EMPLOYMENT AGREEMENT
EXHIBIT
10.2
This
Employment Agreement (this “Agreement”), between Standard Gold, Inc., a Colorado
corporation (the “Company”), and Xxxxxxx X.
Xxxxxxxx, a Colorado resident (the “Executive”) is entered into
effective April 1, 2010 (the “Effective Date”).
INTRODUCTION
The
Company desires to employ Executive, and Executive desires to be employed by the
Company as the Company’s President pursuant to the terms of this
Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the
Company and Executive, each intending to be legally bound, hereby agree as
follows:
1. Employment. Subject
to all of the terms of this Agreement, the Company hereby agrees to employ
Executive, and Executive hereby accepts such employment as President and agrees
to serve the Company with undivided loyalty and to the best of his
ability.
2. Term.
(a) Initial
Term. The “Initial Term” of the
Executive’s employment shall commence on the Effective Date and shall continue
for a period of twelve (12) consecutive calendar months as an at-will employment
relationship or until the date the Executive’s employment terminates pursuant to
Section 10 hereof.
(b) Additional
Term. After the Initial Term, and unless Executive’s
employment has been terminated pursuant to Section 10 or either party has
provided to the other party 30-days’ written notice prior to the end of the
Initial Term or any Additional Term that such party does not wish to extend the
Agreement, the term of this Agreement shall be renewed automatically for
successive one-year terms (each an “Additional Term”, and
collectively with the Initial Term, the “Term”).
3. Duties. Executive
shall serve as the Company’s President and shall report to and perform, subject
to the direction of the Company’s Board of Directors (the “Board”) and Chief Executive
Officer (the “CEO”), duties that are usual, customary and in a manner reasonably
expected of a President (including attending meetings of the Board of Directors)
and as otherwise may be directed by the Board from time to time. It is
specifically understood and agreed that Executive may continue his limited part
time consulting for Cronus Resources Ltd (CZR on TSXv as Director re gold in
Columbia), Eureka Properties LLC (private investment in rural Utah land),
Oriental Minerals Inc (OTL on TSXv re tungsten/moly/gold in Korea), and Wits
Basin Precious Metals Inc. or undertake new part-time directorships, provided
that (i) such endeavors shall not interfere with the terms of this Agreement,
including without limitation Sections 7 and 8 and (ii) Executive shall provide
the Company prior written notice of any directorships Executive intends to
accept during the Term.
4. Compensation. During
the Term, the Executive shall receive the following (collectively, the “Compensation”):
(a) Base
Salary. In consideration for Executive’s services under this
Agreement, the Company hereby agrees to pay Executive base compensation of
$10,000 per month (the “Base
Salary”) (or prorated for ay lesser portion of a month), payable in
advance on the first day of each month during the Term hereof commencing April
1, 2010.
(b) Bonus. Subject
to the discretion of the Compensation Committee of the Board, Executive shall be
eligible to receive an annual bonus (the “Bonus”) based upon his
performance on behalf of the Company during any calendar year during the Term,
such Bonus payable within 90 days following the end of such calendar
year. The Bonus, if any is declared, shall be payable by the Company
in the form of cash or through the issuance of stock, as determined by the
Company in its sole discretion.
(c) Options. Subject
to the approval of the Board, the Company shall grant Executive a ten-year
option to purchase up to 800,000 shares of the Company’s common stock (the
“Option”), at an
exercise price equal to the Fair Market Value of the Company’s stock on the OTC
Bulletin Board on the date of grant. The Option shall vest ratably in
three equal annual installments commencing on the date of grant and then on each
of the first and second annual anniversaries thereof, subject to acceleration
(i) at such time as the Fair Market Value of the Company’s stock remains above
$3 for 30 consecutive days, (ii) upon Executive’s death, (iii) upon a
Change of Control of the Company, or (iv) upon the Company’s termination of
Executive for any reason other than Cause (as defined in Section
10(b)). The Option shall further include other standard terms as set
forth in a stock option agreement to be entered into by Executive and the
Company. For purposes of this Agreement, “Fair Market Value” shall mean:
(i) if the Company’s common stock is listed on an exchange or quoted on an
over-the-counter market (including the OTC Bulletin Board), the closing price of
such common stock on such date; or (ii) if the Company’s common stock is
not listed on an exchange or quoted on an over-the-counter market, the fair
market value of such common stock as determined by the Board, acting in good
faith utilizing customary business valuation criteria and methodologies (without
discount for lack of marketability or minority interest). For
purposes of this Agreement, “Change of Control” shall mean
(i) the acquisition, directly or indirectly, following the date hereof by any
person, in one transaction or a series of related transactions, of securities of
the Company representing in excess of 50% or more of the combined voting power
of the Company’s then outstanding securities if such person or his or its
affiliates do not own in excess of 50% of such voting power on the date of this
Agreement, or (ii) the future disposition by the Company, whether direct or
indirect, by sale of assets or stock, merger, consolidation or otherwise, of all
or substantially all of the Company’s business and/or assets in one transaction
or series of related transactions (other than a merger effected exclusively for
the purpose of changing the domicile of the Company).
