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Exhibit 10.5
EMPLOYMENT AGREEMENT
MADE EFFECTIVE JUNE 4, 1996
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made effective the fourth day of June, 1996.
BETWEEN:
FREMONT GOLD CORP., a corporation subsisting under the laws of
the state of Delaware having its principal office at 2380 -
0000 Xxxx Xxxxxxxx, Xxxxxxxxx X0X 0X0, Xxxxxxx Xxxxxxxx,
Xxxxxx.
(the "Company")
AND:
XXXXXXX XXXX XXXXXX
("Employee")
WHEREAS:
(A) The Company is engaging the services of Employee as President and Chief
Operating Officer of the Company;
WITNESSES that the parties mutually agree as follows:
PART 1
ENGAGEMENT
SERVICES
1.1 The Company hereby agrees with Employee that Employee shall provide the full
time services of Employee as President and Chief Operating Officer of the
Company effective June 4, 1996 upon and subject to the terms and conditions
hereinafter set forth.
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TERM
1.2 This Agreement will extend from the effective date of this Agreement for a
period of one year unless earlier terminated as hereinafter provided.
TITLE
1.3 Employee will serve and hold the titles as President and Chief Operating
Officer of the Company.
TERMS OF REFERENCE
1.4 Subject to the lawful instructions and directions of the Chief Executive
Officer of the Company, Employee shall serve as the President and Chief
Operating Officer of the Company. In addition to the duties and responsibilities
ordinarily performed by a chief operating officer, Employee shall have principal
responsibility for the direct supervision and management of the Company's
operations.
PART 2
COMPENSATION
SALARY AND BONUS
2.1 For the first 12 months of the engagement of the Employee by the Company,
Employee will be paid a monthly salary of U.S.$8,100 (yielding an annual salary
of U.S. $97,200) subject to customary amounts held back pursuant to income tax
and social security legislation made pursuant to the terms of this Agreement.
2.2 The Company will provide Employee with a full benefits package as per
employee's previous employment contract with Bema Gold Corporation, dated
January 1, 1995, or be paid a net amount per month of U.S. $755 in lieu of these
benefits.
2.3 In addition the Company will reimburse all reasonable travel expenses
incurred by Employee in connection with carrying out the duties of the Employee
for the Company.
2.4 If Employee dies during the term of this contract all earned options will
immediately be exercisable by the lawful representatives or beneficiary of the
estate of Employee.
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NO DISENTITLEMENT TO OTHER BENEFITS
2.5 Nothing herein will disentitle Employee from participating in any pension,
stock option, stock purchase, health, medical, insurance or other benefit plan
or retirement right from time to time established by the Company and to which
executives of the Company are from time to time entitled.
PROFIT SHARING
2.6 Employee will be entitled to participate in any stock option plans or bonus
program from time to time established by the Company, to such extent and in such
amounts as the Board may from time to time determine.
HOLIDAYS
2.7 Employee will be entitled to 20 business days of annual holidays to be taken
at such time or times as are reasonably satisfactory to the Company and
Employee.
PART 3
NEGATIVE COVENANTS
NON-COMPETITION
3.1 Without the consent of the Company, Employee will not be permitted, during
the term of this Agreement, to engage in any business (directly or through any
kind of ownership or other arrangement other than ownership of securities of
publicly held corporations) which is primarily involved in mineral exploration
and development, or accept employment with or render service to a person
involved in such a business or take any other action inconsistent with the
fiduciary relationship of a senior executive officer to his corporation but,
subject to such limitation, Employee may make investments for his own account
and raise money for any business or enterprise whatsoever, provided that such
business or enterprise is not involved in mineral exploration and development.
Employee may, with the consent of the Company, such consent not to be
unreasonably withheld, serve as a director of other companies engaged in mineral
exploration and development provided such companies do not directly compete with
the Company.
NOTICE OF CONFLICT
3.2 If the Board acting reasonably determines that Employee is engaged in an
activity which is deemed to be a conflicting activity, the Company will cause
Employee to be so advised in writing, and Employee will thereafter discontinue
such activity within 30 days after such notice, or such longer period as the
Board agrees, and Employee will, within such 30 days or longer period, certify
in writing to the Company that he has discontinued such activity by sale or
other disposition of all interest therein or by the transfer of all such
interests, save a beneficial interest, into a "blind trust" or other
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fiduciary arrangement over which Employee has no control or direction.
CONFIDENTIALITY
3.3 Notwithstanding anything else in this Agreement, upon termination of
Contractor's employment hereunder for any reason, Employee agrees to keep
strictest and utmost confidentiality with respect to the business affairs,
planned activities, proposed programs and acquisitions, customers, suppliers,
technology, proprietary rights, patents, research, business and assets of the
Company.
