EMPLOYMENT AGREEMENT
This
Employment Agreement,
by and
between El Capitan Precious Metals, Inc., a Nevada corporation (the
“Company”),
and
Xxxxxxx X. Xxxxxxx (the “Executive”)
is
entered into on the 30th day of April, 2007 (the “Effective
Date”).
INTRODUCTION
A. On
April
6, 2007, the Board of Directors of the Company (the “Board”)
appointed Executive, and Executive accepted such appointment, as the Company’s
Chief Executive Officer and President, and further agreed to certain
compensation for Executive’s services which are set forth in Sections 4(a)(i)
and 4(e) hereof.
B. The
Company and Executive desire to memorialize the terms agreed to on April 6,
2007
and establish other terms and conditions of Executive’s employment with the
Company as set forth in this Agreement.
AGREEMENT
Now,
Therefore,
in
consideration of the foregoing, and for other good and valuable consideration
the receipt and sufficiency of which is hereby acknowledged, the Company and
Executive, each intending to be legally bound, hereby agree as
follows:
1. Employment.
Subject
to all of the terms and conditions of this Agreement, the Company hereby agrees
to employ Executive, and Executive hereby accepts such employment and agrees
to
serve the Company to the best of his ability. Executive shall report to and
take
direction from the Board.
2. Term.
The
term of Executive’s employment hereunder, unless sooner terminated in accordance
with the provisions of Section 7, shall be for a period of two (2) years (the
“Term”)
commencing April 30th, 2007; provided, however, that the Term shall be extended
automatically for additional periods of one (1) year unless one party shall
provide notice to the other in writing at least thirty (30) days before the
initial expiration of the Term or an anniversary date thereof that this
Agreement shall no longer be so extended, and all such extension periods shall
be included in the Term.
3. Duties.
The
Executive shall serve as the Company’s Chief Executive Officer and shall
perform, subject to the direction of the Board, duties as may be from time
to
time directed by the Board. Except as expressly permitted in this Section 3,
the
Executive shall devote substantially all of his business time, attention and
energies to the business and affairs of the Company and shall use his best
efforts to advance the best interests of the Company and shall not during the
Term be actively engaged in any other business activity, whether or not such
business activity is pursued for gain, profit or other pecuniary advantage,
that
will interfere with the performance by the Executive of his duties hereunder
or
the Executive’s availability to perform such duties or that will adversely
affect, or negatively reflect upon, the Company. Notwithstanding the foregoing,
the Company acknowledges and agrees that Executive shall be entitled to (i)
complete certain duties and obligations relating to his prior employment for
up
to 20% of his normal hours of employment and (ii) serve as a member of boards
of
directors of other public and private companies, provided that such activities
shall not violate the terms of this Agreement, including without limitation
this
Section 3.
4. Compensation.
(a) Base
Salary.
In
consideration for Executive’s services under this Agreement, the Company hereby
agrees to pay Executive the following base salary during the Term (the
“Base
Salary”):
(i) For
the
period from April 6, 2007 through December 31, 2007 of the Term, 250,000 shares
of the Company’s common stock, par value $.001 per share (the “Common
Stock”),
issued to Executive on April 6, 2007 (the “2007
Base Salary”);
and
(ii) From
January 1, 2008 through the remainder of the Term, 25,000 shares of Common
Stock
per month of continued service, issuable on the first day of the month
immediately following such month of service (the “Monthly
Base Salary”);
provided that, the Aggregate Value (as defined below) of the Monthly Base Salary
for any month of service during the Term cannot exceed $100,000. “Aggregate
Value”
for
purposes of this Section 4(a)(ii) shall mean the average of the closing prices
of the Common Stock (as identified by the OTC Bulletin Board or applicable
exchange on which the Common Stock is quoted, or in the absence of such
quotation or listing, as determined by the Board in its reasonable discretion)
for the trading days during such month of service.
