EMPLOYMENT AGREEMENT
THIS AGREEMENT is dated March 2, 2011 but made as of and effective the 1st day of January, 0000
X X X X X X X:
GOLD STANDARD VENTURES (US) INC., a company incorporated under the laws of the State of Nevada and having an office at 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxx, Xxxxxx 00000
(herein called the "Corporation")
OF THE FIRST PART
A N D:
XXXXX X. XXXXXXXXX, of 0000 Xxxx Xxxxx, Xxxxxxx, Xxxxxx, X.X.X. 00000
(herein called the "Executive")
OF THE SECOND PART
WHEREAS the Corporation is a wholly-owned subsidiary of Gold Standard Venture Corp. (the “Parent”), a reporting issuer whose common shares are listed for trading on the TSX Venture Exchange, and carries on the business of acquiring, exploring and developing mineral resource properties in the State of Nevada (the "Business");
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(a)
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at any time by the Corporation forthwith, without notice and without pay in lieu of notice, for cause;
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(b)
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automatically upon the death of the Executive;
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(c)
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at any time by notice in writing from the Corporation to the Executive if the Executive shall become permanently disabled; for the purposes hereof, the Executive shall be deemed to be permanently disabled immediately following any period of 365 consecutive days during which the Executive is prevented from performing his essential duties as an Executive of the Corporation for more than 182 days in the aggregate by reason of illness or mental or physical disability despite reasonable accommodation efforts of the Corporation;
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(d)
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in any other case, by the payment by the Corporation to the Executive in a lump sum of the equivalent two (2X) times:
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(i) his then annual Base Salary; plus
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(ii) his average annual bonus or other cash incentive payment, if any, for the two most recently completed calendar years prior to the date of termination,
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(less applicable source deductions), calculated from the date of termination of his employment; or
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(e)
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by the Executive providing no less than twenty (20) days notice in writing to the Corporation. In the event the Executive provides such notice to the Corporation, the Executive’s employment shall terminate on the date the period of such notice expires. In such circumstance, the Corporation may request that the Executive cease duties prior to the expiry of the notice period. The Executive understands and agrees that in the event the Executive elects to terminate his employment and voluntarily resign, no lump sum severance shall be paid as defined in subparagraph 10(d), above.
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(a)
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the failure or refusal of the Executive to perform his duties and responsibilities at an acceptable level or standard, provided that the Executive has been provided written notice of such failure and has not corrected his behaviour within 20 days of receiving such notice and provided further that the Executive shall only be entitled to correct his behaviour pursuant to the notification under this subsection 11(a) on a one-time basis. For purposes of clarity, any subsequent failure or refusal to perform his duties and responsibilities at an acceptable level or standard will not require written notice of such failure by the Corporation and corresponding opportunity for the Executive to correct the behaviour;
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(b)
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any dishonesty on the part of the Executive affecting the Corporation or the Parent;
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(c)
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the conviction of the Executive for an indictable offence or for any crime involving moral turpitude, fraud or misrepresentation;
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(d)
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excessive use of alcohol or illegal drugs by the Executive interfering with the performance of his obligations under this Agreement and the failure to participate fully in any employee assistance program offered by the Corporation;
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(e)
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any wilful and intentional act on the part of the Executive having the effect of materially injuring the reputation, business or business relationships of the Corporation or the Parent;
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(f)
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any violation of State or Federal or trade practices acts, including but not limited to those enumerated in NRS Chapter 598A;
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(g)
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any material breach (not covered by any of the above clauses 11(a) through 11(e) above) of any of the provisions of this Agreement; and
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(h)
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any other reason which at law would entitle the Corporation to terminate the Executive’s employment without notice or compensation in lieu of notice.
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The Corporation and the Executive acknowledge and agree that the provisions of subsection 10(e) are reasonable and that the total amount payable as outlined herein is an amount which has been agreed to between them to be payable hereunder or, in the alternative, is a reasonable pre-estimate of the damages which will be suffered by the Executive in the event of termination of employment (other than a termination pursuant to subsection 14(d)) and shall not be construed as a penalty.
