Exhibit 48
EMPLOYMENT AGREEMENT
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AGREEMENT dated as of the 1st day of July, 1997 between Global Gold
Corporation, a Delaware corporation (the "Corporation"), and Xxxxx X. Xxxxxxxxx
(the "Employee") (the "Agreement").
W I T N E S S E T H :
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WHEREAS, the Corporation and Employee entered into a three-year
employment agreement effective as of July 1, 1995;
WHEREAS, the Corporation and the Employee desire to amend and restate
such employment agreement and extend it through June 30, 2000 on the terms and
conditions hereinafter set forth; and
NOW, THEREFORE, the parties hereto agree as follows:
1. DUTIES.
(a) The Corporation hereby employs the Employee, and the Employee
hereby accepts and agrees to such employment, as Chairman and Chief Executive
Officer and, in such capacity, to be responsible for the day-to-day activities
of the Corporation activities. The Employee shall, subject to the supervision
and control of the Board of Directors of the Corporation, perform such executive
duties and exercise such supervisory powers over and with regard to the business
of the Corporation and its present and future subsidiaries, consistent with such
position, and such additional duties as specified in the Corporation's By-Laws
or as may be assigned to him from time to time by the Board of Directors of the
Corporation.
(b) The Employee agrees to devote 50% of his available business time
to the performance of his duties hereunder. The Employee may provide services
to other organizations, on a compensation or pro xxxx basis, provided that such
services do not constitute more than 50% of his available business time.
2. TERM. The term of this Agreement shall be for a period of three years
commencing on the date hereof and ending on the third anniversary date hereof,
and shall be automatically renewed for consecutive one-year periods thereafter
unless (a) terminated by the Employee on 120 days written notice prior to the
expiration of the initial term hereof, (b) terminated by either party on 120
days written notice prior to the expiration of the fourth year hereof or any
year thereafter or (c) sooner terminated as otherwise provided herein.
3. COMPENSATION.
(a) BASE COMPENSATION. In consideration for the services rendered by
the Employee under this Agreement, the Corporation shall pay the Employee as
base compensation a salary of $150,000 each year, payable in equal monthly
installments. Such then base salary shall be increased each year, on the first
day after the anniversary date of the date of this Agreement, (a) in an amount
equal to the percentage increase, if any, in the Federal Bureau of Labor
Statistics Consumer Price Index for Urban Consumers for the Northeastern Region
of the United States ("CPI") during the preceding 12-month period, or (b) in an
amount up to 10% in the sole discretion of the Board of Directors of the
Corporation, if it determines that such action would be in the best interests of
the Corporation.
(b) BONUS COMPENSATION. In addition to the foregoing compensation,
the Employee shall be entitled to receive annual bonus compensation in an amount
determined in
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accordance with any bonus plan approved by the Board of Directors, or any
committee thereof duly authorized by the Board to make such determination, based
upon qualitative and quantitative goals determined by the Board of Directors, or
such committee thereof, in its sole discretion, as the case may be; provided
that no amount paid to any employee of the Corporation shall exceed 50% of his
then base compensation for such year. Any bonus payment shall be subject to all
applicable tax withholdings.
(c) In the event that the Employee voluntarily elects not to work 50%
for the Corporation as contemplated hereunder, both his base compensation, and
bonus compensation, if any, to which he would otherwise have been entitled, set
forth in Section 3(a) and (b) shall be reduced to the amount computed by
multiplying such base compensation and bonus entitlement by the ratio of the
number of hours worked during such 12 month period to 1,000 hours.
(d) CHANGE OF CONTROL.
