EXHIBIT 4.46
EMPLOYMENT AGREEMENT
THIS AGREEMENT effective the 11th day of March, 2005.
BETWEEN:
PINE VALLEY MINING CORPORATION, having an office at 000-000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx
(the "Company")
XXXXXX XXX, of 0000 Xxxxxxx Xx., Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx
(the "Executive")
WHEREAS the Executive has agreed to a contract of employment with the Company,
and the Company has agreed to contract for the services of the Executive, on the
terms and conditions set forth in this Agreement.
NOW THEREFORE in consideration of the mutual terms and conditions in this
Agreement, and the payment by the Employer to the Executive of $10.00, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. POSITION, SERVICES AND TERM
1.1 POSITION
The Company will employ the Executive and the Executive will serve the
Company as Vice President, Operations of the Company. The Executive will
report to the President of the Company or such other person designated from
time to time by the Company.
Despite this Agreement, the employment of the Executive with the Company is
subject to the Company conducting reference checks, criminal records
checks, securities records checks and such other inquiries as the Company
considers appropriate about the Executive (the "Inquiries") and receiving
in response thereto information about the Executive that is satisfactory to
the Company in its discretion. The Executive consents to the Inquiries
being conducted by the Company, and will provide any necessary consents to
any third party to facilitate the Inquiries, and consents to the Company
using any Information received as a result of the Inquiries to determine
the suitability of the Executive for employment with the Company.
1.2 SERVICES
The Executive will exercise the powers normally or usually associated with
the position of Vice President, Operations and such other duties and powers
as the Company may assign to the Executive from time to time (the
"Services").
1.3 TERM
The Executive will commence providing the Services to the Company on March
16th, 2005, or such other date as mutually agreed, and the employment of
the Executive with the Company will continue until the employment is
terminated by either party providing reasonable notice (or, in the case of
the Company, by providing Salary in lieu of notice) of termination to the
other party, by the death or retirement of the Executive or by mutual
agreement, subject to the provisions of this Agreement (the "Term").
1.4 TRAVEL
The Executive acknowledges that effective performance of the Services may
require that the Executive travel from time to time as required by the
Company.
1.5 POLICIES AND PRACTICES
The Executive will comply with the policies, practices, directions and
instructions, written or oral, of the Company from time to time in effect.
2. EXECUTIVE OBLIGATIONS
2.1 EFFORT AND LOYALTY
The Executive will perform the Services In a competent and faithful manner
and will devote the time and effort necessary to properly and fully perform
the Services. The Executive owes a duty of loyalty to the Company and will
at all times use his best efforts to promote the interests of the Company.
2.2 FIDUCIARY
The Executive acknowledges that by virtue of the employment contemplated by
this Agreement, the Executive will be In a fiduciary relationship with the
Company and will owe fiduciary obligations to Company. The provisions of
this Agreement are additional to and do not amend, replace or otherwise
reduce those obligations.
3. COMPENSATION AND BENEFITS
3.1 SALARY
The Company will pay the Executive an annual salary of CDN$125,000 (the
"Salary"), payable in bi-weekly installments less all required or permitted
withholdings and remittances. The Company will review the Salary from time
to time during the Term, which will include a review after the Executive
has worked for 6 months, and may, in its sole discretion, increase the
Salary.
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3.2 OTHER COMPENSATION
For the 2005/2006 fiscal year of the Company (from April 1, 2005 to March
31, 2006) the Executive will be eligible for a discretionary bonus of up to
25% of the Salary paid to the Executive in that fiscal year, based on the
performance of the Executive assessed against the requirements established
by the Company, In discussion with the Executive, within 60 days of the
date the Executive starts work. The payment of any bonus for the 2005/2006
fiscal year and the terms and conditions of a bonus plan, if any, after the
2005/2006 fiscal year will be at the discretion of the Company.
The Executive will be eligible to participate in the RRSP plan of the
Company intends to Implement in the first quarter of 2005 or as soon as
practicable thereafter, subject to the terms and conditions of that plan.
