EMPLOYMENT AGREEMENT BETWEEN GOLDEN PHOENIX MINERALS, INC. AND DAVID CALDWELL
Exhibit 10.21
THIS EMPLOYMENT AGREEMENT (the “Agreement”), is dated as of February 22, 2006 (the “Execution
Date”) and is entered into by and between Golden Phoenix Minerals, Inc., a Minnesota corporation
(the “Company”), and Xxxxx Xxxxxxxx (the “Executive”), collectively referred to herein as the
“parties”.
WHEREAS, the Company wishes to employ the Executive to serve as its President and Chief
Operating Officer as well as to perform other duties on behalf of the Company, as determined by the
Chairman of the Board (the “Chairman”) and/or Board of Directors (the “Board”).
NOW, THEREFORE, for and in consideration of the mutual promises and conditions made herein and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows.
ARTICLE I
EMPLOYMENT AND TERM OF EMPLOYMENT
EMPLOYMENT AND TERM OF EMPLOYMENT
1.1. Employment and Term. The Company hereby employs Executive to render full-time
services to the Company, subject to Section 2.2 of the Agreement, and except during vacation
periods and reasonable periods of absence due to sickness, personal injury or other disability,
upon the terms and conditions set forth below, from January 1, 2006 (the “Effective Date”) until
the employment relationship is terminated in accordance with the provisions of this Agreement (the
“Employment Term”).
1.2 Acceptance. Executive hereby accepts employment with the Company and agrees to
devote his full-time attention and best efforts to rendering the services described below. The
Executive shall accept and follow the direction and authority of the Board in the performance of
his duties, and shall comply with all existing and future regulations applicable to employees of
the Company and to the Company’s business.
1.3. Termination of Prior Agreements.
(a) Upon execution of this Agreement, all prior employment and/or consultant
agreements between Executive and the Company or its subsidiaries shall be deemed terminated and,
except as provided in Section 1.3(b), there shall be no right to severance or other related
benefits thereunder; provided, however, that the foregoing will not apply to any obligation of the
Company or any of its subsidiaries to indemnify Executive against any losses, costs, damages or
expenses.
(b) With respect to services rendered by Executive from February 15, 2005 to December
31, 2005, the Company shall pay to Executive an amount equal to $550 per day for each day the
Executive provided services to the Company, in addition to reimbursement of direct expenses
incurred by the Executive. At the option of the Executive, such payment may be discharged by the
Company through a cash payment or through the issuance of common stock of the Company registered on
a Form S-8 registration statement to the extent a Form S-8 registration statement is available to
the Company. In the event that the Executive elects payment in the form of a stock distribution
rather than cash, the Executive understands that the distribution of stock will have immediate tax
consequences, and,
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unless the shares are registered with the Securities and Exchange Commission, restrictions on
trading these shares under Rule 144 may apply. In determining the number of shares to be issued in
payment of the aforementioned obligations, the dollar amount due the Executive shall be divided by
the average closing price for the month the invoiced expenses were incurred. The total number of
shares under this calculation of the entire obligation specified above is approximately seven
hundred sixty nine thousand sixty nine (769,069).
ARTICLE II
DUTIES OF EMPLOYEE
DUTIES OF EMPLOYEE
2.1. General Duties. Executive shall serve as President and Chief Operating Officer. In
such capacity, Executive shall do and perform all lawful services, acts, or other things necessary
or advisable to assist the Company’s executive management in the areas of corporate development and
compliance, mergers and acquisitions, investment banking and fund raising, strategic relationships
and public relations, in the United States and such other locations as deemed appropriate by the
Board. To the extent consistent with the Company’s Articles of Incorporation, as amended
(“Articles”) and Bylaws, as amended (“Bylaws”), Executive shall have all powers, duties and
responsibilities necessary to carry out his duties, and such other powers and duties as the
Chairman and/or the Board may prescribe consistent with the Company’s Articles and Bylaws.
2.2. Exclusive Services. Except as set forth on Exhibit A hereto, it is
understood and agreed that the Executive may not engage in any other business activity during the
Employment Term, whether or not for profit or other remuneration, without the prior written consent
of the Company; provided, however, that the Executive may (i) manage personal and
family investments (ii) engage in charitable, philanthropic, educational, religious, civic and
similar types of activities to the extent that such activities do not materially hinder or
otherwise interfere with the business of the Company or any affiliate or subsidiary of the Company,
or the performance of the Executive’s duties under this Agreement and (iii) subject to the approval
of the Board, serve as a director or as a member of an advisory board of another business
enterprise.
