Exhibit 10.38(c)
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of this 5th day of October, 1999 (the "Agreement")
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and effective with a starting date of November 1, 1999 (the "Effective Date"),
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by and between GOLDEN STAR RESOURCES LTD. (the "Company") and XXXXX XXXX
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XXXXXXXXX XXXXXXXX (the "Employee").
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WHEREAS the Company wishes to have the benefit of the Employee's services;
and
WHEREAS the Employee wishes to be so employed.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein contained, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Employment
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a) The Company hereby employs the Employee, and the Employee hereby agrees, to
render exclusive and full-time services to the Company as President and Chief
Executive Officer of the Company from the Effective Date on the terms and
conditions set forth in this Agreement and subject to the direction of the Board
of Directors of the Company; provided that the Employee shall have the right to
spend a reasonable amount of time up and until January 1, 2000, to unwind his
relationship with Anvil Mining NL, his former employer. In connection therewith,
the Employee shall perform such duties commensurate with such office as he shall
reasonably be directed by the Board of Directors of the Company to perform.
b) The Employee shall be principally employed at the Company's principal place
of business in the City of Denver in the State of Colorado; provided that the
Employee shall be principally employed at the offices of Bogoso Gold Limited in
Ghana until the Employee has obtained the necessary authorizations from the
United States Department of Justice, Immigration and Naturalization Service
and/or other competent regulatory authorities to work in the United States of
America. The Employee acknowledges that he will be required from time to time to
travel and perform his duties in other locations and the Employee shall
undertake such reasonable amount of travel away from his principal place of
employment as may reasonably be necessary for the business of the Company.
2. Term of Employment
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The Agreement shall become effective on the Effective Date and continue in full
force and effect indefinitely from year to year, unless either party give prior
written notice to the other of its election to terminate the Agreement, as
herein provided in section 5.
3. Services
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a) The Employee shall devote his entire business time, best efforts, skills
and attention to the Company in fulfilling his duties and responsibilities
hereunder faithfully and diligently; provided that the Employee shall have the
right to spend a reasonable amount of time up and until January 1, 2000, to
unwind his relationship with Anvil Mining NL, his former employer.
b) The Employee shall promptly report to the Chairman and to the Compliance
Officer of the Company all matters and transactions of which he is aware that
may result in a violation of laws, regulations or the Company's policies or in
which a potential conflict of interest between the Employee and the Company may
arise and the Employee shall not proceed with such matters or transactions until
the Board's approval thereof is obtained. The Employee shall similarly report
any violations or potential conflict of interest he is aware of between any
employee of the Company or its subsidiaries and the Company. For purposes of
clarification, this subsection is not intended to limit in any way the
Employee's other fiduciary obligations to the Company which may arise in law or
equity.
4. Compensation and Benefits
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a) For all services to be rendered by the Employee hereunder, the Company
shall pay to the Employee, and the Employee hereby accepts, a minimum base
salary (the "Salary") of US$175,000 per annum. The Salary may be
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increased by the Board of Directors of the Company during the term of the
Agreement and, when increased, such higher amount shall then be the minimum base
annual salary hereunder; such minimum base annual salary shall not at any given
time be reduced below the highest minimum base annual salary fixed from time to
time by the Board of the Directors of the Company. The Salary shall be payable
in equal semi-monthly installments in arrears. From the Effective Date until
January 1, 2000, the Employee shall be seconded to Bogoso Gold Limited ("BGL"),
one of the Company's subsidiaries, and the Salary for such period shall be paid
directly by BGL on behalf of the Company.
b) As an incentive to join the Company, the Employee shall be granted under
the Company's Stock Option Plan on the date hereof a stock option to purchase
600,000 shares of the Company at a price per share equal to the closing price of
the shares on the Toronto Stock Exchange on the business day immediately
preceding the grant of such option. The stock option so granted shall vest as to
one-third of the shares on the Effective Date, as to an additional one-third on
the first anniversary date of the Effective Date and as to the remaining one-
third on the second anniversary date of the Effective Date. In addition, the
Employee shall be entitled to participate in the Company's 1997 Stock Option
Plan (copy of which is attached hereto as Schedule A) or any successor stock
option plan.
