EMPLOYMENT SERVICES AGREEMENT
This
Employment Services Agreement (the “Agreement”) is
entered into as of the 11th day of August, 2010, by and between Li3 Energy, Inc., a Nevada
corporation, with a business address of Xx. Xxxxx x Xxxxxx 000 Xx. 000 Xxxx 00,
Xxxx (the “Company”), and MIZ Comercializadora, S. de
X.X., a registered company in Honduras, with a business address of Calle
Principal de El Hatillo, km 8.2 frente Villa San Xxxxx, Tegucigalpa,
Honduras (“Contractor”).
INTRODUCTION
WHEREAS,
the Company is in the mining exploration and development business (the “Business”);
and
WHEREAS,
Contractor is experienced in the Business and provides executive services to
companies in the Business through its employees; and
WHEREAS,
the Company wishes to retain the services of R. Xxxxxx Xxxxxx, Xx. (the
“Executive”),
an employee of Contractor, as its Chief Operating Officer pursuant to the terms
and conditions set forth herein; and
WHEREAS,
the Contractor is willing to provide the services of the Executive as Chief
Operating Officer of the Company pursuant to the terms and conditions set forth
herein;
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and mutual promises herein below set
forth, the parties hereby agree that Contractor shall make available to the
Company, and the Company shall receive, the services of the Executive as
follows:
1. Employment
Period. The term of the Executive’s employment by the Company
pursuant to this Agreement (the “Employment Period”)
shall commence upon receipt of written notice of commencement from the
Contractor to be received by the Company no later than thirty (30) days from the
date hereof (the “Effective Date”) and shall continue for a period of three
years from the Effective Date. Thereafter, the Employment Period
shall automatically renew for successive periods of one (1) year, unless either
party shall have given to the other at least thirty (30) days’ prior written
notice of their intention not to renew the Executive’s employment prior to the
end of the Employment Period or the then applicable renewal term, as the case
may be. In any event, the Employment Period may be terminated as
provided herein.
2. Employment;
Duties.
(a) General. Subject
to the terms and conditions set forth herein, the Company shall employ the
Executive to act as the Chief Operating Officer of the Company during the
Employment Period, and the Contractor on behalf of the Executive hereby accepts
such employment. The duties assigned and authority granted to the
Executive shall generally be those set forth in Exhibit A attached
hereto and as otherwise determined by the Company’s Board of Directors (the
“Board”) from
time to time. The Executive agrees to perform his duties for the
Company diligently, competently, and in a good faith manner and to use his best
efforts to promote and serve the best interests of the Company.
(b) Exclusive
Services. The Executive
shall devote at least 90 percent of his working time and efforts during the
Company's normal business hours to the business and affairs of the Company and
its subsidiaries (the Company’s subsidiaries from time to time, together with
any other affiliates of the Company, the “Affiliates”), and to
the diligent and faithful performance of the duties and responsibilities duly
assigned to him by the Board pursuant to this Agreement. However,
without limiting the time commitment set forth above, (i) Executive may devote a
reasonable amount of his time to civic, community, or charitable activities and
may serve as a director of other corporations (provided that any such other
corporation is not a competitor of the Company, as determined by the Board) and
to other types of business or public activities not expressly mentioned in this
paragraph; (ii) Executive may participate as a non-employee director and/or
investor in other companies and projects as described by Executive to the Board,
so long as Executive’s responsibilities with respect thereto do not conflict or
interfere with the faithful performance of his duties to the Company; and (iii)
Executive may participate in the following previously established business
activities through Contractor: supply of lithium recovery systems
(including brine to carbonate systems); lithium recovery from commercial by
products in the USA; technology fees from the development of a high purity
lithium carbonate; and all agriculture and energy projects in
Honduras.
(c) Place of
Employment. It is
acknowledged that the Executive's services shall be performed primarily at
Contractor’s office in Honduras at no expense to the Company. The parties
acknowledge, however, that Executive may be required to travel in connection
with the performance of his duties hereunder.
3. Base
Fee. The Contractor shall
be entitled to receive a fee from the Company during the Employment Period at
the rate of two hundred thousand U.S. dollars (US$200,000) per year (the “Base Fee”), payable
in substantially monthly installments in accordance with the Company’s customary
payroll practices. Beginning on the anniversary of the Effective
Date, the Base Fee may be increased on each anniversary of the Effective Date,
at the Board’s sole discretion. The parties expressly agree that what
the Contractor or the Executive receives now or in the future, in addition to
the regular Base Fee, whether this be in the form of benefits or regular or
occasional aid/assistance, such as recreation, club memberships, meals,
education for him or his family, vehicle, lodging or clothing, occasional
bonuses or anything else he receives, during the Employment Period and any
renewals thereof, in cash or in kind, shall not be deemed as
salary. However, because the Company is a public company subject to
the reporting requirements of, inter alia, the US Securities and Exchange
Commission, both parties acknowledge that the Contractor’s/Executive’s annual
compensation (as determined by the rules of the SEC or any other regulatory body
or exchange having jurisdiction), which may include some or all of the
foregoing, may be required to be publicly disclosed.