2.3. Reporting Obligations. In connection with the performance of his duties hereunder,
the Executive shall report directly to, and take direction from, the Chairman and the Chief
Executive Officer of the Company.
ARTICLE III
COMPENSATION AND BENEFITS OF EMPLOYEE
COMPENSATION AND BENEFITS OF EMPLOYEE
3.1. Annual Base Salary.
(a) Until such a time that the Company achieves an initial cash flow through sales of
molybdenite concentrates at the Ashdown Mine, the Company shall accrue and defer the payment of the
Executive’s salary for the services to be rendered by him at the rate of One Hundred Forty Five
Thousand and No/100 Dollars ($145,000) annually (prorated for any portion of a year), subject to
increases, if any, as the Board may determine in its sole discretion after periodic review of the
Executive’s performance of his duties hereunder not less frequently than annually. Thereafter,
fifty percent (50%) of such base salary shall be deferred by the Executive and accrued as a
liability by the Company until the Company has fully satisfied its financial obligations to Xxxxxxx
and Xxxxxxx Xxxxxxx and the Ashdown Mill LLC finance programs relating to the Ashdown Mine. Such
base salary shall be payable in periodic installments in accordance with the terms of the Company’s
regular payroll practices in effect from the time during the term of this Agreement, but in no
event less frequently than once each month.
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(b) Once the Company achieves an initial cash flow through sales of molybdenite
concentrates at the Ashdown Mine and has fully satisfied its financial obligations to Xxxxxxx and
Xxxxxxx Xxxxxxx and the Ashdown Mill LLC finance programs relating to the Ashdown Mine, the Company
shall pay the Executive salary for the services to be rendered by him at the rate of One Hundred
Sixty Five Thousand and No/100 Dollars ($165,000) annually (prorated for any portion of a year),
subject to increases, if any, as the Board may determine in its sole discretion after periodic
review of the Executive’s performance of his duties hereunder not less frequently than annually.
Such base salary shall be payable in periodic installments in accordance with the terms of the
Company’s regular payroll practices in effect from the time during the term of this Agreement, but
in no event less frequently than once each month.
(c) All compensation outlined in this Section 3.1 will be considered provisional and
will be in effect until a third party evaluation of executive compensation can be completed with
recommendations made to the Board and final base salary and bonus structures ratified through a
shareholder vote at a regular annual general meeting.
3.2. Bonuses. In addition to the base salary and other benefits provided to Executive
hereunder, Executive shall, at the discretion of the Board, be eligible to participate in the
Employee Bonus Plan and the Salvage Bonus Plan of the Company.
3.3. Expenses. The Company shall pay or reimburse the Executive for all reasonable,
ordinary and necessary business expenses actually incurred or paid by the Executive in the
performance of Executive’s services under this Agreement in accordance with the expense
reimbursement policies of the Company in effect from time to time during the Employment Term, upon
presentation of proper expense statements or vouchers or such other written supporting documents as
the Company may reasonably require.
3.4. Vacation. The Executive shall be entitled to five (5) weeks paid vacation for
each calendar year (prorated for any portion of a year, as applicable). Notwithstanding anything to
the contrary in this Agreement, vacation time shall cease to accrue beyond eight (8) weeks at any
given time during the Employment Term.
3.5. General Employment Benefits. Except where expressly provided for herein, the
Executive shall be entitled to participate in, and to receive the benefits under, any pension,
health, life, accident and disability insurance plans or programs and any other employee benefit or
fringe benefit plans that the Company makes available generally to its employees, as the same may
be in effect from time to time during the Employment Term.
3.6. Stock Options. On the Effective Date, the Executive will be awarded 600,000
options under the Company’s Year 2002 Supplemental Employee/Consultant Stock Compensation Plan.