5. Benefits. During
the Term, Executive shall be entitled to the employee benefits as provided by
the Company (the “Benefits”). The Company
reserves the right, in its sole discretion, to alter the terms of such benefits
at any time and from time to time.
6. Reimbursement. The
Company shall reimburse Executive for reasonable out-of-pocket business expenses
incurred by Executive (“Expenses”) on the Company’s
behalf or in relation to performance of his duties, including but not limited to
expenses for travel, lodging, meals, materials, blackberry, long distance phone
charges, fedex, and supplies. Notwithstanding the foregoing,
Executive must provide the Company receipts for such Expenses and properly
account to the Company all such Expenses in accordance with the rules and
regulations of the Internal Revenue Service under the Internal Revenue Code of
1986, as amended, and in accordance with any standard policies of the Company
relating to reimbursement of Expenses as such policies exist or may be
implemented in the future.
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7. Confidentiality. Except
as specifically permitted by an authorized officer of the Company or by written
Company policies, Executive will not, either during or after his employment by
the Company, use Confidential Information (as defined below) for any purpose
other than the business of the Company or disclose it to any person who is not
also an executive of the Company unless authorized by the Board. When
Executive’s employment with the Company ends, Executive will (upon written
request from the Company) promptly deliver to the Company or destroy, at the
option of the Company, all records and any compositions, articles, devices,
apparatuses and other items that disclose, describe, or embody Confidential
Information, including all copies, reproductions, and specimens of the
Confidential Information in Executive’s possession, regardless of who prepared
them and will promptly deliver any other property of the Company in Executive’s
possession, whether or not Confidential Information. As used in this Section 7,
“Confidential
Information” means information that is not generally known and that is
proprietary to the Company or that the Company is obligated to treat as
proprietary, including information known by Executive prior to the Effective
Date. Any information that Executive reasonably considers Confidential
Information, or that the Company treats as Confidential Information, will be
presumed to be Confidential Information (whether the Executive or others
originated it and regardless of how the Executive obtained it). The
terms of this provision shall survive any termination or expiration of this
Agreement.
8. Restrictive
Covenants.
(a) Non-Solicitation. Executive
agrees that, during the Term and for a period of one year following the
termination of Executive’s employment with the Company (for any reason or no
reason), Executive will not, without the prior written consent of the Company,
directly or indirectly, do or commit any of the following acts:
(i) Induce,
entice, hire or attempt to hire, employ or otherwise contract with any employee
or independent contractor of the Company; provided, that Executive may contract
with independent contractors for matters that are not related to the business
activities of the Company.
(ii) Induce,
or attempt to induce, any employee or independent contractor of the Company to
leave the employ or cease doing business with the Company.
(iii) Induce,
or attempt to induce, any customer, supplier, vendor or any other person to
cease doing business with the Company.
(iv) Induce or
attempt to induce any individual to violate any agreement with the
Company.
(b) Non-Competition.
(i) Executive
agrees that, during the Term, Executive will not, without the prior written
consent of the Company, directly or indirectly, render services, advice or
assistance to any corporation, person, organization or other entity which
engages in the mining business (except as permitted under Section 3 hereof), as
an employee, independent contractor, officer, director, manager, beneficial
owner, partner, member shareholder (other than being a shareholder of a
corporation required to file periodic reports with the Securities and Exchange
Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, where the shareholder’s total holdings are less than three percent
(3%)).
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(ii) Executive
agrees that, for a period of one year following the termination of Executive’s
employment with the Company (for any reason or no reason), Executive will not,
without the prior written consent of the Company, directly or indirectly, on his
own behalf or on behalf of any corporation, person, organization or other entity
as an employee, independent contractor, officer, director, manager, beneficial
owner, partner, member shareholder (other than being a shareholder of a
corporation required to file periodic reports with the Securities and Exchange
Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended where the shareholder’s total holdings are less than three percent
(3%)), engage in or otherwise have an interest in any business carried on in
direct competition with the Company or any of its affiliates with respect to any
project of the Company or any of its affiliates (which shall for purposes of
this Agreement include any projects located within 2 miles of a project of the
Company or its affiliates) for which Executive was involved on behalf of the
Company or for which Executive received confidential information .
9. Dispute
Resolution. Any dispute arising out of or related to
Executive’s employment with the Company or this Agreement or any breach or
alleged breach hereof by either party shall be governed by the laws of Colorado
and resolved in the Colorado State Courts in Denver, Colorado, and the parties
hereto hereby submit to such jurisdiction.
10. Termination of
Employment. Except as expressly provided to the contrary in
this section or applicable law, Executive’s rights to Compensation shall cease
on the date his employment under this Agreement terminates except as to unpaid
Compensation, Benefits or reimbursement of Expenses for which
Executive is eligible pursuant to Sections 4, 5 and 6 above.
(a) This
Agreement shall terminate in its entirety immediately upon the death of
Executive except as provided above and in section 11(a) below.