4. Bonus. (a)
The Company will pay the Contractor a bonus for signing this Agreement of
$100,000 payable on the Effective Date, as follows: (i) $10,000 in
cash, and (ii) the balance in the form of a number of restricted shares of the
Company’s common stock (“Common Stock”) equal
to $90,000 divided by the fair market value per share of Common Stock on the
Effective Date, as determined in good faith by the Board of
Directors.
2
(b) The Contractor shall be eligible to
receive an annual cash bonus (the “Annual Bonus”) of up
to seventy-five percent (75%) of the then applicable Base Fee, payable in U.S.
dollars within ten (10) days after the annual filing with the Securities and
Exchange Commission of the Company’s annual report on Form 10-K (commencing in
2011).
(c) With respect to the first Annual
Bonus, up to US$100,000 shall be payable upon the achievement of the milestones
set forth in Exhibit
B attached hereto; and up to US$50,000 shall be payable as the Board may
determine in its sole discretion, based upon both the Executive’s performance
and the Company’s performance overall.
(d) The Annual Bonus in subsequent
years shall be in such amount (up to the percentage limit stated above) as the
Board may determine in its sole discretion, based upon both the Executive’s
achievement of certain performance milestones to be established annually by the
Board in discussion with the Contractor (the “Milestones”) and the
Company’s performance overall. In the event the Board and the
Contractor are unable to agree to Milestones acceptable to both the Board and
the Executive, the amount of the Executive’s bonus shall be determined by the
Board on a discretionary basis.
(e) The Contractor shall be eligible to
participate in any other bonus or incentive program established by the Company
for executives of the Company.
5.
Restricted
Stock.
(a) Grant of Restricted
Stock. As of the Effective Date, the Company shall grant to
the Contractor an award of two million and five hundred thousand (2,500,000)
restricted shares of the Company’s Common Stock (the “Restricted Stock”)
under the Company’s 2009 Equity Incentive Plan (the “2009
Plan”). Such grant shall be evidenced by an Award Agreement
issued by the Company as contemplated by the 2009 Plan and approved by the
Board.
(b) Vesting. The
shares of Restricted Stock shall vest as follows:
(i) Upon
completion of a resource estimate by an independent qualified person completed
to Canadian National Instrument 43-101 standards on any of the Company’s mining
projects, 500,000 shares;
(iii) Upon
confirmation of the flow sheet design based on the preliminary metallurgical
testing in a pilot plant on any of the Company’s mining projects, 400,000
shares;
(iv) Upon
the completion of a Feasibility Study on any of the Company’s mining projects,
300,000 shares; and
(v) Upon
execution by the Company with a purchaser of a binding off-take agreement for
production of on any of the Company’s mining projects, 300,000
shares;
(vi) Upon
commencement of Commercial Production on any of the Company’s mining projects,
1,000,000 shares.
3
“Feasibility Study”
means a comprehensive study of a deposit in which all geological, engineering,
legal, operation, economic, social, environmental and other relevant factors are
considered in sufficient detail that it could reasonably serve as the basis for
a final decision by a financial institution to finance the development of
the deposit for production.
“Commercial
Production” means first day of the first month of the consecutive three
month period where the mill or plant first operates at 60% of its rated
capacity.
(c) Termination of Employment;
Accelerated Vesting.
(i) If
the Executive’s employment is terminated (A) in connection with a Change of
Control, as defined below, or (B) by the Contractor for Good Reason, all
unvested Restricted Stock shall immediately vest and become exercisable
effective the date of termination of employment. This acceleration and
expiration provisions shall not apply with respect to a Change of Control
following which the Executive remains Chief Operating Officer or
continues to perform functions and be responsible for duties significantly and
substantially similar to those of one or both of those positions.
(ii) If
the Executive’s employment is terminated for any other reason (including,
without limitation, on account of death or Permanent Disability, as defined
below), all unvested Restricted Stock shall immediately expire effective as of
the date of termination of employment.
(d) Change of
Control. For purposes of this
Agreement, “Change of Control” means the occurrence of, or a Board vote to
approve, any of the following:
(i) any
consolidation or merger of the Company pursuant to which the stockholders of the
Company immediately before the transaction do not retain immediately after the
transaction, in substantially the same proportions as their ownership of shares
of the Company’s voting stock immediately before the transaction, direct or
indirect beneficial ownership of more than 50% of the total combined voting
power of the outstanding voting securities of the surviving business
entity;
(ii) any
sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, of the assets of the Company
other than any sale, lease, exchange or other transfer to any company where the
Company owns, directly or indirectly, 100% of the outstanding voting securities
of such company after any such transfer; or
(iii) the
direct or indirect sale or exchange in a single or series of related
transactions by the stockholders of the Company of more than 50% of the voting
stock of the Company.