(b) Transaction
Bonus.
In the
event the Company enters into a transaction whereby it sells the property
referred to as the El Capitan property (the “El
Capitan Property”)
during
the Term (including pursuant to a merger, consolidation, sale of all or
substantially all of the assets of the Company or other similar transaction
constituting a Change of Control (as defined in Section 6(c) hereto)), Executive
shall be entitled to a bonus (the “Transaction
Bonus”)
equal
to 0.5% of the Total Transaction Value; provided that, the Company’s
consummation of a merger or other consolidation with Gold and Minerals Co.,
Inc.
shall not constitute a transaction whereby the Transaction Bonus shall apply.
For purposes of this Agreement, “Total
Transaction Value”
shall
mean (i) in the event of the sale of the El Capitan Property as an individual
asset (or together with other assets not constituting all or substantially
all
of the assets of the Company), the aggregate value of consideration received
by
the Company in consideration of the El Capitan Property, or (ii) in the event
of
a merger, consolidation, sale of all or substantially all of the assets of
the
Company, the aggregate value of consideration received by the Company and its
shareholders in the transaction, in either case including cash, stock, financial
instruments or other consideration received by the Company and its shareholders
in the transaction. Notwithstanding the foregoing, in the event the
consideration to the Company and/or its shareholders is paid over time,
Executive shall be entitled to the payment of the Transaction Bonus as such
consideration is received by the Company and/or its shareholders.
(c) Benefits.
During
the Term, Executive shall be entitled to the employee benefits as provided
by
the Company to its management team. The Company reserves the right, in its
sole
discretion, to alter the terms of such benefits at any time and from time to
time.
(d) Reimbursement.
The
Company shall reimburse Executive for all reasonable out-of-pocket business
expenses incurred by Executive (“Expenses”)
on the
Company’s behalf during the Term, including, without limitation, Expenses
relating to computer, office and cellular phone and office equipment.
Notwithstanding the foregoing, Executive must properly account to the Company
all such expenses in accordance with the rules and regulations of the Internal
Revenue Service under the Internal Revenue Code of 1986, as amended, and in
accordance with any standard policies of the Company relating to reimbursement
of business expenses as such policies exist or may be implemented in the
future.
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(e) Stock
Options.
On
April 6, 2007, the Company granted Executive a stock option to purchase
2,500,000 shares of Common Stock at an exercise price of $0.70 per share, the
per share fair market value of the Common Stock on the date of grant (the
“Option”).
The
Option shall vest in five equal amounts of 500,000 shares each upon the initial
occurrence of each of the following events:
(i) the
earlier to occur of (A) a merger of the Company with Gold and Minerals, Co.,
Inc. or (B) such time that the average of the closing price of the Company’s
common stock over 30 consecutive trading days is at or above $0.75 per share;
(ii) the
earlier to occur of (A) the recommencement of drilling on the El Capitan
Property or (B) such time that the average of the closing price of the Company’s
common stock over 30 consecutive trading days is at or above $1.00 per
share;
(iii) the
earlier to occur of (A) a qualified joint venture or the receipt of financing
from a mining operating company or (B) such time that the average of the closing
price of the Company’s common stock over 30 consecutive trading days is at or
above $1.25 per share;
(iv) the
earlier to occur of (A) the listing of the Company’s common stock on a major
stock exchange or (B) such time that the average of the closing price of the
Company’s common stock over 30 consecutive trading days is at or above $1.50 per
share;
(v) the
earlier to occur of (A) the announcement of a resource calculation relating
to
fire assays completed on the El Capitan Property or (B) such time that the
average of the closing price of the Company’s common stock over 30 consecutive
trading days is at or above $1.75 per share.