(b) The
Company or Executive may terminate employment under this Agreement at any time,
with or without Cause (as defined below) with a 30-day written notice of
termination to the other party. The termination shall be effective as of the
date specified by the party initiating the termination in a written notice
delivered to the other party, which date shall not be earlier than the date such
notice is delivered to the other party. For the purposes of this
Agreement, “Cause” shall
mean (i) the commission of embezzlement, theft or other dishonest or fraudulent
acts of a material nature; (ii) material misconduct in respect of the duties or
obligations of Executive under this Agreement, including, without limitation,
insubordination with respect to directions received from the Board or CEO; (iii)
conviction of a felony or a misdemeanor involving a crime of moral turpitude
(including entry of a nolo contendere plea); (iv) willful malfeasance or gross
negligence which has a material adverse effect on the Company or its business or
any affiliate of the Company, including, but not limited to, any officer,
director, Executive or shareholder of the Company; provided that the Company
gives notice thereof identifying the conduct alleged and, if such action is
capable of cure, gives Executive 10 business days to cure; or (v) a material
breach by Executive of any provision of this Agreement that is not cured within
10 business day after written notice thereof is given to Executive by the
Company. The requirement to relocate to a different city, state or country shall
not be deemed Cause.
(c) If
Executive’s employment is terminated for any reason other than due to
Executive’s death or for Cause, then the Company (or its successor) shall pay
executive any accrued and unpaid Compensation earned or right to reimbursement
of Expenses as of the date of termination plus $60,000 as severance, unless such
termination is within 3 months of the Effective Date, in which case the
severance payment shall be equal to $20,000 multiplied by the number of full
months that Executive has been employed hereunder.
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11. General
Provisions.
(a) Successors and
Assigns. This Agreement is binding on and inures to the
benefit of the Company’s successors and assigns, all of which are included in
the term the “Company” as it is used in this Agreement; provided, however, that
the Company may assign this Agreement only in connection with a merger,
consolidation, assignment, sale or other disposition of substantially all of its
assets or business. Any rights to unpaid Compensation, Benefits or reimbursement
for Expenses that Executive has earned or is otherwise entitled under this
Agreement inures to the benefit of Executive’s heirs in the event of his
demise.
(b) Amendment. This
Agreement may be modified or amended only by a written agreement signed by both
the Company and Executive.
(c) Governing
Law. The laws of Colorado will govern the validity,
construction, and performance of this Agreement, without regard to any choice of
law or conflict of law rules.
(d) Construction. Wherever
possible, each provision of this Agreement will be interpreted so that it is
valid under the applicable law. If any provision of this Agreement is to any
extent invalid under the applicable law, which provision will still be effective
to the extent it remains valid. The remainder of this Agreement also will
continue to be valid, and the entire Agreement will continue to be valid in
other jurisdictions.
(e) No
Waiver. No failure or delay by either the Company or Executive
in exercising or enforcing any right or remedy under this Agreement will waive
any provision of the Agreement. Nor will any single or partial exercise by
either the Company or Executive of any right or remedy under this Agreement
preclude either of them from otherwise or further exercising these rights or
remedies, or any other rights or remedies granted by any law or any related
document.
(f) Captions. The
headings in this Agreement are for convenience only and shall not affect this
Agreement’s interpretation.
(g) References. Except
as otherwise required or indicated by the context, all references to Sections in
this Agreement refer to Sections of this Agreement.
(h) Entire Agreement.
This Agreement supersedes all previous and contemporaneous oral negotiations,
commitments, writings, and understandings between the parties concerning the
matters in this Agreement. In the case of any conflict between the terms of this
Agreement and any other agreement, writing or understanding, this Agreement will
control.
(i) Notices. All
notices and other communications required or permitted under this Agreement
shall be in writing and shall be hand delivered or sent by registered or
certified first class mail, postage prepaid, and shall be effective upon
delivery if hand delivered, or three days after mailing if mailed to the
addresses stated below. These addresses may be changed at any time by like
notice:
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If
to the Company:
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Standard
Gold, Inc.
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c/o
Wits Basin Precious Minerals Inc.
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900
IDS Center
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00
Xxxxx Xxxxxx Xxxxxx
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Xxxxxxxxxxx,
XX 00000-0000
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If
to Executive:
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Xxxxxxx
X. Xxxxxxxx
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0000
X. Xxxxxxxx Xx.
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Xxxxxx,
XX. 00000
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(j) Counterparts. This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one agreement binding on all parties. Each party shall
become bound by this Agreement immediately upon signing any counterpart,
independently of the signature of any other party. In making proof of this
Agreement, however, it will be necessary to produce only one copy signed by the
party to be charged.
Signature
Page Follows
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IN
WITNESS WHEREOF, the undersigned Executive and the Company have executed this
Agreement effective as of the Effective Date.
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Standard
Gold, Inc.
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Executive
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a
Colorado corporation
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By:
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/s/
Xxxxxxx X.
Xxxx
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/s/
Xxxxxxx X.
Xxxxxxxx
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Xxxxxxx
X. Xxxx
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Xxxxxxx
X. Xxxxxxxx
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Its:
CEO
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