EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
the 7th day of July, 1999 by and between OREX GOLD MINES CORPORATION, a Delaware
corporation (the "Company"), and XXXXXXX XXXXXX, an individual (the
"Executive").
Preliminary Statements
A. The Company is presently engaged in the business of owning and
operating within the state of Florida and other businesses (the "Businesses");
B. The Executive has had many years of experience in the affairs of
business organizations; and is currently Vice-President/Secretary of the
Company; and
C. The Company is desirous of continuing the employment of the Executive
and benefiting from his contributions to the Company.
Agreement
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein, the parties agree as follows:
1. Employment.
1.1 Employment and Term. The Company hereby agrees to continue to employ the
Executive and the Executive hereby agrees to continue to serve the Company, on
the terms and conditions set forth herein, for a period of two (2) years
commencing on the date hereof and expiring on the first anniversary hereof (the
"Initial Term") unless sooner terminated as hereinafter set forth; provided,
however, that commencing on the first and each anniversary of the date of this
Agreement, the Initial Term of this Agreement shall automatically be extended
for one additional year unless at least ninety (90) days prior to such date, the
Company shall have delivered to the Executive or the Executive shall have
delivered to the Company written notice that the term of the Executive's
employment hereunder will not be extended. (The Initial Term and any extensions
shall be hereinafter referred to as the "Employment Period").
1.2 Duties of the Executive. During the Employment Period, the Executive shall
serve as Vice-President/Secretary of the Company and shall have powers and
authority deemed appropriate for that position. The Executive shall be required
to report solely to the President and shall be subject solely to the supervision
and direction of, the Board at duly called meetings thereof and no other person
or group shall be given authority to supervise or direct the Executive in the
performance of his duties. During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is entitled, the
Executive agrees to devote substantially all of his attention and business time
during normal business hours to the business and affairs of the Company and, to
the extent necessary to discharge the responsibilities assigned to the Executive
hereunder as a senior executive officer involved with the general management of
the Company, to use the Executive's reasonable best efforts to perform
faithfully and efficiently such responsibilities. During the Employment Period
it shall not be a violation of this Agreement for the Executive to (i) serve on
corporate, civic or charitable boards or committees; (ii) deliver lectures,
fulfill speaking engagements or teach at educational institutions; or (iii)
manage personal investments and engage in other business activities, so long as
such activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement. It is expressly understood and agreed that to the extent that
any such activities have been conducted by the Executive prior to the date
hereof, the continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto) subsequent to the date hereof shall not
thereafter be deemed to interfere with the performance of the Executive's
responsibilities to the Company.
1.3 Place of Performance. The Executive shall be based at the Company's
principal executive offices located in Miami-Dade, Florida, except for required
travel relating to the Company's Businesses to an extent substantially
consistent with the Executive's present travel obligations.
2. Base Compensation .
2.1 Base Salary. Commencing on the date hereof, the Executive shall receive a
base salary at the annual rate of not less than Fifty Thousand and No/100
Dollars ($50,000.00) (the "Base Salary") during the term of this Agreement, with
such Base Salary payable in installments consistent with the Company's normal
payroll schedule, subject to required applicable withholding for taxes. On
January 1st of each calendar year during the Employment Period (the "Salary
Adjustment Date") commencing on January 1, 2000, the Executive's then Base
Salary shall be increased by an amount equal to the previous year's Base Salary
multiplied by ten percent (10%), except that in the event that Pre-Tax
Consolidated Net Income (defined in Section 2.4(c) below) is equal to zero for
the Company's fiscal year immediately preceding the Salary Adjustment Date, then
the Base Salary shall not be increased pursuant to this sentence on such Salary
Adjustment Date. The Base Salary shall also be reviewed, at least annually, for
merit increases and may, by action and in the discretion of the Board, be
increased at any time or from time to time. The Base Salary, if so increased,
shall not thereafter be decreased for any reason.
3. Other Benefits.
3.1 Expense Reimbursement. The Company shall promptly reimburse the Executive
for all reasonable expenses actually paid or incurred by the Executive in the
course of and pursuant to the Businesses of the Company, including expenses for
travel and entertainment. The Executive shall account and submit reasonably
supporting documentation to the Company in connection with any expense
reimbursement hereunder in accordance with the Company's policies.