c) The Employee shall be entitled to participate in the Company's Stock Bonus
Plan (a copy of which is attached hereto as Schedule B) or any successor stock
bonus plan. In the next few months, the Board of Directors of the Company will
review the Company's compensation system for senior executive officers to take
into account the fact that, with the completion of the Bogoso acquisition, the
Company is now generating cash flow. The objective of the review will be to
determine whether senior management should receive in the future, in addition or
in lieu of stock bonuses, cash bonuses. The bonuses would be granted on the
basis of individual performance and would be a function of the availability of
cash flow from the Company's operations. The Employee shall be entitled to
participate in the new compensation system when and as adopted by the Board.
d) The Employee shall be entitled to participate in any and all group
insurance, hospital, major medical and disability benefits, savings or
retirement plans, or other fringe benefits of the Company as established by the
Company from time to time for management personnel; provided that the Employee
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shall have fulfilled all eligibility requirements for such benefits.
e) The Company may maintain at its option, with the Employee's express consent
which is hereby given, one insurance policy on the life of the Employee in the
amount of US$ 1.0 million, payable to the Company. All premiums and other
charges payable in connection with the establishment and maintenance of said
policy shall be borne by the Company.
f) The Company shall, subject to approval by the Chairman of the Company,
reimburse the Employee for all reasonable and documented travel, entertainment
and other business expenses actually and properly incurred by him in connection
to his duties hereunder. Expense accounts requesting reimbursements hereunder,
shall be rendered within a reasonable period of time following such expenditure.
g) The Employee shall be entitled to four weeks of paid vacation during each
year of employment hereunder at such time or times as may be selected by the
Employee, approved by the Chairman, and as are in accordance with the Company's
policies and requirements subject to reasonable operating requirements of the
Company.
h) The Company shall sponsor the Employee's application for a H-1 visa and
thereafter for a "green card" and pay all reasonable documented expenses,
including, without limitation, legal fees and disbursements, directly related to
such applications. The application for the H-1 visa shall include the right for
the Employee's wife and children to reside (but not work) in the United States
of America for as long as the Employee remains employed by the Company.
i) The Company shall reimburse the Employee for up to a maximum of US$20,000
for reasonable documented expenses incurred in relocating from Australia to
Denver. Such expenses may include, without limitation, car rental (for up to one
month), the cost of moving all belongings and household contents from Australia
to the United States of America (the Employee shall obtain a bid from at least
two reputable companies and use the least costly), the costs of storing the
Employee's furniture, the cost of establishing a new house in Denver and the
purchase of certain electric appliances, but shall not include the cost of
disposing of his house or personal cars in
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Australia. In addition, the Company shall reimburse the Employee for up to a
maximum of US$4,000 for temporary lodging for the Employee and his family when
they relocate to the Denver area. The Company shall reimburse the Employee for
the cost of one set of business class tickets on the airlines of his choice to
bring his family to the Denver area. The Employee shall use his best efforts to
minimize his relocation costs to the United States of America until he has
obtained all necessary permits to work in the United States as President and
Chief Executive Officer of the Company.
j) The Company shall guarantee for one year from the date of purchase by the
Employee of his principal residence in the State of Colorado for up to a maximum
amount of US$500,000 the performance by the Employee of his obligations under a
loan contracted by the Employee to finance the purchase of such principal
residence; provided that the Company shall have no obligation to guarantee such
obligations if the Employee should be able to obtain credit from a financial
institution in Colorado at normal commercial rates. The obligations of the
Company hereunder shall terminate 60 days after the termination of this
Agreement. The performance by the Employee of his obligations under the
guarantee provided hereunder shall be secured by a second mortgage on the
residence purchased by the Employee as a result of the guaranteed loan and by
any other amounts due under this Agreement.
k) The Company shall reimburse the Employee for the costs associated with the
installation and operation of one phone line from his principal residence in
Colorado. The phone line shall be used at all times in connection with the
business of the Company or to contact his family while traveling on business for
the Company.