4
6.
Stock
Options.
(a) Grant of
Options. As of the Effective Date, the Company shall grant the
Contractor an option to purchase an aggregate of 1,000,000 shares of the Common
Stock (“Options”) under the 2009 Plan. Such grant shall be evidenced
by an Option Agreement issued by the Company as contemplated by the 2009 Plan
and approved by the Board. In subsequent years the Contarctor shall be eligible
for such grants of Options and/or other permissible awards under the 2009 Plan
as the Compensation Committee of the Company, if any, or the Board shall
determine.
(b) Option Price;
Term. The per share exercise price of the Options shall be the
fair market value per share of Common Stock on the date of grant, as determined
in good faith by the Board of Directors. The term of the Option
(i.e., the length of time during which the Option may be exercised) shall be ten
years from the date of grant.
(c) Exercise. One
third of the shares of the Options shall become exercisable on each anniversary
of the date of grant (with 333,333 shares becoming eligible for exercise on the
first anniversary of the date of grant, an additional 333,333shares becoming
eligible for exercise on the second anniversary of the date of grant and the
final 333,334 shares becoming eligible for exercise on the third anniversary of
the date of grant).
(d) Payment. The
full consideration for any shares purchased by the Contractor upon exercise of
the Options shall be paid in cash.
(e) Termination of Employment;
Accelerated Vesting.
(i) If
the Executive’s employment is terminated for Cause, as such term is defined
below, all Options, whether or not vested, shall immediately expire effective as
of the date of termination of employment.
(ii) If
the Executive’s employment is terminated voluntarily by the Contractor without
Good Reason, as such term is defined below, all unvested Options shall
immediately expire effective the date of termination of
employment. Vested Options, to the extent unexercised, shall expire
one month after the termination of employment.
(iii) If
the Executive’s employment terminates on account of death or Permanent
Disability, all unvested Options shall immediately expire effective the date of
termination of employment. Vested Options, to the extent unexercised,
shall expire nine months after the termination of employment.
(iv) If
the Executive’s employment is terminated (A) in connection with a Change of
Control, as defined below, (B) by the Company without Cause or (C) by the
Contractor for Good Reason, all unvested Options shall immediately vest and
become exercisable effective the date of termination of employment, and, to the
extent unexercised, shall expire nine months after any such event. These
acceleration and expiration provisions shall not apply with respect to a Change
of Control following which the Executive remains Chief Operating Officer or
continues to perform functions and be responsible for duties significantly and
substantially similar to those of one or both of those
positions.
5
7.
Other
Benefits
(a) Insurance and Other
Benefits. During the Employment Period, the Executive and his
dependents shall be entitled to participate in the Company’s insurance programs
and any ERISA benefit plans, as the same may be adopted and/or amended from time
to time (the “Benefits”). In
the absence of Company medical and dental insurance plans (which currently do
not exist), the Company will pay the Contractor an non-accountable fee of
US$5,000 per year of the Employment Period for the purchase of medical and
dental insurance for the Executive and his dependents. The Executive
shall be entitled to paid personal days on a basis consistent with the Company’s
other senior executives, as determined by the Board. The Executive
shall be bound by all of the policies and procedures established by the Company
from time to time. However, in case any of those policies conflict
with the terms of this Agreement, the terms of this Agreement shall
control.
(b) Vacation. During
the Employment Period, the Executive shall be entitled to an annual vacation of
at least 20 working days.
(c) Expense
Reimbursement. The Company shall reimburse the Contractor for
all reasonable business, promotional, travel and entertainment expenses
("Reimbursable Expenses") incurred or paid by it or the Executive during the Employment
Period in the performance of Executive’s services under this
Agreement, provided that the Contractor furnishes to the Company appropriate
documentation required by the Internal Revenue Code in a timely fashion in
connection with such expenses and shall furnish such other documentation and
accounting as the Company may from time to time reasonably request.
(d) Relocation
Expense. If the Company requires the Executive to
relocate his residence, the Company will pay the Contractor the
reasonable costs of Executive’s relocation, airfares, shipment or goods,
temporary accommodations and related expenses, provided that the Contractor
furnishes to the Company appropriate documentation required by the Internal
Revenue Code in a timely fashion in connection with such expenses and shall
furnish such other documentation and accounting as the Company may from time to
time reasonably request.
8. Termination; Compensation
Due Upon Termination of Employment. Employee’s
employment with the Company shall be entirely “at-will,” meaning that either
Contractor or the Company may terminate such employment relationship by
terminating this Agreement in writing delivered to the other party at any time
for any reason or for no reason at all, subject, however, to the following. The
Executive's employment hereunder may terminate as provided in paragraphs (a)
through (e) below. The Contractor’s right to compensation for periods
after the date the Executive’s employment with the
Company terminates shall be determined in accordance with the provisions of
paragraphs (a) through (e) below:
6
(a) Voluntary Resignation;
Termination without Cause.