In
the
event the Company terminates Executive’s employment, or Executive resigns
employment from the Company, within three (3) months of a Change of Control,
the
unvested portion of the Option shall vest immediately prior to such Change
of
Control as set forth in Section 6(c). Upon termination of Executive’s employment
with the Company for any reason other than pursuant to a Change of Control
under
Section 6(c), Executive’s rights to any portion of the Option that has not yet
vested as of the date of such termination shall not vest, and all of Executive’s
rights to such unvested portion of the Option shall terminate. The Option shall
have a term of 10 years from date of grant. In the event of termination of
Executive’s employment, for any reason or no reason, the vested Options shall
remain exercisable for two (2) years following the date of termination. In
connection with such grant, the Executive shall enter into a stock option
agreement which will memorialize the foregoing vesting schedule and other terms
described in this Section 4(e) and provide additional standard option
provisions.
5. Confidentiality.
Except
as specifically permitted by an authorized officer of the Company or by written
Company policies, Executive will not, either during or after his employment
by
the Company, use Confidential Information (as defined below) for any purpose
other than the business of the Company or disclose it to any person who is
not
also an executive of the Company unless authorized by the Board. When
Executive’s employment with the Company ends, Executive will promptly deliver to
the Company all records and any compositions, articles, devices, apparatuses
and
other items that disclose, describe, or embody Confidential Information,
including all copies, reproductions, and specimens of the Confidential
Information in Executive’s possession, regardless of who prepared them and will
promptly deliver any other property of the Company in Executive’s possession,
whether or not Confidential Information. As used in this Section 5,
“Confidential Information” means information that is not generally known and
that is proprietary to the Company or that the Company is obligated to treat
as
proprietary, including information known by Executive prior to the Effective
Date. Any information that Executive reasonably considers Confidential
Information, or that the Company treats as Confidential Information, will be
presumed to be Confidential Information (whether the Executive or others
originated it and regardless of how the Executive obtained it). The
provisions of this
Section
5 shall survive any termination of this Agreement.
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6. Termination.
The
Executive’s employment hereunder shall be terminated upon the Executive’s death
and may be terminated as follows:
(a) “Cause”
Termination. The
Executive’s employment hereunder may be terminated by the Board for Cause. Any
of the following actions by the Executive shall constitute “Cause”:
(i) The
willful failure, disregard or refusal by the Executive to perform his duties
hereunder;
(ii) Any
willful, intentional or grossly negligent act by the Executive having the effect
of injuring, in a material way (whether financial or otherwise and as determined
in good-faith by a majority of the Board), the business or reputation of the
Company or any of its affiliates, including, but not limited to, any officer,
director, executive or shareholder of the Company or any of its affiliates;
(iii) Willful
misconduct by the Executive in respect of the duties or obligations of the
Executive under this Agreement, including, without limitation, insubordination
with respect to directions received by the Executive from the
Board;
(iv) The
Executive’s indictment of any felony or a misdemeanor involving moral turpitude
(including entry of a nolo contendere plea);
(v) The
determination by the Company, after a reasonable and good-faith investigation
by
the Company following a written allegation by another employee of the Company,
that the Executive engaged in some form of harassment prohibited by law
(including, without limitation, age, sex or race discrimination), unless the
Executive’s actions were specifically directed by the Board;
(vi) Any
misappropriation or embezzlement of the property of the Company or its
affiliates (whether or not a misdemeanor or felony);
(vii) Breach
by
the Executive of any of the provisions of Section 5 of this Agreement;
and
(viii) Breach
by
the Executive of any provision of this Agreement other than those contained
in
Section 5 which is not cured by the Executive within thirty (30) days after
notice thereof is given to the Executive by the Company.