These options were approved by the Board of Directors on February 13, 2006, along with grants for
all other salaried employees. The exercise price for the options was set at the fair market value
of a share of the Company’s Common Stock at the close of business on that date, which has been
determined to be $0.24 per share. Upon execution of this Agreement the options shall be issued
pursuant to an effective registration statement on Form S-8 to the extent a Form S-8 registration
statement is available to the Company. One fourth of the options shall vest each ninety (90) day
period from the date of the grant date resulting in one hundred percent (100%) vesting on the first
anniversary of the grant date. The options shall have a term of five (5) years and shall be subject
to other standard terms and conditions under the applicable stock option plan of the Company.
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3.7. Location; Travel. In connection with his employment during the Employment Term,
unless otherwise agreed by the Executive, the Executive will be based in the Elko, Nevada.
Executive will undertake normal business travel on behalf of the Company, the reasonable expenses
of which will be paid by the Company pursuant to Section 3.3 of this Agreement.
ARTICLE IV
TERMINATION OF EMPLOYMENT
TERMINATION OF EMPLOYMENT
4.1. Termination. This Agreement may be terminated earlier as provided for in this
Article IV, or extended as set forth herein.
4.2. Termination For Cause. The Company reserves the right to terminate this Agreement
for cause immediately upon: (a) Executive’s willful and continued failure to substantially perform
his duties with the Company (other than such failure resulting from his incapacity due to physical
or mental illness), (b) Executive’s willful engagement in gross misconduct, as determined by the
Board in good faith, which is materially and demonstrably injurious to the Company; (c) breach of
this Agreement, or (d) Executive’s commission of a felony, or an act of fraud against the Company
or its affiliates; provided, however, the Company may not terminate the Executive’s
employment for cause in the case of Section 4.2(a), unless the Company has first provided Executive
with written notice, specifying in detail the act or acts alleged to constitute cause, and provided
the Executive with a period of not less than fifteen (15) calendar days to cure the failure in the
manner specified in such notice. Executive shall not be entitled to any severance benefits and all
stock options of the Company granted to Executive which have not vested shall be canceled upon
termination for cause.
4.3. Termination Without Cause. Notwithstanding anything to the contrary in this
Agreement, the Company reserves the right to terminate this Agreement at any time upon thirty (30)
days’ written notice to Executive, without cause, subject to the express terms and provisions set
forth in Sections 4.5 and 4.6.
4.4. Voluntary Termination by Executive. Notwithstanding anything to the contrary in
this Agreement, Executive may terminate this Agreement at any time upon thirty (30) days’ written
notice to the Company, subject to the terms and provisions below.
Except in the case of a termination for “good reason”, as set forth in Section 4.7 of this
Agreement, the Company shall not be obligated to pay any severance benefit to Executive if
Executive terminates this Agreement pursuant to this Section 4.4.
4.5. Severance. In the event that during the Employment Term the Executive is terminated
by the Company “without cause” (as set forth in Section 4.3), or the Executive terminates his
employment for “good reason” (as set forth in Section 4.7), the Executive shall be provided or
promptly be paid (i) any accrued but unpaid salary, accrued but unused vacation time, un-reimbursed
expenses which otherwise would be reimbursed in the normal course and vested benefits under any of
the Company’s benefit plan in which the Executive is a participant, (ii) any bonus previously
declared but not yet paid, and (iii) a cash payment equal to twelve (12) months of Executive’s
annual base salary as provided for in Section 3.1 of this Agreement, paid in twelve (12) equal
monthly installments, less any taxes that must be withheld. In addition, upon a termination under
this Section 4.5, any portion of any of stock options of the Company (“Options”) granted to the
Executive that has not vested shall be forfeited and the Executive shall have no rights thereunder.
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4.6. Change of Control. In the event that during the Employment Term the Executive is
terminated by the Company or the Executive terminates his employment for “good reason,” as set
forth in Section 4.7 of this Agreement, within twelve (12) months following a “change of control”
(as defined below) occurs after the Effective Date (a “Change of Control Termination”), the
Executive shall promptly be paid (i) any accrued but unpaid salary, accrued but unused vacation
time, un-reimbursed expenses which otherwise would be reimbursed in the normal course and vested
benefits under any of the Company’s benefit plan in which the Executive is a participant, (ii) any
bonus previously declared but not yet paid, and (iii) a cash payment equal to twenty four (24)
months of Executive’s annual base salary as provided for in Section 3.1 of this Agreement, paid in
twenty four (24) equal monthly installments, less any taxes that must be withheld. In addition,
upon a Change of Control Termination, any portion of any of the Options granted but unvested shall
be forfeited and the Executive shall have no rights thereunder. A “Change in Control Termination”
will also include a termination of the Executive by the Company without cause or a termination by
the Executive of his employment for “good reason,” as set forth in Section 4.7 of this Agreement,
in either case, following the commencement of any discussion with a third person that ultimately
results in a “change in control” (as defined below).