5. Termination
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The Agreement may be terminated in the following manner in the specified
circumstances:
a) By the Company:
(i) for cause, immediately upon notice in writing from the Company to the
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Employee, in which case the Company shall have no further obligation
to the Employee other than any compensation and benefits due the
Employee up to and including the date of termination. For purposes of
this Agreement, "cause" shall mean:
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(aa) the willful and continued failure of the Employee to perform
substantially the Employee's duties with the Company or one of
its affiliates (other than any such failure resulting from
temporary incapacity due to physical or mental illness), after
a demand in writing for substantial performance is delivered
to the Employee by the Chairman of the Board of the Company
which specifically identifies the manner in which the Board
believes that the Employee has not substantially performed the
Employee's duties; or
(bb) the willful engaging by the Employee in illegal conduct or
gross misconduct which is materially injurious to the Company;
(ii) without cause, (A) at any time on or prior the 180/th/ day following
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the Effective Date, upon (x) the giving of written notice by the
Company to the Employee and (y) the payment by the Company to the
Employee in cash or cash equivalent acceptable to the Employee, in a
lump sum at the time of termination, of an amount equal to the Salary
and benefits the Employee would have been entitled to receive for a
period of six months after such termination had the termination not
occurred, or (B) at any time after the 180/th/ day following the
Effective Date, upon (x) the giving of written notice by the Company
to the Employee and (y) the payment by the Company to the Employee in
cash or cash equivalent acceptable to the Employee, in a lump sum at
the time of termination, of an amount equal to the Salary and
benefits the Employee would have been entitled to receive for a
period of six months after such termination had the termination not
occurred, plus one additional month of Salary and benefits for each
additional full month worked for the Company in excess of six months,
up to and including the date of termination, provided that under no
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circumstances shall the amount to be paid under this paragraph exceed
24 months of Salary and benefits;
(iii) immediately and without notice upon the death of the Employee, in
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which case the Company shall have no further obligation to the
Employee's estate or representatives other than any compensation due
the
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Employee up to and including the date of death and other than as
provided in any benefit plans in effect at the date of death which are
applicable to the Employee;
(iv) at any time upon 90-day notice in writing from the Company to the
Employee, if the Employee shall by reason of illness or mental or
physical disability or incapacity fail for any three consecutive
calendar months in any calendar year or for six months in the
aggregate in any two successive calendar years to have performed
substantially all of his duties under the Agreement, in which case the
Company shall have no further obligation to the Employee other than
any compensation and benefits due to the Employee up to and including
the date of termination. During the 90-day notice period, the Employee
shall be considered a full-time employee of the Company. The Employee
shall thereafter be entitled to such other payments as may be due
under any disability insurance policy of the Company in accordance
with the terms of such policy; or
(v) at any time upon notice in writing from the Company to the Employee,
if the Employee shall for any reason fail to obtain on or before
February 29, 2000 (the "Visa Date"), a visa to work in the United
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States of America as President and Chief Executive Officer of the
Company, in which case the Company shall have no further obligation to
the Employee other than (A) any compensation and benefits due to the
Employee up and including the date of termination, (B) any reasonable
documented costs (up to a maximum of US$20,000) of relocating the
Employee and his family from the United States to Australia and (C)
the obligation to cause the appointment of the Employee as Managing
Director of BGL under the same terms and for the remainder of the
period of time provided for in Exhibit A to the Letter addressed by
Xxxxx X. Xxxxx to Xxxxx Xxxxxxxx on August 9, 1999, a copy of which is
attached as Schedule C hereto; provided, however, that if the
Company's outside counsel responsible for handling the Employee's visa
application indicates on or before the Visa Date that it reasonably
believes that a visa enabling the Employee to work in the United
States of America as President and Chief Executive officer of the
Company should be obtained within the next two months from the Visa
Date, then the Visa Date shall be automatically extended until, but
not later than, April 31, 1999.