(i) If during the term of this Agreement, there shall occur a
Change of Control of the Corporation (as defined herein), the Employee may
terminate his employment hereunder at any time during the term of this Agreement
in which case he shall be entitled to receive a payment equal to one times the
Employee's average annual compensation paid by the Company (including bonuses,
if any) during the three year period (or, if he has worked less than three years
hereunder, such shorter period) immediately preceding the date of his
termination of employment (the "Severance Payment"), PROVIDED, HOWEVER, that
such Severance Payment shall be reduced if and only to the extent necessary to
avoid the imposition
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of an excise tax on such Severance Payment under Section 4999 of the Internal
Revenue Code of 1986, as amended. The Severance Payment shall be payable to
Employee as follows:
(A) on the date of his termination of employment, an amount
equal to three months base compensation at the rate prevailing on the date of
termination; and
(B) commencing with the fourth month after such
termination, the balance remaining after the payment set forth in Section
3(d)(i)(A) above shall be paid by the Corporation in nine equal installments in,
at the Corporation's sole discretion, cash or in unregistered shares of its
common stock, based on the fair market value of such stock at the time of each
such payment.
(ii) For purposes hereof, the term "Change of Control" shall mean
an event or series of events that would be required to be described as a change
in control of the Corporation in a proxy or information statement distributed by
the Corporation pursuant to Section 14 of the Securities Exchange Act of 1934 in
response to Item 6(e) of Schedule 14A promulgated thereunder, or any substitute
provision which may hereafter be promulgated thereunder or otherwise adopted.
The determination of whether and when a change in control has occurred or is
about to occur shall be made by the Board of Directors in office immediately
prior to the occurrence of the event or series of events constituting such
change in control.
4. WORKING FACILITIES. The Employee shall be furnished with an office,
and such other facilities and services commensurate with his position as
Chairman and Chief Executive Officer of the Corporation, as are reasonably
necessary for the performance of his duties hereunder.
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5. REIMBURSEMENT OF BUSINESS EXPENSES. The Employee is authorized to
incur reasonable expenses in connection with the conduct of the Corporation's
business, including, without limitation, expenses for the Employee's travel,
lodging and business entertainment in accordance with the Corporation's
customary practice and subject to the general limitations thereof set forth in
the annual or more frequent budgets adopted by the Corporation from time to
time. The Corporation will promptly reimburse the Employee for such expenses
upon the presentation by the Employee, from time to time, of an itemized account
of such expenditures together with vouchers or receipts in substantiation
thereof.
6. BENEFITS. During the term of this Agreement, any benefits made
available to officers or employees of the Corporation under any pension plan,
profit sharing plan, employee stock purchase plan, stock bonus plan, incentive
stock option plan, stock appreciation plan, deferred compensation plan,
insurance plan, health plan, welfare plan, long-term disability plan or
otherwise shall be made available to the Employee, taking into account the
Employee's level of compensation, past services, scope of responsibility and
such other factors as are customarily used to evaluate executive performance and
compensation under such plans.
7. VACATIONS. The Employee shall be entitled each year during the term
of this Agreement to a vacation period of four weeks during which period all
compensation, benefits, and other rights to which the Employee is entitled
hereunder shall be provided in full. Such vacation may be taken, in the
Employee's discretion, at such time or times as are not inconsistent with the
reasonable business needs of the Corporation. During the term of this
Agreement, the vacation time provided for herein shall not be cumulative to the
extent not
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taken by the Employee during a given year. In the event that the vacation time
provided hereunder has not been taken during the 12-month period prior to the
termination or expiration of this Agreement for any reason other than those set
forth in Section 8(a) hereof, the Corporation shall pay the Employee, in
addition to any other benefits due to the Employee hereunder, an amount equal to
the number of weeks (or fraction thereof) of vacation time not so taken during
such period multiplied by an amount equal to the result obtained by dividing (x)
the then base salary in effect on the Termination Date (as defined in Section
8(e) hereof) by (y) 52.
