EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made effective
May 1, 2006 ("Effective Date"), by and between CAPITAL GOLD CORPORATION, a
Delaware corporation ("Employer"), and XXXX XXXXXXXX, a resident of Colorado
("Executive").
WHEREAS, Executive agrees to be employed by Employer for the period and
upon and subject to the terms herein provided; and
WHEREAS, Employer agrees to employ Executive for the period and upon and
subject to the terms herein provided;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises, covenants and agreements contained herein, the legal sufficiency of
which is hereby acknowledged, and intending to be legally bound, Employer and
Executive agree:
1. Employment. Upon and subject to the terms provided herein, Employer
agrees to employ Executive, and Executive hereby agrees to be employed by
Employer, as Employer's Vice President Operations, or other substantially
similar position. Executive shall report to the President and Chief Executive
Officer or such other supervisor as designated by the President and Chief
Executive Officer of Employer. Executive shall perform such tasks commensurate
with this position as may from time to time be assigned by Employer. In this
regard, unless and until Executive is notified otherwise by Employer,
Executive's duties shall include, among other things, serving as the President
of Minera Santa Xxxx, S.A. de C.V., a subsidiary of Employer incorporated in
Mexico. Executive shall devote all business time, labor, skill, undivided
attention and best ability to the performance of Executive's duties hereunder in
a manner which will faithfully and diligently further the business and interests
of Employer. During the term of employment, Executive shall not directly or
indirectly pursue any other business activity without the prior written consent
of Executive's supervisor, with the exception of passive personal investments
not in breach of any other term or provision hereof. Executive agrees to travel
to whatever extent is reasonably necessary in the conduct of Employer's
business, at Employer's expense and pursuant to Employer's standard policies and
procedures.
2. Term of Employment. Subject to the terms set forth in this
Agreement, Employer agrees to employ Executive and Executive hereby agrees to be
employed by Employer for a period (the "Employment Period") commencing from the
date hereof until the second anniversary of the date hereof. The Employment
Period shall automatically renew for successive one-year periods unless either
party provides the other party with written notice of its intent not to renew at
least thirty (30) days prior to the expiration of the then current Employment
Period.
3. Compensation.
(a) Base Salary. As compensation for the services rendered
pursuant to this Agreement, Employer agrees to pay Executive a base salary at an
annual rate of $150,000, payable in installments in accordance with Employer's
standard payroll practices, subject to such payroll and withholding deductions
as are required by law or authorized by Executive. The amount of the base salary
shall be reviewed periodically and may be increased at the sole discretion of
Employer.
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(b) Bonus. Executive shall be eligible for any annual incentive
bonus opportunity offered by Employer to employees at Executive's level. In the
event of any conflict between this Agreement and any incentive bonus plan
adopted by Employer for its officers and employees, this Agreement shall
control. The amount of this bonus, as well as the criteria necessary to earn a
bonus, may be changed at any time by Employer and shall be within the sole
discretion of Employer. All bonuses paid pursuant to this Agreement will be
subject to applicable withholdings and deductions and will be paid no earlier
than fifteen (15) days and no later than ninety (90) days after Employer's
fiscal year end for which the bonus is earned. If Executive's employment
terminates, voluntarily or involuntarily, prior to the last day of the fiscal
year for which the bonus applies, Executive acknowledges that he is not entitled
to any bonus not yet paid at the time of the termination because any such unpaid
bonus will not be earned, vested, due, or owing. Executive hereby expressly
forfeits and waives any such unpaid bonus.
(c) Vacation. For each full twelve (12) months of employment,
Executive shall be entitled to receive four (4) weeks paid vacation. During the
first full twelve (12) months of Executive's employment, however, Executive's
paid vacation time shall accrue on a prorata basis at the rate of one (1) week
every three (3) months. One (1) week of paid vacation may be carried forward
from one calendar year to the next calendar year only (the "Carried Forward
Vacation"). If applicable, Executive's first week of vacation each calendar year
shall be deemed the Carried Forward Vacation.
