EXHIBIT 10.63
EMPLOYMENT AGREEMENT
AGREEMENT dated as of the 1st day of February, 2003 between Global Gold
Corporation, a Delaware corporation (the "Corporation"), and Van X. Xxxxxxxxx,
an individual residing at 0 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000 (the
"Employee") (the "Agreement").
W I T N E S S E T H :
WHEREAS, the Corporation needs the active service of the Employee in light
of the Corporation's renewed efforts to obtain and exploit gold mining projects;
WHEREAS, the Corporation and the Employee desire to enter into an
employment agreement on the terms and conditions hereinafter set forth;
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 Vice President and General
Counsel and, in such capacity, to be responsible for negotiation of
contracts, acquisition of properties in foreign countries, review of
legal work and participation in governmental relations. 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 60% of his available business time to
the performance of his duties hereunder, or 1,200 hours per each
12-month period. The Employee may provide services to other
organizations, on a compensation or pro xxxx basis, provided that such
services do not constitute more than 40% of his available business
time.
2. TERM. The term of this Agreement shall be for a period of three years
and one month commencing on June 1, 2003 (or such other date as mutually agreed
by the parties) and ending on June 30, 2006, 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 transfer and
deliver to the Employee as base compensation for the term of this
Agreement a total of 900,000 shares of its common stock pursuant to
the terms of the Restricted Stock Award attached hereto as Exhibit A,
which have a fair market value of $0.05 per share as determined by the
Corporation as of the date hereof (the "Restricted Stock Award"). In
addition to the foregoing, the Corporation shall pay to the Employee,
as base compensation, the sum of $100,000 for each 12-month period
commencing on and after June 1, 2003 during the term of this
Agreement, payable in equal monthly installments of $8,333.33 on the
15th day of each month, provided that the Corporation shall not be
required to make such payment if the Corporation lacks the financial
resources or adequate cash flow to do so, as determined by the Board
of Directors of the Corporation pursuant to a unanimous written
consent. If such sum of $100,000 or portion thereof is not paid when
due, such sum in question shall accrue without interest, but any sum
accrued during the 12-month period ended June 30, 2004 shall become
due and payable on June 30, 2005, and any sum due accrued during the
period ended June 30, 2005 or June 30, 2006 shall become due and
payable on June 30, 2006.
(b) Bonus Compensation. In addition to the foregoing compensation, the
Employee shall be entitled to receive annual bonus compensation
("Annual Bonus") in an amount determined in 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. Any Annual Bonus shall be subject to all applicable tax
withholdings.
(c) In the event that the Employee voluntarily elects not to work 60% 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 1,200 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 2.95 times the Employee's average
annual compensation paid by the Company within the meaning of
Section 280(G)(d)(1) of the Internal Revenue Code of 1986, as
amended, during the four-year period (or, if he has worked less
than four 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 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
within 30 days after the occurrence of a Change of Control.
(ii) (A) 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.
(B) (1) Notwithstanding anything contained in this Section 3(d)
to the contrary, a "Change of Control" shall be deemed to
occur upon
(a) (i) the sale of all or substantially all of the Corporation's
assets or (y) a merger (including a merger in which the
Corporation is the surviving corporation) or consolidation of the
Corporation with one or more corporations or entities, as a
result of which in each such case the Corporation's voting
securities outstanding immediately before such sale, merger or
consolidation represent less than 50% of the combined voting
power of voting securities of the Corporation or the surviving
entity outstanding immediately after such sale, merger or
consolidation; or
(ii) any "person", as such term is used in Section 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") or persons acting in concert (other than Xxxxx X.