(b) Disability
Termination. The
Executive’s employment hereunder may be terminated by the Board due to the
Executive’s Disability. For purposes of this Agreement, a termination for
“Disability” shall occur (i) when the Board has provided a written termination
notice to the Executive supported by a written statement from a reputable
independent physician to the effect that the Executive shall have become so
physically or mentally incapacitated as to be unable to resume, within the
ensuing twelve (12) months, his employment hereunder by reason of physical
or
mental illness or injury, or (ii) upon rendering of a written termination notice
by the Board after the Executive has been unable to substantially perform his
duties hereunder for 90 or more consecutive days, or more than 120 days in
any
consecutive twelve month period, by reason of any physical or mental illness
or
injury. For purposes of this Section 6(b), the Executive agrees to make himself
available and to cooperate in any reasonable examination by a reputable
independent physician retained by the Company.
4
(c) Change
of Control. The
Executive’s employment hereunder may be terminated by the Board (or its
successor) upon the occurrence of a Change of Control. For purposes of this
Agreement, “Change
of Control”
means
(i) the acquisition, directly or indirectly, following the date hereof by any
person (as such term is defined in Section 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended), in one transaction or a series of related
transactions, of securities of the Company representing in excess of fifty
percent (50%) or more of the combined voting power of the Company’s then
outstanding securities if such person or his or its affiliate(s) do not own
in
excess of 50% of such voting power on the date of this Agreement, or (ii) the
future disposition by the Company (whether direct or indirect, by sale of assets
or stock, merger, consolidation or otherwise) of all or substantially all of
its
business and/or assets in one transaction or series of related transactions
(other than a merger effected exclusively for the purpose of changing the
domicile of the Company); provided that a merger or consolidation of the Company
with Gold and Minerals Co., Inc shall not constitute a “Change of
Control.”
7. Compensation
upon Termination.
(a) If
the
Executive’s employment is terminated by the Board for Cause, then the Company
shall pay to the Executive on the date of termination his Base Salary, any
earned Transaction Bonus, and any expense reimbursement amounts incurred prior
to and until the date of termination.
(b) If
the
Executive’s employment is terminated as a result of his death or Disability, or
if Executive resigns his employment for any reason (other than pursuant to
a
Change of Control under Section 7(c) hereof), the Company shall, within a
reasonable time after his death or Disability, pay to the Executive or to the
Executive’s estate, as applicable, his Base Salary, any earned Transaction Bonus
and any expense reimbursement amounts incurred prior to and until the date
of
his Death or Disability.
(c) If,
within three (3) months of a Change of Control, Executive’s employment is
terminated by the Company (or its successor) for any reason, or Executive
resigns employment from the Company, the Company (or its successor, as
applicable) shall, on the date of termination, (i) pay to the Executive his
Base
Salary, any earned Transaction Bonus and any expense reimbursement amounts
prior
to and until the date of termination and (ii) issue Executive 600,000 shares
of
Common Stock.
(d) If
the
Executive’s employment is terminated by the Company for a reason other than as
provided in Sections 6(a), 6(b), 6(c) or Executive’s death, the Company shall,
within a reasonable time of such termination, (i) pay to the Executive his
Base
Salary, any earned Transaction Bonus and any expense reimbursement amounts
incurred prior to and until the date of termination or his Death or Disability,
as applicable, and (ii) issue Executive 600,000 shares of Common
Stock.
5
(e) In
the
event, prior to December 31, 2007, Executive resigns his employment (other
than
within three (3) months following a Change in Control) or is terminated pursuant
to Section 6(a), upon the request of the Company, Executive shall be required
to
return to the Company a pro rata portion of the 2007 Base Salary (in the form
of
cash or shares of Common Stock valued at $.70 per share at Executive’s
discretion), based on the percentage of (i) days of employment of Executive
during calendar year 2007 to (ii) the number of calendar days from and including
April 6, 2007 to December 31, 2007.
(f) This
Section 7 sets forth the only obligations of the Company with respect to the
termination of the Executive’s employment with the Company, and the Executive
acknowledges that, upon the termination of his employment, he shall not be
entitled to any payments or benefits which are not explicitly provided in
Section 7. Further, notwithstanding anything to the contrary contained in this
Section 7, the Company shall have no obligation to pay, and Executive shall
have
no obligation to receive, any compensation, benefits or other consideration
provided for in this Section 7 following termination of Executive’s employment
unless Executive executes a separate agreement releasing the Company from any
and all liability in connection with the termination of Executive’s
employment.
