EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.60
BETWEEN:
GRAN
TIERRA ENERGY INC.,
an
Alberta corporation (“GTEI”)
and
Gran
Tierra Energy Inc.,
a
Nevada corporation (“Gran
Tierra”)
(GTEI
and
Gran Tierra are collectively referred to herein as, the “Company”)
-
and
-
XXX
XXX WEI,
an
individual ordinarily resident in the City of Calgary in the Province of
Alberta
(the
“Executive”)
(collectively
referred to as the “Parties”)
RECITALS:
A.
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The
Executive has specialized knowledge and valuable skills and experience
which are critical to the management and success of the
business.
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B.
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The
Company wishes to secure the services of the Executive and to ensure
that
the Executive remains Vice-President, Operations, of the
business.
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C.
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The
Executive is currently an employee of the Company pursuant to an
employment agreement between the Executive and the Company dated
April 29,
2005 (the “Prior Agreement”).
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D.
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The
Parties wish to set forth their entire understanding and agreement
with
respect to the subject matter herein and replace the Prior Agreement
in
its entirety with this Executive Employment Agreement (the “Agreement”).
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THEREFORE,
the
Parties agree as follows:
ARTICLE
1
DUTIES
AND RESPONSIBILITIES
1.1 Position
The
Company confirms the appointment of the Executive to the position of
Vice-President, Operations. The Executive will undertake those duties and
responsibilities set out in Schedule “A” to this Agreement as well as those
duties reasonably assigned to the Executive by the Board of Directors of the
Company (the “Board”).
The
Executive will report to the President and Chief Executive Officer. The parties
agree that the relationship between the Company and the Executive created by
this Agreement is that of employer and employee.
1.2 Other
Engagements
The
Executive shall not engage in any other business, profession or occupation
which
would conflict with the performance of his duties and responsibilities under
this Agreement, either directly or indirectly, including accepting appointments
to the boards of other companies without the prior written consent of the
Board.
1.3 Reassignment
The
Company shall not reassign the Executive to another position within the Company
itself, or to a position within a subsidiary, affiliated or related corporate
entity (“Member
Company”
or
“Member
Companies”)
or
alter the duties, responsibilities, title, or reporting lines of the Executive
or change the location of the Executive’s employment unless the Executive agrees
to such reassignment or alteration.
1.4 Travel
The
Executive shall be employed at the Company’s location in Calgary, Alberta. The
Executive shall be available for such business related travel as may be required
for the purposes of carrying out the Executive’s duties and responsibilities.
The Executive shall be entitled to fly business class only for international
flights and shall use economy for domestic travel. The Executive will be
entitled to choose suitable accommodations when traveling on Company
business.
ARTICLE
2
TERM
OF EMPLOYMENT
The
Executive’s employment with the Company is for no specified duration and
constitutes at-will employment. The Executive’s employment may be terminated at
any time by either of the Parties, subject to the provisions of Article
9.
ARTICLE
3
BASE
SALARY
The
Executive will be paid an annual salary in an amount determined by the Board,
subject to applicable statutory deductions (the “Base
Salary”).
The
Executive’s Base Salary will be payable in accordance with Company practices and
procedures as they may exist from time to time. Base Salary will be reviewed
and
may be increased on an annual basis by the Board, with input from the
Executive.
2.
ARTICLE
4
BONUS
4.1 Bonus
Eligibility
The
Executive shall be eligible to receive an annual bonus payment in addition
to
Base Salary and other compensation for each year of the Executive’s employment
(the “Bonus”)
as
determined by the Board from time to time.
4.2 Bonus
Payment
The
Bonus
shall be payable within sixty (60) days of the end of the fiscal year, and
will
be based upon the Executive’s performance during the preceding
year.
ARTICLE
5
BENEFITS
The
Executive shall be entitled to participate in and to receive all rights and
benefits under any life insurance, disability, medical, dental, health and
accident plans maintained by the Company for its employees and for its executive
officers specifically. The Company will continue to pay the Executive’s Base
Salary in the event the Executive becomes disabled until such time as the
Executive begins to receive long-term disability insurance
benefits.
ARTICLE
6
VACATION
The
Executive will be entitled to five weeks vacation per year. Payment of all
vacation pay will be at Base Salary. The Executive will arrange vacation time
to
suit the essential business needs of the Company. Unused vacation entitlement
will be carried over into the following calendar year to a maximum entitlement
of eight weeks in any one year. On leaving the employment of the Company for
whatever reason, the Company will compensate the Executive for any accrued
but
unused vacation entitlement based upon the Executive’s then current Base
Salary.