(i) Voluntary
Resignation. The
Contractor may terminate the Exeutive’s employment at any time
upon thirty (30) days prior written notice to the Company. In the
event of the Contractor’s voluntary termination of Executive's
employment other than for Good Reason (as defined below), the Company shall have
no obligation to make payments to the Contractor in accordance with the
provisions of Sections 3 or 4, except as otherwise required by this Agreement or
by applicable law, to provide the benefits described in Section 7,
for periods after the date on which the Executive's employment with the Company
terminates due to the Contractor 's voluntary termination, except for the
payment of the Base Fee accrued through the date of such
resignation.
(ii) Termination without
Cause.
(A) If
the Executive’s employment is terminated by the Company without Cause, the
Company shall (x) continue to pay the Contractor the Base Fee (at the rate
in effect on the date the Executive’s employment is terminated) until the end of
the Severance Period (as defined in Section 8(e) below), (y) with respect to the
first Annual Bonus, to the extent the Milestones are achieved, pay the
Contractor a pro rata portion of the Annual Bonus for the initial year of
the Employment Period on the date such Annual Bonus would have been payable to
the Contractor had the Executive remained employed by the Company, and (z)
pay any other accrued compensation and Benefits. Neither the Contractor nor the
Executive shall have any further rights under this Agreement or otherwise to
receive any other compensation or benefits after such termination of
employment.
(B) If,
following a termination of employment without Cause, the Contractor or the
Executive breaches the provisions of Sections (a) or 9 hereof,
the neither the Contractor nor the Executive shall be eligible, as of
the date of such breach, for the payments and benefits described in
Section 8(a)(ii), and any and all obligations and agreements of the Company
with respect to such payments shall thereupon cease.
(b) Discharge for
Cause. Upon (i) written notice to the Contractor , the Company
may terminate the Executive’s employment for “Cause” if any of the following
events shall occur:
(i) any
act or omission that constitutes a material breach by the Contractor or the
Executive of any of its or his obligations under this Agreement;
(ii) the
willful and continued failure or refusal of the Executive to satisfactorily
perform the duties reasonably required of him as an employee of the
Company;
(iii) the
Contractor’s or the Executive’s conviction of, or plea of nolo contendere to,
(i) any felony or (ii) a crime involving dishonesty or moral turpitude
or which could reflect negatively upon the Company or otherwise impair or impede
its operations;
(iv) the
Contractor’s or the Executive’s engaging in any misconduct, negligence, act of
dishonesty (including, without limitation, theft or embezzlement), violence,
threat of violence or any activity that could result in any violation of federal
securities laws, in each case, that is injurious to the Company or any of its
Affiliates;
7
(v) the
Contractor’s or the Executive’s material breach of a written policy of the
Company or the rules of any governmental or regulatory body applicable to the
Company;
(vi) the
Contractor’s or the Executive’s refusal to follow the directions of the
Board;
(vii) any
other willful misconduct by the Contractor or the Executive which is materially
injurious to the financial condition or business reputation of the Company or
any of its Affiliates, or
(viii) the
Contractor’s or the Executive’s breach of its or his obligations under Section
(a) or Section 9.
In the
event Executive is terminated for Cause, the Company shall have no obligation to
make payments to the Contractor or the Executive in accordance with the
provisions of Sections 3 or 4, or, except as otherwise required by law, to
provide the benefits described in Section 7, for periods after the Executive's
employment with the Company is terminated on account of the Executive's
discharge for Cause except for the then applicable Base Fee accrued through the
date of such termination.
(c) Disability. The Company shall have
the right, but shall not be obligated to terminate the Executive's employment
hereunder in the event the Executive becomes disabled such that he is unable to discharge
his duties to the
Company for a period of ninety (90) consecutive days or one hundred twenty (120)
days in any one hundred eighty (180) consecutive day period, provided longer
periods are not required under applicable local labor regulations (a "Permanent
Disability"). In the event of a termination of employment due
to a Permanent Disability, then the Company shall be obligated to continue to
make payments to the Contractor in an amount equal to the then applicable Base
Fee for the Severance Period (as defined below) after the Executive’s employment
with the Company is terminated due to a Permanent Disability. A
determination of a Permanent Disability shall be made by a physician
satisfactory to both the Executive and the Company; provided, however, that if the
Executive and the Company do not agree on a physician, the Executive and the
Company shall each select a physician and those two physicians together shall
select a third physician, whose determination as to a Permanent Disability shall
be binding on all parties.
(d) Death. The Executive's
employment hereunder shall terminate upon the death of the
Executive. The Company shall have no obligation to make payments to
the Contractor or the Executive in accordance with the provisions of
Sections 3 or 4, or, except as otherwise required by law or the terms
of any applicable benefit plan, to provide the benefits described in Section 7,
for periods after the date of the Executive's death except for then applicable
Base Fee earned and accrued through the date of death, payable to the Contractor
or its successor.
