EXECUTIVE EMPLOYMENT AGREEMENT C. STEPHEN GUYER
Exhibit 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
C. XXXXXXX XXXXX
C. XXXXXXX XXXXX
This EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”) is effective as of July 1, 2008, by and
between Colorado Goldfields, Inc., (“Employer”), and C. Xxxxxxx Xxxxx (“Executive”). This
Agreement replaces and supersedes the Employment Agreement between Colorado Goldfields Inc.
(“Employer”) and C. Xxxxxxx Xxxxx (“Xxxxx”) of 14 February 2008.
WHEREAS, Employer is a corporation organized under the laws of the state of Nevada and with
its principal places of business in Lakewood, Colorado;
WHEREAS, Employer and Executive entered into an Employment Agreement on 14 February 2008;
WHEREAS, Employer and Executive desire to replace the Employment Agreement of 14 February
2008;
WHEREAS, Executive is an individual with knowledge and experience that are valuable to
Employer; and
WHEREAS, Employer desires to employ Executive and Executive desires to accept such employment
subject to the terms and conditions hereinafter set forth.
NOW THEREFORE, and in consideration of the mutual covenants and agreements hereinafter
contained, the parties hereby agree as follows:
1. EMPLOYMENT
Employer hereby employs Executive and Executive hereby accepts employment by Employer, upon
all of the terms and conditions as hereinafter set forth.
2. TERM
The term of this Agreement shall be for twelve (12) months commencing on July 1, 2008, and
ending on June 30, 2009 (“the Expiration Date”), unless renewed or extended by written agreement
executed on or before the Expiration Date by Executive and by Employer with the approval of the
Board of Directors. As a courtesy to Executive, Employer shall indicate in writing its intent to
renew or extend this Agreement at least thirty (30) days prior to the Expiration Date.
3. TERMINATION OF AGREEMENT
This Agreement shall terminate upon the occurrence of any of the following events:
(a) Upon written notice of termination from either party to the other party, which notice may
be given at any time, with or without cause, and shall be effective sixty days (60) days thereafter
unless a different effective date is agreed in writing by the parties;
(b) Upon the expiration of this Agreement without renewal or extension as provided in section
2 of this Agreement; or
(c) Upon Executive’s death.
Upon the termination of this Agreement, Executive shall be entitled to payment of compensation
that is earned but unpaid for services rendered by Executive as of the date of termination of this
Agreement. In addition, Executive shall be entitled to Separation Pay to the extent expressly set
forth in Exhibit A to this Agreement, which pay shall become due and owing according to the
schedule set forth in Exhibit A. However, Executive shall not be entitled to any compensation for
services not yet performed, including services, which could have been performed, but for the
termination of this Agreement.
At the discretion of Employer, Employer may (a) require that Executive continue to perform his
duties during the period between notice pursuant to Section 3(a) of this Agreement and the
resulting termination of this Agreement, or (b) relieve Executive of his duties during such period
(while continuing to provide compensation and benefits in accordance with this Agreement).
4. DUTIES
Executive is employed by Employer as its Chief Financial Officer, Corporate Secretary,
Principal Accounting Officer, and Principal Financial Officer. The precise nature of Executive’s
duties shall be as defined by the Board of Directors of Employer and may be broadened, curtailed or
otherwise modified by the Board of Directors of Employer from time to time in its sole discretion.
Executive agrees to devote the working time, energy and professional talent as is customarily
performed and required by a Chief Financial Officer, Corporate Secretary, and Principal Accounting
Officer, and Principal Financial Officer of a publicly traded company. Notwithstanding the
foregoing, (i) Executive may serve as a director or trustee of another organization upon the prior
written consent of the Board of Directors, and (ii) Employer acknowledges that Executive has other
involvements which are not part of Colorado Goldfields, Inc., and that Executive may devote working
time to such activities so long as Employer’s business is not adversely affected. The Executive
acknowledges that he is a fiduciary of the Employer and he agrees to serve the Employer in a manner
that is consistent with the fiduciary duties owed to the Employer.