b) By the Employee:
(i) without good reason, upon three months' notice in writing to the
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Company, in which case the Company shall have no further obligation to
the Employee other than any compensation and benefits due the Employee
up to and including the date of termination for good reason, at any
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time upon three months' notice in writing, in which case the Company
shall pay to the Employee in cash or cash equivalent acceptable to
Employee, in a lump sum at the time of termination, (A) if the
termination occurs on or prior to the 180/th/ day following the
Effective Date, the Salary and benefits the Employee would have been
entitled to receive for a period of six months after such termination
had the termination not occurred or (B) if such termination occur
after the 180/th/ day following the Effective Date, the Salary and
benefits the Employee would have been entitled to receive for a period
of six months after such termination had the termination not occurred,
plus one additional month of Salary and benefits for each additional
full month worked for the Company in excess of six months, up to and
including the date of termination, provided that under no
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circumstances the amount to be paid under this paragraph shall exceed
24 months of Salary and benefits;
(ii) at any time upon notice in writing from the Employee to the Company,
if the Employee shall for any reason fail through no fault of his own
to obtain on or before the Visa Date, a visa to work in the United
States of America as President and Chief Executive Officer of the
Company, in which case the Company shall have no further obligation to
the Employee other than (A) any compensation and benefits due to the
Employee up and including the date of termination, (B) any reasonable
documented costs (up to a maximum of US$20,000) of relocating the
Employee and his family from the United States to Australia and (C)
the obligation to cause the appointment of the Employee as Managing
Director of BGL under the same terms and for the remainder of the
period of time provided for in Exhibit A to the Letter addressed by
Xxxxx X. Xxxxx to Xxxxx Xxxxxxxx on August 9, 1999, a copy of which is
attached as Schedule C hereto; provided, however, that if the
Company's outside counsel responsible for handling the Employee's visa
application
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indicates on or before the Visa Date that it reasonably believes that
a visa enabling the Employee to work in the United States of America
as President and Chief Executive officer of the Company should be
obtained within the next two months from the Visa date, then the Visa
Date shall be automatically extended until, but not later than, April
31, 1999; or
(iii) The Company shall be deemed to have given the Employee "good reason"
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for terminating his employment if it shall have defaulted in its
obligation to the Employee with respect to the payment of
compensation and provision of benefits when, as and if due within 10
business days of written notice to the Company by the Employee that
such payment was not made when due.
c) Upon any termination of employment as set forth in this Section 5, the
Employee shall, unless otherwise advised by the Company, do the following:
(i) immediately resign all offices held (including directorships, if any)
in the Company (and any subsidiary company or other affiliated
company of the Company) and except as provided in this Agreement, the
Employee shall not be entitled to receive any additional severance
payment or additional compensation for loss of office or otherwise by
reason of the resignation. If the Employee fails to resign as
described herein, the Company is irrevocably authorized to appoint
any other person in his name and on his behalf to sign any documents
or do any things necessary or requisite to give effect to such
resignation; and
(ii) promptly turn over to the Company all books of account, computer
files, maps, records, reports and other documents, materials and
property used by the Employee in the performance of his duties or
otherwise, belonging to the Company.
d) All amounts payable under this Section 5 shall, at the option of the
Company, be delivered to the Employee personally or be mailed to the Employee at
the address referred to in Section 10(d).
6. Change of Control
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If the Employee's employment by the Company is terminated upon the occurrence of
a Change in Control (as hereinafter defined) of the Company, then the Employee
shall be entitled to receive the same Salary and benefits he would have been
entitled to receive for a period of 24 months had the Change of Control not
occurred and such amount shall be payable in a lump sum at the date of
termination. For purposes of this Agreement a Change in Control means (i) the
acquisition by any person of a sufficient number of the outstanding voting
securities of the Company to materially affect the control of the Company; (ii)
a majority of the board of Directors of the Company shall be individuals who are
not nominated by the Board of Directors of the Company; (iii) the Company is
merged or consolidated with any person (and the Company is not the surviving
corporation); (iv) all or substantially all of the assets of the Company are
acquired by another person; or (v) the Employee's office, station or duties as
provided for in this Agreement are materially reduced or adversely changed as a
result of the occurrence of one of the events mentioned above in this paragraph
in (i), (ii), (iii) and (iv).