8
(e) Termination for Good
Reason. The Contractor may terminate this Agreement at any
time for Good Reason. In the event of termination under this Section
8(e), Company shall pay to the Contractor severance in an amount equal to the
then applicable Base Fee for a period equal to 18 months (the “Severance Period”),
subject to the Contractor’s and the Executive’s continued compliance with
Sections (a) and 9 of this Agreement for the applicable Severance Period
following the Executive’s termination, and subject to the Company’s regular
payroll practices and required withholdings. Such severance shall be
reduced by any cash remuneration paid to the Contractor or the Executive because
of the Executive’s employment or self-employment during the Severance
Period. The Executive shall continue to receive all Benefits during
the Severance Period. Neither the Contractor nor the Executive shall
have any further rights under this Agreement or otherwise to receive any other
compensation or benefits after such resignation. For the purposes of
this Agreement, “Good Reason” shall mean any of the following (without
Executive’s express written consent):
(i) the
assignment to the Executive of duties that are significantly different from, and
that result in a substantial diminution of, the duties that he assumed on the
Effective Date;
(ii)
removal of the Executive from his position as Chief Operating Officer,
or the assignment to the Executive of duties that are significantly different
from, and that result in a substantial diminution of, the duties that he assumed
as Chief Operating
Officer , within twelve (12) months after a Change of Control (as defined
above);
(iii) a
reduction by the Company in the then applicable Base Fee or other compensation,
unless said reduction is pari passu with other senior executives of the
Company;
(iv) the
taking of any action by the Company that would, directly or indirectly,
materially reduce the Executive’s benefits, unless said reductions are pari
passu with other senior executives of the Company; or
(v) a
breach by the Company of any material term of this Agreement that is not cured
by the Company within 30 days following receipt by the Company of written notice
thereof.
(f) Notice of
Termination. Any termination of employment by the
Company or the Contractor shall be communicated by a written ‘‘Notice of
Termination’’ to the other party hereto given in accordance with Section 15 of this Agreement. In the event of a termination by
the Company for Cause, the Notice of Termination shall (i) indicate the
specific termination provision in this Agreement relied upon, (ii) set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive’s employment under the provision so
indicated and (iii) specify the date of termination, which date shall be
the date of such notice. The failure by the Contractor or the Company to set
forth in the Notice of Termination any fact or circumstance which contributes to
a showing of Cause shall not waive any right of the Contractor or the Company,
respectively, hereunder or preclude the Contractor or the Company, respectively,
from asserting such fact or circumstance in enforcing the Contractor’s or the
Company’s rights hereunder.
9
(g) Resignation from
Directorships and Officerships. The termination of
the Executive’s employment for any reason will constitute the Executive’s
resignation from (i) any director, officer or employee position the
Executive has with the Company or any of its Affiliates, and (ii) all
fiduciary positions (including as a trustee) the Executive holds with respect to
any employee benefit plans or trusts established by the Company. The Contractor
and the Executive agree that this Agreement shall serve as written notice of
resignation in this circumstance, unless otherwise required by any plan or
applicable law.
(a) Non-Competition;
Non-Solicitation. (a) For the duration of the Employment
Period and, unless the Company terminates the Executive’s employment without
Cause, during the Severance Period (the “Non-compete Period”),
neither the Contractor nor the Executive shall, directly or indirectly, except
as specifically provided in the last sentence of Section 2(b), engage or invest
in, own, manage, operate, finance, control or participate in the ownership,
management, operation, financing, or control of, be employed by, associated
with, or in any manner connected with, lend any credit to, or render services or
advice to, any business, firm, corporation, partnership, association, joint
venture or other entity that engages or conducts any business the same as or
substantially similar to the Business or currently proposed to be engaged in or
conducted by the Company and/or any of its Affiliates, or included in the future
strategic plan of the Company and/or any of its Affiliates, anywhere within the
countries in which the Company or any of its Affiliates at that time is
operating; provided, however, that the
Contractor and the Executive may collectively own less
than 5% in the aggregate of the outstanding shares of any class of securities of
any enterprise (but without otherwise participating in the activities of such
enterprise) including those engaged in the mining business, other than any such
enterprise with which the Company competes or is currently engaged in a joint
venture, if such securities are listed on any national or regional securities
exchange or have been registered under Section 12(b) or (g) of the Securities
Exchange Act of 1934, as amended. Notwithstanding the foregoing, if
the Contractor or the Executive shall present to the Board any opportunity
within the scope of the prohibited activities described above, and the Company
shall not elect to pursue such opportunity within a reasonable time, the
Contractor or the Executive shall be permitted to pursue such opportunity,
subject to the requirements of Section 2(b).