As soon as practicable after the Executive signs this Agreement and the
Inquiries are completed, the Company will provide to the Executive a
one-time grant of share options to purchase 300,000 shares of the Company
at the market price In effect on the date the options are granted. The
options will vest in eight equal amounts commencing on the three month
anniversary of the date the Executive starts work and continuing every
three months thereafter until fully vested. The options expire no later
than five years after the grant date. Despite the foregoing, this grant of
options is subject to the terms of the Company's Share Option Plan and the
approval of the Board of Directors of the Company.
3.3 BENEFITS
During the Term, the Company will make available to the Executive the
insured benefit plans customarily available to employees (the "Benefits").
The terms and conditions of the Benefits will be determined by the plans or
policies from time to time established or purchased by the Company. The
Company retains the right to establish new Benefits and to alter or delete
any Benefits from time to time and at any time in Its sole discretion_
3.4 VACATION
In addition to statutory holidays, the Executive is entitled to 4 weeks'
vacation within each calendar year, pro-rated for any partial calendar
year, during the Term.
The Executive xxxx schedule vacation at such time or times as the Company
and the Executive mutually agree. Failing such agreement, the Company may
set the vacation time or times based on business considerations.
3.5 EXPENSES
Upon submission of appropriate receipts and written accounts, the Company
will reimburse the Executive for all reasonable expenses actually and
properly incurred by him in connection with his duties hereunder in
accordance with the policies, practices or directions of the Company from
time to time in effect, The Company will reimburse the Executive for the
cost of the B.C. Institute of Chartered Accountants annual fees and for
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the reasonable cost of training that the Executive is required to take to
maintain his professional standing with the B.C. Institute of Chartered
Accountants or in relation to carrying out the duties of the position.
4. CONFIDENTIALITY
4.1 ACCESS TO CONFIDENTIAL INFORMATION
The Executive acknowledges that in the course of carrying out, performing
and fulfilling the Executive's obligations to the Company, the Executive
will have access to and be entrusted with Confidential Information, and
that the disclosure of the Confidential Information to competitors or
clients of the Company or to the general public will be highly detrimental
to the best interests and business of the Company.
4.2 DEFINITION
"Confidential Information" means trade secrets and information that is not
generally known to the public or that would be reasonably considered
confidential and proprietary to the Company and its business partners, and
includes but is not limited to:
(a) exploration data, property information, trade secrets, know-how,
concepts, ideas whether patentable or not, strategy, planning,
methods, processes, formulae, apparatus, standards, product
specifications, processing procedures;
(b) revenue, costs, pricing and other financial data;
(c) customer, supplier, or business partner information (including without
limitation, names, preferences, financial information, addresses or
telephone numbers);
(d) all access codes, systems software applications, software/systems
source and object codes, data, documentation, program flies, flow
charts, operational procedures, locations of operations, merchant
numbers and merchant support and verification numbers; and
(e) the private affairs of the Company or any other information which the
Executive may acquire during the Term with respect to the business and
affairs of the Company, whether acquired in the course of employment
or incidentally.
4.3 EXCLUSIONS
Notwithstanding the provisions of Section 4.2, 'Confidential Information"
does not include information or data which the Executive can prove:
(a) is generally in the public domain at the date of its disclosure to the
Executive, or which thereafter enters the public domain through no
fault of the Executive or of any other person owing an obligation of
confidentiality to the Company (but only after it enters the public
domain); or
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(b) was in the Executive's possession on a non-confidential basis prior to
being disclosed under this Agreement; provided that information which
comprises part of the Confidential Information will not be included
within the foregoing exceptions merely because individual parts of the
information were within the public domain, or were within the
Executive's prior possession, unless the combination of such
Confidential Information and excepted information itself was In the
public domain, or in the Executive's prior possession.
4.4 USE AND DISCLOSURE
The Executive acknowledges that he will receive the Confidential
Information solely for the purpose of carrying out the duties of the
Executive as an employee of the Company. Except as may be specifically
required in the course of carrying out such duties, the Executive will not,
during the Term or at any time thereafter:
(a) disclose any Confidential Information to any person or entity; or
(b) use or exploit, directly or indirectly, the Confidential Information
for any purpose other than the proper purposes of the Company.
Despite the foregoing, if the Executive is required by law to disclose any
Confidential Information then the Executive will promptly notify the
Company that the Executive may be required to disclose Confidential
Information and the Executive will consult with and cooperate with the
Company in any attempt to resist or narrow such disclosure and/or to obtain
an order or other assurance that such information will be accorded
confidential treatment. Notwithstanding any disclosure required by law, the
Confidential information disclosed will, for all other purposes, continue
to be treated as Confidential Information under this Agreement.