ARTICLE
7
STOCK
OPTIONS
The
Company will provide the Executive with the right to participate in stock option
plans and/or incentive award plans approved by the Board.
ARTICLE
8
PERQUISITES
AND EXPENSES
The
Company recognizes that the Executive will incur expenses in the performance
of
the Executive’s duties. The Company shall reimburse the Executive for any
reasonable out of pocket expenses incurred in the course of
employment.
3.
ARTICLE
9
TERMINATION
OF EMPLOYMENT
9.1 Termination
Without Notice
This
Agreement and the Executive’s employment with the Company may be terminated,
without the Company being obligated to provide the Executive with advance notice
of termination or pay in lieu of such notice, whether under contract, statute,
common law or otherwise, in the following circumstances:
(a)
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Voluntary
Resignation
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In
the
event the Executive voluntarily resigns, except where the Executive resigns
for
Good Reason as provided for in this Agreement, the Executive will give a minimum
of ninety (90) days’ advance written notice to the Company. The Executive will
not be entitled to receive any further compensation or benefits whatsoever
other
than those which have accrued up to the Executive’s last day of active service
with the Company. The Company may, at its discretion, waive in whole or in
part
such notice with payment in lieu to the Executive;
(b)
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Cause
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"Cause"
is defined as any of the following:
(a)
conviction of, or plea of nolo contendere to, a felony;
(b)
participation in a fraud against the Company;
(c)
participation in an act of dishonesty against the Company intended to result
in
your personal enrichment;
(d)
willful material breach of the Company's written policies;
(e)
intentional significant damage to the Company's property by you;
(f)
material breach of this Agreement; or
(g)
conduct by you that, in the good faith and reasonable determination of the
Board, demonstrates gross unfitness to serve provided that in such event, the
Company shall provide notice to you describing the nature of the gross unfitness
and you shall thereafter have ten (10) days to cure such gross unfitness if
such
gross unfitness is capable of being cured.
The
Company may not terminate your employment for Cause unless and until you receive
a copy of a resolution duly adopted by the affirmative vote of at least a
majority of the Board of Directors of the Company ("Board") finding that in
the
good faith opinion of the Board, that "Cause" exists and specifying the
particulars thereof in reasonable detail.
4.
9.2 Termination
by the Company without Cause
The
Company may terminate the Executive’s employment without Cause at any time by
providing the Executive with a separation package (the “Separation
Package”)
equal
to two years’ Total Cash Compensation.
“Total
Cash Compensation” is defined as the annualized amount of Base Salary plus Bonus
Payment for the prior 12-month period.
The
Separation Package shall be payable in a lump sum within thirty (30) days of
termination.
9.3 Termination
by the Executive for Good Reason.
Should
the Executive terminate his employment for Good Reason, as hereinafter defined,
he shall receive the Separation Package set out in section 9.2. Failure of
the
Executive to terminate his employment on the occurrence of any event which
would
constitute Good Reason shall not constitute waiver of his right under this
section 9.3. Notwithstanding the foregoing, Executive may terminate his
employment for Good Reason so long as Executive tenders his resignation to
the
Company within thirty (30) days after the occurrence of the event that forms
the
basis for the resignation for Good Reason; provided, however, that Executive
must provide written notice to the Company describing the nature of the event
that Executive believes forms the basis for the resignation for Good Reason,
and
the Company shall thereafter have ten (10) days to cure such event.
“Good
Reason” is defined as the occurrence of any of the following without the
Executive’s express written consent:
(a) |
an
adverse change in the Executive’s position, titles, duties or
responsibilities (including new, additional or changed formal or
informal
reporting responsibilities) or any failure to re-elect or re-appoint
him
to any such positions, titles, duties or offices, except in connection
with the termination of his employment for
Cause;
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(b) |
a
reduction by the Company of the Executive’s Base Salary except to the
extent that the annual base salaries of all other executive officers
of
the Company are similarly reduced or any change in the basis upon
which
the Executive’s annual compensation is determined or paid if the change is
or will be adverse to the Executive except that an award of annual
performance bonuses by the Company’s Compensation Committee (and approved
by the Board of Directors) are discretionary and in no instance shall
be
considered adverse to Executive if such performance bonus is reduced
from
a prior year or if an annual performance bonus is not
paid;
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(c) |
a
Change in Control (as defined below) of the Company occurs;
or
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(d) |
any
breach by the Company of any material provision of this
Agreement.
