EXHIBIT 10.6
SEPARATION OF EMPLOYMENT
AND
GENERAL RELEASE AGREEMENT
This Separation of Employment and General Release Agreement (the
"Agreement") is made and entered into as of the 14th day of January, 2003, by
and between Apollo Gold Corporation ("Company") and Xxxxxx X. Xxxxxx
("Employee"). For purposes of this Agreement, Company and Employee shall be
collectively referred to as the "parties" or individually as a "party".
RECITALS
(A) Company employed Employee in accordance with the terms
of a written employment agreement dated April 1, 2002
(the "Employment Agreement") and Employee accepted
employment with Company and has voluntarily agreed to
resign from his employment but remain as a Director
until a suitable replacement Director has been located
by the Company.
(B) Company and Employee wish to terminate the employment
relationship on a mutually agreeable basis and resolve
by this Agreement any potential clams which Employee may
have against Company by reason of the termination of
Employee's employment.
(C) The effective date of this Agreement will be on the date
the Agreement is executed by Employee ("Effective
Date").
NOW, THEREFORE, in consideration of the mutual agreements, conditions
and covenants herein set forth, the parties hereto agree as follows:
1. TERMINATION OF EMPLOYMENT POSITION
-------------------------------------
Upon the mutual agreement of Company and Employee, Employee resigns
from his employment effective as of October ____, 2002 (the "Separation Date").
From and after the Separation Date, Employee will no longer perform duties or
hold himself out as or represent himself to be an employee of the Company. The
Employee acknowledges that he will remain as a Director of Company until a
suitable replacement Director has been located by Company and agrees to execute
a written form of resignation in blank for this purpose.
2. PAYMENT AND BENEFITS
----------------------
In full satisfaction of all payments and other obligations due
Employee from Company, including, without limitation, all obligations (if any)
for salary, bonus, accrued and unused vacation pay and employee benefits of
every kind and description and excepting any expenses due to be reimbursed by
Company to Employee, in place of and in addition to any severance pay Employee
would be entitled to under any existing Company severance policy, if any, and in
consideration for the release of Claims as set forth in Section 5.01 of this
Agreement, Company shall:
(i) Pay Employee in accordance with Schedule "C" attached hereto.
(ii) Employee acknowledges and agrees that the performance criteria
set out in the attached Schedule "A", which is applicable to all
eligible employees of Company, is currently being reviewed by the
Board of Directors of Company for the purpose of revising such
performance criteria and accordingly is subject to amendment at
the discretion of the Board of Directors of Company.
(iii) All health, dental, medical and insurance benefits are
discontinued the Effective Date.
(iv) Legal expenses up to a maximum of CN$2000 will be allowed and
payable to Employee with proper receipts submitted.
(v) Employee is to be reimbursed for all outstanding expense account
amounts.
All payments made hereunder shall be subject to all applicable taxes
and withholdings required by law.
3. SURRENDER OF COMPANY PROPERTY
--------------------------------
On or before the Effective Date, Employee shall deliver to Company, to
the extent not already delivered, all property of Company in his possession,
including, without limitation, all Company files and documents in any form or
medium; employee lists and files; keys and card keys for Company's doors, file
cabinets and other locks; all credit cards provided to him by Company; printer,
diskettes and other equipment provided to him by Company except that Employee
shall be entitled to retain his Dell laptop computer; and all Company business
cards and letterhead paper, envelopes, and labels. Except as may be required
for consulting assignments, Employee further agrees that after the Effective
Date he will (i) not remove any property or documents from the premises of
Company, other than his personal property or documents which do not include any
information relating to Company; and (ii) return promptly to Company any written
communications, documents, or other property of any kind which were received by
him after the Effective Date and which were sent to him in his capacity as an
employee of Company.
4. CONFIDENTIALITY OBLIGATIONS
----------------------------
4.01 Confidential Information - "Confidential Information" means any
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information of a confidential or proprietary nature which (1) relates
to the business of Company or any persons or entities affiliated with
Company; (2) has been created, discovered or developed by, or
otherwise become known to Company or any affiliates of Company.
Confidential Information includes, but is not limited to, trade
secrets, processes, formulas, computer programs, data, know-how,
inventions, improvements, techniques, marketing and product plans,
strategies, forecasts, employee lists, customer lists and suppliers
lists.
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4.02 Nondisclosure - Employee acknowledges and agrees that he has had
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access to or has received any and all Confidential Information in a
confidential capacity and will maintain and protect the
confidentiality thereof in accordance with the terms of the
Confidentiality Agreement and will not disclose any Confidential
Information except in accordance with the terms and conditions of such
agreement. Under no circumstances and at no time shall Employee,
directly or indirectly, disclose, divulge, render or offer any
knowledge or information with respect to any Confidential Information,
except as may be specifically requested by Company in writing
delivered to Employee. All Confidential Information received by
Employee was and shall be the sole and exclusive property of Company
and its successors and assigns. Employee hereby agrees to assign to
Company and its successors and assigns, any rights or interests he may
have or acquire in any Confidential Information. Employee hereby
agrees to deliver promptly to Company all material, documents and data
of any nature containing or pertaining to any Confidential
Information. Employee further agrees not to duplicate or otherwise
reproduce the Confidential Information.