For purposes of this Section 4.6, a “change of control” shall mean an event involving one
transaction or a series of related transactions in which (i) the Company issues securities
representing more than fifty percent (50%) of the beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Securities Exchange Act of 1934, as amended (“the “Exchange Act”), or
any successor provision) of the outstanding voting power of the then outstanding securities
entitled to vote generally in the election of directors (“Voting Stock”) of the Company to any
individual, firm, partnership, or other entity, including a “group” within the meaning of Section
13(d)(3) of the Exchange Act (ii) the Company issues securities representing more than fifty
percent (50%) voting stock of the Company in connection with a merger, consolidation or other
business combination (other than for purposes of reincorporation), (iii) the Company is acquired in
a merger or other business combination transaction in which the Company is not the surviving
corporation (other than a reincorporation), (iv) more than fifty percent (50%) of the Company’s
consolidated assets or earning power are sold or transferred, or (v) the Board of the Company
determines, in its sole and absolute discretion, that there has been a change in control of the
Company; provided, however, that clauses (ii), (iii) and (iv), above, will constitute a “change in
control” only if all or substantially all of the individuals and entities who were the beneficial
owners of Voting Stock of the Company immediately prior to such merger, consolidation or other
business combination or sale or transfer of earning power or assets (each, a “Business
Combination”) beneficially own less than 50% of the combined voting power of the then outstanding
shares of Voting Stock of the entity resulting from such Business Combination (including, without
limitation, an entity which as a result of such transaction owns the Company or all or
substantially all of the Company’s earning power or assets either directly or through one or more
subsidiaries).
4.7. Good Reason. The Executive may terminate his employment for “good reason” after
giving the Company detailed written notice thereof, if the Company shall have failed to cure the
event or circumstance constituting “good reason” within ten business days after receiving such
notice. Good reason shall mean the occurrence of any of the following without the written consent
of the Executive or his approval in his capacity as the Chairman of the Board: (i) the assignment
to the Executive of duties inconsistent with this Agreement or a change in his reporting
obligations, positions, titles or authority; (ii) any failure by the Company to comply with Article
III hereof in any material way; (iii) the failure of the Company to comply with and satisfy Section
6.2 of this Agreement; (iv) the failure to elect, reelect or otherwise to maintain the Executive as
a director of the Company; (v) the relocation of the principal place where the Executive regularly
performs services for the Company outside of the Elko, Nevada area; or (vi) any material breach of
this Agreement by the Company. The Executive’s continued employment shall not constitute consent
to, or a waiver of rights with respect to, any act or failure to act constituting “good reason”
hereunder.
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4.8. Disability. If Executive becomes permanently and totally disabled, this Agreement
shall be terminated. Executive shall be deemed permanently and totally disabled if he is unable to
engage in the activities required by this Agreement by reason of any medically determinable
physical or mental impairment, as confirmed by three independent physicians, which can be expected
to result in death or which has lasted or can be expected to last for a continuous period of not
less than twelve (12) months. Upon termination due to disability, the Executive shall promptly be
paid (i) any accrued but unpaid salary, accrued but unused vacation time, unreimbursed expenses
which otherwise would be reimbursed in the normal course and vested benefits under any of the
Company’s benefit plans in which the Executive is a participant, (ii) any bonus previously declared
but not yet paid, and (iii) a lump sum payment equal to his annual base salary, as contained in
Section 3.1 of this Agreement, or Executive’s then current rate of compensation, whichever is
greater. In addition, upon termination due to disability, any portion of any of the Options granted
to the Executive that is not then vested shall vest and all Options shall be exercisable until
ninety (90) days after the termination. This Section 4.8 will not limit the entitlement of the
Executive to any other benefits then available to the Executive under any plan or program of the
Company.