(d) Participation in Equity Plan. Executive will be eligible to
participate in any equity incentive plan, as amended from time to time, that may
be adopted by Employer or any successor plan adopted by Employer during the term
of this Agreement and applicable to other employees at Executive's level (the
"Equity Plan"). The number of options, vesting schedule, exercise price, and all
other terms and conditions of the stock options shall be set forth in an option
agreement pursuant to the applicable plan and shall be commensurate with
Executive's position, as determined by the Compensation Committee of Employer's
Board of Directors, in its sole discretion. Employer may, consistent with its
obligations under such a plan or plans, amend or discontinue any or all stock
option plans at any time.
(e) Employer Vehicle. Executive shall be entitled to use one of
Employer's vehicles located on site at Employer's property in Sonora, Mexico
only as necessary to meet Executive's duties and obligations hereunder.
Executive may not utilize any vehicle owned by Employer for personal use
unrelated to Executive's duties and obligations hereunder.
(f) Expense Reimbursement. Employer shall reimburse Executive for
all reasonable and documented travel, entertainment and other business expenses
actually and properly incurred by him in relation to Employer's business, as
they are incurred.
(g) Stock Options. Executive is hereby granted options to purchase
200,000 shares of issued and outstanding common stock of Employer, which may be
exercised by Executive (i) for up to 50,000 shares, any time from and after the
Effective Date, and (ii) for up to an additional 150,000 shares, any time from
and after the date of Economic Completion as defined in the Loan Agreement to be
entered into between Standard Bank PLC and Minera Santa Xxxx, S.A. de C.V.,
Employer's wholly-owned subsidiary, at an exercise price of $0.32 per share,
exercisable at any time within a two-year period following the Effective Date
and a two-year period following the date of Economic Completion, respectively.
Employer shall use good faith efforts to adopt the options granted to Executive
herein as an equity incentive plan, and to file a registration statement on Form
S-8 in connection therewith.
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4. Termination of Employment. Notwithstanding any other provision of
this Agreement, Executive's employment may be terminated as follows:
(a) Expiration. This Agreement may be terminated upon expiration
of the term hereof, in accordance with the procedures set forth in Section 2.
Following termination pursuant to this Section 4(a), Employer's only obligation
to Executive shall be to pay to Executive within thirty (30) days of termination
all accrued base salary, all accrued vacation time and any reasonable and
necessary business expenses incurred by Executive in connection with his duties,
all to the date of termination and payable in a lump sum, less applicable
deductions and withholdings.
(b) Termination for Cause. This Agreement may be terminated by
Employer for Cause. For purposes of this Agreement, "Cause" justifying the
termination of this Agreement by Employer is defined as: (i) failure or refusal
to perform the services required hereunder; (ii) a material breach by Executive
of any of the terms of this Agreement; or (iii) Executive's conviction of a
crime that either results in imprisonment or involves embezzlement, dishonesty,
or activities injurious to Employer or its reputation. Whether Cause exists
under this Agreement shall be determined by the Employer in its reasonable
discretion. Following termination pursuant to this Section 4(b), Employer's only
obligation to Executive shall be to pay to Executive within thirty (30) days of
termination all accrued base salary, all accrued vacation time and any
reasonable and necessary business expenses incurred by Executive in connection
with his duties, all to the date of termination and payable in a lump sum, less
applicable deductions and withholdings.
(c) Disability. This Agreement may be terminated by Employer upon
at least thirty (30) days' written notice if Executive is prevented by illness,
accident or other disability (mental or physical) from performing the essential
functions of the position for one or more periods cumulatively totaling three
(3) months during any consecutive twelve (12) month period. In the event this
Agreement is terminated pursuant to this Section 4(c), Employer shall pay to
Executive within thirty (30) days of termination all accrued base salary, all
accrued vacation time and any reasonable and necessary business expenses
incurred by Executive in connection with his duties, all to the date of
termination and payable in a lump sum, less applicable deductions and
withholdings. In addition, Employer shall pay to Executive within thirty (30)
days of termination a severance payment in an amount equal to one (1) month of
Executive's base salary, payable in a lump sum, less applicable deductions and
withholdings, as soon as administratively practicable following Executive's
termination ("Disability Severance Payments"). The severance payment made by
Employer to Executive pursuant to this Section 4(c) are conditioned on the
Executive signing a Confidential Severance Agreement and Release substantially
in the form attached hereto as EXHIBIT A.