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5.
A
“Change
in Control” is defined as:
(a)
a
dissolution, liquidation or sale of all or substantially all of the assets
of
the Company;
(b)
a
merger or consolidation in which the Company is not the surviving
corporation;
(c)
a
reverse merger in which the Company is the surviving corporation but the shares
of the Company’s common stock outstanding immediately preceding the merger are
converted by virtue of the merger into other property, whether in the form
of
securities, cash or otherwise; or
(d)
the
acquisition by any person, entity or group within the meaning of Section 13(d)
or 14(d) of the Exchange Act, or any comparable successor provisions (excluding
any employee benefit plan, or related trust, sponsored or maintained by the
Company or any affiliate of the Company) of the beneficial ownership (within
the
meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable
successor rule) of securities of the Company representing at least fifty percent
(50%) of the combined voting power entitled to vote in the election of
directors.
ARTICLE
10
DIRECTORS/OFFICERS
LIABILITY
10.1 Indemnity
Gran
Tierra shall provide to the Executive indemnification in accordance with the
Indemnification Agreement entered into between Gran Tierra and the
Executive.
10.2 Insurance
(a)
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Gran
Tierra shall purchase and maintain, throughout the period during
which the
Executive acts as a director or officer of Gran Tierra or a Member
Company
and for a period of two years after the date that the Executive ceases
to
act as a director or officer of Gran Tierra or a Member Company,
directors’ and officers’ liability insurance for the benefit of the
Executive and the Executive’s heirs, executors, administrators and other
legal representatives, such that the Executive’s insurance coverage is, at
all times, at least equal to or better than any insurance coverage
Gran
Tierra purchases and maintains for the benefit of its then current
directors and officers, from time to
time.
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(b) |
If
for any reason whatsoever, any directors’ and officers’ liability insurer
asserts that the
Executive or the Executive’s heirs, executors, administrators or other
legal representatives are subject to a deductible under any existing
or
future directors’ and officers’ liability insurance purchased and
maintained by Gran Tierra for the benefit of the Executive and the
Executive’s heirs, executors, administrator and other legal
representatives, Gran Tierra shall pay the deductible for and on
behalf of
the Executive or the Executive’s heirs, executors, administrators or other
legal representatives, as the case may
be.
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6.
10.3 Survival
The
provisions of sections 10.1 and 10.2 of this Agreement shall survive the
termination of this Agreement or the employment of the Executive with Gran
Tierra and such provisions shall continue in full force and effect in accordance
with such Indemnification Agreement for the benefit of the
Executive.
ARTICLE
11
NON-COMPETITION
AND CONFIDENTIALITY
11.1 Non-Competition
The
Executive recognizes and understands that in performing the duties and
responsibilities of his employment as outlined in this Agreement, he will be
a
key employee of the Company and will occupy a position of high fiduciary
confidence, pursuant to which he has developed and will develop and acquire
wide
experience and knowledge with respect to all aspects of the services and
businesses carried on by Gran Tierra and its Member Companies and the manner
in
which such businesses are conducted. It is the expressed intent and agreement
of
Executive and of Gran Tierra that such knowledge and experience shall be used
solely and exclusively in the furtherance of the business interests of Gran
Tierra and its Member Companies and not in any manner detrimental to them.
The
Executive therefore agrees that so long as he is employed by the Company
pursuant to this Agreement he shall not engage in any practice or business
in
competition with the business of Gran Tierra or any of its Member
Companies.
11.2 Confidentiality
The
Executive further recognizes and understands that in the performance of his
employment duties and responsibilities as outlined in this Agreement, he will
be
a key employee of the Company and will become knowledgeable, aware and possessed
of all confidential and proprietary information, know-how, the strategic
studies, techniques, knowledge and other confidential information of every
kind
or character relating to or connected with the business or corporate affairs
and
operations of Gran Tierra and its Member Companies and includes, without
limitation, geophysical studies and data, market data, engineering information,
shareholder data, client lists, compensation rates and methods and personnel
information (collectively “Confidential
Information”)
concerning the business of Gran Tierra and its Member Companies. The Executive
therefore agrees that, except with the consent of the Board, he will not
disclose such Confidential Information to any unauthorized persons so long
as he
is employed by the Company pursuant to this Agreement and for a period of 24
months thereafter; provided the foregoing shall not apply to any Confidential
Information which is or becomes known to the public or to the competitors of
Gran Tierra or its Member Companies other than by a breach of this
Agreement.