(g) If
Executive is a director of the Company at the time his employment is terminated
for any reason, the Executive shall be deemed to have resigned as director
of
the Company, effective as of the date of such termination.
(h) The
provisions of this
Section
7 shall survive any termination of this Agreement.
8. Gross-up
Payment.
(a) If
Executive becomes entitled to the Common Stock payment under Sections 7(c)
or
7(d) hereof (the “Payment”), which is or becomes subject to the tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (or
any similar tax that may hereafter be imposed) (the “Excise Tax”), the Company
shall pay to Executive at the time specified below an additional amount (the
“Gross-up Payment”) (which shall include, without limitation, reimbursement for
any penalties and interest that may accrue in respect of such Excise Tax) such
that the net amount retained by Executive, after reduction for any Excise Tax
(including any penalties or interest thereon) on the Payment and any federal,
state and local income or employment tax and Excise Tax on the Gross-up Payment
provided for by this Section, but before reduction for any federal, state,
or
local income or employment tax on the Payment, shall be equal to the sum of
(A)
the Payment, and (B) an amount equal to the product of any deductions disallowed
for federal, state, or local income tax purposes because of the inclusion of
the
Gross-up Payment in Executive’s adjusted gross income multiplied by the highest
applicable marginal rate of federal, state, or local income taxation,
respectively, for the calendar year in which the Gross-up Payment is to be
made.
For purposes of determining whether the Payment will be subject to the Excise
Tax and the amount of such Excise Tax:
(i) The
Payment shall be treated as “parachute payments” within the meaning of Section
280G(b)(2) of the Code, and all “excess parachute payments” within the meaning
of Section 280G(b)(1) of the Code shall be treated as subject to the Excise
Tax,
unless, and except to the extent that, in the written opinion of independent
compensation consultants, counsel or auditors of nationally recognized standing
(“Independent Advisors”) selected by the Company and reasonably acceptable to
Executive, the Payment (in whole or in part) does not constitute a parachute
payment, or such excess parachute payment (in whole or in part) represents
reasonable compensation for services actually rendered within the meaning of
Section 280G(b)(4) of the Code in excess of the base amount within the meaning
of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise
Tax;
6
(ii) The
amount of the Payment which shall be treated as subject to the Excise Tax shall
be equal to the lesser of (A) the Payment or (B) the total amount of excess
parachute payments within the meaning of Section 280G(b)(1) of the Code (after
applying clause (i) above); and
(iii)
The
value of any non-cash benefits or any deferred payment or benefit shall be
determined by the Independent Advisors in accordance with the principles of
Sections 280G(d)(3) and (4) of the Code.
For
purposes of determining the amount of the Gross-up Payment, Executive shall
be
deemed (A) to pay federal income taxes at the highest marginal rate of federal
income taxation for the calendar year in which the Gross-up Payment is to be
made; (B) to pay any applicable state and local income taxes at the highest
marginal rate of taxation for the calendar year in which the Gross-up Payment
is
to be made, net of the maximum reduction in federal income taxes which could
be
obtained from deduction of such state and local taxes if paid in such year
(determined without regard to limitations on deductions based upon the amount
of
Executive’s adjusted gross income); and (C) to have otherwise allowable
deductions for federal, state, and local income tax purposes at least equal
to
those disallowed because of the inclusion of the Gross-up Payment in Executive’s
adjusted gross income. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at the time
the Gross-up Payment is made, Executive shall repay to the Company at the time
that the amount of such reduction in Excise Tax is finally determined (but,
if
previously paid to the taxing authorities, not prior to the time the amount
of
such reduction is refunded to Executive or otherwise realized as a benefit
by
Executive) the portion of the Gross-up Payment that would not have been paid
if
such Excise Tax had been applied in initially calculating the Gross-up Payment,
plus interest on the amount of such repayment at the rate provided in Section
1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to
exceed the amount taken into account hereunder at the time the Gross-up Payment
is made (including by reason of any payment the existence or amount of which
cannot be determined at the time of the Gross-up Payment), the Company shall
make an additional Gross-up Payment in respect of such excess (plus any interest
and penalties payable with respect to such excess) at the time that the amount
of such excess is finally determined.