Executive reaffirm the duties and responsibilities enumerated in his Employment Agreement of
14 February 2008.
During the term of this Agreement, Employer shall nominate Executive for election to the Board
of Directors of Employer as a member of the management slate at each annual meeting of the
stockholders, or at each meeting of the stockholders at which his class, if such class be
designated, comes up for election.
Executive’s primary place of employment shall be Lakewood, Colorado, or other such location as
conditions require.
5. COMPENSATION
Executive’s compensation under this Agreement shall be as set forth in Exhibit A, which is
attached hereto and incorporated herein. Such compensation shall be paid in accordance with the
payroll policies and procedures of Employer, as they may be modified from time to time at
Employer’s sole discretion.
Upon the termination of this Agreement, Executive shall have no further rights to compensation
under this Agreement except for Separation Pay as provided in Exhibit A.
In all cases in which Executive must obtain the consent of Employer or Management, such
consent may be granted or withheld at the sole discretion of Employer or Management as the case may
be,
6. INDEMNIFICATION
Subject to the terms and conditions of the Articles of Incorporation and Bylaws of the
Employer (in each case, as in effect from time to time), the Employer agrees to indemnify and hold
Executive harmless to the fullest extent permitted by the laws of the State of Nevada, as in effect
at the time of the subject act or omission. Notwithstanding the foregoing, Employer shall not be
required to indemnify Executive if a court or governmental tribunal of competent jurisdiction finds
that the event triggering the indemnification right was caused by, or due to, the willful
misconduct or gross negligence of Employee. In connection therewith, Executive shall be entitled
to the protection of any insurance policies which Employer elects to maintain generally for the
benefit of the Employer’s directors and officers, against all costs, charges and expenses
whatsoever incurred or sustained by Executive in connection with any action, suit or proceeding to
which he may be made a party by reason of his being or having been a director, officer or employee
of the Employer. This provision shall survive any termination of Executive’s employment hereunder.
To the extent that Employer has maintained insurance policies generally for the benefit of the
Employer’s directors and officers, Employer shall such insurance coverage, or use commercially
reasonable efforts to obtain tail insurance coverage for Executive, for a period of three years
following termination of employment.
7. SEVERABILITY
In the event that any provision of this Agreement is held to be invalid, void or unenforceable
(whether due to unconscionability or otherwise), the remainder of this Agreement shall not be affected thereby, and all other provisions of this Agreement shall be valid and
enforceable to the fullest extent permitted by the law.
8. AGREEMENT NOT ASSIGNABLE
This Agreement shall be binding upon Employer and its successors and upon the heirs,
representatives, executors, and administrators of Executive. This Agreement is not assignable by
either party, except that the rights and obligations of this Agreement shall be assumed by any
successor of Employer. For purposes of this Section 8, the term “successor” shall include any
individual or entity which acquires all or substantially all of the assets of Employer by merger,
purchase or otherwise.
9. WAIVER OF BREACH
The waiver by either party of a breach or violation of any provision of this Agreement shall
not operate as or be construed to be a waiver of any subsequent breach hereof.
10. NOTICES
Any written notice to be given to Employer under the terms of this Agreement shall be
addressed to Employer as follows, unless Executive is notified in writing of a change of address:
Any written notice to be given to Executive under the terms of this Agreement shall be addressed to
Executive as follows, unless Management is notified in writing of a change of address:
C. Xxxxxxx Xxxxx
0000 X Xxxxxx Xxx X
Xxxxxxxxx, XX 00000
0000 X Xxxxxx Xxx X
Xxxxxxxxx, XX 00000
Such notice shall be deemed to have been duly given when enclosed and properly sealed in an
addressed envelope registered or certified mail return receipt requested and deposited, postage and
registered or certification fee prepaid, in a post office or branch post office regularly
maintained by the United States Postal Service.
11. TITLE AND HEADINGS
Titles and headings to paragraphs in this Agreement are for the purpose of reference only and
in no way shall limit, define or otherwise affect the provisions of this Agreement.