Xxxxxxxxx, Xxxxxx X. Xxxxxxxx, Van X. Xxxxxxxxx or any of their
affiliates) become the "beneficial owner" or "beneficial owners"
(as defined in Rule 13d-3 under the Exchange Act, or any
successor rule or regulation thereto as in effect from time to
time), directly or indirectly, of the Corporation's securities
representing more than 50% of the combined voting power of the
Corporation's then outstanding securities, pursuant to a plan of
such person or persons to acquire such a controlling interest in
the Company, whether pursuant to a merger (including a merger in
which the Corporation is the surviving corporation), an
acquisition of securities or otherwise, except that this Section
3(d)(ii)(B)(1)(a)(ii) shall not apply to any person who provides
financing to the Corporation or any of their affiliates, pursuant
to a private placement transaction or otherwise; and
(b) a transaction shall not constitute a Change of Control if its
sole purpose is to change the state of the Corporation's
incorporation or to create a holding company that will be owned
in substantially the same proportions by the persons who held the
Corporation's securities immediately before such transaction.
4. WORKING FACILITIES. The Corporation shall not be required to provide an
office for the Employee for the performance of his services hereunder, but will
provide such other facilities and services commensurate with his position as
Vice President and General Counsel of the Corporation, as are reasonably
necessary for the performance of his duties hereunder, as determined by the
Board of Directors of the Corporation.
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
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 for Cause (as defined herein) only by the
affirmative vote of 100% 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 (each of which is defined as
"Cause"):
(i) Wrongful 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 involving the
Corporation or moral turpitude;
(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;
(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 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 (exclusive of
any benefit under the Restricted Stock Award). 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).
(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 death benefit payable to the
Employee under this Agreement (exclusive of any benefit under the
Restricted Stock Award) 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.
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 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)
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) within 15 days
after their appointment, 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 in the City 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 receive the same, if to the Corporation, Global
Gold Corporation, c/o Xxxxxx X. Xxxxxxxx, 00 Xxxxx Xxxxxxx Xxxx,
Xxxxxx, Xxxxxxxxxxx 00000, facsimile number (000)-000-0000, with
a copy to Law Offices of Xxxxxxx X. Field, 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxx X. Field, Esq., facsimile
number (000)-000-0000; and if to the Employee, Mr. Van X.
Xxxxxxxxx, 0 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx, 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 determined without regard to
conflicts of law principles.
(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 parties
hereunder shall not be assigned except with the written consent
of all parties hereto.
(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 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.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxx, President and
Chief Financial Officer
/s/ Van X. Xxxxxxxxx
--------------------
Van X. Xxxxxxxxx
EXHIBIT A
Global Gold Corporation
000 Xxxxxxxx Xxxxxx, Xx. 000
Xxxxxx Xxxx, Xxx Xxxx 00000-0000
June 1, 2003
Mr. Van X. Xxxxxxxxx
0 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Re: Restricted Stock Award
Dear Xx. Xxxxxxxxx:
As an inducement for your rendering of services to the Company, we hereby
grant you 900,000 shares of the Common Stock of the Company, evidenced by a
certificate of shares of our common stock, $.001 par value per share (the
"Shares"), subject to applicable securities law restrictions and the terms and
conditions set forth herein:
1. You shall be required to spend at least 60% of your business time (1,200
hours for each 12-month period) in connection with the responsibility assigned
to you (or to be assigned to you) by the Board of Directors of the Company in
promoting the business of the Company pursuant to your employment agreement with
the Company.
2. For the first seven-month period commencing with the date hereof within
which you render the services provided herein, you shall become fully vested in
18.92% of the total Shares granted hereunder. For each six-month period
thereafter commencing on January 1, 2004 through June 30, 2006, you shall become
fully vested in 16.216% of the total Shares granted hereunder. Thus, if you
complete 19 and 37 months of service as provided hereunder, you shall be 51.35%
and 100% vested, respectively, in the Shares granted hereunder.
3. In the event of your termination of your employment on or before the
expiration of the initial seven-month period commencing with the date hereof or
any subsequent six-month period thereafter during the 37-month period commencing
with June 1, 2003 for any reason, you shall forfeit all right, title and
interest in and to any of the Shares granted hereunder which have not become
vested in you, without any payment by the Company therefore.
4. (a) Any Shares granted hereunder are not transferable and cannot be
assigned, pledged, hypothecated or disposed of in any way until they become
vested, and may be transferred thereafter in accordance with applicable
securities law restrictions. Any attempted transfer in violation of the Section
shall be null and void.