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(d) Death. This Agreement shall be automatically terminated in the
event of Executive's death during the term of employment. In the event this
Agreement terminates upon Executive's death, Employer shall pay Executive's
estate or beneficiary, as applicable, all accrued vacation time and any
reasonable and necessary business expenses incurred by Executive in connection
with his duties, all to the date of termination and all payable in a lump sum,
less applicable deductions and withholdings, as soon as administratively
practicable following Executive's termination.
(e) Without Cause. This Agreement may be terminated by Employer
without Cause at any time, such termination to be effective thirty (30) days
after Executive's receipt of written notice from Employer; provided that
Employer pays Executive each of the following:
(i) If Executive has been employed for less than one year
from and after the Effective Date, Executive shall not be entitled to any Cash
Severance Payments (as defined below). If Executive has been employed for a
period of one year or more, Employer shall pay Executive severance payments in
an amount equal to Executive's base salary for three (3) months after the first
anniversary of Executive's employment with Employer plus an additional one (1)
month of base salary for each additional full year of employment (the "Cash
Severance Payments"). Such Cash Severance Payments shall be paid in equal
monthly installments to Executive beginning in the month following Executive's
termination. In any event, Employer shall pay to Executive all accrued base
salary, all accrued vacation time and any reasonable and necessary business
expenses incurred by Executive in connection with his duties, all to the date of
termination and payable in a lump sum, less applicable deductions and
withholdings, as soon as administratively practicable following Executive's
termination.
(ii) Provided that Executive timely elects continuation
coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended ("COBRA"), Employer shall pay, on Executive's behalf, the portion of
premiums of Executive's group health insurance, including coverage for
Executive's eligible dependents, that Employer paid immediately prior to
Executive's separation of employment with Employer ("COBRA Payments") for a
period of twelve (12) months ("COBRA Period"). Employer will pay such COBRA
Payments for Executive's eligible dependents only for coverage for which those
dependents were enrolled immediately prior to the date of Executive's separation
of employment. Executive will continue to be required to pay that portion of the
premium of Executive's health coverage, including coverage for Executive's
eligible dependents, that Executive was required to pay as an active employee
immediately prior to the date of Executive's separation of employment. For the
balance of the period that Executive is entitled to coverage under COBRA after
the COBRA Period, if any, Executive shall be entitled to maintain coverage for
Executive and Executive's eligible dependents at Executive's sole expense.
(iii) The Cash Severance Payments and the COBRA Payments shall
be paid so long as Executive is not in breach of any term of this Agreement,
including, without limitation, Sections 5, 6, and 7 hereof. The Cash Severance
Payments and COBRA Payments made by Employer to, or on behalf of, Executive
pursuant to this Section 4(e) are conditioned on the Executive signing a
Severance Agreement and Release substantially in the form attached hereto as
EXHIBIT A.
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(f) Material Breach. This Agreement may be terminated by Executive
for a material breach by Employer of any of the terms of this Agreement, upon
thirty (30) days' written notice specifying the breach, and failure of Employer
to either (i) cure or diligently commence to cure the breach within the 30-day
notice period, or (ii) dispute in good faith the existence of the material
breach. Following termination pursuant to this Section 4(f), if Executive has
been employed for a period of one year or more, Employer shall pay to Executive
severance payments in an amount equal to Executive's base salary for three (3)
months after the first anniversary of Executive's employment with Employer plus
an additional one (1) month of base salary for each additional full year of
employment, less applicable withholdings and deductions, after the date such
notice is given. Such severance payments shall be paid in equal monthly
installments to Executive beginning in the month following Executive's
termination. Such severance payments shall be paid so long as Executive is not
in breach of any term of this Agreement, including, without limitation, Sections
5, 6, and 7 hereof. In addition, Employer shall pay to Executive all accrued
base salary, all accrued vacation time and any reasonable and necessary business
expenses incurred by Executive in connection with his duties, all to the date of
termination and payable in a lump sum, less applicable deductions and
withholdings, as soon as administratively practicable following Executive's
termination. Severance payments made by Employer to Executive pursuant to this
Section 4(f) are conditioned on the Executive signing a Confidential Severance
Agreement and Release substantially in the form attached hereto as EXHIBIT A.