12. GOVERNING LAW
This Agreement, all interpretation and enforcement of this Agreement, and all disputes arising
out of this Agreement shall be governed solely and exclusively by the laws of the State of
Colorado, regardless of the forum in which such interpretation or enforcement of this Agreement
occurs or such disputes are resolved, and without regard to any principles of conflicts of laws.
13. NO RULE OF CONSTRUCTION
The parties acknowledge that each of them has had ample opportunity for their own counsel to
participate in negotiating and drafting this Agreement. Therefore, no rule of construction shall
apply to this Agreement that construes ambiguous or unclear language in favor of or against any
party
14. ENTIRE AGREEMENT
(a) This Agreement, including Exhibit A, represents the entire employment agreement
between Employer and Executive pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or written. No supplement,
modification or waiver of this Agreement shall be binding unless executed in writing by Executive
and by Employer with the approval of Management.
(b) This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.
[Signature Page Follows]
EXECUTIVE: |
/s/ C.
Xxxxxxx Xxxxx
|
July 31, 2008 |
|||
COLORADO GOLDFIELDS INC. |
||||
/s/ Xxxx X. Xxxxxx
|
July 31, 2008 |
EXHIBIT A
to
EXECUTIVE EMPLOYMENT AGREEMENT
between
COLORADO GOLDFIELDS, INC. (“Employer”)
and
C. XXXXXXX XXXXX (“Executive”)
dated
July 31, 2008
to
EXECUTIVE EMPLOYMENT AGREEMENT
between
COLORADO GOLDFIELDS, INC. (“Employer”)
and
C. XXXXXXX XXXXX (“Executive”)
dated
July 31, 2008
During the term of the Agreement, Executive’s compensation shall be as follows:
A-1 SALARY
Employer shall pay to Executive a salary of $12,500 per month for the first six months of
employment. Upon the six month anniversary of this Agreement, the Board of Directors shall review
Employee’s compensation package, and adjust the Executive’s salary as it deems advisable. Salary
payments shall be subject to applicable withholdings for taxes, to be paid in the manner specified
in paragraph 5 of the Agreement. Executive’s salary may be increased or reduced from time to time
at the sole discretion of the Board of Directors.
A-2 VACATION
Executive shall be eligible for fifteen (15) days of personal time off per year (“Vacation Time”).
Upon termination of this Agreement, Executive shall be paid for earned but unused Vacation Time
based upon the Salary in effect at the time of termination.
A-3 GROUP HEALTH COVERAGE
Executive shall be permitted to participate in such group health insurance plan as Employer may
elect to provide for its other employees, subject to the eligibility and participation requirements
of such plan, which plan may be altered or abolished from time to time at the sole discretion of
Employer. However, the level of health insurance coverage for Executive shall not be reduced below
the level in effect upon Executive’s execution of this Agreement, and the cost to Executive for
health insurance coverage shall not be increased above the cost in effect upon Executive’s
execution of this Agreement. Subsequent to the termination or the expiration of the Agreement and
at the Executive’s election and cost, the Company will provide (subject to the eligibility and
participation requirements), continued group health insurance coverage through insurance plans as
the Employer may make available for its other employees.
A-4 PENSION/PROFIT-SHARING PARTICIPATION
Executive shall be permitted to participate in such pension or profit-sharing plan as Employer may
elect to provide for its other employees, subject to the eligibility and participation requirements
of such plan, which plan may be altered or abolished from time to time at the sole discretion of
Employer.
A-5 OTHER EMPLOYMENT BENEFITS
Executive shall be permitted to participate in such other benefits of employment as Employer may
elect to provide for its other employees, subject to the terms and conditions established by
Employer for those benefits, which benefits may be altered or abolished from time to time at the
sole discretion of Employer. Subsequent to the Executives termination or the expiration of the
Agreement and at the Executive’s election and cost the Company will provide (subject to the
eligibility and participation requirements), continued insurance coverage for life, disability,
accidental death, and other specialty coverages through insurance plans as the Employer may make
available for its other employees.
