EXHIBIT 10.4
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AGREEMENT effective as of the ___ day of ______________, 2003
BETWEEN:
APOLLO GOLD CORPORATION
0000 XXX Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx
00000-0000
(the "Company")
OF THE FIRST PART
-and-
XXXXX X. XXXXX
00000 X. Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx
00000
(the "Executive")
OF THE SECOND PART
RECITALS
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A. WHEREAS the Executive was an officer of Nevoro Gold Corporation
("Nevoro") and entered into that certain Employment Agreement with Nevoro dated
May 24, 2002 (the "Original Agreement");
B. AND WHEREAS effective June 25, 2002 Nevoro and International Pursuit
Corporation ("IPJ") amalgamated to form the Company pursuant to the terms of a
Plan of Arrangement under Section 182 of the Business Corporations Act
(Ontario);
C. AND WHEREAS the Company shall assume the Original Agreement subject
to certain amendments as set forth below;
D. AND WHEREAS the Company and Executive wish to amend and restate that
Original Agreement as set forth herein;
E. AND WHEREAS the Executive is an officer of the Company and is
employed in the Business (as defined below) operated by the Company;
NOW THEREFORE in consideration of the promises and mutual covenants herein
contained, the parties hereto agree as follows:
1. DEFINED TERMS
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(a) "AMALGAMATION" means the amalgamation of Nevoro and IPJ pursuant to
the Plan of Arrangement;
(b) "ARRANGEMENT OPTION PLAN" means the stock option plan of the Company
for directors, officers, employees and other service providers of the
Company approved by the Company's shareholders pursuant to the Plan of
Arrangement;
(c) "BOARD" means the board of directors of the Company;
(d) "BUSINESS" means the business presently or hereafter carried on by the
Company in the area of mineral resource exploration and development;
(e) "CHANGE OF CONTROL" means a change in the beneficial ownership of 20%
or more of the issued and outstanding shares of the Company;
(f) "DISABILITY" means the inability of the Executive as a result of
illness or injury to perform his responsibilities as an employee of
the Company for a period of 180 consecutive days or 200 days out of
400 days;
(g) "PLAN OF ARRANGEMENT" means the plan of arrangement entered into
between Nevoro and IPJ under Section 182 of the Business Corporations
Act (Ontario); and
(h) "STOCK OPTION PLAN" means the incentive stock option plan of the
Company for directors, officers, employees and other service providers
of the Company.
2. EMPLOYMENT
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(a) The Company (directly or through it's United States subsidiary, Apollo
Gold, Inc. at times when the Executive is a resident of the United
States), shall employ the Executive and the Executive shall serve the
Company and its subsidiaries as Vice-Vice President, Business
Development and Project Development or in such other capacity or
capacities as may be determined by the Board from time to time.
(b) The Executive represents that he has the required skills and
experience to perform the duties required of him as Vice President,
Business Development and Project Development and agrees to be bound by
the terms and conditions of this Agreement.
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(c) The Executive will be employed on a full-time basis for the Company
and that the Executive will devote himself exclusively to the Business
and will not be employed or engaged in any capacity in any other
business which is in competition with the Business of the Company,
without the prior written approval of the Company.
(d) The Executive acknowledges that in carrying out his duties and
responsibilities:
i) the Executive shall comply with all lawful and reasonable
instructions as may be given by the Board;
ii) the Executive acknowledges and agrees that the effective
performance of the Executive's duties requires the highest level
of integrity and the Company's complete confidence in the
Executive's relationship with other employees of the Company and
with all persons dealt with by the Executive in the course of
employment; and
iii) the Executive will perform his duties in a diligent, loyal,
productive and efficient manner and use his best efforts to
advance the Business and goodwill of the Company.
(e) The Executive is employed on a full-time basis for the Company and he
understands that the hours of work involved will vary and be irregular
and are those hours required to meet the objectives of the employment.
(f) The Executive's initial location of employment under this Agreement
shall be in the State of Colorado. The Executive agrees, however, to
relocate his employment within North America if directed to do so by
the Board. The Company shall reimburse the Executive for all moving
expenses related to a relocation of employment hereunder.
3. COMPENSATION AND BENEFITS
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As compensation for the services to be rendered by the Executive to the
Company, the Company agrees to provide the remuneration and benefits set
out in this clause 3.