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14.
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(a)
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Terms used in this section 14 but not otherwise defined herein have the meanings set forth below:
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(i) "Benefit Plans" means any employee loan, insurance, long-term disability, medical, dental and other executive and employee benefit plans, including any pension or group RRSP plans, as may be provided by the Corporation or any affiliate including the Parent to the Executive, if any, from time to time;
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(ii) "Change in Control" means a transaction or series of transactions whereby directly or indirectly:
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(A)
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any person or combination of persons obtains a sufficient number of securities of the Parent to affect materially the control of the Parent; for the purposes of this Agreement, a person or combination of persons holding shares or other securities in excess of the number which, directly or following conversion thereof, would entitle the holders thereof to cast 20% or more of the votes attaching to all shares of the Parent which may be cast to elect directors of the Parent, shall be deemed to be in a position to affect materially the control of the Parent; or
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(B)
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the Parent shall: (i) consolidate or merge with or into, (ii) amalgamate with, or (iii) enter into a statutory arrangement with, any other person (other than an affiliate of the Parent) and, in connection therewith, all or part of the outstanding voting shares shall be changed in any way, reclassified or converted into, exchanged or otherwise acquired for shares or other securities of the Parent or any other person or for cash or any other property; or
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(C)
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any other person (other than an affiliate of the Parent) shall: (i) consolidate or merge with or into, (ii) amalgamate with, or (iii) enter into a statutory arrangement with, the Parent, and, in connection therewith, all or part of the outstanding voting shares shall be changed in any way, reclassified or converted into, exchanged or otherwise acquired for shares or other securities of the Parent or any other person or for cash or any other property; or
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(D)
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the Parent shall sell or otherwise transfer, including by way of the grant of a leasehold interest (or one or more of its affiliates shall sell or otherwise transfer, including by way of the grant of a leasehold interest), property or assets: (i) aggregating more than 50% of the consolidated assets (measured by either book value or fair market value) of the Parent and its affiliates as at the end of the most recently completed financial year of the Parent, or (ii) which, during the most recently completed financial year of the Parent, generated, or during the then current financial year of the Parent are expected to generate, more than 50% of the consolidated operating income or cash flow of the Parent and its affiliates, to any other person or persons (other than the Parent or one or more of its affiliates); or
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(E)
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there occurs a change in the composition of the Parent Board, which occurs at a single meeting of the shareholders of the Parent, or a succession of meetings of the shareholders of the Parent occurring within 6 months of each other, whereby such individuals who were members of the Parent Board immediately prior to such meeting or succession of meetings cease to constitute a majority of the Parent Board without the Parent Board, as constituted immediately prior to such meeting or meetings, approving of such change.