A-6 EXPENSE REIMBURSEMENT
Executive shall receive reimbursement from Employer for all reasonable expenses incurred for the
benefit of Employer by Executive in the performance of his duties under the Agreement. Such
expenses may include but are not limited to reasonable out-of-pocket expenses for travel, lodging,
meals, entertainment, and professional dues. Employer shall have the right to establish guidelines
for reimbursement of expenses, including but not limited to guidelines regarding when prior
approval for an expense is required and what documentation must be provided in order to obtain
reimbursement.
A-7 SEPARATION PAY
Upon termination of this Agreement, Executive shall be entitled to Separation Pay in accordance
with the following provisions:
(a) Termination by Employer for Convenience: Executive shall receive one month of Base
Compensation.
(b) Resignation Within Ninety (90) Days Following Change of Control: Executive shall
receive one month of Base Compensation for each year of service as an employee or officer of the
Employer.
In addition:
(i) Any stock options shall vest immediately;
(ii) all of Executive’s shares of stock of Employer shall be promptly registered with the
Securities and Exchange Commission if not already freely trade-able without restriction; and
(iii) bonuses, if any, remaining unpaid (or unvested) for the period in which the resignation
occurs shall be paid (or vested) immediately, regardless of Executive’s performance status.
(c) Termination upon Expiration of Agreement Without Renewal or Extension: Executive
shall receive one month of Base Compensation for each year of service as an employee or officer of
Employer.
(d) Death of Executive: Executive’s estate shall receive one month of salary for each
year of service by Executive as an employee or officer of Employer.
“Base Compensation” shall consist of: (1) salary at the rate in effect at the time of termination;
(2) continued participation in Employer’s group health insurance plan; (3) continued life insurance
coverage; (4) access at the Executive’s expense (subject to the eligibility and participation
requirements) continued insurance coverage for disability, accidental death, and other specialty
coverages through insurance plans as the Employer may make available for its other employees.
“Change of Control” shall mean:
(a) any change in the ownership or control of common stock of Employer which results in more
than 50% of the issued and outstanding common stock of Employer being owned or controlled by a
person or entity, or a group of persons or entities, who did not own or control more than 50% of
the issued and outstanding common stock of Employer as of the date of this Agreement; provided,
however, that it shall not be deemed a “Change of Control” under this subsection (a) if the change
in ownership of more than 50% of the issued and outstanding common stock of the Employer is
pursuant to a public or private offering of common stock by the Employer for capital raising
purposes, and such offering was approved by the Board of Directors of the Employer; or
(b) the merger or consolidation of Employer with another entity such that more than 50% of the
issued and outstanding voting stock of the surviving entity is owned or controlled by a person or
entity, or a group of persons or entities, who did not own or control more than 50% of the issued
and outstanding common stock of Employer as of the date of this Agreement.
A-8 STOCK
Employer agrees to immediately issue to Executive 300,000 shares of the common stock of the
Employer under the 2008 Stock Incentive Plan, which are registered pursuant for Form S-8, accepted
by the S.E.C. on 6/19/2008. Furthermore, Employer agrees to issue Executive an additional 100,000
shares of the common stock of the Employer under the 2008 Stock Incentive Plan, which are
registered pursuant for Form S-8, accepted by the S.E.C. on 6/19/2008, upon the closing of the
Yorkville financing transaction. Executive acknowledges that these shares are subject to
restrictions based upon the affiliate provisions of Rule 144.
Employer agrees to issue Executive a “cashless” stock option to purchase up to 500,000 shares of
Employer common stock with an exercise price equal to $0.25, and a term of 10 years, pursuant to a
stock option plan. The options will vest as follows:
500,000 |
125,000 | 10/1/2008 | ||||||
| 125,000 | 1/1/2009 | |||||||
| 125,000 | 4/1/2009 | |||||||
| 125,000 | 7/1/2009 | |||||||
Total |
500,000 | |||||||