7. Acceleration and Vesting of Stock Options
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All of the stock options granted to the Employee under the stock option plan of
the Company or any of its subsidiary companies shall become immediately
exercisable and vested and shall remain exercisable for a period of twelve
months from the date of termination of the Employee if after the first
anniversary of the Effective Date (i) the Board of Directors of the Company
shall fail at any given time to elect the Employee as President and Chief
Executive Officer or to an executive position possessing comparable duties and
responsibilities, (ii) should the Company discharge the Employee from his right
and duty to perform services hereunder at any time without cause or (iii) should
the Employee terminate his employment for good reason. Notwithstanding any of
the foregoing, under no circumstances shall an option remain exercisable for
more than 10 years after the date it was granted.
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8. Confidentiality and Restrictive Covenant
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The Employee acknowledges that as a condition of his employment he is required
to maintain the confidentiality of the Company's affairs and, accordingly,
agrees to execute a Confidentiality and Restrictive Covenant Agreement in the
form attached hereto as Schedule D.
9. Business Conduct Policy and Policy for Public Disclosure
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The Employee acknowledges receipt of the Business Conduct Policy and the Policy
for Public Disclosure and Dealing with the Financial Investment Community in the
form attached hereto as Schedule E and, having read and understood both
policies, agrees to abide by them in their entirety. The Company shall promptly
notify the Employee of any modifications to these policies.
10. Trading in Company Securities
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The Employee acknowledges he may not purchase or sell any security of the
Company (directly or indirectly through accounts which he controls or in which
he has an interest) unless such purchase or sale has been approved in writing by
the Compliance Officer of the Company, and agrees that before purchasing or
selling any such Company security, he will seek his prior approval of such
transaction, such approval not to be unreasonably withheld.
11. Miscellaneous
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a) The failure to insist upon strict compliance with any of the terms,
covenants or conditions of this Agreement shall not be deemed a waiver of such
terms, covenants or conditions and the waiver by either party of a breach of any
provision of this Agreement shall not operate as or be construed as a waiver of
any subsequent breach thereof.
b) Should any provision or provisions of this Agreement be illegal or not
enforceable, it or they shall be considered separate and severable from this
Agreement and its remaining provisions shall remain in force and be binding upon
the parties as though the provision or provisions had never been included.
c) This Agreement shall be governed by and construed in accordance with the
laws of the State of Colorado, and each of the parties attorns to the non-
exclusive jurisdiction of the courts of the State of Colorado.
d) Any and all notices referred to herein shall be in writing and may be
delivered by mail, by telecopy or by hand. Notice shall be deemed to be given
five days after mailing, if mailed in the United States by registered mail, on
the date of actual receipt if given by telecopy, or on the date of delivery, if
delivered by hand.
Address for mailing, telecopy or delivery by hand shall be as follows:
. To the Employee:
00 Xxxxxxxx Xxxx
Xxxxxxxx 0000
Xxxxxxxxx
. To the Company:
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
U.S.A.
Attention of the Secretary of the Company
or such other address as either party may from time to time designate in
writing.
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e) In the event of any difference of opinion or dispute between the Employee
and the Company with respect to the construction or interpretation of this
Agreement or the alleged breach thereof which cannot be settled amicably by
agreement of the parties, such dispute shall be submitted to and determined by
arbitration in the city of Denver, Colorado in accordance with the rules of the
American Arbitration Association, and judgment upon the award shall be final,
binding, and conclusive upon the parties and may be entered in the highest
court, state or federal, having jurisdiction.
f) The rights and obligations of the Company under this Agreement are with the
prior written consent of the Employee assignable by the Company to any affiliate
of the Company, to any successor by merger to the Company and to any person that
acquires all or substantially all of the assets and business of the Company as a
going concern. This Agreement shall be binding upon and shall enure to the
benefit of the Company and its successors and assigns, and the Employee and his
legal representatives, heirs, legatees and distributees, but shall not be
assignable by the Employee.
g) This Agreement supersedes, except for a letter of clarification of even
date herewith, any and all prior written or oral employment agreements between
the Company and the Employee and constitutes the entire agreement between the
parties hereto. No modification, amendment or waiver of any of the provisions
of this Agreement shall be effective unless in writing and signed by both
parties hereto.
h) This Agreement may be executed by the parties hereto in counterparts, each
of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year appearing on page one of this Agreement.
GOLDEN STAR RESOURCES LTD.
By: ___/s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Chairman of the Board
___/s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
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