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(iii) "Share Option" means any stock option granted under a stock option or share purchase plan of the Parent; and
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(iv) "Triggering Event" means any one of the following events which occurs without the express or implied agreement of the Executive:
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(A)
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a change (other than those that are clearly consistent with a promotion) in the Executive’s position or duties (including any position or duties as a director of the Corporation), responsibilities (including a change in the person or body to whom the Executive reports at the date of a Change in Control, except if such person or body is of equivalent rank or stature or such change is as a result of the resignation or removal of such person or the persons comprising such body, as the case may be, and who reports to the Executive), title or office in effect immediately prior to a Change in Control; or
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(B)
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a reduction by the Corporation or any of its affiliates of the Executive’s salary, benefits or any other form of remuneration or any change in the basis upon which the Executive’s salary, benefits or any other form of remuneration payable by the Corporation or its affiliates is determined or any failure by the Corporation to increase the Executive’s salary, benefits or other forms of remuneration payable by the Corporation or its affiliates in a manner consistent (both as to frequency and percentage increase) with practices in effect immediately prior to a Change in Control or with practices implemented subsequent to a Control in Control with respect to the senior executives of the Corporation and its affiliates, whichever is more favourable to the Executive; or
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(C)
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any failure by the Corporation or its affiliates to continue in effect any benefit, bonus, profit sharing, incentive, remuneration or compensation plan, stock ownership or purchase plan, pension plan or retirement plan in which the Executive is participating or entitled to participate immediately prior to a Change in Control, or the Corporation or its affiliates taking any action or failing to take any action that would materially adversely affect the Executive's participation in or materially reduce his rights or benefits under or pursuant to any such plan, or the Corporation or its affiliates failing to increase or improve such rights or benefits on a basis consistent with practices in effect immediately prior to a Change in Control or with practices implemented subsequent to a Change in Control with respect to the senior executives of the Corporation and its affiliates, whichever is more favourable to the Executive; or
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(D)
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a change in the municipality in which the Executive is regularly required to carry out the terms of his employment with the Corporation at the date of a Change in Control unless the Executive's terms of employment include the obligation to receive geographic transfers from time to time in the normal course of business; or
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(E)
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any failure by the Corporation or its affiliates to provide the Executive with the number of paid vacation days to which he was entitled immediately prior to a Change in Control or the Corporation or its affiliates failing to increase such paid vacation on a basis consistent with practices in effect immediately prior to a Change in Control or with practices implemented subsequent to a Change in Control with respect to the senior executives of the Corporation and its affiliates, whichever is more favourable to the Executive; or
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(F)
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the Corporation or its affiliates taking any action to deprive the Executive of any material employment benefit not hereinbefore mentioned and enjoyed by him immediately prior to a Change in Control, or the Corporation or its affiliates failing to increase or improve such material fringe benefits on a basis consistent with practices in effect immediately prior to a Change in Control or with practices implemented subsequent to a Change in Control with respect to the senior executives of the Corporation and its affiliates, whichever is more favourable to the Executive; or
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(G)
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any material breach by the Corporation of any provision of this Agreement; or
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(H)
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the good faith determination by the Executive that, as a result of a Change in Control or any action or event thereafter, the Executive's status or responsibility in the Corporation or its affiliates have been diminished or the Executive is being effectively prevented from carrying out his duties responsibilities as they existed immediately prior to a Change in Control; or
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(I)
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the failure by the Corporation to obtain, in a form satisfactory to the Executive, an effective assumption of its obligations hereunder by any successor to the Corporation, including a successor to a material portion of its business; or
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(J)
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Xxxxxxxx X. Xxxx and any one of Xxxxxxx X. Xxxxx, Xxxx X. Xxxxxx or Xxxxxx X. XxXxxx cease to be directors of the Corporation.
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(b)
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Notwithstanding anything to the contrary contained in this Agreement, if a Change in Control occurs and if, in respect of the Executive, a Triggering Event subsequently occurs within twelve months of the Change in Control, the Executive shall be entitled to elect to terminate his employment with the Corporation and to receive a lump sum payment from the Corporation in an amount equal to three (3X) times:
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(i) his then current annual Base Salary; plus
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(ii) his average annual bonus or other cash incentive payment, if any, for the two most recently completed calendar years,
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(less applicable source deductions), calculated from the date of the Executive’s election to terminate his employment pursuant to subsection 14(c).
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This subsection 14(b) shall not apply if such Triggering Event follows a Change in Control which involves a sale of securities or assets of the Parent with which the Executive is involved as a purchaser in any manner, whether directly or indirectly (by way of participation in a corporation or partnership that is a purchaser or by provision of debt, equity or purchase-leaseback financing).
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(c)
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All termination rights of the Executive provided for in subsection 14(b) are conditional upon the Executive electing to exercise such rights by notice given to the Corporation within 180 days of the Triggering Event.