4.5 RETURN OF CONFIDENTIAL INFORMATION
Upon the termination of the Executive's employment with the Company for any
reason, or upon the written request of the Company at any time, the
Executive will return immediately to the Company all Confidential
Information then in the Executive's possession or under his control.
4.6 NOTICES
Any notices, requests, demands or other communications that are required or
permitted to be given by one party to the other under this Agreement will
be given in writing by registered post, personal delivery or facsimile
addressed to the other party or delivered to such other party at the
address shown on page 1 hereof or at such other address within British
Columbia as either party may from time to time specify by notice in writing
given to the other party.
Demands or other communications will be deemed to have been received, if
sent by registered post, then on the date of acknowledged receipt in
writing by or on behalf of the addressee, if sent by facsimile, then on the
earlier of the date of transmission If received
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during normal business or working hours of the recipient and the date of
the first normal business working hours after the date of transmission, or
if sent by personal delivery, then on the data when delivered to the
addressee.
5. COLLECTION AND USE OF PERSONAL INFORMATION
The Executive acknowledges that the Company will collect, use and disclose
personal information only where reasonably necessary for security,
employment and business purposes. The Executive consents to the Company
collecting, using and disclosing personal information about the Executive
only where reasonably necessary for security, employment and business
purposes in accordance with applicable legislation and any privacy policy
of the Company that may be in effect from time to time. The Executive
consents to the public disclosure of the employment of the Executive with
the Company.
6. SEVERABILITY
In the event that any provision or part of this agreement is deemed void or
invalid by a court of competent jurisdiction, the remaining provisions or
parts will be and remain in full force and effect.
7. REPRESENTATIONS
This Agreement contains the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior
agreements or understandings, whether oral or written and whether express
or implied, between the parties hereto. The Executive acknowledges and
agrees that any prior agreements or representations, whether oral or
written and whether express or implied, between the Executive and the
Company, are hereby terminated and the Executive has no rights or
entitlements under or arising from any such prior agreements or
representations against Company. The Executive hereby waives any right to
assert a claim in tort based on any pre-contractual representations,
negligent or otherwise, made by the Company.
8. WAIVER OR MODIFICATION OF AGREEMENT
No failure or delay of the Company in exercising any power or right
hereunder will operate as a waiver thereof nor will any single or partial
exercise of such right or power preclude any other right or power
hereunder. No amendment, modification or waiver of any condition of this
Agreement or consent to any departure by the Executive therefrom will in
any event be effective unless the same will be in writing signed by the
Company.
9. SURVIVAL
The obligations set out in paragraphs 2.2 and 4 to 15 inclusive will
survive the termination of the employment of the Executive and continue in
effect regardless of whether any party is or has been in compliance with
any provision in this Agreement. The parties will execute and deliver any
documents and perform any acts necessary to carry out the Intent of this
Agreement.
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10. DIRECTOR AND OFFICER ROLE
In the event of termination of the employment of the Executive by the
Company or by the Executive or by death or retirement, the Executive will,
as of the date of termination, resign from any officer and/or director
position with the Company.
11. GOVERNING LAW
This Agreement will be construed In accordance with and governed by the
laws of British Columbia and the laws of Canada applicable in British
Columbia.
12. HEADINGS
The headings used In this Employment Agreement are for convenience only and
are not to be construed in any way as additions to or limitations of the
covenants and agreements contained in it.
13. ENUREMENT
This Agreement will enure to the benefit of and be binding upon the
respective successors and permitted assigns of the parties.
14. TIME
Time is of the essence.
15. ASSIGNMENT
The Executive may not assign this agreement. The Company may assign this
Agreement to any entity that is a successor to the business, or
substantially all of the business, of the Company or is an affiliated or
related the Company, within the meaning of the British Columbia Business
Corporations Act.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day
and year first above written.
PINE VALLEY MINING CORPORATION
/s/ Xxxxxxx X. Xxxx
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By: Xxxxxxx X. Xxxx
Its: Chairman
/s/ Xxxxxx Xxx
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XXXXXX XXX
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