5. RELEASE AND WAIVER
--------------------
5.01 Release and Waiver of Claims
--------------------------------
(a) See Schedule "B" attached.
6. ADDITIONAL AGREEMENT
---------------------
6.01 Confidentiality of the Agreement - Company and Employee
-----------------------------------
acknowledge and agree that the terms and provisions of this Agreement
were made in strictest confidence and shall remain confidential,
except for any disclosures to the accountants or attorneys of either
party or which may be required by applicable law and except as
otherwise required to comply with the provisions of this Agreement,
and that they shall not disclose or cause or allow to be disclosed,
privately or publicly, any of the terms or provisions of this
Agreement to any other person or entity.
6.02 Negative Information; Employment Information - Employee agrees
-----------------------------------------------
that he has not made, and agrees to refrain from making, any negative,
detracting or unfavorable statements concerning Company, its business
or business endeavors, its products or product history, or its former
or present officers, directors, agents, distributors or employees,
which may have the effect of diminishing the reputations of Company or
Company's former or present officers, directors, agents, distributors
or employees or of its business or business endeavors.
6.03 Interference with the Agreement - Company and Employee agree not
---------------------------------
to take any action which would interfere with the performance of this
Agreement by the other party or which would adversely affect any of
the rights provided for hereunder.
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6.04 In the event of breach or non-performance by Company, the rights
and obligations of Employee and Company shall be determined by
reference to the Employment Agreement.
7. NOTICES
-------
7.01 Addresses - Any and all notices or other communications which
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either party shall be required or may elect to provide the other party
pursuant to this Agreement shall be in writing unless otherwise so
agreed. Any notice or communication hereunder shall be personally
delivered, faxed (receipt confirmed) or sent by certified or
registered mail, postage prepaid, return receipt requested, or sent by
overnight courier service providing evidence of delivery to the other
party at the applicable address set forth below.
If to Company: Apollo Gold Corporation
0000 XXX Xxxx.
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
X.X.X.
Attention: R. Xxxxx Xxxxxxx
President and C.E.O.
If to Employee: Xxxxxx X. Xxxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
7.02 Delivery Standards - Delivery or service of any written notice or
-------------------
communication shall be deemed completed (i) upon personal delivery,
(ii) if faxed, upon electronic acknowledgement thereof, (iii) if
mailed, three business days after deposit in the United States mail,
postage prepaid, and (iv) if by overnight courier service, one
business day after deposit with the courier service.
7.03 Change of Address - Any party may change the address to which
-------------------
notices are to be addressed by giving the other party notice in the
manner provided in this Section 7.
8. MISCELLANEOUS
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8.01 Counterparts - This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, and will
become effective and binding upon the parties at such time as all of
the signatories hereto have signed each counterpart of this Agreement.
Each of the parties hereto shall sign a sufficient number of
counterparts so that each party will receive a fully executed original
of this Agreement.
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8.02 Further Assurances - The parties hereto agree to execute such
-------------------
other documents and to take such other action as may be reasonably
necessary to further the purposes of this Agreement.
8.03 Governing Law - This Agreement and any other documents referred to
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herein shall be governed by, and construed and enforced in accordance
with, the laws of the Province of Ontario, without regard to conflicts
of laws principles thereof.
8.04 Benefit and Burden - This Agreement shall be binding upon, and
--------------------
inure to the benefit of, the parties hereto and, as applicable, their
respective heirs, executors, administrators, representatives,
successors and assigns.
8.05 Waiver and Amendment - No breach of any provision hereof can be
----------------------
waived unless in writing. Waiver of any one breach shall not be deemed
to be a waiver of any other breach of the same or any other provision
hereof. This Agreement may be amended only by a written agreement
executed by the parties.
8.06 Captions - Paragraph titles or captions contained in this
--------
Agreement are used for convenience of reference only and are not
intended to and shall not in any way enlarge, define, limit, extend or
describe the rights or obligations of the parties or affect the
meaning or construction of this Agreement or any provision hereof.
8.07 Survival of Warranties and Representations - The warranties and
----------------------------------------------
representations of this Agreement are deemed to survive the date of
execution hereof.
8.08 Severability - In the event any provision of this Agreement should
------------
be held to be void, voidable or unenforceable in any respect, the
remaining provisions shall remain in full force and effect.
8.09 Entire Agreement - All agreements, covenants, representations and
-----------------
warranties, express and implied, oral and written, of the parties
hereto concerning the subject matter of this Agreement, or any part
thereof, are contained in this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
respective dates set forth below.