4.9. Death. If Executive dies during the term of this Agreement, this Agreement shall
be terminated on the last day of the calendar month of his death subject to the express terms and
provisions below. Upon termination due to death, the designated beneficiary, as provided in Section
6.8 below, or the estate or representative of Executive, shall promptly be paid (i) any accrued but
unpaid salary, accrued but unused vacation time, unreimbursed expenses which otherwise would be
reimbursed in the normal course and vested benefits under any of the Company’s benefit plans in
which the Executive is a participant, (ii) any bonus previously declared but not yet paid, and
(iii) a lump sum payment equal to Executive’s annual base salary, as contained in Section 3.1 of
this Agreement, or Executive’s then current rate of compensation, whichever is greater. In
addition, upon termination due to death, any portion of any of the Options granted to the Executive
that is not then vested shall become vested and all Options shall be exercisable until ninety (90)
days after death. This Section 4.9 will not limit the entitlement of the Executive’s estate or
beneficiaries to any death or other benefits then available to the Executive under any life
insurance, stock ownership, stock options, or other benefit plan or policy that is maintained by
the Company for the Executive’s benefit.
4.10. Effect of Termination. Except as expressly provided for in this Agreement, the
termination of employment shall not impair any obligation that accrued prior to termination, nor
shall it excuse the performance of any obligation which is required or contemplated hereunder to be
performed after termination, and any such obligation shall survive the termination of employment
and this Agreement.
ARTICLE V
COVENANTS AND REPRESENTATIONS OF EMPLOYEE
COVENANTS AND REPRESENTATIONS OF EMPLOYEE
5.1. Unfair and Non-Competition. The Executive acknowledges that he will have access at
the highest level to, and the opportunity to acquire knowledge of, the Company’s business plans,
trade secrets and other confidential and proprietary information from which the Company may derive
economic or competitive advantage, and that he is entering into the covenants and representations
in this Article V in order to preserve the goodwill and going concern value of the Company, and to
induce the Company to enter into this Agreement. The Executive agrees not to compete with the
Company or to engage in any unfair competition with the Company during the Employment Term. For
purposes of this Agreement, the phrase “compete with the Company,” or the substantial equivalent
thereof, means that Executive, either alone or as a partner, member, director, employee,
shareholder or agent of any other business, or in any other individual or representative capacity,
directly or indirectly owns, manages, operates, controls, or
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participates in the ownership, management, operation or control of, or works for or provides
consulting services to, or permits the use of his name by, or lends money to, any business or
activity which is or which becomes, at the time of the acts or conduct in question, directly or
indirectly competitive with the development, financing and/or marketing of the products, proposed
products or services of the Company. During the Employment Term, Executive shall not directly or
indirectly acquire any stock or interest in any corporation, partnership, or other business entity
that competes, directly or indirectly, with the business of the Company without obtaining the prior
written consent of the Company. Notwithstanding the foregoing, this Section 5.1 shall not apply to
the ownership or acquisition of stock or an interest representing less than a 5% beneficial
interest in a corporation that is obligated to file reports with the Securities and Exchange
Commission pursuant to the Exchange Act.
In addition, Executive agrees to treat the Company respectfully and professionally and not
disparage the Company (or the Company’s party’s officers or directors) in any manner likely to be
harmful to the Company or its business, business reputation or personal reputation. Furthermore,
the Executive agrees not to interfere with any of the Company’s contractual obligations.
5.2. Confidential Information. During the Employment Term and thereafter, Executive
agrees to keep secret and to retain in the strictest confidence all material confidential matters
which relate to the Company or its “affiliate” (as that term is defined in the Exchange Act),
including, without limitation, trade secrets, business plans, financial projections and reports,
business strategies, internal operating procedures, and other confidential business information
from which the Company derives an economic or competitive advantage, or from which the Company
might derive such advantage in its business, whether or not it is labeled “secret” or
“confidential” or some similar term, and not to intentionally disclose any such information to
anyone outside of the Company, whether during or after the Employment Term, except in connection
with pursuing in good faith the interests and business of the Company. The foregoing restrictions
and obligations under this Section 5.2 will not apply (i) to any confidential information that is
or becomes generally available to the public or generally known to persons engaged in businesses
similar to or related to that of the Company, other than as a result of a disclosure by Executive,
(ii) if the Executive is required by law to make disclosure, or (iii) to disclosure to any director
of the Company. The Company may waive application of the foregoing restrictions and obligations in
its sole discretion from time to time. The Executive will use only such confidential information
for purposes of performing its duties under this Agreement.
