Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is dated as of July 1st, 2013
(the "Effective Date"), and is by and between Tungsten Corp., a Nevada
corporation (the "Corporation"), and Xxx Xxxxxx (the "Executive").
WHEREAS, the Corporation desires to employ the Executive, and the Executive
desires to be employed by the Corporation and to render services to it, on the
terms and subject to the conditions in this Agreement.
NOW, THEREFORE, in consideration of the premises and the respective
undertakings of the Corporation and the Executive set forth below, the
Corporation and the Executive agree as follows:
1. EMPLOYMENT. The Corporation hereby employs the Executive in the
positions of Chief Executive Officer and President, and the Executive accepts
such employment and agrees to perform services for the Corporation, for the
period and upon the other terms and conditions set forth in this Agreement. As
Chief Executive Officer, the Executive shall be responsible for: (i) the
day-to-day operations of the Corporation; (ii) the development of a strategic
course of direction for the Corporation; (iii) developing a strong team of
managers for the Corporation reporting to the Chief Executive Officer and
ensuring that each have a competent replacement; (iv) developing an annual
operating plan for the Corporation to be submitted to the Corporation's Board of
Directors (the "Board") against which (as modified and/or approved by the Board)
the Executive and the Executive's management team will be measured and, if
appropriate, compensated with bonus; and (v) such other duties, consistent with
the Executive's position, as the Board may delegate to the Executive from time
to time.
The Executive shall report to the Board.
The Executive shall devote sufficient business time and efforts to the
performance of the Executive's duties and responsibilities under this Agreement
and to the business and affairs of Corporation, its subsidiaries and affiliates.
The Executive may engage in personal, charitable, professional and investment
activities to the extent such activities do not materially conflict or interfere
with the Executive's duties and obligations under this Agreement or the
Executive's ability to perform his duties and responsibilities under this
Agreement. The Corporation recognizes that the Executive is not employed on a
full time basis and has outside business interests whereby the Executive may
serve in the capacity of officer and/or director of other public and/or private
entities pursuant to Section 6.
2. TERM. The "Term" shall, unless sooner terminated as provided herein, be
a period of two (2) years commencing on the Effective Date and ending at the
close of business on the day before the second anniversary of the Effective Date
(day before the second anniversary of the Effective Date is referred to as the
"Initial Extension Date"). Notwithstanding the preceding sentence, on Initial
Extension Date and on each annual anniversary of the Initial Extension Date (the
Initial Extension Date and each annual anniversary thereof is referred to as an
"Extension Date"), the Term shall be automatically extended through and shall
end with the close of business on the first (1st) anniversary of that Extension
Date (for example, on the Initial Extension Date, the Period of Employment shall
be automatically extended through the close of business on the day before the
third anniversary of the Effective Date), unless at least sixty (60) days prior
to such Extension Date, the Corporation or the Executive has provided the other
with written notice that the Term shall not be extended or further extended, as
the case may be. The term "Term" shall include any extension thereof pursuant to
the preceding sentence. Provision of notice that the Term shall not be extended
or further extended, as the case may be, shall not constitute a breach of this
Agreement, and shall not entitle the Executive to severance benefits pursuant to
Section 7.
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3. COMPENSATION.
3.1 BASE SALARY. As compensation in full for the services to be rendered by
the Executive under this Agreement during the Term, the Corporation shall pay to
the Executive a base salary (the "Base Salary") at a monthly rate of Five
Thousand Dollars ($5,000) per month, which Base Salary shall be paid in
accordance with the Corporation's normal payroll procedures and policies. The
Base Salary shall be subject to annual upward (but not downward) adjustments as
shall be approved by the Compensation Committee of the Board (the "Committee")
based upon the extent of the Corporation and the Executive's activities.
3.2 BONUS COMPENSATION. The Corporation shall pay the Executive bonus
compensation in addition to the Executive's Base Salary as determined by the
Committee.