The
Gross-up Payment provided for above shall be paid on the 30th day (or such
earlier date as the Excise Tax becomes due and payable to the taxing
authorities) after it has been determined that the Payment (or any portion
thereof) is subject to the Excise Tax; provided, however, that if the amount
of
such Gross-up Payment or portion thereof cannot be finally determined on or
before such day, the Company shall pay to Executive on such day an estimate,
as
determined by the Independent Advisors, of the minimum amount of such payments
and shall pay the remainder of such payments (together with interest at the
rate
provided in Section 1274(b)(2)(B) of the Code), as soon as the amount thereof
can be determined. In the event that the amount of the estimated payments
exceeds the amount subsequently determined to have been due, such excess shall
constitute a loan by the Company to Executive, payable on the fifth day after
demand by the Company (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code). If more than one Gross-up Payment is made, the
amount of each Gross-up Payment shall be computed so as not to duplicate any
prior Gross-up Payment. The Company shall have the right to control all
proceedings with the Internal Revenue Service that may arise in connection
with
the determination and assessment of any Excise Tax and, at its sole option,
the
Company may pursue or forego any and all administrative appeals, proceedings,
hearings, and conferences with any taxing authority in respect of such Excise
Tax (including any interest or penalties thereon); provided, however, that
the
Company’s control over any such proceedings shall be limited to issues with
respect to which a Gross-up Payment would be payable hereunder, and Executive
shall be entitled to settle or contest any other issue raised by the Internal
Revenue Service or any other taxing authority. Executive shall cooperate with
the Company in any proceedings relating to the determination and assessment
of
any Excise Tax and shall not take any position or action that would materially
increase the amount of any Gross-Up Payment hereunder.
7
(b) Modified
Cut-Back.
Notwithstanding the foregoing, if it shall be determined that the amount of
any
payment due Executive pursuant to this Section would result in less than $20,000
in net after-tax value to Executive, then no Gross-Up payment shall be made
to
Executive and the total payments due Executive pursuant to this Section shall
be
reduced to an amount that would not result in the imposition of any Excise
Tax.
9. Tax
Election.
Executive shall be responsible for filing with the Internal Revenue Service
an
appropriate written notice of election pursuant to Section 83(b) of the Internal
Revenue Code of 1986, as amended, if Executive wishes to make such an election.
Grantee shall notify the Company in writing if Grantee files such an election
within 30 days of the date of this Agreement. The Company intends, in the event
it does not receive from Executive evidence of such filing, to claim a tax
deduction for any amount which would otherwise be taxable to Executive in the
absence of such an election. EXECUTIVE ACKNOWLEDGES THAT IT IS EXECUTIVE’S SOLE
RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION
83(b), EVEN IF EXECUTIVE REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO MAKE
THIS
FILING ON EXECUTIVE’S BEHALF.
10. Dispute
Resolution.
Any
dispute arising out of or related to Executive’s employment with the Company or
this Agreement or any breach or alleged breach hereof shall be exclusively
decided by binding arbitration before a single arbitrator in a mutually
convenient location and governed by the rules of the American Arbitration
Association. The arbitrator shall have the power and authority to issue
temporary and permanent awards of injunctive and equitable relief. Attorneys’
fees in each case shall be paid to the prevailing party by the non-prevailing
party. Executive irrevocably waives Executive’s right, if any, to have any
disputes between Executive and the Company arising out of or related to
Executive’s employment with the Company or this Agreement decided in any
jurisdiction or venue other than by binding arbitration pursuant to the terms
hereof. The promises by the Company and Executive to arbitrate, which the
parties agree can be a less expensive and quicker way to resolve disputes than
litigating them in court or before other agencies or tribunals, constitutes
adequate, reasonable and sufficient mutual consideration for the enforcement
of
this Agreement.
