EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of the 16th day of February 2003 (the
"Effective Date") (the "Agreement") by and between GOLDEN STAR RESOURCES LTD.
(the "Company") and XXXXXXX XXXXX (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 -
Exploration from the Effective Date on the terms and conditions set forth in
this Agreement and subject to the direction of the President and Chief Executive
Officer as to all matters.
b) The Employee shall be principally employed from his own residence in Perth,
Western Australia. 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 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.
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.
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.
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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$130,000 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 shall, subject to the
approval of the Board at its meeting on or about March 20, 2003, be granted
under the Company's Stock Option Plan on the date hereof a stock option to
purchase 225,000 shares of the Company at a price per share equal to the closing
price of the shares on the Toronto Stock Exchange on the business day
immediately preceding the grant of such option. The stock option so granted
shall vest as to one third of the shares on the Effective Date, as to an
additional one-third on the first anniversary date of the Effective Date and as
to the remaining one-third on the second anniversary date of the Effective Date.
In addition, the Employee shall be entitled to participate in the Company's 2002
Amended and Restated 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 Executive
Management Performance Bonus Plan (a copy of which is attached hereto as
Schedule B) or any successor bonus plan.
d) The Employee shall be entitled to participate in any and all group insurance,
hospital, and major medical and disability benefits provided that the Employee
shall have fulfilled all eligibility requirements for such benefits. In relation
to medical and hospital insurance, the Company will refund the cost of the
employees medical and hospital insurance in Australia.
e) The Employee shall be entitled to participate in any and all group applicable
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.
f) 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.
g) 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. The Employee shall observe all Australian
public holidays.
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h) The Employee shall maintain a separate phone/fax line and AOL account at his
residence for Company business purposes, the costs of which will be reimbursed
by the Company. Any other office requirements required for the Employees home
office will be submitted to the President and Chief Executive Officer in writing
for approval.
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
(bb) the willful engaging by the Employee in illegal
conduct or gross misconduct which is materially
injurious to the Company;
(ii) without cause, at any time 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
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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 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 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 First Employment 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).
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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 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 and Ethics Policy
The Employee acknowledges receipt of the Business Conduct and Ethics Policy 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 the Xxxxxxx Xxxxxxx 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.
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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.
Address for mailing, telecopy or delivery by hand shall be as follows:
o To the Employee:
Dr. Xxxxxxx Xxxxx
00 Xxxxxxxx Xxxxxxxx,
Xxxxxxx, XX, 0000
XXXXXXXXX.
Ph/Fax x000 0000 0000
o To the Company:
00000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx XX 00000
XXXXXX XXXXXX
Attention: President and CEO
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
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Name: Xxxxx Xxxxxxxx
Title: President and CEO
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
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