3.3 PARTICIPATION IN BENEFIT PLANS. During the Term, the Executive shall
also be entitled to participate in all employee benefit plans or programs of the
Corporation to the extent that his position, title, tenure, salary, age, health
and other qualifications make him eligible to participate in accordance with the
terms of the applicable plans or programs. The Corporation intends to implement
an employee stock option plan, and Executive shall be eligible to receive awards
of stock options, restricted stock, restricted stock units, stock appreciation
rights, performance units and performance shares or other equity awards pursuant
to the employee stock option plan or any other arrangements the Company may have
in effect from time to time. The Board or the Committee will determine in its
discretion the amount of any such award to Executive in accordance with the
terms of the employee stock option plan in effect at the time of grant.
3.4 WITHHOLDING TAXES. The Corporation may withhold from any compensation
or other benefits payable under this Agreement, all federal, state, city or
other taxes as shall be required to be withheld pursuant to any law or
governmental regulation or ruling.
4. CONFIDENTIAL INFORMATION. Except as provided below, the Executive shall
not, during the Term or at any time thereafter, divulge, furnish or make
accessible to anyone or use in any way (other than in the ordinary course of the
business of the Corporation or any of its respective affiliates) any
confidential or secret knowledge or information of the Corporation which the
Executive has acquired or become acquainted with or will acquire or become
acquainted with prior to the termination of the period of his employment by the
Corporation (including employment by the Corporation or any affiliated or
predecessor companies prior to the date of this Agreement), whether developed by
himself or by others, concerning any trade secrets, confidential or secret
designs, processes, formulae, plans, devices or material (whether or not
patented or patentable) directly or indirectly useful in any aspect of the
business of the Corporation, any customer or supplier lists of the Corporation,
any confidential or secret development or research work of the Corporation, or
any other confidential information or secret aspects of the business of the
Corporation. The Executive acknowledges that the above-described knowledge or
information constitutes a unique and valuable asset of the Corporation and
represents a substantial investment of time and expense by the Corporation, and
that any disclosure or other use of such knowledge or information other than for
the sole benefit of the Corporation and its affiliates would be wrongful and
would cause irreparable harm to the Corporation. Both during and after the Term,
the Executive shall refrain from any acts or omissions that would reduce the
value of such knowledge or information to the Corporation. The foregoing
obligations of confidentiality, however, shall not apply to any knowledge or
information which is now published or which subsequently becomes generally
publicly known, other than as a direct or indirect result of the breach of this
Agreement by the Executive. The foregoing obligations of confidentiality shall
not, however, limit the Executive's disclosure of information (1) to the extent
necessary to comply with government disclosure requirements or other applicable
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laws, (2) pursuant to subpoena or order of any judicial, legislative, executive,
regulatory or administrative body, or for the Executive to enforce the
Executive's rights under this Agreement, (3) to employees, advisors, counsel,
financial advisors and other third parties as may be necessary and appropriate
in connection with the proper performance and enforcement of this Agreement; and
(4) pursuant to the Executive's normal reporting procedures as an executive of a
publicly traded company (e.g., pursuant to Xxxxxxxx-Xxxxx requirements or
otherwise).
5. VENTURES. If, during the Term, the Executive is engaged in or associated
with the planning or implementing of any project, program or venture involving
the Corporation and a third party or parties, all rights with respect to such
project, program or venture shall belong to the Corporation. Except as approved
by the Board, the Executive shall not be entitled to any interest in such
project, program or venture or to any commission, finder's fee or other
compensation in connection therewith other than the salary to be paid to the
Executive as provided in this Agreement.