(a) BASE SALARY AND DISCRETIONARY BONUS
The Executive shall be paid a minimum annual base salary of US$137,500
to be reviewed annually by the Board. Said salary shall be subject to
all statutory and other deductions and shall be paid bi-monthly, in
arrears, by cheque or deposit, or such other periodic installments as
may be from time to time agreed. In addition, the Executive may be
entitled to receive a discretionary performance bonus in such amount,
if any, as the Board in its sole discretion may determine.
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(b) GRANT OF STOCK OPTIONS
Pursuant to the Plan of Arrangement, the Executive was granted 186,288
options pursuant to the Arrangement Option Plan, exercisable for a
period of five years at a price of US$0.80 per share, vesting as to
50% on December 31, 2002 and as to 50% on December 31, 2003, subject
to reduction if certain performance criteria (the "Performance
Criteria") established by the Board are not achieved. The Executive
acknowledges receiving a written copy of the Performance Criteria. The
Executive shall also be eligible to receive additional stock options
granted pursuant to the Stock Option Plan, on such terms and
conditions as the Board in its discretion may determine.
(c) AUTOMOBILE ALLOWANCE
The Executive shall be entitled to receive an automobile allowance of
US$10,000 per annum. In the event of the termination of employment of
the Executive for reasons other than cause, or in the event of a
Change of Control, the Executive shall be entitled to purchase the
automobile then in use by the Executive pursuant to this section at a
price equal to one-half of the blue book value thereof and any
deficiency in the purchase price thereof shall be paid by the Company.
(d) HEALTH AND MEDICAL BENEFITS
The Executive shall be entitled to receive and participate in health,
dental and long-term disability programs as are made available by the
Company to other employees holding similar positions of importance to
the Company, provided that the Company may modify, suspend, or
discontinue any or all of such benefits for its employees generally or
for any group thereof, without obligation to replace any such
modified, discontinued or suspended benefit with any other benefit,
equivalent or otherwise compensate the Executive in respect thereof.
4. VACATION
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The Executive will be entitled to twenty (20) days of vacation during each
twelve (12) month period calculated from January 1, 2002 plus usual
statutory and other public holidays, the timing of such vacation to be
mutually agreed upon between the Executive and the Company. Vacation
entitlement not used in any 12 month period may be carried forward provided
that if it is not used in the next 12 month period, the Executive shall be
paid the cash equivalent of any unused vacation entitlement.
5. EXPENSES
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The Executive shall be reimbursed by the Company for business expenses
incurred as a result of his work on behalf of the Company. The Company
shall reimburse the Executive for such expenses upon presentation of
supporting documentation satisfactory to the Company in accordance with the
tax principles applicable in Canada (at times
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when the Executive is resident in Canada) or in accordance with the tax
principles applicable in the United States (at times when the Executive is
resident in the United States) for such reimbursement and the Company's
established reimbursement policies, as those policies may be modified from
time to time in the Company's discretion.
6. TERMS OF THE AGREEMENT AND TERMINATION
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(a) This Agreement shall commence on the date hereof and shall be of
indefinite term unless terminated pursuant to the provisions hereof.
(b) The Executive may terminate his employment pursuant to this Agreement
by giving at least one (1) months' advance notice in writing to the
Company. The Company may waive such notice, in whole or in part and if
it does so, the Executive's entitlement to remuneration and benefits
pursuant to this Agreement will cease on the date it waives such
notice.
(c) The Executive's employment shall be terminated upon the death of the
Executive whereupon all stock options granted to the Executive shall
immediately vest and shall be exercisable by the Executive's heirs,
executors, administrators or personal representatives in accordance
with the terms of the Stock Option Plan and/or the Arrangement Option
Plan as the case may be.
(d) The Executive's employment shall be terminated upon the Disability of
the Executive.
(e) In the event of a Change of Control, the Executive's employment shall
be deemed to have been terminated without cause and the Company shall
be obligated to pay the Executive the amount of severance payments
calculated in accordance with subparagraph 6(f) hereof.