3.2 Other Benefits. During the Employment Period, the Company shall continue in
force all existing comprehensive major medical and hospitalization insurance
coverages, including dental coverages, either group or individual for the
Executive and his dependents; shall continue in force all existing life
insurance for the Executive; and shall continue in force all existing disability
insurance for the Executive (collectively, the "Policies"), which Policies the
Company shall keep in effect at its sole expense throughout the term of this
Agreement. The Executive and/or the Executive's family, as the case may be,
shall be eligible for participation in and shall receive all benefits under all
welfare benefit plans, practices, policies and programs provided by the Company
(including, without limitation, medical, prescription, dental, disability,
salary continuance, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent applicable generally to
senior executive officers or other peer executives of the Company. The Executive
shall also be entitled to participate in all incentive, savings and retirement
plans, practices, policies and programs and such other perquisites as applicable
generally to senior executive officers or other peer executives of the Company.
Nothing paid to the Executive under any plan or arrangement presently in effect
or made available in the future shall be deemed to be in lieu of the Base Salary
payable to the Executive pursuant to this Agreement.
3.3 Working Facilities. The Company shall furnish the Executive with an office,
a secretary and such other facilities and services suitable to his position and
adequate for the performance of his duties hereunder.
3.4 Vacation. The Executive shall be entitled to such number of paid vacation
days in each calendar year as determined by the Board from time to time for its
senior executive officers, but in no event less than four (4) weeks of paid
vacation during each calendar year. Unused vacation days may be carried forward
from year to year at the option of the Executive.
3.5 Stock Bonus. The company shall issue to the executive a bonus of One Million
(1,000,000) Shares of Common Stock, restricted under rule 144, upon any future
merger, acquisition or stock exchange agreement.
4. Termination.
4.1 Termination for Cause.
(a) The Company may terminate this Agreement for Cause (as defined below) in
strict accordance with the following procedure: Upon a determination by not less
than three-quarters (3/4) of the entire membership of the Board that Cause may
exist under Section 4.1(b)(i) or 4.1(b)(ii) below, the Company shall cause a
special meeting of the Board (the "Special Board Meeting") to be called and held
at a time mutually convenient to the Board and the Executive, but in no event
later than ten (10) business days after the Executive's receipt of a copy of the
resolution of the Board stating that (i) in the Board's good faith opinion,
Cause may exist to terminate the Executive's employment with the Company in
accordance with this Agreement; and (ii) specifying the particulars of the
alleged conduct giving rise to such Cause in detail. The Executive shall have
the right to appear before the Special Board Meeting with legal counsel of his
choosing to refute any determination of Cause specified in such notice. The
Executive shall also have the right to have a recorded or stenographic
transcription made of the Special Board Meeting. Any termination of the
Executive's employment by reason of such Cause determination shall not be
effective unless and until (i) the Executive is afforded such opportunity to
appear before the Board as provided herein and (ii) there shall have been
delivered to the Executive a copy of a resolution, duly adopted by the
affirmative vote of not less than three-quarters (3/4) of the entire membership
of the Board, adopting the Board's final determination, after the appearance of
the Executive as provided herein, stating that in the good faith opinion of the
Board, the Board finds Cause for the termination of this Agreement and the
Executive's employment with the Company and specifying the particulars of acts
or omissions upon which the Company is relying for such termination.
(b) As used in this Agreement, the term "Cause" shall only mean:
(i) A material breach by the Executive of the Executive's obligations under
Section 1.2 hereof (other than as a result of incapacity due to physical or
mental illness) which is (a) demonstrably willful and deliberate on the
Executive's part; and (b) which is committed in bad faith and without reasonable
belief that such breach is in the best interests of the Company; and (c) which
is not remedied in a reasonable period of time after receipt of written notice
from the Company specifying such breach; or
(ii) The conviction of the Executive of a felony based upon a violent crime or a
sexual crime involving baseness, vileness or depravity.
(iii) The Termination Date for a termination of this Agreement pursuant to this
Section 4.1 shall be the date specified by the Board in the resolution finding
Cause, which date shall not be earlier than 30 days after the date of the
Special Board Meeting.
(c) Upon any termination of this Agreement pursuant to this Section 4.1, the
Executive shall be entitled to the compensation specified in Section 5.1 hereof.