6. NONCOMPETITION COVENANT.
6.1 AGREEMENT NOT TO COMPETE. The Executive agrees that during the Term of
this Agreement and for a period of six (6) months thereafter, such six (6)
months not being applicable if the end of the Term is occasioned by a decision
by the Corporation not to renew the Agreement, the Executive shall not, without
the written consent of the Board, directly or indirectly, engage in competition
with the Corporation in any manner or capacity (e.g., as an advisor, principal,
agent, partner, officer, director, stockholder, employee, member of any
association, or otherwise) in any phase of the business which the Corporation is
conducting during the Term, as it relates to the exploration, development and
mining of tungsten, where tungsten is the main mineralization deposit; provided,
however, that nothing herein shall prevent the Executive from investing as a
less-than-five-percent (5%) stockholder in the securities of any company.
6.2 SCOPE OF COVENANT. The obligations of the Executive under Section 6.1
shall apply to any geographic area in which the Corporation has engaged in
business during the Term.
6.3 NON-SOLICITATION. The Executive agrees that during the Term and for a
period of twenty-four (24) months thereafter, he will not, without the prior
written approval of the Board, hire, solicit or endeavor to entice away from the
Corporation or, following termination of the Executive's employment, otherwise
interfere with the relationship of the Corporation with any employee of the
Corporation or one of its subsidiaries who earned annually $50,000 or more as an
employee of the Corporation or one of its subsidiaries during the last twelve
months of the Executive's own employment by the Corporation, or any person or
entity who was, within the then most recent prior 12-month period, a customer,
supplier or contractor of the Corporation or any of its affiliates.
7. TERMINATION.
7.1 TERMINATION OF EMPLOYMENT. The Executive's employment by the
Corporation, and the Term, may be terminated at any time during the Term by the
Corporation: (1) with Cause (as such term is defined below), or (2) without
Cause, or (3) in the event of the Executive's death, or (4) in the event of the
Executive's Disability (as such term is defined below) (in the case of
Disability, the termination shall be effective ten (10) days after notice
thereof is given to the Executive). The Executive's employment by the
Corporation, and the Term, may be terminated at any time during the Term by the
Executive, on no less than sixty (60) days prior written notice to the
Corporation. After the expiration of the Term, the Board may continue the
employment of the Executive and the Executive may accept the employment on an
at-will basis.
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7.2 BENEFITS UPON TERMINATION. If the Executive's employment by the
Corporation is terminated during the Term for any reason by the Corporation or
by the Executive, or upon or following the expiration of the Term, the
Corporation shall have no further obligation to make or provide to the
Executive, and the Executive shall have no further right to receive or obtain
from the Corporation, any payments or benefits except:
(a) the Corporation shall pay the Executive (or, in the event of his
death, the Executive's estate) any Accrued Obligations; and
(b) if, during the Term (but not upon or following the expiration of the
Term), the Executive's employment is terminated either by the
Corporation or the Executive due to the death or Disability of the
Executive, by the Corporation other than for Cause (as such term is
defined below), the Corporation shall, subject to the conditions set
forth in the following paragraph, also pay the Executive (or, in the
event of the Executive's death, the Executive's estate) a severance
benefit equal to three months of Base Salary. Subject to the
conditions set forth in the following paragraph, the aggregate amount
of such severance benefit shall be paid in a series of twelve (12)
substantially equal monthly installments (without interest, with each
installment equal to approximately 1/12th of the aggregate amount of
the severance benefit) commencing with the month following the month
in which the Executive's employment by the Corporation terminates and
continuing for the following eleven months until paid in full (subject
to the Executive's compliance with the following paragraph and the
provisions of Section 6); and
(c) if, during the Term (but not upon or following the expiration of the
Term), the Executive's employment is terminated by the Corporation
without Cause (and, in each case, other than due to either (1) the
Executive's death, or (2) a good faith determination by the Board that
the Executive has a Disability), the Corporation shall, subject to the
conditions set forth in the following paragraph, also pay the
Executive a one-time lump sum amount equal to three (3) months of Base
Salary.