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(d)
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Notwithstanding the provisions contained in section 10(e) hereof, the Executive shall be entitled to a payment by the Corporation of the amount calculated as provided for in subsection 14(b) if a Triggering Event does not occur but the Executive is dismissed from his employment with the Corporation without cause within twelve months of the Change in Control. For greater certainty, the Executive shall not be entitled to any payment by the Corporation pursuant to this subsection 14(d) or otherwise if the Executive is dismissed from his employment with the Corporation for cause. The Corporation shall not dismiss the Executive for any reason unless such dismissal is specifically approved by the Board.
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(e)
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All payments provided herein shall be inclusive of any statutory payments required and shall constitute the Executive’s sole entitlements regarding salary in the event of Change in Control. Upon compliance with Section 14, the Executive shall have no Claims against the Corporation or any affiliate of the Corporation including the Parent, or any of their respective officers, directors, employees or agents, arising from the Executive’s employment or termination of employment.
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(f)
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In the event that the Executive is entitled to a payment pursuant to this section 14, the Executive shall be entitled to have all Benefit Plans in existence at the time such payment is due, if any, continued for a period of 12 months after the date of the giving of notice by the Executive pursuant to subsection 14(c), or the dismissal of the Executive's employment pursuant to subsection 14(d), as the case may be.
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(g)
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In the event that the Executive is entitled to a payment pursuant to this section 14, any Share Option previously granted to the Executive by the Parent shall become fully vested, in which case the Executive shall be entitled to exercise such Share Option on the terms granted and, notwithstanding any term of the stock option plan to the contrary, shall remain exercisable for the original term granted and shall not terminate due to the termination of the Executive's employment with the Corporation. In addition, any provisions of the Share Option restricting the number of option shares which may be purchased before a particular date shall be waived. The terms of any Share Option agreement shall be deemed amended to reflect the provisions of this subsection 14(g). The provisions of this subsection 14(g) shall be subject to applicable securities laws and the rules of any stock exchange on which the shares of the Parent may be then listed and the receipt of all necessary approvals from such securities regulators and exchange, which approvals the Corporation shall use its reasonable commercial efforts to obtain in the event of the operation of this subsection 14(g).
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(h)
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Any payment to be made by the Corporation pursuant to the terms of section 14 shall be paid by the Corporation in cash in a lump sum within ten business days of the giving of notice by the Executive pursuant to subsection 14(c) or within ten business days of the termination or dismissal from the Executive's employment as referred to in subsection 14(d), as the case may be. Any such payment shall be calculated, in the case of subsection 14(b), at the date of giving notice pursuant to subsection 14(c) and, in the case of subsection 14(d), at the date of dismissal or termination, as the case may be.
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(i)
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In the event that any payment is made to the Executive pursuant to the provisions of subsection 14(b) or subsection 14(d), as the case may be, the Executive shall not be required in any manner whatsoever to mitigate any damages. Furthermore, the payment referred to in subsection 14(b) or subsection 14(d), as the case may be, shall be made regardless of whether the Executive seeks or finds employment of any nature whatsoever.
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(a) Subject to section 18 below, all confidential records, material and information and copies thereof, and all trade secrets (including, without restricting the generality of the foregoing, inventions, discoveries and methods of processing and production), concerning the business or affairs of the Corporation or any of its affiliates, clients or suppliers (collectively, the “Confidential Information”) obtained by the Executive in the course of his employment shall remain the exclusive and confidential property of the Corporation. For greater certainty, “Confidential Information” will not include: (i) information that is available to the public or in the public domain, being readily accessible to the public in written publications, at the time of disclosure or use, without breach of this Agreement; (ii) the general skills and experience gained by the Executive during the period services are provided to the Corporation; and (iii) information the disclosure of which is required to be made by any law, regulation, governmental authority or court, provided that before disclosure is made, notice of the requirement is provided by the Executive to the Corporation.