4.2 Disability. The Company may terminate this Agreement upon the Disability (as
defined below) of the Employee in strict accordance with the following
procedure: Upon a good faith determination by not less than three-quarters (3/4)
of the entire membership of the Board that the Executive has suffered a
Disability, the Company shall give the Executive written notice of its intention
to terminate this Agreement due to such Disability. In such event, the
Executive's employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Executive (the "Disability Effective
Date"), provided that, within the 30 days after such receipt, the Executive
shall not have returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" shall mean the absence of the Executive
from the Executive's duties with the Company on a full-time basis for 120
consecutive calendar days as a result of incapacity due to mental or physical
illness which is determined to be total and permanent by a physician selected by
the Company or its insurers and acceptable to the Executive or the Executive's
legal representative (such agreement as to acceptability not to be withheld
unreasonably). The Termination Date for a termination of this Agreement pursuant
to this Section 4.2 shall be the date specified by the Board in the resolution
finding that the Executive has suffered a Disability, which date may not be any
earlier than 30 days after the date of Board's finding. Upon any termination of
this Agreement pursuant to this Section 4.2, the Executive shall be entitled to
the compensation specified in Section 5.2 hereof.
4.3 Death. This Agreement shall terminate automatically upon the death of the
Executive, without any requirement of notice by the Company to the Executive's
estate. The date of the Executive's death shall be the Termination Date for a
termination of this Agreement pursuant to this Section 4.3. Upon any termination
of this Agreement pursuant to this Section 4.3, the Executive shall be entitled
to the compensation specified in Section 5.3 hereof.
4.4 Termination by the Executive for Good Reason or by the Company, Without
Cause. The Executive may terminate his employment under this Agreement for Good
Reason (defined below), or the Company may terminate such employment, without
cause, as provided in this Section 4.4. "Good Reason" shall mean that the
Company (through its Board or otherwise) has (i) assigned the Executive duties
other than those contemplated by Section 1.2 above without the Executive's
consent; (ii) limited the powers of the Executive in any manner not contemplated
by Section 1.2 above; or (iii) materially breached any of its other covenants
and obligations hereunder. A purported termination of this Agreement by the
Company pursuant to any provision of this Section 4 which is disputed and which
is finally determined not to have been proper shall be deemed a material breach
by the Company of this Agreement. To terminate his employment under this
Agreement for Good Reason, the Executive shall give the Company written notice
of the Executive's intent to terminate his employment with the Company pursuant
to this Section 4.4, which notice shall specify the Executive's reasons therefor
in detail. The Company shall have 30 days from its receipt of such notice to
attempt to cure any such condition giving rise to Good Reason hereunder. If such
cure is acceptable to the Executive, the Executive may accept such cure and
continue this Agreement in full force and effect as if the initial notice of
termination under this Section 4.4 had not been given by the Executive;
provided, however, that acceptance of such cure and the continuation of the
Executive's employment shall not act as a waiver of any rights of the Executive
with respect to such actions or inactions of the Company and/or limit the
Executive's right to terminate this Agreement for the same or similar action or
inaction by the Company following such cure. If the Executive does not accept
such cure, the Termination Date of this Agreement shall be the 30th day after
the Company's receipt of the Executive's termination notice. To terminate the
Executive's employment without cause in accordance with this Section 4.4, the
Company shall give the Executive written notice of such termination. The
Termination Date shall be the date specified by the Company in such notice. Upon
any termination of this Agreement pursuant to this Section 4.4, the Executive
shall be entitled to the compensation specified in Section 5.4 hereof, except
that if such termination by the Company occurs within a period beginning six (6)
months before and ending one (1) year after a Change in Control of the Company
(defined in Section 4.5 below), then such termination shall be deemed to be due
to a Change in Control of the Company and the Executive shall be entitled to the
compensation specified in Section 5.5 hereof and any other compensation and
benefits provided in this Agreement in connection with a Change in Control of
the Company.