8. TERMINATION.
(a) EARLY TERMINATION BY CORPORATION FOR CAUSE. During the term of
this Agreement, the Employee's employment may be terminated by the Corporation
only by the affirmative vote of 80% of all of the members of the Board of
Directors of the Corporation then holding office (without counting any vote of
the Employee whose services are sought to be terminated, if the Employee is then
a member of the Board of Directors) on 30 days prior written notice by means of
a Notice of Termination, and an opportunity for the Employee, accompanied by
counsel of his choice, to address the full Board of Directors, that one of the
following conditions exists or one of the following events has occurred:
(i) Willful act or acts on the part of the Employee which
caused material damage to the Corporation;
(ii) The conviction of the Employee for a felony;
(iii) The refusal by the Employee, continued for at least 90
days, to perform such employment duties as may reasonably be delegated
or assigned to him under this Agreement, consistent with his executive
position, by the Board of Directors of the Corporation;
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(iv) Willful and unexcused neglect by the Employee of his
employment duties under this Agreement, continued for at least 90
days; or
(v) Any other material breach by the Employee of the
provisions of this Agreement.
Subject only to a final determination by an arbitrator made pursuant
to the provisions of Section 11 of this Agreement, the Board of Directors'
determination, in good faith, in writing that cause exists for termination of
the Employee's employment shall be binding and conclusive for all purposes under
this Agreement. Upon such determination by the Board of Directors, the
Employee's compensation pursuant to Section 3 hereof and all other benefits
provided hereunder shall terminate on the Termination Date, except that the
Employee shall be entitled to be paid severance pay equal to his then base
compensation for a period of three months thereafter. In the event that the
Employee desires to take any matter with respect to such determination to
arbitration, he must commence an arbitration proceeding within 30 days after
receipt of written notice of the Board of Directors' determination. If the
Employee fails to take such action within such period, he will be deemed
conclusively to have waived his right to arbitration of the termination of his
employment hereunder.
(b) TERMINATION BY EMPLOYEE. In the event that the Corporation shall
default in the performance of any of its obligations under this Agreement in any
material respect (other than by reason of its financial inability to make
payments as determined by the Board of Directors of the Corporation in writing),
and shall not cure such default within 10
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days of receipt by the Corporation of written notice of such default from the
Employee, the Employee may terminate this Agreement by delivery of a Notice of
Termination. Upon any termination pursuant to the provisions of this Section
8(b), the Employee shall be entitled to receive, as liquidated damages and not
as a penalty, one year's payments which would have been made to the Employee on
account of his base salary in effect at the date of the delivery of a Notice of
Termination. Upon fulfillment of the conditions set forth in Section 8(b)
hereof and subject to Section 8(f) hereof, all rights and obligations of the
parties under this Agreement shall thereupon be terminated. The Employee shall
have no obligation to mitigate damages, and amounts payable pursuant to the
provisions of this Section 8(b) shall not be reduced on account of any income
earned by the Employee from other employment or other sources.
(c) TERMINATION BY REASON OF DISABILITY. In the event that Employee
shall be prevented from rendering all of the services or performing all of his
duties hereunder by reason of illness, injury or incapacity (whether physical or
mental) for a period of six consecutive months, determined by an independent
physician selected by the Board of Directors of the Corporation, the Corporation
shall have the right to terminate this Agreement, by giving 10 days prior
written notice to the Employee, provided that the Corporation shall continue to
pay his then base compensation for a period of 12 months thereafter. Until
terminated in the manner set forth in this Section 8(c), the Employee shall be
entitled to receive his full compensation and benefits provided hereunder
through the Termination Date. Any payments to the Employee under any disability
insurance or plan maintained by the Corporation shall be applied against and
shall reduce the amount of the base compensation payable by the Corporation
under this Section 8(c).
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(d) TERMINATION BY REASON OF DEATH. In the event that the Employee
shall die during the term of this Agreement, this Agreement shall terminate upon
such death. The sole death benefit payable to the Employee shall be the life
insurance benefits provided to the Employee, if any.
(e) CERTAIN DEFINITIONS.
(i) Any termination of the Employee's employment by the
Corporation or by the Employee shall be communicated by a Notice of Termination
to the other party hereto. For purposes hereof, a "Notice of Termination" shall
mean a notice which shall state the specific reasons, and shall set forth in
reasonable detail the facts and circumstances, for such termination.