(g) Resignation. This Agreement may be terminated by Executive for
any reason or no reason at all by giving notice to Employer of Executive's
resignation at least sixty (60) days prior to the effective resignation date.
Following termination pursuant to this Section 4(g), Employer's only obligation
to Executive shall be to pay to Executive within thirty (30) days of the
effective date of resignation all accrued base salary, all accrued vacation time
and any reasonable and necessary business expenses incurred by Executive in
connection with his duties, all to the date of termination and payable in a lump
sum, less applicable deductions and withholdings.
(h) Section 409A.
(i) Anything in this Agreement to the contrary
notwithstanding, if on the date of termination of Executive's employment with
Employer, as a result of such termination, Executive would receive any payment
that, absent the application of this Section 4(h)(i), would be subject to
interest and additional tax imposed pursuant to Section 409A(a) of the Code as a
result of the application of Section 409A(2)(B)(i) of the Code, then such
payment shall be payable on the date that is the earliest of (A) six (6) months
after Executive's termination date, (B) the Executive's death or (C) such other
date as will not result in such payment being subject to such interest and
additional tax.
(ii) It is the intention of the parties that payments or
benefits payable under this Agreement not be subject to the additional tax
imposed pursuant to Section 409A of the Code. To the extent such potential
payments or benefits could become subject to such Section, the parties shall
cooperate to amend this Agreement with the goal of giving Executive the economic
benefits described herein in a manner that does not result in such tax being
imposed.
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5. Proprietary Information.
(a) Executive represents and warrants to Employer that (i)
Executive is not subject to any limitation or agreement restricting employment
by Employer or performance of Executive's duties hereunder, and (ii) neither
Executive nor any third party has any right or claim to Executive's work
produced on behalf of Employer or using the property, personnel, or facilities
of Employer. Executive shall not misappropriate proprietary rights of Employer
or any third party.
(b) Executive further agrees not to make, use, disclose to any
third party, or permit to be made, used, or disclosed, any records, plans,
papers, articles, notes, memoranda, reports, lists, records, drawings, sketches,
specifications, software programs, data, or other materials of any nature
relating to any matter within the scope of the business of Employer or
concerning any of its dealings or affairs ("Materials"), whether or not
developed, in whole or in part, by Executive and whether or not embodying
Confidential Information (defined below), otherwise than for the benefit of
Employer. Executive shall not, after the termination of employment, use,
disclose, or permit to be used or disclosed, any such Materials, it being agreed
that all such Materials shall be and remain the sole and exclusive property of
Employer. Immediately upon the termination of employment, Executive shall
deliver all such Materials, and all copies thereof, to Employer, at its
designated office.