4.5 Termination by the Executive Upon a Change in Control of the Company. The
Executive may terminate his employment under this Agreement upon a Change in
Control of the Company. For purposes of this Section 4.5, "Change in Control of
the Company" shall mean (i) the acquisition by a person or an entity or a group
of persons and entities, directly or indirectly, of more than thirty (30%)
percent of the Company's common stock in a single transaction or a series of
transactions (hereinafter referred to as a "30% Change in Control"); (ii) a
merger or other form of corporate reorganization resulting in an actual or de
facto 30 % Change in Control; or (iii) the failure of Applicable Directors
(defined below) to constitute a majority of the Board during any two (2)
consecutive year period after the date of this Agreement (the "Two-Year
Period"). "Applicable Directors" shall mean those individuals who are members of
the Board at the inception of a Two-Year Period and any new director whose
election to the Board or nomination for election to the Board was approved
(prior to any vote thereon by the shareholders) by a vote of at least two-thirds
(2/3) of the directors then still in office who either were directors at the
beginning of the Two-Year Period at issue or whose election or nomination for
election during such Two-Year Period was previously approved as provided in this
sentence. To terminate his employment under this Agreement upon a Change in
Control of the Company, the Executive shall give the Company written termination
notice. The Termination Date shall be the date specified in such notice, which
date may not be earlier than 30 days nor later than 90 day from the Company's
receipt of such notice. Upon any termination of this Agreement pursuant to this
Section 4.5, the Executive shall be entitled to the compensation specified in
Section 5.5 hereof and any other compensation and benefits provided in this
Agreement in connection with a Change in Control of the Company.
4.6 Termination by the Executive Due to Poor Health. The Executive may terminate
his employment under this Agreement upon written notice to the Company if the
Executive's health should become impaired to any extent that makes the continued
performance of the Executive's duties under this Agreement hazardous to the
Executive's physical or mental health or his life (regardless of whether such
condition would be deemed a Disability under any other section of this
Agreement), provided that the Executive shall have furnished the Company with a
written statement from a qualified doctor to that effect and provided further
that, at the Company's written request and expense, the Executive shall submit
to a medical examination by a qualified doctor selected by the Company and
acceptable to the Executive (which acceptance shall not be unreasonably
withheld) which doctor shall substantially concur with the conclusions of the
Executive's doctor. The Termination Date shall the date specified in the
Executive's notice to the Company, which date may not be earlier than 30 days
nor later than 90 day from the Company's receipt of such notice. Upon any
termination of this Agreement pursuant to this Section 4.6, the Executive shall
be entitled to the compensation specified in Section 5.6 hereof.
4.7 Non-renewal. In the event that either party to this Agreement shall give
notice to the other party that this Agreement will not be renewed as provided in
Section 1.1 hereof, then this Agreement shall terminate at the end of such final
term of this Agreement. The last day of such final term shall be the Termination
Date for a termination pursuant to this Section 4.7. Upon any termination of
this Agreement pursuant to this Section 4.7, the Executive shall be entitled to
the compensation specified in Section 5.7.
4.8 Termination by the Executive. The Executive may terminate his employment
under this Agreement for any reason whatsoever upon not less than 30 days prior
written notice to the Company. In the event that reference to the applicable
termination section of this Agreement is not made in the Executive's notice of
termination to the Company and the reason for the Executive's termination can be
construed to occur under this Section 4.8 or any of Sections 4.2, 4.4, 4.5, 4.6
or 4.7 above, then the Executive shall have the right to specify which section
of this Section 4 shall control. The Termination Date under this Section 4.8
shall be the date specified in the Executive's notice to the Company, which date
may not be earlier than 30 days from the Company's receipt of such notice. Upon
any termination of this Agreement pursuant to this Section 4.8, the Executive
shall be entitled to the compensation specified in Section 5.7 hereof.
5. Compensation and Benefits Upon Termination.
5.1 Cause. If the Executive's employment is terminated for Cause, the Company
shall pay the Executive his full Base Salary through the Termination Date
specified in Section 4.1 at the rate in effect at the Termination Date, and the
Company shall have no further obligation to the Executive under this Agreement.
5.2 Disability. During any period that the Executive is unable to perform his
duties under this Agreement as a result of incapacity due to physical or mental
illness, the Executive shall continue to receive his full Base Salary until the
Termination Date specified in Section 4.2. After such termination, the Executive
shall receive in equal monthly installments 50% of his Base Salary at the rate
in effect at the Termination Date for one year and thereafter for two additional
years at an annual rate equal to 10% of the Base Salary which would have been in
effect under this Agreement reduced, in each case, for any disability payments
otherwise payable by or pursuant to plans provided by the Company.