(b) Notwithstanding anything contained in this Agreement to the contrary,
after you become vested in any of the Shares granted hereunder, no sale,
transfer or pledge thereof may be effected without an effective registration
statement or an opinion of counsel for the Company that such registration is not
required under the Securities Act of 1933, as amended, and any applicable state
securities laws.
5. During the period commencing with the date hereof and prior to your
forfeiture of any of the Shares granted hereunder, you shall have all right,
title and interest in and to the Shares granted hereunder, including the right
to vote the Shares and receive dividends or other distributions with respect
thereto.
6. You shall be solely responsible for any and all Federal, state and local
income taxes arising out of your receipt of the Shares and your future sale of
other disposition of them.
7. 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, without
regard to its conflicts of law principles. All parties hereto (i) agree that any
legal suit, action or proceeding arising out of or relating to this Agreement
shall be instituted only in a Federal or state court in the City of New York in
the State of New York, (ii) waive any objection which they may now or hereafter
have to the laying of the venue of any such suit, action or proceeding, and
(iii) irrevocably submit to the exclusive jurisdiction of any Federal or state
court in the City of New York in the State of New York, in any such suit, action
or proceeding, but such consent shall not constitute a general appearance or be
available to any other person who is not a party to this Agreement. All parties
hereto agree that the mailing of any process in any suit, action or proceeding
at the addresses of the parties shown herein shall constitute personal service
thereof.
8. 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.
9. This Agreement and all the terms and provisions hereof shall be binding
upon and shall inure to the benefit of the parties and their respective heirs
and successors and, in the case of the Company, its assigns.
10. This Agreement may not be amended except in a writing signed by all of
the parties hereto.
11. Nothing contained herein shall be construed to create an employment
agreement between the Company and you or require the Company to employ or retain
you under such a contract or otherwise.
12. Notwithstanding anything contained this in Agreement to the contrary:
(a) the Shares shall become fully vested upon the occurrence of a Change of
Control (as defined in this Section 12), which shall occur upon
(i) (x) the sale of all or substantially all of the Company's assets
or (y) a merger (including a merger in which the Company is the surviving
corporation) or consolidation of the Company with one or more corporations
or entities, as a result of which in each such case the Company's voting
securities outstanding immediately before such sale, merger or
consolidation represent less than 50% of the combined voting power of
voting securities of the Company or the surviving entity outstanding
immediately after such sale, merger or consolidation; or
(ii) any "person", as such term is used in Section 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") or
persons acting in concert (other than Xxxxx X. Xxxxxxxxx, Xxxxxx X.
Xxxxxxxx, Van X. Xxxxxxxxx or any of their affiliates) become the
"beneficial owner" or "beneficial owners" (as defined in Rule 13d-3 under
the Exchange Act, or any successor rule or regulation thereto as in effect
from time to time), directly or indirectly, of the Company's securities
representing more than 50% of the combined voting power of the Company's
then outstanding securities, pursuant to a plan of such person or persons
to acquire such a controlling interest in the Company, whether pursuant to
a merger (including a merger in which the Company is the surviving
corporation), an acquisition of securities or otherwise, except that this
Section 12(a)(ii) shall not apply to any person who provides financing to
the Company or any of their affiliates, pursuant to a private placement
transaction or otherwise; and
(b) a transaction shall not constitute a Change of Control if its sole
purpose is to change the state of the Company's incorporation or to create a
holding company that will be owned in substantially the same proportions by the
persons who held the Company's securities immediately before such transaction.
(c) the Shares shall become fully vested upon your death or upon your
becoming disabled, which shall mean you shall have been unable to render all of
your duties 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 Company.
13. In the event of any conflict between the terms of this Agreement and of
the Amended and Restated Employment Agreement, the provisions contained in this
Agreement shall control.
If this letter accurately reflects our understanding, please sign the
enclosed copy of this letter at the bottom and return it to us.
Very truly yours,
Global Gold Corporation
By:/s/ Xxxxx X. Xxxxxxxxx
-------------------------
Xxxxx X. Xxxxxxxxx, Chairman and
Chief Executive Officer
Agreed:
/s/ Van X. Xxxxxxxxx
--------------------
Van X. Xxxxxxxxx
