Exhibit 10.8
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT, made as of the 30th day of
April 2004 (the "Effective Date") (the "Agreement") by and between GOLDEN STAR
RESOURCES LTD. (the "Company") and XXXXX X. XXXXXX (the "Employee").
WHEREAS the Company and the Employee are parties to an employment
agreement dated November 8, 1999 (the "Employment Date") and the Company and the
Employee now mutually agree to amend in its entirety and restate such agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein contained, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Employment
(a) The Company shall employ the Employee, and the Employee shall serve in the
employ of the Company and render exclusive and full-time services to the Company
as Senior Vice President and Chief Financial Officer of the Company, and in such
other offices of the Company or its affiliates as may be designated by the Board
of Directors or the President and Chief Executive Officer, on the terms and
conditions set forth in this Agreement and subject to the direction of the
Company's President and Chief Executive Officer.
(b) The Employee shall not serve as a director, general partner or manager of
any other entity without the prior written consent of the Board of Directors.
(c) The Employee's principal place of business with respect to his services to
the Company shall be at its principal offices located in the metropolitan area
of Denver, Colorado. 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 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
The Agreement shall become effective on the Effective Date. Unless the
Employee's employment is terminated as provided in Section 5, the term of the
Employee's employment under this Agreement (the "Term") shall be for one (1)
year from May 1, 2004. The Term shall be extended automatically for successive
one-year periods on May 1 of each year, beginning May 1, 2005, unless the
Employee or the Company provides written notice to the other on or before the
preceding February 1 of his or its intention not to extend the Term, in which
case the Term shall end on April 30 of such year.
If the Company notifies the Employee of its intent not to extend the Term, the
Agreement and the Employee's employment shall be deemed to have been terminated
without cause pursuant to Section 5(b)(ii) and the Employee shall be entitled to
the payments and other benefits set forth in Section 5(b)(ii).
3. Services
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. The Employee shall assume and perform to
the best of his abilities the responsibilities of Senior Vice President and
Chief Financial Officer of the Company (as set forth in the Bylaws of the
Company), as well as such other responsibilities as may be assigned to him by
the Board of Directors and the President and Chief Executive Officer of the
Company and as are appropriate to the offices he holds. The Employee will engage
in no other business or activity for compensation except for the management of
his personal investments and any business or activity with respect to which he
has received the prior written consent of the Board of Directors. The Employee
shall report to the Company's President and Chief Executive Officer.
4. Compensation and Benefits
(a) The Company shall pay to the Employee, and the Employee hereby accepts, a
salary (the "Base Salary") at the rate of U.S.$172,000 per annum. The Employee's
salary may be increased from time to time by the Board of Directors of the
Company during the term of the Agreement and, upon any increase, such increased
salary shall then become the Base Salary. The Base Salary shall be payable in
equal semi-monthly installments in arrears.
(b) The Employee shall be entitled to participate in the Company's Amended and
Restated Stock Option Plan and in any successor option plan.
(c) The Employee shall be entitled to participate in the Company's Executive
Management Performance Bonus Plan and in any successor bonus plan.
(d) The Employee shall be entitled to participate in such of the Company's
benefit and deferred compensation plans as are from time to time available to
executive officers of the Company, including medical and dental health plans,
life and disability insurance plans, supplemental retirement programs and other
fringe benefit plans (provided, however, that the Employee's benefits may be
modified or the Employee may be denied participation in any such plan because of
a condition or restriction imposed by law or regulation or third-party insurer
or other provider relating to participation).
(e) The Employee shall be entitled to participate in any and all applicable
group savings or retirement plans, or other fringe benefits of the Company as
established by the Company from time to time in which executive officers are
eligible to participate, provided that the Employee shall have fulfilled all
eligibility requirements for such benefits.
(f) The Company shall 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. The Employee shall render expense
accounts requesting reimbursements of his expenses hereunder within a reasonable
period of time following such expense and in accordance with such documentation
and verification as the President and Chief Executive Officer of the Company may
from time to time require.
(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 and approved by
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the President and Chief Executive Officer, and as are in accordance with the
Company's policies and reasonable operating requirements. The Employee shall be
entitled to all holidays applicable to all employees of the Company.
5. Termination
The Agreement and Employee's employment may be terminated in the following
manner. In each case, the Company shall have no obligations to the Employee
following termination pursuant to Section 5, other than as set forth in this
Agreement and as provided in any benefit plans in which the Employee is a
participant at the date of termination.