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(b) At all times during and subsequent to the Executive's employment, the Executive shall not disclose the contents of any Confidential Information to any person or entity or use, copy, transfer or destroy any Confidential Information other than as necessary in carrying out the Executive’s duties on behalf of the Corporation without first obtaining the consent of the President and the Board and shall take all reasonable precautions to prevent any inadvertent disclosure, use, copying, transfer or destruction of any Confidential Information. The Executive shall not, following the termination of his employment hereunder for any reason, use the contents of any Confidential Information for any purpose whatsoever.
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(c) Within five days after the termination of the Executive’s employment, or of receipt by the Executive of the Corporation’s written request, the Executive will promptly deliver to the Corporation all property of or belonging to or administered by the Corporation or any of its affiliates, including without limitation all Confidential Information that is embodied in any physical or ephemeral form, whether in hard copy or on magnetic media, and that is within the Executive’s possession or under the Executive’s control. After he ceases to be employed by the Corporation, the Executive shall under no circumstances remove any books, records or documents or copies thereof (whether or not confidential) from the Corporation's office, nor shall the Executive make any copies of any such books, records or documents or copies thereof for use outside the Corporation's office, except as specifically authorised by the President and the Board of Directors of the Corporation.
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(d) The Executive hereby agrees that he will not at any time during the term of his employment with the Corporation and for a period of six months thereafter interfere with or knowingly initiate contact with any employee or consultant of the Corporation who was an employee or consultant of the Corporation within six months of the termination for the purpose of offering or enticing that employee to leave the Corporation’s employ.
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(e) Should the Executive become separated from the Corporation, either voluntarily or involuntarily, for a period of twelve months from the date of separation (the “Separation Date”), the Executive shall not use or disclose, directly or indirectly, Confidential Information, to anyone other than other employees of the Corporation and its affiliates except for the sole benefit of the Corporation or as may be required by law. The Executive further agrees that, with respect to such Confidential Information which qualifies as a trade secret, the above-mentioned restrictions or the use or disclosure of such information shall remain in effect for longer than the twelve months after the Separation Date, i.e., for as long as such information qualifies as a trade secret.
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(f) The foregoing covenants are given by the Executive acknowledging that he has specific knowledge of the affairs of the Corporation. The subject matter of the foregoing covenants is the acquisition, exploration and development of mineral resources properties in the State of Nevada. In the event that any clause or portion of any such covenant should be unenforceable or be declared invalid for any reason whatsoever, such unenforceability or invalidity shall not affect the enforceability or validity of the remaining portions of the covenants and such unenforceable or invalid portions shall be severable from the remainder of this agreement. Notwithstanding the termination of this Agreement, the Executive’s obligations under this Section 17 are to remain in effect in accordance with the terms set out herein and will exist and continue in full force and effect despite any breach or repudiation, or alleged breach or repudiation, of this Agreement or the Executive’s employment (including, without limitation, the Executive’s wrongful dismissal) by the Corporation. The Executive hereby acknowledges and agrees that all restrictions contained in this Agreement are reasonable and valid and all defences to the strict enforcement thereof by the Corporation are hereby waived by him.
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(g) Without intending to limit the remedies available to the Corporation, the Executive understands and acknowledges that a breach or threatened breach by the Executive of any of the terms of Section 17 hereof could result in the Corporation suffering irreparable harm that is not capable of being calculated and that cannot be fully or adequately compensated by the recovery of damages alone. Accordingly, the Executive agrees that, in addition to any other relief to which the Corporation may become entitled, the Corporation may apply for and will be entitled to injunctive relief, whether interim or permanent, specific performance and other equitable remedies, in any court of competent jurisdiction specifically to enforce any such covenants upon the breach or threatened breach of any such provisions, or otherwise specifically to enforce any such covenants and hereby waives all defences to the strict enforcement thereof by the Corporation.
