discretion, prestige, salary,
benefits, perquisites of the Executive as they exist,
and with respect to financial entitlements, the
conditions under and manner in which they were
payable, immediately prior to the Change of Control;
(ii) a material diminution of the title of the Executive
as it exists immediately prior to the Change of
Control;
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(iii) a change in the person or body to whom the Executive
reports immediately prior to the Change of Control,
except if such person or body is of equivalent rank
or stature or such change is as a result of the
resignation or removal of such person or the persons
comprising such body, as the case may be, provided
that this shall not include a change resulting from a
promotion in the normal course of business; or
(iv) a material change in the hours during or location at
which the Executive is regularly required immediately
prior to the Change of Control to carry out the terms
of her employment with the Corporation, or a material
increase in the amount of travel the Executive is
required to conduct on behalf of the Corporation.
AGREEMENT TO EMPLOY
2. Halo agrees to employ the Executive as of the Effective Date in
connection with the Business on the terms and conditions set out herein and the
Executive agrees to accept employment on such terms.
TERM
3. The term of this Agreement and the Employment shall be for an
indefinite period, provided that:
(a) Halo may terminate this Agreement and the Employment at any
time as set out in paragraphs 10, 11 and 14 hereof;
(b) the Executive may terminate this Agreement and the Employment
at any time as set out in paragraph 12 hereof;
(c) the Corporation or the Executive may terminate this Agreement
and the Employment upon the occurrence of a Change of Control
as set out in paragraph 13 hereof; and
(d) this Agreement and the Employment are automatically terminated
when the Executive dies.
DUTIES AND RESPONSIBILITIES
4. The Executive shall serve as President and Chief Executive Officer of
Halo and shall perform such duties and assume such responsibilities inherent in
and consonant with her position as an executive of Halo, and further will
perform such reasonable additional duties and responsibilities as the board of
directors may require and assign to her including serving as an officer of
Affiliates of Halo at no additional compensation. The Executive shall report to
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the chair of the board of directors of Halo, or such other position as the Board
may designate. The Executive shall work out of the Corporation's head office in
Xxxxxxx, Xxxxxxx. The Executive acknowledges that her employment will entail
frequent travel to places including where the Corporation has operations, other
than her regular place of employment.
CONFLICT OF INTEREST/DUTY OF LOYALTY
5. The Executive agrees to fully and faithfully perform her duties and
responsibilities hereunder, and not to engage or have an interest in any other
enterprise, occupation or profession, directly or indirectly, or become a
principal, agent, director, officer or employee of another company, firm or
person, as applicable, which will or may interfere with or conflict with the
Executive's duties and responsibilities hereunder without the written approval
of the chair of the Board. For greater certainty, the Executive shall be
entitled to sit on external boards of directors and accept incidental consulting
assignments set out on Schedule "A", or otherwise if the consent of the chair of
the Board is first obtained in writing. If the Corporation determines that the
Executive is in breach of this provision and such breach is capable of cure, it
shall provide written notice of the breach and afford the Executive 30 days to
cure the breach. Failure by the Executive to cure the breach within such 30 day
period shall constitute just cause for termination of the Executive's
employment. In the event of breach not capable of cure, the breach by the
Executive of this provision shall constitute immediate grounds for termination
of the Executive's employment for just cause.
CONFIDENTIALITY
6. The Executive agrees to keep the affairs of the Business, financial and
otherwise, strictly confidential and shall not disclose the same to any person,
company or firm, directly or indirectly, during or after her Employment by Halo
except as reasonably necessary to carry out her Employment duties or as
otherwise authorized in writing by the chair of the board. The Executive agrees
not to use such information, directly or indirectly, for her own interests, or
any interests other than those of the Business, whether or not those interests
conflict with the interests of the Business, during or after her employment by
Halo. The Executive agrees that all trade secrets, trade names, client
information, client files, processing and marketing techniques, information
respecting existing or potential mineral properties, mineral exploration data or
information, and mining and exploration proposals relating to the Business or
disclosed to the Executive in the course of pre-employment communications or her
Employment shall become, on execution of this Agreement, and shall be
thereafter, as the case may be, the sole property of Halo whether arising before
or after the execution of this Agreement.
REMUNERATION
7. (a) The Executive shall be remunerated as follows during the term
of this Agreement:
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(i) initial base salary of CDN$175,000.00 per annum
payable monthly less any amount paid to the Executive
pursuant to any other employment or consulting
agreement or arrangement between the Executive and
the Corporation or any of its Affiliates, and to be
reviewed annually by the Board;
(ii) an annual bonus as may be determined by the Board
having in mind performance criteria to be established
by the Executive and the Board having regard to such
market or other advice or guidance as the Board
considers appropriate; and
(iii) four (4) weeks' vacation annually.
(b) All payments required to be made under this Agreement are
subject to statutory deductions, as applicable, including
without limitation for income tax.
8. (a) The Executive shall also be granted incentive stock options to
acquire Common Shares of the Corporation under the Plan in
such amounts as approved by the Board from time to time. The
Board shall make a determination as to whether additional
options shall be granted in or about six months after the
Effective Date, and annually thereafter.