(a) Upon Retirement:
(i) Except as provided otherwise in Section 5(a)(ii), Employee's
employment shall automatically terminate upon the Employee's
sixty-fifth birthday.
(ii) Upon recommendation from the President and Chief Executive Officer,
the Board of Directors may, on or before the Employee's sixty-fifth
birthday and each subsequent birthday, approve the extension of his
employment and this Agreement for one year, until his next birthday.
(iii) At the time of termination, the Employee shall be paid in a lump sum
payment all accrued salary, any benefits then due and payable under
any plans of the Company in which the Employee is a participant (in
accordance with the provisions of the applicable plan), accrued
vacation pay and reimbursement of any appropriate business expenses
incurred by the Employee in connection with his duties hereunder,
all to the effective date of termination ("Accrued Compensation").
(b) By the Company:
(i) for cause, immediately upon notice in writing from the Company to
the Employee. For purposes of this Agreement, "cause" shall mean:
(1) unless resulting from disability as defined in Section 5(b)(iv),
the Employee's material breach of any terms of this Agreement, if
such material breach has not been cured within thirty (30) days
following written notice of such breach to the Employee from the
Company setting forth with specificity the nature of the breach or,
if cure cannot reasonably be effected within such 30-day period, if
the Employee does not commence to cure the breach within such 30-day
period and thereafter pursue such cure continuously and with due
diligence until cure has been fully effected; (2) the Employee's
willful dishonesty towards, fraud upon, crime against, bad faith
action with respect to, deliberate or attempted injury to, or gross
misconduct or material noncompliance with the Company's policies and
procedures which is materially injurious to the Company; (3) the
Employee's conviction for any felony crime (whether in connection
with the Company's affairs or otherwise); or (4) the Employee's
failure to comply with any lawful directive of the Board of
Directors, the failure to comply with which is stated in such
directive to be grounds for termination. At the time of termination,
the Company shall pay the Accrued Compensation to the Employee.
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(ii) without cause, at any time upon the giving of seven days prior
written notice by the Company to the Employee or the Company's
election not to extend the Term of the Agreement pursuant Section 2.
The Company shall pay to the Employee in cash or cash equivalent
acceptable to the Employee, in a lump sum at the time of
termination, Accrued Compensation plus severance compensation ("One
Year Severance Compensation") in an amount equal to one times the
sum of (1) the Employee's then current Base Salary, (2) the average
of the target bonus for the Employee for the current year and the
bonus paid to the Employee for the previous year, (3) the amount of
employer contributions contributed to the Employee's account for the
most recent plan year before the termination date, under Administaff
Retirement Services (ARS) 401k Plan or any successor plan and (4)
the amount paid by the Company for welfare benefits on behalf of the
Employee for the most recent year.
(iii) immediately and without notice upon the death of the Employee, in
which case the Company shall have no further obligation to the
Employee's estate or representatives other than to pay Accrued
Compensation up to and including the end of the month in which death
occurred.
(iv) at any time upon 90-day notice in writing from the Company to the
Employee, if the Employee shall by reason of disability ----------
have failed to perform his duties under the Agreement. During the
90-day notice period, the Employee shall be considered a full-time
employee of the Company. The Employee's disability means his
incapacity due to physical or mental illness such that he is unable
to perform his previously assigned duties where (1) such incapacity
has been determined to exist by either (x) the Company's disability
insurance carrier or (y) the concurring opinions of two licensed
physicians (one selected by the Company and one by the Employee) or
(2) the Employee has failed for any three consecutive 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 this Agreement by reason of physical or mental illness,
as determined by the Board of Directors. Any such separation for
disability shall be only as not prohibited by the Americans with
Disabilities Act. The Company shall pay to the Employee in a lump
sum at the time of termination (x) Accrued Compensation, (y) such
other payments as may be then due under any disability insurance
policy of the Company in accordance with the terms of such policy
and (z) payment to the Employee of an amount equal to the cost of
COBRA coverage for the Employee to continue to participate in
applicable benefit plans for one year.