As a condition precedent to any Corporation obligation to the Executive pursuant
to Section 7.2(b) or (c) above, the Executive (or, in the event of his death,
the Executive's estate on behalf of the Executive) shall, upon or promptly
following his last day of employment with the Corporation, provide the
Corporation with a valid, executed, written Release (as such term is defined
below) (in a form provided by the Corporation) and such release shall have not
been revoked by the Executive pursuant to any revocation rights afforded by
applicable law. The Corporation shall have no obligation to make any payment to
the Executive pursuant to Section 7.2(b) or (c) above unless and until the
Release contemplated by this paragraph becomes irrevocable by the Executive in
accordance with all applicable laws, rules and regulations.
The Executive agrees that the payments contemplated by Section 7.2 shall
constitute the exclusive and sole remedy for any termination of his employment
and the Executive covenants not to assert or pursue any other remedies, at law
or in equity, with respect to any termination of employment. The Corporation and
Executive acknowledge and agree that there is no duty of the Executive to
mitigate damages under this Agreement. All amounts paid to the Executive
pursuant to Section 7.2 shall be paid without regard to whether the Executive
has taken or takes actions to mitigate damages.
The foregoing provisions of this Section 7.2 shall not affect any rights that
the Executive may have under and with respect to a stock option or restricted
stock award, to the extent that such award was granted before the date that the
Executive's employment by the Corporation terminates and to the extent expressly
provided in the written agreement evidencing such award.
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7.3 CERTAIN DEFINED TERMS.
As used herein, "Accrued Obligations" means:
* any Base Salary that had accrued but had not been paid prior to the
date of termination; and
* any reimbursement of reasonable business expenses incurred by the
Executive prior to the termination of the Executive's employment and
in accordance with the Corporation's expense reimbursement policies
and which had not previously been paid.
As used herein, "Cause" means:
* The Executive's willful and material failure to perform his duties
hereunder (other than any such failure due to the Executive's physical
or mental illness), or the Executive's willful and material breach of
his obligations hereunder;
* The Executive's engaging in willful and serious misconduct that has
caused or is reasonably expected to result in material injury to the
Corporation;
* The Executive's being convicted of, or entering a plea of guilty or
nolo contendre to, a crime that constitutes a felony; or
* The Executive's failure or inability to obtain or retain any license
required to be obtained or retained by him in any jurisdiction in
which the Corporation does or proposes to do business.
As used herein, "Disability" means a physical or mental impairment which
substantially limits a major life activity of the Executive and which renders
the Executive unable to perform the essential functions of the Executive's
position, even with reasonable accommodation which does not impose an undue
hardship on the Corporation, for ninety (90) days in any consecutive one-hundred
eighty (180) day period. The Board reserves the right, in good faith, to make
the determination of whether or not a Disability exists for purposes of this
Agreement based upon information supplied by the Executive and/or his medical
personnel, as well as information from medical personnel (or others) selected by
the Corporation or its insurers.