(b) During
the Employment Period and for a period of 12 months following termination of the
Executive’s employment with the Company, the neither the Contractor nor
Executive shall:
(i)
solicit or hire, or attempt to recruit, solicit or hire, any employee, or
independent contractor of the Company, or its Affiliates, to leave the
employment (or independent contractor relationship) thereof, whether or not any
such employee or independent contractor is party to an employment agreement;
or
(ii)
attempt in any manner to solicit or accept from any customer of the Company or
any of its Affiliates, with whom the Company or any of its Affiliates had
significant contact during the term of the Agreement, business of the kind or
competitive with the business done by the Company or any of its Affiliates with
such customer or to persuade or attempt to persuade any such customer to cease
to do business or to reduce the amount of business which such customer has
customarily done or is reasonably expected to do with the Company or any of its
Affiliates or if any such customer elects to move its business to a person other
than the Company or any of its Affiliates, provide any services (of the kind or
competitive with the Business of the Company or any of its Affiliates) for such
customer, or have any discussions regarding any such service with such customer,
on behalf of such other person.
10
The Contractor and the Executive
recognize and agree that because a violation by either of them of their obligations under this
Section (a) will cause irreparable harm to the Company that would be difficult
to quantify and for which money damages would be inadequate, the Company shall
have the right to injunctive relief to prevent or restrain any such violation,
without the necessity of posting a bond. The Non-compete Period will be extended
by the duration of any violation by the Contractor or the Executive of any of
its or his obligations under this
Section (a).
The Contractor and the Executive
expressly agree that the character, duration and scope of the covenant not to
compete are reasonable in light of the circumstances as they exist at the date
upon which this Agreement has been executed. However, should a
determination nonetheless be made by a court of competent jurisdiction at a
later date that the character, duration or geographical scope of the covenant
not to compete is unreasonable in light of the circumstances as they then exist,
then it is the intention of both the Contractor and the Executive, on the one
hand, and the Company, on the other, that the covenant not to compete shall be
construed by the court in such a manner as to impose only those restrictions on
the conduct of the Contractor and the Executive which are reasonable in light of
the circumstances as they then exist and necessary to assure the Company of the
intended benefit of the covenant to compete.
9.
Confidentiality
Covenants.
(a) The
Contractor and the Executive understand that the Company and/or its Affiliates,
from time to time, may impart to him confidential information, whether such
information is written, oral or graphic.
For purposes of this Agreement,
“Confidential Information” means information, which is used in the business of
the Company or its Affiliates and (i) is proprietary to, about or created
by the Company or its Affiliates, (ii) gives the Company or its Affiliates
some competitive business advantage or the opportunity of obtaining such
advantage or the disclosure of which could be detrimental to the interests of
the Company or its Affiliates, (iii) is designated as Confidential
Information by the Company or its Affiliates, is known by the Executive to be
considered confidential by the Company or its Affiliates, or from all the
relevant circumstances should reasonably be assumed by the Contractor or the
Executive to be confidential and proprietary to the Company or its Affiliates,
or (iv) is not generally known by non-Company personnel. Such
Confidential Information includes, without limitation, the following types of
information and other information of a similar nature (whether or not reduced to
writing or designated as confidential):
(i)
Internal personnel and financial information of the Company or its Affiliates,
information regarding oil and gas properties including reserve information,
vendor information (including vendor characteristics, services, prices, lists
and agreements), purchasing and internal cost information, internal service and
operational manuals, and the manner and methods of conducting the business of
the Company or its Affiliates;
11
(ii)
Marketing and development plans, price and cost data, price and fee amounts,
pricing and billing policies, bidding, quoting procedures, marketing techniques,
forecasts and forecast assumptions and volumes, and future plans and potential
strategies (including, without limitation, all information relating to any oil
and gas prospect and the identity of any key contact within the organization of
any acquisition prospect) of the Company or its Affiliates which have been or
are being discussed;
(iii)
Names of customers and their representatives, contracts (including their
contents and parties), customer services, and the type, quantity, specifications
and content of products and services purchased, leased, licensed or received by
customers of the Company or its Affiliates; and
(iv)
Confidential and proprietary information provided to the Company or its
Affiliates by any actual or potential customer, government agency or other third
party (including businesses, consultants and other entities and
individuals).
The
Contractor and the Executive hereby acknowledge the Company’s exclusive
ownership of such Confidential Information.
(b) The
Contractor and the Executive agree as follows: (1) only to use the Confidential
Information to provide services to the Company and its Affiliates; (2) only to
communicate the Confidential Information to fellow employees, agents and
representatives on a need-to-know basis; and (3) not to otherwise disclose or
use any Confidential Information, except as may be required by law or otherwise
authorized by the Board. Upon demand by the Company or upon termination of the
Executive’s employment, the Contractor and the Executive will deliver to the
Company all manuals, photographs, recordings and any other instrument or device
by which, through which or on which Confidential Information has been recorded
and/or preserved, which are in the Contractor’s or the Executive’s possession,
custody or control.