(c) By the Employee:
(i) for material breach of this Agreement by the Company, immediately
upon notice in writing from the Employee to the Company, in which
case the Employee shall have no further obligation to the Company,
and the Company shall make a lump sum payment to the Employee in
cash or cash equivalent acceptable to the Employee at the time of
termination, of Accrued Compensation plus One Year Severance
Compensation. For purposes of this clause, "material breach" shall
include:
(aa) the reduction by the Company of the Employee's Base Salary or
other benefits;
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(bb) the non-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;
(cc) the material reduction by the Company of the Employee's
responsibilities or title; and
(dd) the failure of a successor entity to adopt this Agreement.
(ii) voluntarily, if Sections 5(b)(i), 5(b)(ii), 5(c)(i) or 6 are not
applicable, at any time upon three months' notice in writing to the
Company, in which case the Company shall pay to the Employee in a
lump sum at the time of termination Accrued Compensation up to and
including the date of termination. The Company may waive the
requirement of written notice or the notice period in whole or in
part, in which case the Company shall pay to the Employee in a lump
sum at the time of termination an amount equal to Accrued
Compensation through the date on which termination would have
occurred had the notice not been waived.
(d) Upon any termination of employment as set forth in this Section 5 or 6, 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 or other affiliated company
of the Company and any entity in which Employee holds office at the
direction 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 return to the Company all books of account, computer files,
maps, records, reports and other documents, materials and property
of the Company in the possession or control of the Employee.
(e) All amounts payable in cash or cash equivalent acceptable to Employee under
this Section 5 shall, within seven days of termination, 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 11(d).
6. Change of Control
(a) In the event of a Termination Upon a Change in Control, the Company
shall immediately pay to the Employee in a lump sum payment Accrued Compensation
and Change of Control Severance. For the avoidance of doubt, a Termination Upon
a Change of Control shall not constitute a termination under Section 5 of this
Agreement, and the Employee shall not be entitled to any payment or benefits
under Section 5. The Company shall have no further obligation to the Employee
except as provided under this Agreement and in any benefit plans in effect at
the date of termination which are applicable to Employee.
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(i) "Termination Upon a Change in Control" shall mean a termination
of the Employee without cause within 12 months following a Change in
Control (as defined below) or a termination by the Employee for Good
Reason within 12 months following a Change in Control.
(ii) "Good Reason" shall mean any of the following (without the
Employee's express written consent):
(1) the assignment to the Employee by the Company of duties
inconsistent with, or a substantial alteration in the nature or
status of, the Employee's responsibilities immediately prior to a
Change in Control;
(2) a reduction by the Company in the Employee's compensation
or benefits as in effect on the date of a Change in Control;
(3) a relocation of the Company's principal offices to a
location outside the Denver, Colorado metropolitan area, or the
Employee's relocation to any place other than the Denver, Colorado
offices of the Company, except for reasonably required travel by the
Employee on the Company's business;
(4) any material breach by the Company of any provision of
this Agreement, if such material breach has not been cured within
thirty (30) days following written notice of such breach by the
Employee to the Company setting forth with specificity the nature of
the breach; or
(5) any failure by the Company to obtain the assumption and
performance of this Agreement by any successor (by merger,
consolidation or otherwise) or assign of the Company.
(iii) A "Change in Control" shall be deemed to have occurred if (1)
any "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2)
of the Securities Exchange Act of 1934), other than a trustee or other
fiduciary holding securities under an employee benefit plan of the
Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the 1934 Act), directly or indirectly, of more than thirty percent
(30%) of the then outstanding voting stock of the Company; or (2) persons
who are Incumbent Directors cease to constitute a majority of the Board of
Directors; or (3) the stockholders of the Company approve a merger,
consolidation or amalgamation of the Company with any other corporation,
other than a merger, consolidation or amalgamation which would result in
the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least fifty
percent (50%) of the combined voting power of the voting securities of the
Company or such surviving entity outstanding immediately after such
merger, consolidation or amalgamation, or (4) the stockholders approve a
plan of complete liquidation of the Company or the sale or disposition by
the Company of all or substantially all of the Company's assets in one or
a series of related transactions.
(iv) "Incumbent Director" means any person who serves on the Board of
Directors of the Company as of the date of this Agreement and any person who is
added to the Board thereafter with the approval of a majority of the persons who
are then Incumbent Directors.
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(v) "Change of Control Severance" means an amount equal to (a) two times
the sum of (1) the Employee's Base Salary for the calendar year in which the
termination became effective, (2) the average of the target bonus for the
Employee for the current calendar year and the bonus paid to the Employee for
the previous year, (3) the amount of employer contributions contributed to the
Employee's account for the most recent plan year before the termination date,
under Administaff Retirement Services (ARS) 401k Plan or any successor plan, and
(4) the amount paid by the Company for welfare benefits on behalf of the
Employee for the most recent year, plus (b) a portion of the target bonus for
the Employee for the current calendar year which is pro rata to the portion of
such year prior to the Employee's Change of Control Termination.