REIMBURSEMENT OF EXPENSES
9. All the Executive's reasonable expenses related to the Business will be
reimbursed upon the submittal by the Executive of an expense report with
appropriate supporting documentation to Halo.
TERMINATION
10. This Agreement and the Employment may be terminated by Halo summarily
and without notice, or payment in lieu of notice, severance payments, benefits,
damages or any sums whatsoever, in the event that there is just cause for
termination of the Executive's Employment at common law. Notwithstanding the
generality of the foregoing, just cause shall be deemed to exist in the event
the Executive:
(a) engages in conduct which is detrimental to the reputation of
the Corporation or any of its Affiliates in any material
respect;
(b) has committed an act of fraud or material dishonesty in
connection with her Employment or the Business;
(c) is the subject of any enforcement proceeding by a securities
regulatory authority or agency; or
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(d) materially breaches her duties under this Agreement, including
the Policies.
11. Despite the Term of this Agreement and the Employment set forth in
paragraph 3, above:
(a) This Agreement and the Employment may be terminated on notice
by Halo to the Executive without cause, upon payment to the
Executive at termination of three months' Monthly Severance
Compensation plus one month's Monthly Severance Compensation
per completed year of service hereunder, to a maximum of 12
months Monthly Severance Compensation in total. For the
purposes of this paragraph 11, "Monthly Severance
Compensation" means one twelfth of her annual base salary plus
the greater of means one twelfth of her annual bonus at target
or means one twelfth of the bonus received by her in the
previous bonus year. The Executive shall also be entitled to
accrued but unused vacation to the date of termination.
(b) The parties agree that any payment to the Executive pursuant
to this paragraph 11 is not intended and will not be of the
nature of a penalty and shall be considered by the parties as
liquidated damages. 12. Subject to paragraph 13, this
Agreement and the Employment may be terminated on notice by
the Executive to Halo by giving ninety (90) days' written
notice.
CHANGE OF CONTROL
13. If at any time during the term of this Agreement there is a Change of
Control and within twelve (12) months of such Change of Control:
(i) the Corporation gives notice of its intention to
terminate the employment of the Executive for any
reason other than just cause, or
(ii) a Triggering Event occurs and the Executive elects to
terminate this Agreement and her Employment
the Executive shall be entitled to receive from Halo the compensation set out in
paragraph 11 above in the manner and within the time periods set out therein.
DISABILITY
14. (a) If the Executive suffers a Permanent Disability, Halo may
replace the Executive either on a temporary or permanent basis
without terminating the Employment of the Executive.
(b) If the Executive recovers from the Permanent Disability, Halo
may offer to the Executive the position that the Executive
formerly occupied prior to the Executive's Permanent
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Disability or another comparable other executive position. If
no comparable position is offered by Halo to the Executive,
the Executive shall be entitled to the compensation set out in
paragraph 11(a) above.
(c) Notwithstanding the foregoing, in the event the Executive
continues to suffer from a Permanent Disability for in excess
of 24 months, Halo may, at its option and subject to its
obligation to make reasonable accommodation of the disability
as required by applicable human rights legislation, terminate
the Executive's employment, provided that:
(i) such termination does not and will not prejudice the
Executive's eligibility for disability and other group
insured benefits; and
(ii) Halo provides the Executive forthwith the
compensation set out in paragraph 11(a) above.
SEVERABILITY
15. The invalidity or unenforceability of any provision of this Agreement
will not affect the validity or enforceability of any other provision, and any
invalid provision will be severable from this Agreement.
GOVERNING LAW
16. This Agreement is governed by and is to be considered, interpreted and
enforced in accordance with the laws of the Province of Ontario and the federal
laws of Canada applicable therein. The Executive hereby attorns to the
non-exclusive jurisdiction of the courts of the Province of Ontario.
HEIRS/SUCCESSORS BOUND
17. This Agreement inures to the benefit of and is binding upon the parties
and their respective heirs, administrators, executors, successors and assigns as
appropriate. The Corporation will require any successor (whether direct or
indirect, by purchase, amalgamation, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Corporation to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Corporation would be required to perform it if no such
succession had taken place, provided that, if the Executive agrees, an express
agreement may not be required if such results by operation of law. Failure of
the Corporation to obtain such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle the Executive
to compensation from the Corporation at the same amount and on the same terms as
the Executive would be entitled hereunder pursuant to paragraph 13 as if such
succession had not occurred, except that for purposes of implementing the
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foregoing, the date of which any such succession becomes effective shall be
deemed the date of termination of the Executive's employment.
ASSIGNMENT
18. This Agreement is not assignable by either party without the consent in
writing of the other party, which consent may be unreasonably withheld, provided
that Halo shall be entitled to assign this Agreement, without the Executive's
consent to an Affiliate of Halo provided the Affiliate offers comparable
employment and there is not material prejudice, including diminution of
responsibilities, to the Executive by reason of such assignment.