(f) The Executive's employment may be terminated without cause by majority
vote of the Board. In the event that the Executive's employment is
terminated pursuant to this section 6(f), any stock options granted
but not vested shall be deemed to have immediately vested and the
Company shall pay to the Executive 24 months salary, in compensation
for the Executive's loss of employment, together with a payment equal
to 50% of any bonus entitlement of the Executive for each year in such
two year period and any other compensation (including two years health
and medical coverage) to which the Executive is entitled to receive
and the Executive shall not have the duty to mitigate damages. For the
purpose of calculation such payments, all Federal and State taxes and
Federal excise taxes (parachute taxes) shall be grossed-up.
(g) The Company may terminate the Executive's employment without notice or
payment in lieu thereof, for cause. For the purposes of this Agreement
"cause" shall mean (i) the failure to follow the written directions of
the Board which are not inconsistent with this Agreement or contrary
to applicable law, (ii) gross neglect of
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responsibilities after the receipt of written notice setting forth the
performance deficiencies and 45 days to cure such deficiencies, (iii)
acts of dishonesty, fraud, misrepresentation, harassment or employment
discrimination, and (iv) indictment for a felony.
7. NOTICES
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(a) Any notice required or permitted to be given to the Executive shall be
sufficiently given if delivered to the Executive personally or if
mailed by registered mail to the Executive's address disclosed on the
face page hereof.
(b) Any notice required or permitted to be given to the Company shall be
sufficiently given if delivered to the Secretary or President of the
Company personally or if mailed by registered mail to the Company's
head office at its address disclosed on the face page hereof.
(c) Any notice given by mail shall be deemed to have been given
forty-eight hours after the time it is posted.
8. ENTIRE AGREEMENT
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This Agreement terminates, replaces and supersedes all prior agreements,
oral or written, between the parties hereto, including but not limited to
the original employment agreement by and between Nevoro and the Executive
dated May 24, 2002. This Agreement contains the final and entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof, and they shall not be bound by any terms,
conditions, statements, covenants, representations, or warranties, oral or
written, not herein contained with respect to the subject matter hereof.
9. HEADINGS
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The headings in this Agreement are for convenience of reference only, and
under no circumstances should they be construed as being a substantive part
of this Agreement nor shall they limit or otherwise affect the meaning
hereof.
10. WARRANTY
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The parties represent and warrant that there are no restrictions,
agreements or limitations on their rights or ability to enter into and
perform the terms of this Agreement.
11. COUNTERPARTS
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This Agreement may be executed in counterparts, each of which shall be an
original, and such counterparts shall together constitute but one and the
same instrument.
12. SEVERABILITY
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In the event that any provision of this Agreement is found to be void,
invalid, illegal or unenforceable by a court of competent jurisdiction,
such finding will not affect any other provision of this Agreement. If any
provision of this Agreement is so broad as to be unenforceable, such
provision shall be interpreted to be only so broad as is enforceable.
13. MODIFICATION
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Any modification of this Agreement must be in writing and signed by both
the Executive and the Company or it shall have no effect and shall be void.
14. WAIVER
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The wavier by either party of any breach or violation of any provision of
this Agreement shall not operate or be construed as a waiver of any
subsequent breach or violation.
15. ASSIGNMENT OF RIGHTS
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The rights which accrue to the Company under this Agreement shall pass to
its successors or assigns. The rights of the Executive under this Agreement
are not assignable or transferable in any manner.
16. INDEPENDENT LEGAL ADVICE
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The Executive acknowledges that he has read and understands this Agreement,
and acknowledges that he has had the opportunity to obtain independent
legal advice with respect to it.
17. TIME OF ESSENCE
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Time shall be of the essence of this Agreement.
18. GOVERNING LAW
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The Agreement shall be governed by and construed in accordance with the
laws of the State of Colorado. Any dispute between the Company and
Executive shall be brought exclusively in the State or Federal Courts
located in Denver, Colorado. In the event of such dispute, the prevailing
party shall be entitled to recover its reasonable attorneys fees and costs.
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IN WITNESS WHEREOF the parties have duly executed this Agreement effective
as of the date first written above.
APOLLO GOLD CORPORATION AND
APOLLO GOLD, INC.
By: /s/
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SIGNED, SEALED AND DELIVERED )
in the presence of )
) /s/
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) Xxxxx X. Xxxxx
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