6. Non-Competition; Non-Solicitation; Anti-Raiding; Non-Disparagement.
Without the prior written approval of the Chief Executive Officer or the
President of Employer, Executive shall not, directly or indirectly, during his
employment and until the end of one hundred eighty (180) days after termination
of employment (however such termination occurs, including, without limitation,
termination pursuant to Section 4(a), 4(b), 4(c), 4(e), 4(f), or 4(g)):
(a) Engage in a "Competing Business" in the "Territory", as those
terms are defined below, whether as a sole proprietor, partner, corporate
officer, employee, director, shareholder, consultant, agent, independent
contractor, trustee, or in any other manner by which Executive holds any
beneficial interest in a Competing Business, derives any income from any
interest in a Competing Business, or provides any service or assistance to a
Competing Business. "Competing Business" shall mean any business that mines or
produces minerals which is competitive with the business of Employer or any of
its Affiliates (defined below), as conducted or under development at any time
during the term of employment. "Affiliates" shall mean any entity controlled by
or under common control with Employer or any joint venture, partnership or other
similar entity to which Employer is a party. "Territory" shall mean anywhere in
the state of Sonora, Mexico. The provisions of this Section 6 will not restrict
Executive from owning less than five percent of the outstanding stock of a
publicly-traded corporation engaged in a Competing Business;
(b) Acquire, lease or otherwise obtain or control any beneficial,
direct or indirect interest in mineral rights, or other rights or lands
necessary to develop, any mineral property in which Employer or any of its
Affiliates at the time of termination as a beneficial interest or is actively
seeking to acquire, or that is within a distance of five (5) kilometers from any
point on the outer perimeter of any such property in which Employer or any of
its affiliates has a beneficial interest or that it is seeking to acquire;
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(c) Conduct any exploration or production activities or otherwise
work on or in respect of any mineral property within a distance of five (5)
kilometers from any point on the outer perimeter of any mineral property in
which Employer or any of its affiliates then has a beneficial interest or is
actively seeking to acquire;
(d) (i) Contact or solicit, or direct or assist others to contact
or solicit, for the purpose of promoting any person's or entity's attempt to
compete with Employer or any of its Affiliates, in any business carried on by
Employer or any of its Affiliates during the period in which Executive was an
employee of Employer, any suppliers, independent contractors, vendors, or other
business associates of Employer or any of its Affiliates that were existing or
identified prospective suppliers, independent contractors, vendors, or business
associates during such period, or (ii) otherwise interfere in any way in the
relationships between Employer or any of its Affiliates and their suppliers,
independent contractors, vendors, and business associates;
(e) (i) Solicit, offer employment to, otherwise attempt to hire,
or assist in the hiring of any employee or officer of Employer or any of its
Affiliates; (ii) encourage, induce, assist or assist others in inducing any such
person to terminate his or her employment with Employer or any of its
Affiliates; or (iii) in any way interfere with the relationship between Employer
or any of its Affiliates and their employees; or
(f) Make any public statement or perform or do any other act
prejudicial or injurious to the reputation or goodwill of Employer or any of its
Affiliates or otherwise interfere with the business of Employer or any of its
Affiliates.
7. Confidentiality.
(a) The term "Confidential Information" shall include, but not be
limited to, the whole or any portion or phase of (i) any confidential, or
proprietary or trade secret, technical, business, marketing or financial
information, whether pertaining to (1) Employer or its Affiliates, (2) its or
their suppliers, or (3) any third party which Employer or its Affiliates is
under an obligation to keep confidential including, but not limited to, methods,
know-how, techniques, systems, processes, software programs, works of
authorship, supplier lists, projects, plans, and proposals, and (ii) any
software programs and programming prepared for Employer's benefit whether or not
developed, in whole or in part by Executive. For purposes of this Agreement,
"Confidential Information" shall include, but shall not be limited to,
strategies, analysis, concepts, ideas, or plans; operating techniques;
demographic and trade area information; prospective site locations know-how;
improvements; discoveries, developments; designs, techniques, procedures;
methods; machinery, devices; drawings; specifications; forecasts; new products;
research data, reports, or records; marketing or business development plans,
strategies, analysis, concepts or ideas; contracts; general financial
information about or proprietary to Employer, including, but not limited to,
unpublished financial statements, budgets, projections, licenses, and costs;
pricing; personnel information; and any and all other trade secrets, trade
dress, or proprietary information, and all concepts or ideas in or reasonably
related to Employer's business. All such Confidential Information is extremely
valuable and is intended to be kept secret to Employer; is the sole and
exclusive property of Employer or its Affiliates; and, is subject to the
restrictive covenants set forth herein. The term Confidential Information shall
not include any information generally available to the public or publicly
disclosed by Employer (other than by the act or omission of Executive),
information disclosed to Executive by a third party under no duty of
confidentiality to Employer or its Affiliates, or information required by law or
court order to be disclosed by Executive.
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(b) Executive shall not, without Employer's prior written
approval, use, disclose, or reveal to any person or entity any of Employer's
Confidential Information, except as required in the ordinary course of
performing duties hereunder. Executive shall not use or attempt to use any
Confidential Information in any manner which has the possibility of injuring or
causing loss, whether directly or indirectly, to Employer or any of its
Affiliates.