COMPANY'S PROPRIETY RIGHTS
3.4 Notwithstanding anything else in this Agreement, it is expressly
acknowledged and understood by Employee that all the work product of Employee
while employed by the Company pursuant to the terms hereof shall vest in the
Company absolutely.
PART 4
DUTIES OF EMPLOYEE
DUTIES
4.1 During the term of this Agreement Employee will
(a) diligently perform his duties as set out hereunder to the best of
his skill and ability, and
(b) attend to his duties on a full time basis, at such specific times
and days as reasonably directed by the Company, excepting holidays,
absence due to sickness and other authorized absences as set out
herein.
PART 5
CHANGE OF CONTROL
5.1 In the event that there is a change in control in the Company and related
change in the constitution on the members of the board of directors of the
Company ("Board") and, if as a result of
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such change of control Employee is discharged without cause, Employee shall be
entitled to receive two year's salary. For the purposes of this Agreement, a
"change in control of the Company" shall mean an acquisition of beneficial
ownership of the outstanding voting securities of the Company (by a person or
group of persons acting together) equal to or greater than the greater of the
following:
(a) 30% of the outstanding shares of the Company; or
(b) a number of shares equal to or greater than the combined
shareholdings of Employee or any of his respective associates or
affiliates as defined by the Securities Act of of 1933.
and as a result thereof there is a change in the Board sufficient that persons
who were directors of the Company immediately prior to any such change of
beneficial ownership of outstanding shares as aforesaid shall as a result
thereof cease to constitute a majority of the Board or any successor.
PART 6
TERMINATION
TERMINATION BY THE COMPANY FOR JUST CAUSE
6.1 The Company may terminate this Agreement without notice (or compensation in
lieu thereof) for just cause. For the purposes of this section, "just cause"
shall mean any of the following:
(a) any material breach by Employee of the terms of this Agreement;
(b) the willful and continued failure by Employee substantially to
perform Employee's duties with the Company (other than any such failure
resulting from Employee's incapacity due to physical or mental
illness), after a demand for substantial performance is delivered to
Employee by the Board which specifically identifies the manner in which
the Board believes that Employee has not substantially performed
Employee's duties;
(c) the willful engaging by Employee in competitive or gross misconduct
injurious to the Company, subject to foregoing Section 3.2. For
purposes of this paragraph, no act, or failure to act, on Employee's
part shall be considered "willful" unless done, or omitted to be done,
by Employee not in good faith and without reasonable belief that
Employees action or omission was in the best interest of the Company;
(d) conviction of a felony or of any crime involving moral turpitude,
fraud or misrepresentation, or
(e) the bankruptcy or receivership of Employee.
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TERMINATION WITHOUT CAUSE
6.2 Either party may terminate this Agreement after the initial one year term
and the employment of Employee hereunder, provided that if the Company
terminates this Agreement, the Employee shall be entitled to one month's salary
for every two months of engagement to a maximum of six months' salary. If the
Employee terminates this Agreement it must provide not less than thirty (30)
days notice to the Company.
TERMINATION FOLLOWING CHANGE OF CONTROL
6.3 If the events described in the preceding Section 5.1 constituting a change
in control of the Company shall have occurred, Employee shall be
entitled to the benefits provided for in this Agreement upon any termination of
this Agreement, unless the termination of this Agreement is as a result of:
(a) the death or retirement of Employee; or
(b) termination by the Company of employment for cause or as a result
of the disability or retirement of Employee upon his attaining age 65.
TERMINATION DUE TO DISABILITY OR RETIREMENT
6.4 (a) If, as a result of Employee's incapacity due to physical or mental
illness, Employee shall have been unable for more than six (6) months
to perform Employee's duties with the Company on a full time basis and
within thirty (30) days after written notice of termination is given
Employee shall not have returned to the full time performance of
Contractor's duties, the Company may terminate this Agreement for
"Disability" after the said 30 days without further compensation.
(b) Termination of Employee's employment based on "Retirement" shall
mean retirement at the age of 65 which the parties agree shall be
mandatory when Employee reaches the age of 65;
NOTICE OF TERMINATION
6.5 Any termination by the Company shall be communicated by written Notice of
Termination to the other parties hereto. For purposes of this Agreement, "Notice
of Termination" shall mean a notice specifying the termination provision in this
Agreement relied upon and setting forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Employee's services
under the provision so specified.