5.3. Non-Solicitation of Employees. The Executive and any entity controlled by him or
with which he is associated (as the terms “control” and “associate” are defined in the Exchange
Act) shall not, during the Employment Term and for a term of two (2) years thereafter, directly or
indirectly solicit, interfere with, offer to hire or induce any person who is or was an officer or
employee of the Company or any affiliate (as the term “affiliate” is defined in the Exchange Act)
(other than secretarial personnel) to discontinue his or her relationship with the Company or an
affiliate of the Company, in order to accept employment by, or enter into a business relationship
with, any other entity or person. (These acts are hereinafter referred to as the “prohibited acts
of solicitation.”) The foregoing restriction, however, shall not apply to any business with which
Executive may become associated after the Employment Term.
5.4. Return of Property. Upon termination of employment, and at the request of the
Company, the Executive agrees to promptly deliver to the Company all Company or affiliate
memoranda, notes, records, reports, manuals, drawings, designs, computer files in any media, and
any other documents (including extracts and copies thereof) relating to the Company or its
affiliates, and all other property of the Company. Upon termination, the Executive shall cease to
use all such materials and information set forth under Section 5.2.
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5.5. Inventions. All processes, inventions, patents, copyrights, trademarks, and other
intangible rights that may be conceived or developed by the Executive, either alone or with others,
during the Employment Term, whether or not conceived or developed during Executive’s working hours,
and with respect to which the equipment, supplies, facilities or trade secret information of the
Company was used, or that relate at the time of conception or reduction to practice of the
invention to the business of the Company, or to the Company’s actual or demonstrably anticipated
research or development, or that result from any work performed by Executive for the Company, shall
be the sole property of the Company. Upon the request of the Company, Executive shall disclose to
the Company all inventions or ideas conceived during the Employment Term, whether or not the
property of the Company under the terms of this provision, provided that such disclosure shall be
received by the Company in confidence. Upon the request of the Company, Executive shall execute all
documents, including patent applications and assignments, required by the Company to establish the
Company’s rights under this provision.
5.6. Representations. The Executive represents and warrants to the Company that he has
full power to enter into this Agreement and perform his duties hereunder, and that his execution
and delivery of this Agreement, he has no outstanding agreement, whether oral or written or any
obligation that is or may be in conflict with any of the provisions of this Agreement or that would
preclude Executive from complying with the provisions of this Agreement, and the performance of his
duties shall not result in a breach of, or constitute a default under, any agreement or
understanding, whether oral or written, including, without limitation, any restrictive covenant or
confidentiality agreement, to which he is a party or by which he may be bound. Executive further
represents and warrants that he has not misappropriated any confidential information and/or trade
secrets of any third party that he intends to use in the performance of his duties under this
Agreement. Executive further agrees that he will not enter into any conflicting agreement.
5.7. Non-Payment Upon Non-Compliance. Should Executive breach any one of the covenants
set forth in this Article V, the Company shall have no obligation to make the payments or to
provide Executive the benefits described in Sections 4.5 and 4.6 above, in addition to all other
rights and remedies the Company may have available at law or in equity. The Company shall provide
written notice to Executive, ten (10) days prior to an expected payment, of the breach of a
covenant and the ensuing non-payment thereof; provided, however, that if the Company learns of the
breach without sufficient time to provide ten (10) days notice, the Company shall provide written
notice as soon thereafter as practicable.
Notwithstanding the foregoing, the Executive shall indemnify and hold harmless the Company to
the fullest extent from and against any losses, claims, damages or liabilities which arise out of
any breach of the representations and warranties set forth in Section 5.6., and any matter relating
to the Executive’s prior employer(s). The Executive shall reimburse the Company for the amounts
provided for herein on demand as such expenses are incurred by the Company.
ARTICLE VI
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
6.1. Notices. All notices to be given by either party to the other shall be in writing
and may be transmitted by personal delivery, facsimile transmission, overnight courier or mail,
registered or certified, postage prepaid with return receipt requested; provided,
however, that notices of change of address or telex or facsimile number shall be effective
only upon actual receipt by the other party. Notices shall be delivered at the following addresses,
unless changed as provided for herein.