(b) Anything in this Agreement to the contrary notwithstanding, in the event it
shall be determined that any payment or distribution by the Company to or for
the benefit of the Employee (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this Section
6(b)) (a "Payment") would be subject to the excise tax imposed by Section 4999
of the U.S. Tax Code or any interest or penalties are incurred by the Employee
with respect to such excise tax (such excise tax, together with any such
interest and penalties, are hereinafter collectively referred to as the "Excise
Tax"), then the Employee shall be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by the Employee of all
taxes imposed upon the Gross-Up Payment (including any state and federal income
taxes and Excise Taxes, and interest and penalties imposed with respect to such
taxes), the Employee retains an amount of the Gross-Up Payment equal to the
Excise Tax imposed upon the Payment. Notwithstanding the foregoing provisions of
this Section 6(b), if it shall be determined that the Employee is entitled to a
Gross-Up Payment, but that the Payments do not exceed by more than $50,000 the
greatest amount (the "Reduced Amount") that could be paid to the Employee such
that the receipt of Payments could not give rise to any excise tax, then no
Gross-Up Payment shall be made to the Employee and the Payments, in the
aggregate, shall be reduced to the Reduced Amount.
If the Employee receives a Gross-Up Payment pursuant to Section 6(b), the
Employee shall take any position requested by the Company on the Employee's
federal income tax return with respect to the treatment of the Payment from the
Company and any Gross-up Payment (such position being, a "Requested Position"),
provided the Company shall, at the request of the Employee, provide the Employee
with an opinion from a nationally recognized accounting or law firm that there
is "substantial authority" for the Requested Position within the meaning of IRC
Section 6662. The Company shall indemnify the Employee for any tax, penalty and
interest incurred by the employee as a result of taking the Requested Position.
The amount for which the Employee is indemnified under the preceding sentence
(the "Indemnified Amount") shall be computed on an after-tax basis, taking into
account any income or other taxes. The Employee shall keep the Company informed
of all developments in any audit with respect to a Requested Position. Upon
payment of the Indemnified Amount, or (if the Indemnified Amount is not yet
payable) upon the Company's written affirmation, in form and substance
reasonably satisfactory to the Employee, of the Company's obligation to
indemnify the Employee with respect to the Requested Position, the Company shall
be entitled, at its sole expense, to control the contest regarding the
disallowance or proposed disallowance of the Requested Position, and the
Employee agrees to cooperate in connection with such contest, including, without
limitation, executing powers of attorney and other documents at the reasonable
request of the Company. The Indemnified Amount shall be payable whenever an
amount is payable to the Internal Revenue Service as a result of the
disallowance of a Requested Opinion. Following payment by the Company of the
Indemnified Amount, if the Requested Position is sustained by the
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Internal Revenue Service or the courts, the Company shall be entitled to any
resulting refund of taxes, interest and penalties that were properly
attributable to the Indemnified Amount.
(c) In the event of a Termination Upon a Change of Control, the Company shall,
at its sole expense, provide the Employee with outplacement services, the scope
and provider of which shall be selected by the Employee in his sole discretion
and the cost of which shall not exceed an amount equal to 10% of the Employee's
then current Base Salary.
7. Acceleration and Vesting of Stock Options
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 12 months
from the date of termination of the Employee (a) upon a Change of Control or (b)
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 a
Vice-President of the Company or to an executive position possessing comparable
duties and responsibilities or (ii) should the Company terminate the Agreement
or the employment of the Employee without cause. Notwithstanding any of the
foregoing, under no circumstances shall an option remain exercisable for more
than 10 years after the date it was granted.
8. Confidentiality and Restrictive Covenant
The Employee acknowledges that as a condition of his employment he is required
to maintain the confidentiality of the Company's confidential and proprietary
information and, accordingly, acknowledges that he is a party to and continues
to be bound by the Confidentiality and Restrictive Covenant Agreement dated as
of April 30, 2004 between the Company and the Employee.