(ii) "Termination Date" shall mean the date specified in the
Notice of Termination as the last day of Employee's employment by the
Corporation.
(f) CONTINUED MAINTENANCE OF BENEFIT PLANS IN CERTAIN CASES.
Notwithstanding anything contained in this Agreement to the contrary, if the
Employee's employment is terminated pursuant to Sections 8(b) or 8(c) hereof,
the Corporation shall maintain in full force and effect, for the continued
benefit of the Employee for the number of years (including partial years)
remaining in the term of employment hereunder, all employee benefit plans and
programs in which the Employee was entitled to participate immediately prior to
the Termination Date, provided that the Employee's continued participation is
possible under the general terms and provisions of such plans and programs. In
the event that the Employee's participation in any such plan or program is
barred, the Corporation shall have no obligation to provide any substitute
benefits for the Employee.
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9. CONFIDENTIALITY.
(a) During the term of this Agreement, and for a period of two years
thereafter, the Employee shall not, without the prior written consent of the
Board of Directors of the Corporation, disclose to any person, other than an
employee of the Corporation or a person to whom disclosure is reasonably
necessary or appropriate in connection with the performance by the Employee of
his duties hereunder, any of the Corporation's confidential information obtained
by the Employee during the term of this Agreement, including, without
limitation, trade secrets, products, designs, customers or methods of
distribution.
(b) The obligations of confidentiality contained in this Section
shall not extend to any matter which is in or becomes part of the public domain
otherwise than by reason of a breach by the Employee of his obligations of
confidentiality hereunder or which is disclosed by the Employee pursuant to an
order of a governmental body or court of competent jurisdiction or as required
pursuant to a legal proceeding in which the Employee or the Corporation is a
party.
10. CERTAIN REMEDIES IN EVENT OF BREACH. In the event that the Employee
commits a breach, or threatens to commit a breach, of any of the restrictions on
confidentiality contained in Section 9 of this Agreement, the Corporation shall
have the following rights and remedies:
(a) to obtain an injunction restraining any violation or threatened
violation of the provisions of Section 9 or any other appropriate decree of
specific performance by any court having equity jurisdiction, it being
acknowledged and agreed by the Employee that the services rendered, and to be
rendered to the Corporation by him as an Employee, are of a
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special, unique and extraordinary character and that any such breach or
threatened breach will cause irreparable injury to the Corporation and that
money damages will not provide an adequate remedy to the Corporation; and
(b) to require the Employee to account for and pay over to the
Corporation all compensation, profits, monies, accruals, increments or other
benefits (collectively the "Benefits") derived or received by the Employee as
the result of any transactions constituting a breach of any of the provisions of
Section 9, and the Employee hereby agrees to account for and pay over the
Benefits to the Corporation.
Each of the rights and remedies enumerated in this Section 10 shall be
independent of the other, and shall be severally enforceable, and such rights
and remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Corporation at law or in equity.
11. ARBITRATION.
(a) SELECTION OF ARBITRATORS. In the event of any disagreement or
controversy arising out of or relating to this Agreement, such controversy or
disagreement shall be settled by three arbitrators in the City of New York in
accordance with the rules of the American Arbitration Association (the "AAA") in
arbitrations administered by it (other than the AAA rules relating to the
appointment of arbitrators), and any award granted in such arbitration shall
finally determine such controversy or disagreement. The arbitrators for any of
the arbitral proceedings referred to in the preceding sentence shall be chosen
as follows: (x) one shall be chosen by the Employee, (y) one shall be chosen by
the Board of Directors of the Corporation, and (z) one shall be chosen by the
two arbitrators selected under Section 11(a)(x)
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and (y) hereof. The arbitrators to be chosen by the parties shall be chosen
within 30 days after the service of a demand for arbitration on any party
hereto. If the two arbitrators appointed above shall not agree to the
appointment of the third arbitrator to be appointed as provided in Section
11(a)(z), such arbitrator shall be chosen by the then President of the
Association of the Bar of the City of New York, subject to challenge by any
party only by reason of a conflict of interest.