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(a) The Corporation will grant to the Executive a net smelter returns royalty (“NSR”) equal to:
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(i)
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one (1%) percent over all prospects generated by the Executive which are acquired, by way of staking (each a “Staked Prospect”), for the beneficial ownership of the Corporation or any of its affiliates; and
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(ii)
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one half (1/2%) percent over all prospects generated by the Executive which are acquired, by way of lease (each a “Leased Prospect”), for the beneficial ownership of the Corporation or any of its affiliates, provided that:
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(A)
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such Leased Prospect carries a maximum NSR of four (4%) percent to the underlying owner/lessee; and
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(B)
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such Leased Prospect is not adjacent to any claims from which the Executive is otherwise is entitled to receive or participate in a NSR or other royalty interest.
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(b)
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The Corporation will have the right to purchase, at any time, the one half (1/2%) percent NSR contemplated in subsection 18(a)(ii) in respect of any Leased Prospect for a purchase price of $500,000 per Leased Prospect.
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(c)
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Any NSR granted by the Corporation to the Executive in respect of a Staked Prospect or Leased Prospect (each a “Prospect”) shall be owned in perpetuity for the benefit of the Executive, his heirs, executors, administrators or assigns, and will carry through any change or transfer of ownership of the Prospect. The Corporation shall notify the Executive of its intent to drop a Prospect or any claim or lease comprised therein at least 30 days prior to any applicable annual claim filing and/or required lease payment.
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(a) before any rights or remedies are sought through the arbitration provisions set forth below, the parties agree to attempt resolution of any dispute by utilizing the services of a mutually agreed upon, duly certified mediator in Reno, Nevada. The parties agree to share equally in costs and fees of said mediator; and
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(b) in the event that mediation is unsuccessful, the parties agree to submit this matter to binding arbitration, with a mutually agreed upon arbitrator duly certified by the American Arbitration Association, each party to bear the cost of said arbitration equally.
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24. Governing Law and Venue. This Agreement shall be governed by and interpreted under the laws of the State of Nevada. The parties agree that any action not subject to the mandatory mediation of paragraph 23, above, shall be brought in a court of competent jurisdiction and appropriate venue within the State of Nevada.
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(a)
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he has read and understood this Agreement;
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(b)
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he has been given an opportunity to obtain independent legal advice concerning this Agreement and the provisions hereof and the interpretation and effect of this Agreement, and by signing this Agreement represents and warrants that he has each either obtained advice or voluntarily waived the opportunity to receive same;
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(c)
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for purposes of interpretation, since all parties to this Agreement have been allowed the opportunity to review same, neither party shall be deemed to be the drafter for purposes of interpretation; and
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(c)
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he has entered into this Agreement voluntarily.
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IN WITNESS WHEREOF the parties hereto have executed this agreement as of the ____ day of March, 2011
SIGNED, SEALED AND DELIVERED by XXXXX X. XXXXXXXXX in the presence of:
Name & Signature
Address
Occupation
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GOLD STANDARD VENTURES (US) INC.
Per: _______________________________
Authorized Signing Officer- 17 -
State of _____________
County of ___________
I HEREBY CERTIFY that before me XXXXX X. XXXXXXXXX personally appeared, to me known to be the person described in and who executed the foregoing instrument, and acknowledged the execution thereof to be his free act and deed for the uses and purposes therein mentioned, and said instrument is the act and deed of said person.
WITNESS my hand and official seal in the State and County above mentioned this ____ day of _____________, 2011.
Notary Public
My commission expires: _______________
(Seal)
Province of British Columbia
City of Vancouver
I HEREBY CERTIFY that before me the undersigned authority personally appeared XXXXXXXX XXXX, President of Gold Standard Ventures (US) Inc., to me known to be the person described in and who executed the foregoing instrument, and acknowledged the execution thereof to be his free act and deed as such officer for the uses and purposes therein mentioned, and said instrument is the act and deed of said corporation.
Notary Public
My commission expires: _______________
(Seal)
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