9. Company Policies
The Employee agrees to comply with the written policies of the Company,
including the Code of Ethics for Directors, Senior Executive and Financial
Officers and other Executive Officers and the Business Conduct and Ethics Policy
(including the Xxxxxxx Xxxxxxx Policy). The Company shall promptly notify the
Employee of any modifications to its policies.
10. Miscellaneous
(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 a court or other body of competent jurisdiction determine that any
provision of this Agreement is invalid or unenforceable, such provision shall be
adjusted rather than voided, if possible, so that it is enforceable to the
maximum extent possible, and all other provisions of the Agreement shall be
deemed valid and enforceable to the extent possible.
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(c) This Agreement shall be governed by and construed in accordance with the
laws of the State of Colorado, without reference to principles of conflict of
laws, and each of the parties submits 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 facsimile transmission or by hand. Notice shall be deemed
given five days after mailing, if mailed in the United States by registered
mail, on the date of actual receipt if given by facsimile transmission, 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:
Xxxxx X. Xxxxxx
0000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx XX 00000-0000
Fax: 0 (000) 000-0000
- To the Company:
00000 X. Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx XX 00000
XXXXXX XXXXXX
Attention: President and CEO
Fax: 0 (000) 000-0000
or such other address as either party may from time to time designate in
writing.
(e) The parties hereby agree that any dispute or controversy arising out of or
relating to this Agreement, the Employee's employment with the Company, or the
termination or cancellation of that employment or this Agreement, including
without limitation any claim by the Employee under any federal, state or local
law or statute regarding discrimination in employment, shall be settled by
arbitration by a single arbitrator in accordance with the Commercial Arbitration
Rules of the American Arbitration Association from time to time in force. The
hearing on any such arbitration shall be held in Denver, Colorado. If such
Commercial Arbitration Rules and practices shall conflict with the Colorado
Rules of Civil Procedure or any other provisions of Colorado law then in force,
such Colorado rules and provisions shall govern. Arbitration of any such dispute
or controversy shall be a condition precedent to any legal action thereon. This
submission and agreement to arbitration shall be specifically enforceable.
Within thirty (30) days after the receipt by one party of a written notice to
arbitrate delivered by the other party, the parties shall mutually select the
arbitrator. If the parties cannot agree on such arbitrator, the selection of the
arbitrator shall be made in accordance with the procedures of the American
Arbitration Association.
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Awards shall be final and binding on all parties to the extent and in the manner
provided by Colorado law. Each award shall expressly entitle the prevailing
party to recover such party's attorneys' fees and costs, and the award shall
specifically allocate such fees and costs between the parties. All awards may be
filed by any party with the Clerk of the District Court in the City and County
of Denver, Colorado, and an appropriate judgment entered thereon and execution
issued therefore. At the election of any party, said award may also be filed,
and judgment entered thereon and execution issued therefore, with the clerk of
one or more other courts, state or federal, having jurisdiction over the party
against whom such an award is rendered or its property.
(f) This Agreement is personal to the Employee and without the prior written
consent of the Company shall not be assignable by the Employee, provided that a
deceased Employee's right to payment hereunder may be assigned by will or the
laws of descent and distribution.
This Agreement shall inure to the benefit of and be binding upon the Company and
its successors and assigns.
The Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to assume expressly 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. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets that assumes and agrees to perform this
Agreement by operation of law, or otherwise.
(g) This Agreement supersedes any and all prior written and oral employment
agreements between the Company and the Employee and, together with the
Confidentiality and Restrictive Covenant Agreement between the Company and
Employee dated April 30, 2004, represents the entire agreement between the
parties and may be amended, modified, superseded, or cancelled, and any of the
terms hereof may be waived, only by a written instrument executed by each party
hereto or, in the case of a waiver, by the party waiving compliance. The failure
of any party at any time or times to require performance of any provisions
hereof shall not affect the right at a later time to enforce the same.
(h) This Agreement may be executed by the parties hereto in counterparts, each
of which shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument.
(i) All compensation and benefits to the Employee hereunder shall be reduced by
all federal, state, local and other withholdings and similar taxes and payments
required by applicable law.
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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/ Xxxxx X. Xxxxxxxx
-------------------------------- ---------------------------
Name: Xxxxx Xxxxxxxx Witness
Title: President and Chief Executive Officer
/s/ Xxxxx X. Xxxxxx
----------------------------------------- ---------------------------
Xxxxx X. Xxxxxx Witness
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GOLDEN STAR RESOURCES LTD.
CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT
THIS CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT, made as of the 30th day
of April 2004 (the "Effective Date") (the "Agreement") by and between GOLDEN
STAR RESOURCES LTD. (the "Company") and XXXXX X. XXXXXX (the "Employee").
WHEREAS the Company and the Employee are parties to an employment
agreement dated as of April 30, 2004 (the "Employment Date").
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein contained, THE PARTIES HERETO AGREE AS FOLLOWS:
In connection with your employment with Golden Star Resources Ltd. and its
affiliates (collectively the "Company"), you have access to financial,
operating, technical and other information concerning the Company and its mining
assets and specifically, but not limited to, the properties of the Company, or
access to confidential records of the Company containing such information, some
of which has not previously been made available to the public at large prior to
the date hereof ("Confidential Information").
You understand that Confidential Information received by you in the course of
your employment with the Company is considered by the Company to be confidential
in nature and you will treat it as such. In consideration for being employed by
the Company as aforesaid, you agree to the covenants that follow and you will
not, without the express written consent of the Company, use Confidential
Information for any purpose other than to provide the employment services for
which you were hired.
The term "person" as used herein shall be interpreted very broadly and shall
include without limitation any corporation, company, partnership or individual.
You agree that you will not, either during the term of your employment with the
Company, or at any time thereafter, disclose or reveal in any manner whatsoever,
the Confidential Information to any other person, except as required to carry
out the terms of your employment, nor shall you make any use thereof, directly
or indirectly, for any purpose other than the purposes of the Company, and you
shall not disclose or use for any purposes, other than those of the Company, the
Confidential Information.
You are hereby advised that there are restrictions on the purchase of securities
imposed by applicable Canadian and United States securities laws and other
domestic and foreign laws relating to the possession of material information
about a public company that has not previously been made available to the public
at large.
In the event that your employment with the Company is terminated for any reason
whatsoever, you agree that you shall return to the Company, promptly upon the
Company's written request therefor, any documents, photographs, magnetic tapes
and other property containing Confidential Information which were received by
you pursuant hereto without retaining copies thereof.
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The provisions of this letter agreement relating to Confidential Information
will not apply to any part of such Confidential Information which you can
clearly demonstrate to the reasonable satisfaction of the Company is now or
subsequently becomes part of the public domain through no violation of this
letter agreement, or was in your lawful possession prior to its disclosure to
you by the Company.
You shall not, without the Company's prior written approval, at any time during
the period of your employment and within two (2) years following the termination
of your employment with the Company, either individually or with any other
person, whether as principal, agent, shareholder, officer, advisor, manager,
employee or otherwise, (a) solicit, recruit or employ any person who is a full
time employee of the Company; (b) make use of any of the Confidential
Information; (c) acquire, lease or otherwise obtain or control any beneficial,
direct or indirect interest in mineral rights or other rights or lands within
twenty five (25) kilometers of any mineral property in which the Company holds,
contemplates acquiring or is negotiating to acquire an interest at the time of
termination; or (d) provide service to any entity that occupies land within
twenty five (25) kilometers of any mineral property in which the Company holds,
contemplates acquiring or is negotiating to acquire an interest at the time of
termination.
If, notwithstanding the prohibition set forth in the preceding paragraph, you
acquire, lease or otherwise obtain or control any interest, directly or
indirectly, in breach of the preceding paragraph, you shall notify the Company
of such acquisition within the thirty (30) days immediately following the date
of such acquisition and you agree, upon demand by the Company, to convey or
cause to be conveyed such interest to the Company as soon as practicable
thereafter, in consideration of the payment by the Company to you of the sum of
$1.00.
You acknowledge that the Company would not have an adequate remedy at law for
monetary damages in the event that the covenants referred to above are not
performed in accordance with their terms and therefore agree that the Company
shall be entitled to specific enforcement of the terms hereof in addition to any
other remedy to which it may be entitled, at law or in equity.
It is further understood and agreed that no failure or delay by the Company in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other
right, power or privilege hereunder.
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.
This Agreement shall be governed and construed in accordance with the laws of
the State of Colorado.
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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/ Xxxxx X. Xxxxxxxx
-------------------------------- ---------------------------
Name: Xxxxx Xxxxxxxx Witness
Title: President and Chief Executive Officer
/s/ Xxxxx X. Xxxxxx
----------------------------------------- ---------------------------
Xxxxx X. Xxxxxx Witness
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