(b) JURISDICTION. Any judicial proceeding brought against any of
the parties to this Agreement in connection with compelling or staying
arbitration or enforcing any arbitral decision shall be brought in the courts of
the State of New York or in the United States District Court for the Southern
District of New York, and by the execution and delivery of this Agreement, each
of the parties to this Agreement accepts for himself or itself the exclusive
jurisdiction of such courts, and irrevocably agrees to be bound by any judgment
rendered thereby in connection with this Agreement. Such consent shall not
constitute a general appearance or be available to any other person who is not a
party to this Agreement. The parties agree that service of process will be
deemed sufficient if made upon each party hereto at the address set forth
herein.
12. MISCELLANEOUS.
(a) NOTICES. All notices or other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be considered as duly given on (a) the date of delivery, if delivered in person,
by nationally recognized overnight delivery service or by facsimile or (b) three
days after mailing if mailed from within the continental United States by
registered or certified mail, return receipt requested to the party entitled to
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receive the same, if to the Corporation, Global Gold Corporation, 00 Xxxx 00xx
Xxxxxx, Xxxxx 0X, Xxx Xxxx, Xxx Xxxx 00000, facsimile number (000) 000-0000,
with a copy to Law Offices of Xxxxxxx X. Field, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, Attn: Xxxxxxx X. Field, Esq., facsimile number (000) 000-0000; and if to
the Employee, Xx. Xxxxx X. Xxxxxxxxx, 000 Xxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx
00000, facsimile number (000) 000-0000. Any party may change his or its address
by giving notice to the other party stating his or its new address. Commencing
on the 10th day after the giving of such notice, such newly designated address
shall be such party's address for the purpose of all notices or other
communications required or permitted to be given pursuant to this Agreement.
(b) GOVERNING LAW. This Agreement and the rights of the parties
hereunder shall be governed by and construed in accordance with the laws of the
State of New York.
(c) ENTIRE AGREEMENT; WAIVER OF BREACH. This Agreement constitutes
the entire agreement among the parties and supersedes any prior agreement or
understanding among them with respect to the subject matter hereof, and it may
not be modified or amended in any manner other than as provided herein; and no
waiver of any breach or condition of this Agreement shall be deemed to have
occurred unless such waiver is in writing, signed by the party against whom
enforcement is sought, and no waiver shall be claimed to be a waiver of any
subsequent breach or condition of a like or different nature.
(d) BINDING EFFECT; ASSIGNABILITY. This Agreement and all the terms
and provision hereof shall be binding upon and shall inure to the benefit of the
parties and their respective heirs, successors and permitted assigns. This
Agreement and the rights of the
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parties hereunder shall not be assigned except with the written consent of all
parties hereto, which consent shall not be unreasonably withheld.
(e) CAPTIONS. Captions contained in this Agreement are inserted only
as a matter of convenience and in no way define, limit or extend the scope or
intent of this Agreement or any provision hereof.
(f) NUMBER AND GENDER. Wherever from the context it appears
appropriate, each term stated in either the singular or the plural shall include
the singular and the plural, and pronouns stated in either the masculine, the
feminine or the neuter gender shall include the masculine, feminine and neuter.
(g) SEVERABILITY. If any provision of this Agreement shall be held
invalid or unenforceable, such invalidity or unenforceability shall attach only
to such provision and shall not in any manner affect or render invalid or
unenforceable any other severable provision of this Agreement, and this
Agreement shall be carried out as if any such invalid or unenforceable provision
were not contained herein.
(h) AMENDMENTS. This Agreement may not be amended except in a
writing signed by all of the parties hereto.
(i) COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument. In addition, this Agreement may contain
more than one counterpart of the signature page and this Agreement may be
executed by the affixing of such signature pages executed by the parties to one
copy of the Agreement; all of such counterpart signature
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pages shall be read as though one, and they shall have the same force and effect
as though all of the signers had signed a single signature page.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
Global Gold Corporation
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, President
/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, Chairman and
Chief Executive Officer
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