As used herein, "Release" shall mean a written release, discharge and covenant
not to xxx entered into by the Executive on behalf of himself, his descendants,
dependents, heirs, executors, administrators, assigns, and successors, and each
of them, of and in favor of the Corporation, its parent (if any), the
Corporation's subsidiaries and affiliates, past and present, and each of them,
as well as its and their trustees, directors, officers, agents, attorneys,
insurers, employees, stockholders, members, representatives, assigns, and
successors, past and present, and each of them (the "releases"), with respect to
and from any and all claims, wages, demands, rights, liens, agreements,
contracts, covenants, actions, suits, causes of action, obligations, debts,
costs, expenses, attorneys' fees, damages, judgments, orders and liabilities of
whatever kind or nature in law, equity or otherwise, whether now known or
unknown, suspected or unsuspected, and whether or not concealed or hidden, which
he may then own or hold or he at any time theretofore owned or held or may in
the future hold as against any or all of said releases, arising out of or in any
way connected with the Executive's employment relationship with the Corporation
and each of its subsidiaries with which the Executive has had such a
relationship, or the termination of his employment or any other transactions,
occurrences, acts or omissions or any loss, damage or injury whatever, known or
unknown, suspected or unsuspected, resulting from any act or omission by or on
the part of said releases, or any of them, committed or omitted prior to the
date of such release including, without limiting the generality of the
foregoing, any claim under Section 1981 of the Civil Rights Act of 1866, Title
VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act,
the Americans with Disabilities Act, the Family and Medical Leave Act of 1993,
the California Fair Employment and Housing Act, the California Family Rights
Act, any other claim under any other federal, state or local law or regulation,
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and any other claim for severance pay, bonus or incentive pay, sick leave,
holiday pay, vacation pay, life insurance, health or medical insurance or any
other fringe benefit, medical expenses, or disability (except that such release
shall not constitute a release of any Corporation obligation to the Executive
that may be due to the Executive pursuant to Section 7.2(b) or (c), as
applicable, upon the Corporation's receipt of such release or any obligations
referred to in the last paragraph of Section 7.2). The Release shall also
contain the Executive's warrant that he has not theretofore assigned or
transferred to any person or entity, other than the Corporation, any released
matter or any part or portion thereof and that he will defend, indemnify and
hold harmless the Corporation and the aforementioned releases from and against
any claim (including the payment of attorneys' fees and costs actually incurred
whether or not litigation is commenced) that is directly or indirectly based on
or in connection with or arising out of any such assignment or transfer made,
purported or claimed.
7.4 RESIGNATION FROM BOARD. Upon or promptly following any termination of
Executive's employment with the Corporation, the Executive agrees to resign from
(1) each and every board of directors (or similar body, as the case may be) of
the Corporation and each of its affiliates on which the Executive may then serve
(if any), and (2) each and every office of the Corporation and each of its
affiliates that the Executive may then hold, and all positions that he may have
previously held with the Corporation and any of its affiliates.
7.5 MEANS AND EFFECT OF TERMINATION. Any termination of the Executive's
employment under this Agreement shall be communicated by written notice of
termination from the terminating party to the other party. The notice of
termination shall indicate the specific provision(s) of this Agreement relied
upon in effecting the termination.
8. MISCELLANEOUS.
8.1 GOVERNING LAW. This Agreement and all rights and obligations hereunder,
including, without limitation, matters of construction, validity and
performance, is made under and shall be governed by and construed in accordance
with the internal laws of the State of Nevada, without regard to principles of
conflict of laws.
8.2 AMENDMENTS. No amendment or modification of this Agreement shall be
deemed effective unless made in writing and signed by all of the parties hereto.
8.3 NO WAIVER. No term or condition of this Agreement shall be deemed to
have been waived, nor shall there be any estoppel to enforce any provisions of
this Agreement, except by a statement in writing signed by the party against
whom enforcement of the waiver or estoppel is sought. Any written waiver shall
not be deemed a continuing waiver unless specifically stated, shall operate only
as to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than that
specifically waived.
8.4 SEVERABILITY. To the extent any provision of this Agreement shall be
invalid or unenforceable, it shall be considered deleted herefrom and the
remainder of such provision and of this Agreement shall be unaffected and shall
continue in full force and effect. In furtherance and not in limitation of the
foregoing, should the duration or geographical extent of, or business activities
covered by, any provision of this Agreement be in excess of that which is valid
and enforceable under applicable law, then such provision shall be construed to
cover only that duration, extent or activities which may validly and enforceably
be covered. The Executive acknowledges the uncertainty of the law in this
respect and expressly stipulates that this Agreement be given the construction
which renders its provisions valid and enforceable to the maximum extent (not
exceeding its express terms) possible under applicable law.
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8.5 ASSIGNMENT. This Agreement shall not be assignable, in whole or in
part, by either party without the written consent of the other party.