(c) In the event that Executive's employment with Employer is
terminated for any reason whatsoever, he shall return to Employer, promptly upon
Employer's written request therefore, any documents, photographs, tapes, discs,
memory devices, and other property containing Confidential Information which
were received by him during his employment, without retaining copies thereof.
8. Acknowledgments. Executive acknowledges that the covenants contained
in Sections 5, 6, and 7, including those related to duration, geographic scope,
and the scope of prohibited conduct, are reasonable and necessary to protect the
legitimate interests of Employer. Executive acknowledges that the covenants
contained in Sections 5, 6, and 7 are designed, intended, and necessary to
protect, and are reasonably related to the protection of, Employer's trade
secrets, to which he will be exposed and with which he will be entrusted.
Specifically, without limitation, Executive is entrusted with trade secrets
regarding: the strategic planning initiatives; business development plans;
budgets; financial information; management training; future business plans; and
operational strategies and procedures. Executive understands that any breach of
Sections 5 or 7 will also constitute a misappropriation of Employer's
proprietary rights, and may constitute a theft of Employer's trade secrets under
applicable local, state, and federal statutes, and will result in a claim for
injunctive relief, damages, and/or criminal sanctions and penalties against
Executive by Employer, and possibly others.
9. Forfeiture of Severance Payments. If Executive breaches Sections 5,
6, or 7 of this Agreement during the term that severance payments are made
pursuant to Sections 4(c), 4(e), or 4(f) of this Agreement, Executive shall pay
back to Employer all severance payments received through the date of such
breach. Nothing contained in this Section 9 shall be construed as prohibiting
Employer from pursuing any other remedies available to it in the event of the
breach of Sections 5, 6, or 7, including the equitable remedies set forth in
Section 12.
10. Forfeiture of Profits Related to Option Exercises. If Executive
breaches Section 5, 6, or 7 of this Agreement, Employer shall have the right to
repurchase any or all shares of common stock of Employer purchased by the
Executive upon the exercise of options within the twelve (12)-month period
immediately preceding the breach at the exercise price of the option, or if the
Executive no longer holds such shares of common stock purchased on exercise of
options, the Executive shall pay to Employer an amount equal to the gross
profits that Executive received on the sale of such shares calculated as the
aggregate sale price of such shares of common stock less the exercise price.
Nothing contained in this Section 10 shall be construed as prohibiting Employer
from pursuing any other remedies available to it in the event of the breach of
Sections 5, 6, or 7, including the equitable remedies set forth in Section 12.
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11. Non-Exclusivity of Rights. Amounts that are vested benefits or that
Executive is otherwise entitled to receive under any plan, policy or program of,
or contract or agreement with Employer at or subsequent to termination of
employment (however such termination occurs, including, without limitation,
termination pursuant to Section 4(a), 4(b), 4(c), 4(e), 4(f), or 4(g)) shall be
payable in accordance with such plan, policy or program of, or any contract or
agreement except as explicitly modified by this Agreement.
12. Equitable Remedies. The services to be rendered by Executive and the
Confidential Information entrusted to Executive as a result of his employment by
Employer are of a unique and special character, and any breach of Sections 5, 6,
or 7 will cause Employer immediate and irreparable injury and damage, for which
monetary relief would be inadequate or difficult to quantify. Employer will be
entitled to, in addition to all other remedies available to it, injunctive
relief and specific performance to prevent a breach and to secure the
enforcement of Sections 5, 6, or 7. Executive acknowledges that injunctive
relief may be granted immediately upon the commencement of any such action
without notice to Executive and in addition may recover monetary damages. In the
event a court requires posting of a bond, the parties agree to a maximum $5,000
bond. Executive further acknowledges that his duties under this Agreement shall
survive termination of his employment, whether the termination is voluntary or
involuntary, rightful or wrongful, and shall continue until Employer consents in
writing to the release of Executive's obligations under this Agreement. The
parties further agree that the provisions of Sections 5, 6, and 7 are separate
from and independent of the remainder of this Agreement and that these
provisions are specifically enforceable by Employer notwithstanding any claim
made by Executive against Employer.