ENTIRE AGREEMENT
19. As of its date execution, this Agreement supersedes all prior
agreements, whether written or oral, express or implied, between the parties,
and constitutes the entire agreement between the parties. The parties agree that
there are no other collateral agreements or understandings between them except
as set out in this Agreement.
AMENDMENT
20. This Agreement may be amended only in writing signed by the parties and
witnessed.
HEADINGS
21. All headings in this Agreement are for convenience only and shall not
be used for the interpretation of this Agreement.
RECOURSE ON BREACH
22. The Executive acknowledge that damages would be an insufficient remedy
for a breach of this Agreement and agrees that Halo may apply for and obtain any
relief available to it in a court of law or equity, including injunctive relief,
to restrain breach or threat of breach of this Agreement or to enforce the
covenants contained herein, and, in particular, the covenant contained in
paragraph 6 herein, in addition to rights Halo may have to damages arising from
said breach or threat of breach.
CONFIDENTIALITY OF AGREEMENT
23. The parties agree that this Agreement is confidential and shall remain
so. The parties agree that this Agreement or the contents hereof shall not be
divulged by any party without the consent in writing of the other party, with
the exception of disclosure to personal advisors, disclosure that may be
required by the laws of any jurisdiction in which the Business is conducted or
may be conducted in future and disclosure pursuant to applicable securities laws
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and the rules and policies of any stock exchange on which Halo securities are
traded. Each party agrees to request of its personal advisors that they enter
into similar agreements of confidentiality if requested to do so by the other
party to this Agreement.
INDEPENDENT LEGAL ADVICE
24. The Executive agrees that she has had independent legal advice or the
opportunity to receive same in connection with the execution of this Agreement
and has read this Agreement in its entirety, understands its contents and is
signing this Agreement freely and voluntarily, without duress or undue influence
from any party.
NOTICE
25. Any notice required or permitted to be made or given under this
Agreement to either party shall be in writing and shall be sufficiently given if
delivered personally, or if sent by prepaid registered mail to the intended
recipient of such notice at:
(a) in the case of Halo, to:
Commerce Court North
00 Xxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX
X0X 0X0
Attention: Chair, Board of Directors
with a copy (which shall not constitute notice hereunder) to:
Xxxxxxx Xxxxx & Xxxxxxxxx LLP
2100 Scotia Plaza
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxx Xxxxxx
(b) in the case of the Executive, to:
00-0000 Xxxxxx Xx. X.
Xxxxxxx, Xxxxxxx X0X 0X0
or at such other address as the party to whom such writing is to be given shall
provide in writing to the party giving the said notice. Any notice delivered to
the party to whom it is addressed shall be deemed to have been given and
received on the day it is so delivered or, if such day is not a business day,
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then on the next business day following any such day. Any notice mailed shall be
deemed to have been given and received on the fifth business day following the
date of mailing.
PRIVACY
26. By accepting employment with the Corporation, the Executive consents to
the Corporation collecting, using and disclosing her personal information for
purposes relating to the maintenance of the employment relationship. The
purposes of the Corporation's collection, use and disclosure include, but are
not limited to:
(a) ensuring that the Executive is properly remunerated for her
services to the Corporation which shall include disclosure to
third party payroll providers;
(b) administering and/or facilitating the provision of any
benefits to which the Executive is or may become entitled,
including bonuses, benefits, pensions, registered retirement
savings plan, short, medium and long-term incentive plans;
this shall include the disclosure of the Executive's personal
information to the Corporation's third party service providers
and administrators;
(c) ensuring that the Corporation is able to comply with any
regulatory, reporting and withholding requirements relating to
the Executive's employment;
(d) performance evaluation;
(e) monitoring the Executive's access to and use of the
Corporation's electronic media services in order to ensure
that the use of such services is in compliance with the
Corporation's policies and procedures and is not in violation
of any applicable laws;
(f) complying with the Corporation's obligations to report
improper or illegal conduct by any director, officer, employee
or agent of the Corporation under any applicable securities,
criminal or other law;
(g) allowing a potential purchaser of the shares or assets of the
Corporation to conduct due diligence with respect to
employment obligations of the Corporation, subject to
compliance with the treatment of such information as required
by applicable legislation respecting privacy; and
(h) any other purpose for which the Executive is given notice and
which is reasonably related to the maintenance of the
Executive's employment relationship.
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SURVIVAL
27. Paragraphs 6, 22, 23 and 27 shall survive the termination of this
Agreement and the Employment and shall continue in full force and effect
according to their terms.
IN WITNESS WHEREOF the parties hereto have executed these presents
under their respective seals and hands of their proper offices authorized in
that behalf, as applicable.
The Corporate Seal of HALO INC. )
was hereunto affixed )
in the presence of: )
)
/s/ Marc Cernovitch )
-------------------------------- )
Authorized Signatory )
) c/s
)
-------------------------------- )
Authorized Signatory )
SIGNED in the presence of: )
)
)
)
) /s/ Xxxxx Xxxxx
-------------------------------- ) --------------------------------
Witness )
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Schedule "A"
Directorships: Prospectors and Developers Association of Canada
Canadian Shield Resources Inc.
Augen Capital Corp.
President: Analytical Solutions Ltd.