5.3 Death. Upon the Executive's death, the Company shall pay to the person
designated by the Executive in a notice filed with the Company or, if no person
is designated, to his estate (i) any unpaid amounts of his Base Salary and
accrued vacation to the date of the Executive's death; and (ii) any payments the
Executive's spouse, beneficiaries or estate may be entitled to receive pursuant
to any pension or employee benefit plan or life insurance policy or similar plan
or policy then maintained by the Company. Upon full payment of all amounts
required to be paid under this Section 5.3, the Company shall have no further
obligation under this Agreement.
5.4 Termination by the Executive for Good Reason. If the Executive terminates
this Agreement for Good Reason or the Company terminates the Executive's
employment without cause in accordance with and subject to Section 4.4, then (i)
the Company shall pay the Executive his full Base Salary through the Termination
Date specified in Section 4.4 at the rate in effect at such Termination Date;
and (ii) in lieu of any further salary payments to the Executive for periods
subsequent to the Termination Date and in consideration of the rights of the
Company under Section 8, the Company shall pay as severance pay to the Executive
on the fifth day following the Termination Date, two months salary.
5.5 Termination by the Executive Due to Poor Health. If the Executive terminates
this Agreement pursuant to Section 4.6 hereof, the Company shall pay to the
Executive any unpaid amounts of his Base Salary and accrued vacation to the
Termination Date specified in Section 4.6 plus any disability payments otherwise
payable by or pursuant to plans provided by the Company.
5.6 Non-renewal or other termination. If this Agreement terminates pursuant to
Section 4.7 or Section 4.8 hereof, the Company shall pay to the Executive any
unpaid amounts of his Base Salary and accrued vacation to the Termination Date
specified in Section 4.7 or Section 4.8, as the case may be.
5.7 Health and Medical Plans. The Executive shall be entitled to all
continuation of health, medical, hospitalization and other programs as provided
by any applicable law and such additional benefits as are provided by the
Company to its employees upon termination of employment with the Company.
5.8 Mitigation. The Executive shall not be required to mitigate the amount of
any payment provided for in this Section 5 by seeking other employment or
otherwise, nor shall the amount of any payment provided for in this Section 5 be
reduced by any compensation earned by the Executive as the result of employment
by another employer after the Termination Date.
5.9 Incentive Bonus and Expense Reimbursement. If the Executive's employment
with the Company is terminated for any reason, other than Cause (defined in
Section 4.l(b) above), the Executive shall be paid, solely in consideration for
services rendered by the Executive prior to such termination, an incentive bonus
with respect to the Company's fiscal year in which the Termination Date occurs,
in accordance with Section 2.2 hereof. The Executive shall be entitled to
reimbursement for reasonable business expenses incurred prior to the Termination
Date, subject, however to the provisions of Section 3.1.
5.10 Loans. Except as otherwise provided in this Agreement, the outstanding
balance as of the Termination Date of any demand loan or advance from the
Company to the Executive which has no set term or maturity shall be paid by the
Executive to the Company, with interest at the lowest rate permissible for
federal income tax purposes, in sixty equal and successive monthly installments
of principal and interest beginning on the first day of the month following the
Termination Date.
6. Successors; Binding Agreement.
6.1 Successors. The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) acquiring a majority
of the Company's voting common stock or any other successor to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. Such agreement shall be confirmed in a writing in form and
substance satisfactory to the Executive. Failure of the Company to obtain an
assumption of this Agreement prior to or simultaneously with the effectiveness
of any such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the same
terms as he would be entitled to under this Agreement if the Executive had
terminated his employment for Good Reason, except for purposes of implementing
the foregoing, the date on which any such succession becomes effective shall be
deemed the Termination Date. As used in this Agreement, "Company" shall mean the
Company as previously defined and any successor to its business and/or assets
which executes and delivers the agreement provided for in this Section 6 or
which otherwise becomes bound by all the terms and provisions of this Agreement
by operation of law.
6.2 Benefit. This Agreement and all rights of the Executive under this Agreement
shall inure to the benefit of and be enforceable by the Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amounts would still be payable to him under this Agreement, including all
payments payable under Section 5, if he had continued to live, all such amounts
shall be paid in accordance with the terms of this Agreement to the Executive's
devisee, legatee, or other designee or, if there is no such designee, the
Executive's estate.