13. Attorney's Fees. In the event Executive breaches, or threatens to
breach, any provision of this Agreement, Executive acknowledges that he shall be
solely and fully responsible for all fees and costs, including without
limitation, all attorney's fees and costs, incurred by Employer in enforcing
this Agreement if Employer is the prevailing party in any litigation.
14. Entire Agreement; Amendments. This Agreement (including all
exhibits) constitute the entire understanding between the parties with respect
to the subject matter herein and therein, and they supersede any prior or
contemporaneous understandings or agreements. This Agreement may be amended,
supplemented, or terminated only by a written instrument duly executed by each
of the parties.
15. Headings. The headings in this Agreement are for convenience of
reference only and shall not affect its interpretation. References to Sections
are to Sections of this Agreement.
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16. Gender; Number. Words of gender may be read as masculine, feminine,
or neuter, as required by context. Words of number may be read as singular or
plural, as required by context.
17. Severability. The covenants in this Agreement shall be construed as
independent of one another, and as obligations distinct from one another and any
other contract between Executive and Employer. If any provision of this
Agreement is held illegal, invalid, or unenforceable, such illegality,
invalidity, or unenforceability shall not affect any other provisions hereof. It
is the intention of the parties that in the event any provision is held illegal,
invalid, or unenforceable, that such provision be limited and construed so as to
effect the intent of the parties to the fullest extent permitted by applicable
law. Any claim by Executive against Employer shall not constitute a defense to
enforcement by Employer of this Agreement.
18. Survival. The provisions of Sections 4, 5, 6, 7, 8, 9, 10, 11, 12,
13, 14, 17, 18, 19, 20, 21, 22, and 23 shall survive the termination of this
Agreement.
19. Notices. All notices, demands, waivers, consents, approvals, or
other communications required hereunder shall be in writing and shall be deemed
to have been given if delivered personally, if sent by facsimile with
confirmation of receipt, if sent by certified or registered mail, postage
prepaid, return receipt requested, or if sent by same day or overnight courier
service to the following addresses:
If to Employer, to:
Capital Gold Corporation
00 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President and Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Executive, to:
Xxxx Xxxxxxxx
0000 Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notice of any change in any such address shall also be given in the manner set
forth above. Whenever the giving of notice is required, the giving of such
notice may be waived by the party entitled to receive such notice.
20. Waiver. The failure of any party to insist upon strict performance
of any of the terms or conditions of this Agreement shall not constitute a
waiver of any of such party's rights hereunder.
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21. Assignment. Other than as provided below, neither party may assign
any rights or delegate any of obligations hereunder without the prior written
consent of the other party, and such purported assignment or delegation shall be
void; provided that Employer may assign the Agreement to any entity that
purchases the stock or assets of, or merges with, Employer or any Affiliate.
This Agreement binds, inures to the benefit of, and is enforceable by the
successors and permitted assigns of the parties and does not confer any rights
on any other persons or entities.
22. Governing Law. This Agreement shall be construed and enforced in
accordance with New York law except for any New York conflict-of-law principle
that might require the application of the laws of another jurisdiction.
23. Submission to Jurisdiction: Service: Waivers. With respect to any
claim arising out of this Agreement, each party hereto (a) irrevocably submits,
for itself and its property, to the jurisdiction of the state court located in
the City and County of New York, New York, the federal court located in New
York, New York, and appellate courts therefrom, (b) agrees that the venue for
any suit, action or proceeding arising out of or relating to this Agreement
shall be exclusive to and limited to such courts, and (c) irrevocably waives any
objection it may have at any time to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement brought in any such
court, irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum and further
irrevocably waives the right to object, with respect to such claim, suit, action
or proceeding brought in any such court that such court does not have
jurisdiction over it. Each party irrevocably consents to the service of process
in any suit, action or proceeding in any of the aforesaid courts by the mailing
of copies of process to the other party or parties hereto, by certified or
registered mail at the address specified in Section 19.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
EMPLOYER :
CAPITAL GOLD CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
EXECUTIVE:
By: /s/ Xxxx Xxxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxxx
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