7.
11.3 Following
Termination of Agreement
Subject
to this provision and without otherwise restricting the fiduciary obligations
imposed upon, or otherwise applicable to the Executive as a result of the
Executive having been a senior officer and key employee of the Company, the
Executive shall not be prohibited from obtaining employment with or otherwise
forming or participating in a business competitive to the business of the
Company after termination of this Agreement and the Executive’s employment with
the Company.
ARTICLE
12
CHANGES
TO AGREEMENT
Any
modifications or amendments to this Agreement must be in writing and signed
by
all Parties or else they shall have no force and effect. Notwithstanding the
foregoing, the Company may assign this agreement to a Member Company, without
the consent of the Executive.
ARTICLE
13
ENUREMENT
This
Agreement shall enure to the benefit of and be binding upon the Parties and
their respective successors and assigns, including without limitation, the
Executive’s heirs, executors, administrators and personal
representative.
ARTICLE
14
GOVERNING
LAW
This
Agreement shall be construed in accordance with the laws of the Province of
Alberta and the laws of Canada applicable therein.
ARTICLE
15
NOTICES
15.1 Notice
to Executive
Any
notice required or permitted to be given to the Executive shall be deemed to
have been received if delivered personally to the Executive or sent by courier
to the Executive’s home address last known to the Company.
15.2 Notice
to Company
Any
notice required or permitted to be given to the Company shall be deemed to
have
been received if delivered personally to, sent by courier, or sent by facsimile
to:
Gran
Tierra Energy Inc.
000,
000-00xx Xxxxxx X.X.
Xxxxxxx,
Xxxxxxx, Xxxxxx, X0X 0X0
Fax:
(000) 000-0000
Attn:
Chief Executive Officer
8.
ARTICLE
16
WITHHOLDING
All
payments made by the Company to the Executive or for the benefit of the
Executive shall be less applicable withholdings and deductions.
ARTICLE
17
INDEPENDENT
LEGAL ADVICE
The
Executive acknowledges that the Executive has been advised to obtain independent
legal advice with respect to entering into this Agreement, that he has obtained
such independent legal advice or has expressly deemed not to seek such advice,
and that the Executive is entering into this Agreement with full knowledge
of
the contents hereof, of the Executive’s own free will and with full capacity and
authority to do so.
ARTICLE
18
REPLACEMENT
OF PRIOR AGREEMENT
The
Parties acknowledge that the Prior Agreement is hereby replaced in its entirety
by this Agreement. Pursuant to Article 12 of the Prior Agreement, this Agreement
shall be effective, and the Prior Agreement shall be terminated, upon the
execution of this Agreement by the Parties. Upon such execution, all provisions
of the Prior Agreement are hereby superseded in their entirety and replaced
herein and shall have no further force or effect.
(remainder
of page intentionally left blank)
9.
IN
WITNESS OF WHICH
the
Parties have duly executed this Agreement as of the date set forth below, with
an effective date as of June 17, 2008.
GRAN TIERRA ENERGY INC., an Alberta corporation | ||
By:
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/s/ Xxxx Xxxxxxxx | |
Name:
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Xxxx
Xxxxxxxx
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Title:
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President
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Date:
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17
June 08
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GRAN TIERRA ENERGY INC., a Nevada corporation | ||
By:
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/s/
Xxxx Xxxxxxxx
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Name:
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Xxxx
Xxxxxxxx
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Title:
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President
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Date:
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17
June 08
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SIGNED,
SEALED & DELIVERED
In
the
presence of:
Xxxxxx
Xxxxx
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/s/ Xxx Xxx Wei | ||
Witness
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Xxx
Xxx Wei
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||
Date: |
June
17, 2008
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SCHEDULE
“A”
Duties
and Responsibilities for Vice President, Operations
·
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Vice-President,
Operations shall report directly to the
President.
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·
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Develop
and maintain appropriate technical processes and practices (including
geology, geophysics, engineering and related disciplines) in order
to
manage and optimize oil and gas exploration and development activities
of
the Company; ensure appropriate resources and expertise are put to
the
task; supervise operations of field/overseas offices; oversee
communications with joint venture partners and/or national oil companies;
provide leadership for all technical activities of the Company;
continually encourage best practices, high performance and value
creation.
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