APOLLO GOLD CORPORATION
By: /s/
-----------------------------------------
Name:
Title:
Date:
--------------------------------------------
/s/ Xxxxxx X. Xxxxxx
-------------------------------------------------
XXXXXX X. XXXXXX
Date:
--------------------------------------------
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SCHEDULE "A"
[INTENTIONALLY DELETED]
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SCHEDULE "B"
RELEASE AND INDEMNITY
---------------------
IN CONSIDERATION for the payment of the sum of Ten ($10.00) Dollars
included in the other good and valuable consideration, the sufficiency of which
is hereby acknowledged, XXXXXX X. XXXXXX for himself, his heirs, executors,
administrators and assigns, hereby releases and forever discharges APOLLO GOLD
CORPORATION and all of its parents, subsidiaries, affiliates, unincorporated
divisions, predecessors, successors and assigns, and all of their past and
present officers, directors, representatives, agents, shareholders and employees
(collectively the "Releasees") from any and all claims, demands, causes of
action, fees and liabilities of any kind whatsoever, whether known or unknown,
which Xxxxxx Xxxxxx ever had, now has or may have hereafter against any of them,
arising out of or in any way relating to the cessation of Xxxxxx Xxxxxx'x
employment, including but not limited to all claims that could have been raised
under the Employment Standards Act of 2000, as amended, the Human Rights Code of
Ontario, as amended, Workplace Safety and Insurance Act, Occupational Health and
Safety Act, including but not limited to any claim for commissions, vacation
pay, health benefits, bonuses, payment under any bonus or other compensation
plan and any other compensation of any kind whatsoever under any federal or
provincial law, by statute, regulation, contract or tort law, or otherwise and
that he has not been subjected to any unequal treatment contrary to the Ontario
Human Rights Code.
AND FOR THE SAID CONSIDERATION I further agree not to make any claim
or demand or commence, maintain or prosecute any action, cause or proceeding for
damages, compensation, loss or any relief whatsoever against the said Releasees
in respect of any cause, matter or thing herein released. I further agree that
this Release shall operate conclusively as an estoppel in the event of any such
claim, action or proceeding and may be pleaded accordingly.
AND FOR THIS CONSIDERATION I further agree to indemnify and save
harmless the Releasees from any and all claims or demands under the Income Tax
----------
Act of Canada and/or the Income Tax Act of the Province of Ontario and/or under
--- --------------
the Employment Insurance Act of Canada, in respect of any failure on the part of
------------------------
the Releasees to withhold income tax and/or any amounts previously paid to me by
Human Resources Development Canada on account of employment insurance benefits
received from the said consideration any interest or penalties relating to same,
and further, to indemnify the Releasees for any costs or expenses it may incur
in defending such claims or demands.
NOTWITHSTANDING THE FOREGOING, this Release shall not apply to and
shall not release any actions, causes of action, claims and demands which I may
have relating to the failure or the refusal of the Releasees to comply with the
terms of the Separation of Employment and General Release Agreement as agreed
upon.
AND I HEREBY DECLARE that I fully understand the terms of this
settlement and have received or was afforded the opportunity to receive
independent legal advice prior to executing this document and that I voluntarily
accept the consideration offered for the purpose of making full and final
compromise and settlement of all claims as aforesaid.
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IT IS UNDERSTOOD AND AGREED that I hereby undertake and agree not to
disclose the facts of this settlement or agreement or the terms thereof to any
third party without the written consent of the Releasees, except persons from
whom I receive professional advice, my immediate family or as required by law.
THIS RELEASE AND INDEMNITY shall be deemed to have been made in and
shall be construed in accordance with the laws of the Province of Ontario.
THIS RELEASE AND INDEMNITY shall inure to the benefit of and be
binding upon the undersigned, the Releasees and their respective heirs,
executors, administrators, legal personal representatives, successors and
assigns.
IT IS UNDERSTOOD AND AGREED that the giving of the aforesaid
consideration is deemed to be no admission whatsoever of liability on the part
of the Releasees.
IN WITNESS WHEREOF I have hereunto set my hand and seal at
____________ this ____ day of __________, 2002.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
)
____________________________________ ) ____________________________________
Witness XXXXXX X. XXXXXX
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SCHEDULE "C"
XX. XXXXXX X. XXXXXX
(CANADIAN DOLLARS)
Monthly Salary $ 22,925.00
Severance 20 Month $458,500.00
***Vehicle Purchase Benefit** $ 15,000.00
-----------
Total Gross $473,500.00
Taxable Income $473,500.00
Deductions
Canada Pension Plan $ 1,801.80
Employment Insurance $ 819.00
30% Withholding Tax 30.00% $142,050.00
Total Deductions $144,670.80
Net Pay Before Car Purchase $313,829.20
Purchase of Car $ 15,000.00
Net Pay $298,829.20
Remittance to the Receiver General Employee Employer
Canada Pension Plan $ 1,801.80 $ 1,801.80 $ 3,603.60
Employment Insurance $ 819.00 $ 1,146.60 $ 1,965.60
Withholding Tax 0.3 $142,050.00 $142,050.00
Total $144,670.80 $ 2,948.40 $147,619.20
Total Monies Paid
Net Pay to Xxxxxx X. Xxxxxx $298,829.20
Receiver General of Canada $147,619.20
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