10. Representation. Each
of the Contractor and the Executive hereby represents that Contractor’s entry into this
Employment Agreement and Executive’s performance of the services hereunder will
not violate the terms or conditions of any other agreement to which the
Contractor or the Executive is a party.
11. Arbitration. In
the event of any breach arising from the performance of this Agreement, either
party may request arbitration. In such event, the parties will submit
to arbitration by a qualified arbitrator with the definition and laws of the
State of New York. Such arbitration shall be final and binding on
both parties.
12. Governing
Law/Jurisdiction. This Agreement and any disputes or
controversies arising hereunder shall be construed and enforced in accordance
with and governed by the internal laws of the State of New York and, only to the
extent required by local labor law, the laws of Chile.
12
13. Public Company
Obligations. Contractor and Employee acknowledge that the
Company is a public company whose Common Stock has been registered under the US
Securities Act of 1933, as amended (the “Securities Act”), and may in future be
registered under the US Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and that this Agreement may be subject to the public filing
requirements of the Exchange Act. Employee acknowledges and agrees
that the applicable xxxxxxx xxxxxxx rules, transaction reporting rules,
limitations on disclosure of non-public information and other requirements set
forth in the Securities Act, the Exchange Act and rules and regulations
promulgated by the Securities and Exchange Commission (the “SEC”) may apply to
this Agreement and Employee’s employment with the Company. Employee
(on behalf of himself as well as his executors, heirs, administrators and
assigns) absolutely and unconditionally agrees to indemnify and hold harmless
the Company and all of its past, present and future affiliates, executors,
heirs, administrators, shareholders, employees, officers, directors, attorneys,
accountants, agents, representatives, predecessors, successors and assigns from
any and all claims, debts, demands, accounts, judgments, causes of action,
equitable relief, damages, costs, charges, complaints, obligations,
controversies, actions, suits, proceedings, expenses, responsibilities and
liabilities of every kind and character whatsoever (including, but not limited
to, reasonable attorneys’ fees and costs) in the event of Employee’s breach of
any obligation of Employee under the Securities Act, the Exchange Act, any rules
promulgated by the SEC and any other applicable federal, state or foreign laws,
rules, regulations or orders.
14. Entire
Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and thereof
and supersedes and cancels any and all previous agreements, written and oral,
regarding the subject matter hereof between the parties hereto. This
Agreement shall not be changed, altered, modified or amended, except by a
written agreement signed by both parties hereto.
15. Notices. All
notices, requests, demands and other communications called for or contemplated
hereunder shall be in writing and shall be deemed to have been given when
delivered to the party to whom addressed or when sent by telecopy (if promptly
confirmed by registered or certified mail, return receipt requested, prepaid and
addressed) to the parties, their successors in interest, or their assignees at
the following addresses, or at such other addresses as the parties may designate
by written notice in the manner aforesaid:
(a) to
the Company at:
Xx. Xxxxx
x Xxxxxx 000
Xx.
000
Xxxx 00,
Perú
Attn: Xx.
Xxxx Xxxxx
Fax: 000
0000000
with a
copy to:
Gottbetter
& Partners, LLP
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000-0000
Attn:
Xxxx X. Xxxxxxxxxx
Fax:
(000) 000-0000
13
(b)
to the Contractor at:
MIZ
Comercializadora, S. de X.X.
Xxxxx
Principal de El Hatillo
km 8.2
frente Villa San Xxxxx
Tegucigalpa,
Honduras, C.A.
Attn:
Xxxxxx Xxxxxx Xxxxxx, Xx.
Email:
xxxxxxxx@xxx.xxx
All such
notices, requests and other communications will (i) if delivered personally to
the address as provided in this Section, be deemed given upon delivery, (ii) if
delivered by facsimile transmission to the facsimile number as provided for in
this Section, be deemed given upon facsimile confirmation, (iii) if delivered by
mail in the manner described above to the address as provided for in this
Section, be deemed given on the earlier of the third business day following
mailing or upon receipt and (iv) if delivered by overnight courier to the
address as provided in this Section, be deemed given on the earlier of the first
business day following the date sent by such overnight courier or upon receipt
(in each case regardless of whether such notice, request or other communication
is received by any other person to whom a copy of such notice is to be delivered
pursuant to this Section). Either party may, by notice given to the
other party in accordance with this Section, designate another address or person
for receipt of notices hereunder.
16. Severability. If
any term or provision of this Agreement, or the application thereof to any
person or under any circumstance, shall to any extent be invalid or
unenforceable, the remainder of this Agreement, or the application of such terms
to the persons or under circumstances other than those as to which it is invalid
or unenforceable, shall be considered severable and shall not be affected
thereby, and each term of this Agreement shall be valid and enforceable to the
fullest extent permitted by law. The invalid or unenforceable
provisions shall, to the extent permitted by law, be deemed amended and given
such interpretation as to achieve the economic intent of this
Agreement.