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| To the Executive: | Xxxxx Xxxxxxxx | |||
| Facsimile: | ||||
| To the Company: | Board of Directors | |||
| Golden Phoenix Minerals, Inc. | ||||
| 0000 Xxxx Xxxxxx Xxx, Xxxxx 000 | ||||
| Xxxxxx, XX 00000 | ||||
| Facsimile: (000) 000-0000 | ||||
| With a copy to: | Xxxxx X. Xxxxxx | |||
| Bullivant Xxxxxx Xxxxxx PC | ||||
| 0000 Xxxxxx Xxxxxxx, Xxxxx 000 | ||||
| Xxxxxxxxxx, XX 00000 | ||||
| Facsimile (000) 000-0000 |
6.2. No Assignment, In General. Except as provided below, this Agreement, and the
rights and obligations of the parties, may not be assigned by either party without the prior
written consent of the other party.
6.3. Entire Agreement. This Agreement and the documents delivered pursuant hereto
supersedes any and all other agreements or understandings of the parties, either oral or written,
with respect to the employment of the Executive by the Company, and contains the complete and final
agreement and understanding of the parties with respect thereto. The Executive acknowledges that no
representation, inducements, promises, or agreements, oral or otherwise, have been made by the
Company or any of its officers, directors, employees or agents, which are not expressed herein, and
that no other agreement shall be valid or binding on the Company.
6.4. Amendments and Modifications. This Agreement may be amended or modified only by a
writing signed by both parties hereto.
6.5. Withholding Taxes. All amounts payable under this Agreement, whether such payment
is to be made in cash or other property, including without limitation stock of the Company, shall
be subject to withholding for Federal, state and local income taxes, employment and payroll taxes,
and other legally required withholding taxes and contributions to the extent appropriate in the
determination of the Company, and the Executive agrees to report all such amounts as ordinary
income on his personal income tax returns and for all other purposes, as called for.
6.6. Severability. If any provision of this Agreement is held to be invalid or
unenforceable by any judgment of a tribunal of competent jurisdiction, the remaining provisions and
terms of this Agreement shall not be affected by such judgment, and this Agreement shall be carried
out as nearly as possible according to its original terms and intent and, to the full extent
permitted by law, any provision or restrictions found to be invalid shall be amended with such
modifications as may be necessary to cure such invalidity, and such restrictions shall apply as so
modified, or if such provisions cannot be amended, they shall be deemed severable from the
remaining provisions and the remaining provisions shall be fully enforceable in accordance with
law.
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6.7. Effect of Waiver. The failure of either party to insist on strict compliance with
any provision of this Agreement by the other party shall not be deemed a waiver of such provision,
or a relinquishment of any right thereunder, or to affect either the validity of this Agreement,
and shall not prevent enforcement of such provision, or any similar provision, at any time.
6.8. Designation of Beneficiary. If the Executive shall die before receipt of all
payments and benefits to which he is entitled under this Agreement, payment of such amounts or
benefits in the manner provided herein shall be made to such beneficiary as he shall have
designated in writing filed with the Secretary of the Company or, in the absence of such
designation, to his estate or personal representative.
6.9. Attorneys Fees. In any proceeding brought to enforce any provision of this
Agreement, or to seek damages for a breach of any provision hereof, or when any provision hereof is
validly asserted as a defense, the prevailing party will be entitled to receive from the other
party all reasonable attorney’s fees and costs in connection therewith.
6.10. Governing Law. This Agreement will be governed by and construed in accordance with
the laws of the State of Nevada, without regard to its conflict of laws principles.
6.11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which, shall be deemed to be an original, but all of which together shall
constitute one and the same instrument. For the purpose of proving the authenticity of this
Agreement, facsimile signature shall be treated the same as original signatures.
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date
first above written.
| COMPANY: | GOLDEN PHOENIX MINERALS, INC. | |||||
| By: | ||||||
| Xxxxxxx Xxxxxxx, Board of Directors | ||||||
EXECUTIVE: |
||||||
| Xxxxx Xxxxxxxx | ||||||
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Exhibit A
List of boards of directors on which the Executive currently serves.