8.6 INJUNCTIVE RELIEF. Each party agrees that it would be difficult to
compensate the non-breaching party fully for damages for any violation of any
provision set forth in Section 4 or Section 6 hereof. Accordingly, each party
specifically agrees that the other party shall be entitled to temporary and
permanent injunctive relief to enforce the provisions of Sections 4 and 6 of
this Agreement and that such relief may be granted without the necessity of
proving actual damages. This provision with respect to injunctive relief shall
not, however, diminish the right of the non-breaching party to claim and recover
damages in addition to injunctive relief.
8.7 ARBITRATION. Any controversy or claim arising out of or relating to
this Agreement or the Executive's employment by the Corporation shall, except
for claims for injunctive relief set out in paragraph 8.6 above, be settled by
binding arbitration, with a single neutral arbitrator, in accordance with the
rules of the American Arbitration Association relating to employment. In any
action to enforce this Agreement, the Executive and the Corporation each agree
to accept service of process by mail at its address, as applicable, as set forth
in Section 8.8 below (or at any different address of which the Executive has
notified the Corporation, or the Corporation has notified the Executive, as
applicable, in writing). In any action in which service is made pursuant to this
paragraph, the Executive and the Corporation each waive any challenge to the
personal jurisdiction of the American Arbitration Association. Any judgment on
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. In reaching his or her decision, the arbitrator shall have
no authority to change or modify any provision of this Agreement.
8.8 NOTICES. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given and made if (1) delivered by hand, (2) otherwise
delivered against receipt therefor, or (3) sent by registered or certified mail,
postage prepaid, return receipt requested. Any notice shall be duly addressed to
the parties as follows:
If to the Corporation:
Tungsten Corp.
0000 XX 000 Xxxx
Xxxxx, Xxxxxxx 00000
With a copy to: Each member of the Board by electronic mail at such address
as such member shall provide to the Corporation for
receiving Board notices.
If to the Executive:
Xxx Xxxxxx
0000 XX 000 Xxxx
Xxxxx, Xxxxxxx 00000
Any party may alter the address to which communications or copies are to be sent
by giving notice of such change of address in conformity with the foregoing
provisions. Any communication shall be effective when delivered by hand, when
otherwise delivered against receipt therefor, or five (5) business days after
being mailed in accordance with the foregoing.
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8.9 SECTION HEADINGS. The section headings of, and titles of paragraphs and
subparagraphs contained in, this Agreement are for the purpose of convenience
only, and they neither form a part of this Agreement nor are they to be used in
the construction or interpretation thereof.
8.10 PROVISIONS THAT SURVIVE TERMINATION. The provisions of Sections 3.4,
4, 5, 6, 7 and 8 shall survive any termination of the Term.
8.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original as against any party
whose signature appears thereon, and all of which together shall constitute one
and the same instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all of the parties reflected hereon as the signatories. Facsimiles and
electronic copies in portable document format ("PDF") containing original
signatures shall be deemed for all purposes to be originally signed copies of
the documents that are the subject of such facsimiles or PDF versions.
8.12 ENTIRE AGREEMENT. This Agreement embodies the entire agreement of the
parties hereto respecting the matters within its scope. This Agreement
supersedes all prior and contemporaneous agreements of the parties hereto that
directly or indirectly bears upon the subject matter hereof. Any prior
negotiations, correspondence, agreements, proposals or understandings relating
to the subject matter hereof shall be deemed to have been merged into this
Agreement, and to the extent inconsistent herewith, such negotiations,
correspondence, agreements, proposals, or understandings shall be deemed to be
of no force or effect. There are no representations, warranties, or agreements,
whether express or implied, or oral or written, with respect to the subject
matter hereof, except as expressly set forth herein.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the Executive and the Corporation have executed this
Agreement as of the date set forth in the first paragraph.
TUNGSTEN CORP. EXECUTIVE
By: /s/ Xxxxxxx Xxxxxx /s/ Xxx Xxxxxx
---------------------------------- ----------------------------------
Xxxxxxx Xxxxxx Xxx Xxxxxx
Its: Vice President
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