11. General
Provisions.
(a) Successors
and Assigns.
This
Agreement is binding on and inures to the benefit of the Company’s successors
and assigns, all of which are included in the term the “Company” as it is used
in this Agreement; provided,
however,
that
the Company may assign this Agreement only in connection with a merger,
consolidation, assignment, sale or other disposition of substantially all of
its
assets or business.
(b) Amendment.
This
Agreement may be modified or amended only by a written agreement signed by
both
the Company and Executive.
8
(c) Governing
Law.
The laws
of the state of Nevada will govern the validity, construction, and performance
of this Agreement, without regard to any choice of law or conflict of law rules
and regardless of the location of any arbitration under this Agreement.
(d) Construction.
Wherever possible, each provision of this Agreement will be interpreted so
that
it is valid under the applicable law. If any provision of this Agreement is
to
any extent invalid under the applicable law, that provision will still be
effective to the extent it remains valid. The remainder of this Agreement also
will continue to be valid, and the entire Agreement will continue to be valid
in
other jurisdictions.
(e) No
Waiver.
No
failure or delay by either the Company or Executive in exercising or enforcing
any right or remedy under this Agreement will waive any provision of the
Agreement. Nor will any single or partial exercise by either the Company or
Executive of any right or remedy under this Agreement preclude either of them
from otherwise or further exercising these rights or remedies, or any other
rights or remedies granted by any law or any related document.
(f) Captions.
The
headings in this Agreement are for convenience only and shall not affect this
Agreement’s interpretation.
(g) References.
Except
as otherwise required or indicated by the context, all references to Sections
in
this Agreement refer to Sections of this Agreement.
(h) Entire
Agreement.
This
Agreement supersedes all previous and contemporaneous oral negotiations,
commitments, writings, and understandings between the parties concerning the
matters in this Agreement. In the case of any conflict between the terms of
this
Agreement and any other agreement, writing or understanding, this Agreement
will
control.
(i) Notices.
All
notices and other communications required or permitted under this Agreement
shall be in writing and shall be hand delivered or sent by registered or
certified first class mail, postage prepaid, and shall be effective upon
delivery if hand delivered, or three days after mailing if mailed to the
addresses stated below. These addresses may be changed at any time by like
notice:
|
If
to the Company:
|
El
Capitan Precious Metals, Inc.
00000
Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxxx,
Xxxxxxx 00000
|
|
If
to Executive:
|
Xxxxxxx
X. Xxxxxxx
000
Xxxxxxxxx Xxxxx
Xxxxxxx
Xxxxx, XX 00000
|
(j) Counterparts.
This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one agreement binding on all parties. Each party
shall
become bound by this Agreement immediately upon signing any counterpart,
independently of the signature of any other party. In making proof of this
Agreement, however, it will be necessary to produce only one copy signed by
the
party to be charged.
Signature
Page Follows
9
IN
WITNESS WHEREOF, the undersigned Executive and the Company have executed this
Agreement effective as of the Effective Date.
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El
Capitan Precious Metals, Inc.
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a
Nevada corporation
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By
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/s/
Xxxxxxx X. Xxxxxxx
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Xxxxxxx
X. Xxxxxxx
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Its:
Chairman
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| /s/ Xxxxxxx X. Xxxxxxx | ||
| Xxxxxxx X. Xxxxxxx | ||
Signature
Page of Employment Agreement between
El
Capitan Precious Metals, Inc. and Xxxxxxx X. Xxxxxxx