7. Conflicts With Prior Employment Contract. Except as otherwise provided in
this Agreement, this Agreement constitutes the entire agreement among the
parties pertaining to the subject matter hereof, and supersedes and revokes any
and all prior or existing agreements, written or oral, relating to the subject
matter hereof, and this Agreement shall be solely determinative of the subject
matter hereof.
8. Noncompetition; Unauthorized Disclosure; Injunctive Relief.
8.1 No Material Competition. Except with respect to services performed under
this Agreement on behalf of the Company, and subject to the obligations of the
Executive as an officer of the Company and the employment obligations of the
Executive under this Agreement, the Executive agrees that at no time during the
Employment Period or, for a period of one year immediately following any
termination of this Agreement for any reason, for himself or on behalf of any
other person, persons, firm, partnership, corporation or company:
(a) Solicit or accept business from any customers of the Company or its
affiliates, from any prospective customers whose business the Company or any
affiliate of the Company is in the process of soliciting at the time of the
Executive's termination, or from any former customer which had been doing
business with the Company within one year prior to the Executive's termination;
(b) Solicit any employee of the Company or its affiliates to terminate such
employee's employment with the Company; or
(c) Engage in any business of the type performed by the Company in the
geographical are where the Company is actively doing business or soliciting
business if, within 30 days of the Executive advising the Company in writing of
his proposed business activity, the Board determines in good faith that such
proposed business activity is directly competitive with a material part of the
business of the Company and its subsidiaries (in the aggregate) and such
competitive business activity is reasonably likely to materially affect in an
adverse manner the consolidated sales, profits or financial condition of the
Company. If the Board fails to advise the Executive within said thirty (30) day
period, then the Board shall be deemed to have consented to the Executive's
engaging in such activity.
8.2 Unauthorized Disclosure. During the Employment Period and for two years
following the termination of this Agreement for any reason, the Executive shall
not, without the written consent of the Board or a person authorized by the
Board or as may otherwise be required by law or court order, disclose to any
person, other than an employee of the Company or person to whom disclosure is
reasonably necessary or appropriate in connection with the performance by the
Executive of his duties as an executive of the Company, any material
confidential information obtained by him while in the employ of the Company with
respect to any of the company's customer, suppliers, creditors, lenders,
investments bankers or methods of marketing, the disclosure of which the
Executive knows will materially damage the Company; provided, however, that
confidential information shall not include any information generally known to
the public (other than as a result of unauthorized disclosure by the Executive)
or any information of a type not otherwise considered confidential by persons
engaged in the same business or a business similar to that conducted by the
Company. For the period ending one year following the termination of employment
under this Agreement for any reason, the Executive shall not disclosure any
confidential information of the type described above except as determined by him
to be reasonably necessary in connection with any business or activity in which
he is then engaged or as otherwise required by law or court order.
8.3 Injunction. The Company and the Executive acknowledge that a breach by the
Executive of any of the covenants contained in this Section 8 may cause
irreparable harm or damage to the Company or its subsidiaries, the monetary
amount of which may be virtually impossible to ascertain. As a result, the
Executive agrees that the Company shall be entitled to an injunction issued by
any court of competent jurisdiction enjoining and restraining all violations of
this Section 8 by the Executive or his associates, affiliates, partners or
agents, and that the right to an injunction shall be cumulative and in addition
to all other remedies the Company may possess.
8.4 Certain Provisions. The limitations of this Section 8 shall terminate
immediately upon termination of this Agreement if for any reason the Company
does not fulfill its obligations as required by Sections 4 and 5 of this
Agreement; provided, however, such termination shall not affect the rights of
the Executive to receive all payments he is entitled to receive under Section 5.