DATE OF TERMINATION
6.6 "Date of Termination": shall mean (A) if Employee's services are terminated
for
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Disability of Employee, thirty (30) days after Notice of Termination is
given (provided that Employee shall not have returned to the performance of
Employee's duties on a full-time basis during such thirty (30) day period), (B)
if the Company terminates Employee's engagement, the date specified in the
Notice of Termination, and (C) if Employee's engagement is terminated for any
other reason except death or Retirement, the date on which Notice of Termination
is given.
RETURN OF PROPERTY
6.7 On the effective date of termination, Employee will deliver up to the
Company, in a reasonable state, all assets, including notes, data, reports,
documents, programs, computers and copies thereof, produced, owned, leased or
bailed to the Company and used by or in the possession of Employee hereunder.
RESIGNATION
6.8 As of the date of termination of this Agreement, Employee will also resign
as an officer or director of the Company and of any subsidiary or affiliate as
the case may be.
PART 7
GENERAL
FURTHER ASSURANCES
7.1 Each party will, at its own expense and without expense to any other party,
execute and deliver such further agreements and other documents and do such
further acts and things as any other party reasonably requests to evidence,
carry out or give full force and effect to the intent of this Agreement.
ASSIGNMENT
7.2 Neither of the parties may assign any right, benefit or interest in this
Agreement without the written consent of the other, and any purported assignment
without such consent will be void.
SEVERABILITY
7.3 If any provision of this Agreement is unenforceable or invalid for any
reason it will be severable from the remainder of this Agreement and, in its
application at that time, this Agreement will be construed as though such
provision was not contained herein and the remainder will continue in full force
and effect and be construed as if this Agreement had been executed without the
invalid or unenforceable provision.
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WAIVER AND CONSENT
7.4 No consent or waiver, express or implied, by any party to or of any breach
or default by any other party of any or all of its obligations under this
Agreement will be valid unless it is in writing and stated to be a consent or
waiver.
NOTICE
7.5 Every notice, request, demand or direction (each, for the purposes of this
section, a "notice") to be given pursuant to this Agreement by any party to
another will be in writing and will be delivered or sent by registered or
certified mail postage prepaid and mailed in any post office in British Columbia
or by telex, facsimile, telegram, cable, or other similar form of written
communication, in each case, addressed as applicable as follows:
If to Employee:
Xxxxxxx X. Xxxxxx
0000, Xxxx Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
If to the Company at:
Fremont Gold Corporation
0000-0000 Xxxx Xxxxxxxx Xx.
Xxxxxxxxx X0X 0X0
Xxxxxxx Xxxxxxxx
Xxxxxx
Facsimile: (000) 000-0000
Attention: Chairman of the Board
or to such other address as is specified by the particular party by notice to
the other.
GOVERNING LAW
7.6 This Agreement will be construed in accordance with the laws of the State of
Arizona and will be enforced in the courts of that State.
BINDING EFFECT
7.7 This Agreement will enure to the benefit of and be binding upon the
respective legal representatives and successors. This agreement is
non-assignable and any purported assignment shall be null and void and of no
effect.
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DISPUTES
7.8 If any dispute arises respecting the relationship of the parties or the
interpretation of this Agreement the parties agree to submit such dispute to
binding arbitration pursuant to the arbitration laws then in effect in the State
of Arizona by way of the appointment of a single arbitrator.
TIME OF ESSENCE
7.9 Time is of the essence in the performance of each obligation under this
Agreement.
COUNTERPARTS
7.10 This Agreement and any other writing delivered pursuant hereto may be
executed in any number of counterparts with the same effect as if all parties to
this Agreement or such other writing had signed the same document and all
counterparts will be construed together and will constitute one and the same
instrument.
ENTIRE AGREEMENT
7.11 This Agreement constitutes the entire agreement between the parties and
supersedes all prior oral or written agreements or understandings between the
parties with respect to the subject matter of this Agreement.
MISCELLANEOUS
7.12 No provision of this Agreement may be modified, waived or discharged except
in writing specifically referring to such provision and signed by Employee and
such officer of the Company as may be specially designated by the Board. No
waiver at any time by any party hereto of the breach of any condition or
provision of this Agreement, or of compliance by the other parties with the
same, shall be deemed a waiver of any other condition or provision at the same
or at any other time.
SURVIVAL OF TERMS
7.13 The provisions of Sections 3.3, 3.4, 6.7, and 7.8 shall survive the
termination of this Agreement.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement on the 4th
day of June, 1996.
COMPANY:
The Common Seal of
FREMONT GOLD CORP.
was affixed in the presence of:
/s/ Xxxxxx Xxxxx
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Authorized Signatory
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxxx
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XXXXXXX XXXX XXXXXX
in the presence of:
/s/ Xxxxx Xxxxxxxxx
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Witness
Xxxxx Xxxxxxxxx
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Name of Witness
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