17. Waiver. The
failure of any party to insist in any one instance or more upon strict
performance of any of the terms and conditions hereof, or to exercise any right
or privilege herein conferred, shall not be construed as a waiver of such terms,
conditions, rights or privileges, but same shall continue to remain in full
force and effect. Any waiver by any party of any violation of, breach
of or default under any provision of this Agreement by the other party shall not
be construed as, or constitute, a continuing waiver of such provision, or waiver
of any other violation of, breach of or default under any other provision of
this Agreement.
18. Successors and
Assigns. This Agreement shall be binding upon the Company and
any successors and assigns of the Company. Neither this Agreement nor
any right or obligation hereunder may be assigned by the Contractor or the
Executive. The Company may assign this Agreement and its right and
obligations hereunder, in whole or in part.
14
19. Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the same
instrument.
20. Headings. Headings
in this Agreement are for reference purposes only and shall not be deemed to
have any substantive effect.
21. Opportunity to Seek
Advice. The Contractor and the Executive acknowledge and
confirms that they have had the opportunity to seek such legal, financial and
other advice and representation as they have deemed appropriate in connection
with this Agreement, that they are fully aware of its legal effect, and that
Contractor has entered into it freely based on its and Executive’s his judgment
and not on any representations or promises other than those contained in this
Agreement.
22. Withholding and Payroll
Practices. All salary, severance payments, bonuses or benefits
payments made by the Company under this Agreement shall be net of any tax or
other amounts required to be withheld by the Company under applicable law and
shall be paid in the ordinary course pursuant to the Company’s then existing
payroll practices.
[The
next page is the signature page]
15
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
|
a
Nevada corporation
|
||||
|
By:
|
/s/
Xxxx Xxxxx
|
|||
|
Name:
Xxxx Xxxxx
|
||||
|
Title: CEO
|
||||
|
MIZ
Comercializadora, S. de X.X.,
|
||||
|
a
registered company in Honduras
|
||||
|
By:
|
/s/
Xxxxx Xxxxxx Xxxxxx
|
|||
|
Name:
Xxxxx Xxxxxx Xxxxxx
|
||||
|
Title:
President
|
||||
|
Acknowledged
and agreed by:
|
||||
|
Witness:
|
EXECUTIVE:
|
|||
|
|
/s/ Xxxxxx Xxxxxx Xxxxxx | |||
|
Name:
|
Xxxxxx
Xxxxxx Xxxxxx, Xx.
|
|||
16
EXHIBIT
A
Description
of Executive’s Duties
Xxxxxx
Xxxxxx Xxxxxx, Xx.
Chief
Operating Officer
The Chief
Operating Officer is accountable to the President and CEO for the appropriate
leadership, guidance, planning, for the Company’s exploration, process
development programs development, construction and operation of the Company’s
mines and manufacturing facilities. This key individual will provide all
operational leadership, development and direction to his staff and consultants
to ensure that the critical business performance objectives of the Company are
consistently achieved.
Duties
and Responsibilities
Management
/ Leadership
|
|
•
|
Support
the Company’s efforts regarding the recruitment,
development and retention of an operating team consistent with
Li3 Energy’s critical business performance
objectives
|
|
|
•
|
Lead
and support the key departmental subordinates to ensure that the
operational performance objectives are met or
exceeded
|
|
|
•
|
Support
and ensure full departmental compliance with all corporate Community
Affairs requirements and contribute at a strategic level with the
generation and implementation of Community and Sustainable Development
policies
|
|
|
•
|
Contribute
to the Company’s Management Team on a strategic
level
|
|
|
•
|
Be
available for Board meetings and liaise regularly with all senior
staff
|
|
|
•
|
Provide
leadership and support, assist and liase with appropriate parties with
respect to the direction of all technical, operating and
financial
|
|
|
•
|
Support
and ensure that all operations are carried out in compliance with the
Company’s and health, safety and environmental guidelines, policies,
procedures
|
17
EXHIBIT
B
Performance
Milestones for First Annual Bonus
|
1.
|
Upon
completion of a resource estimate by an independent qualified person
completed to Canadian National Instrument 43-101 standards on at least one
brine property by December 31,
2010: US$25,000
|
|
2.
|
Upon
completion of Feasibility Study (as defined above) for the Xxxxxxx nitrate
project by June 30,
2011: US$25,000
|
|
3.
|
Upon
successful commissioning of brine pilot plant by June 30, 2011:
US$25,000
|
|
4.
|
Upon
the Company successfully raising at least $10 million in gross proceeds
from the sale of its equity securities (and/or debt securities convertible
into its equity securities) by February 1,
2011: US$25,000
|
Note: None
of the Annual Bonus is payable until the time set forth in Section
4(b).
18