The provisions of this Section 8 shall apply during the time the Executive is
receiving Disability payments from the Company as a result of a termination of
this Agreement pursuant to Section 4.2 hereof. 9. Arbitration. Any dispute or
controversy (except for disputes arising under Section 8) arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
accordance with the rules of the American Arbitration Association then in effect
(except to the extent that the procedures outlined below differ from such
rules). Within 7 days after receipt of written notice from either party that a
dispute exists and that arbitration is required, both parties must within 7
business days agree on an acceptable arbitrator. If the parties cannot agree on
an arbitrator, then the parties shall list the "Big Six" accounting firms (other
than the Company's auditors) in alphabetical order and the first firm that does
not have a conflict of interest and is willing to serve will be selected as the
arbitrator. The parties agree to act as expeditiously as possible to select an
arbitrator and conclude the dispute. The arbitrator must render his decision in
writing within 30 days of his or its appointment. The cost and expenses of the
arbitration and of legal counsel to the prevailing party shall be borne by the
non-prevailing party, except as otherwise provided in Sections 3.7 and 5.4
hereof. Each party will advance one-half of the estimated fees and expenses of
the arbitrator. Judgment may be entered on the arbitrator's award in any court
having jurisdiction; provided that the Company shall be entitled to seek a
restraining order or injunction in any court of competent jurisdiction to
prevent any continuation of any violation of Section 8 hereof.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without regard to its conflict
of laws principles to the extent that such principles would require the
application of laws other than the laws of the State of Florida.
11. Notices. Any notice required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given when delivered by
hand or when deposited in the United States mail by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
If to the Company: If to the Executive:
Orex Gold Mines Corp. Xxxxxxx Xxxxxx
0000 Xxxxx xx Xxxx Xxxx. #000 000 Xxxx Xxxx
Xxxxx Xxxxxx, Xxxxxxx 00000 Xxxxx Xxxxxx, Xxxxxxx 00000
or to such other addresses as either party hereto may from time to time give
notice of to the other in the aforesaid manner.
12. Benefits: Binding Effect. This Agreement shall be for the benefit of and
binding upon the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and, where applicable,
assigns. Notwithstanding the foregoing, neither party may assign its rights or
benefits hereunder without the prior written consent of the other party hereto.
13. Severability. The invalidity of any one or more of the words, phrases,
sentences, clauses or sections contained in this Agreement shall not affect the
enforceability of the remaining portions of this Agreement or any part thereof,
all of which are inserted conditionally on their being valid in law, and, in the
event that any one or more of the words, phrases, sentences, clauses or sections
contained in this Agreement shall be declared invalid, this Agreement shall be
construed as if such invalid word or words, phrase or phrases, sentence or
sentences, clause or clauses, or section or sections had not been inserted. If
such invalidity is caused by length of time or size of area, or both, the
otherwise invalid provision will be considered to be reduced to a period or area
which would cure such invalidity.
14. Waivers. The waiver by either party hereto of a breach or violation of any
term or provision of this Agreement shall not operate nor be construed as a
waiver of any subsequent breach or violation.
15. Damages. Nothing contained herein shall be construed to prevent the Company
or the Executive from seeking and recovering from the other damages sustained by
either or both of them as a result of its or his breach of any term or provision
of this Agreement. In the event that either party hereto brings suit for the
collection of any damages resulting from, or the injunction of any action
constituting, a breach of any of the terms or provisions of this Agreement, then
the party found to be at fault shall pay all reasonable court costs and
attorneys' fees of the other, whether such costs and fees are incurred in a
court of original jurisdiction or one or more courts of appellate jurisdiction.
16. No Third Party Beneficiary. Nothing expressed or implied in this Agreement
is intended, or shall be construed, to confer upon or give any person (other
than the parties hereto and, in the case of the Executive, his heirs, personal
representative(s) and/or legal representative) any rights or remedies under or
by reason of this Agreement. No agreements or representations, oral or
otherwise, express or implied, have been made by either party with respect to
the subject matter of this agreement which agreements or representations are not
set forth expressly in this Agreement, and this Agreement supersedes any other
employment agreement between the Company and the Executive.
17. Board Approval; Agreement. The Company warrants and represents to the
Executive that this Agreement has been approved and authorized by the Board. No
provisions of this Agreement may be modified, waived or discharged unless such
waiver modification or discharge is agreed to in a writing signed by the
Executive and the officer of the Company which is specifically designated by the
Board.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
OREX GOLD MINES CORPORATION, a
Delaware corporation
By:
Name: Xxxxxx Xxxxxxxxxx
Title: PRESIDENT
XXXXXXX XXXXXX
\53683\010\80EMPAGT.001
