EXHIBIT 10.19
MANAGEMENT CONSULTING AGREEMENT
THIS AGREEMENT is made as of the 1st day of July, 2006.
BETWEEN:
XTRA-GOLD RESOURCES CORP., a company incorporated
under the laws of the State of Nevada, having a head
office at 0 Xxxxxxxx Xxxxxx Xxxxxxx XX X0X 0X0 Xxxxxx
(hereinafter referred to as "XTRA")
OF THE FIRST PART
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XXXXXXX XXXXX XXXX,
of the City of Toronto, in the Province of Ontario
(hereinafter referred to as "KIOMI")
OF THE SECOND PART
WHEREAS Kiomi possesses the requisite knowledge and experience in
connection with securities, corporate, accounting and regulatory matters with
respect to public companies, specifically within the mining industry;
AND WHEREAS Kiomi has been the Secretary and Treasurer of Xtra since
September 2005 and a director since April 21, 2006 and has been providing
consulting services to Xtra since June 2005;
AND WHEREAS Xtra wishes to engage Kiomi on a management consulting
basis with a view to providing certain business consulting services to Xtra.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
sum of Ten ($10.00) Dollars, the receipt and sufficiency of which is hereby
acknowledged by the parties hereto and other good and valuable consideration,
the parties hereto agree as follows:
1. SERVICES TO BE PROVIDED
(a) Kiomi shall provide management consulting services (the
"SERVICES") as may be required by Xtra from time to time.
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(b) The scope of the Services are as set out in Schedule "A"
annexed hereto and will be strictly of a consulting nature.
2. COMPENSATION
(a) FEES
(i) Effective July 1, 2006, Kiomi shall be paid a monthly
fee of CAD$8,500.00 in connection with the Services
(the "FEES");
(ii) the Fees shall be paid to Kiomi pro rata in four
installments during each month of the Term (defined
herein) or in such other manner of payment as agreed
to between the Parties;
(iii) Xtra agrees to increase the Fees payable to Kiomi to
Cdn$10,000.00 upon the earlier of the full scale
mining operation to be conducted at the Kwabeng
concession (a) achieving profitability; or (b) having
occurred for two months; and
(iv) a compensation review in connection with any further
increase in the Fees shall be at the discretion of
the Chief Executive Officer (the "CEO") and/or the
Compensation Committee (if one is formed at the
relevant time) of Xtra who shall consider and
determine if an increase in Fees is warranted and, in
no event shall such review occur later than July 1,
2007.
(b) OTHER COMPENSATION
Any other compensation to be paid to Kiomi, including bonus
payments, shall be reviewed and considered by the CEO and/or
the Compensation Committee at such time as is deemed
appropriate by the CEO but in no event shall such review occur
later than March 31, 2007.
On April 21, 2006, the board of directors of Xtra (the
"BOARD") granted Kiomi an aggregate of 108,000 non-qualified
stock options (the "OPTIONS") on the following terms and as
more particularly set forth in a stock option agreement (the
"OPTION AGREEMENT") entered into between the Parties:
(i) the price at which the Options may be exercised is
U.S.$0.70 per share;
(ii) the term of the Options shall be for three (3) years
(the "OPTION PERIOD") and shall expire three (3)
years from the date of grant (the "EXPIRY DATE");
(iii) the Options shall vest over the Option Period at the
rate of 3,000 Options in each month of the Option
Period from May 21, 2006;
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(iv) any portion of the Options that have vested and have
not been exercised in a particular month shall accrue
to the benefit of Kiomi (the "ACCRUED OPTIONS") and
in connection therewith, Kiomi shall have the right
to exercise the Accrued Options for a period of time
as may be set out in the Option Plan referred to in
(viii) hereunder or in accordance with securities
laws governing Xtra, but in no event shall the
Accrued Options be exercised later than the earlier
of (a) the Expiry Date; and (b) the exercise date
contemplated in subparagraphs (v), (vi), (vii),
(viii) and (ix) hereunder;
(v) in the event of termination as a result of Kiomi's
voluntary resignation, all Accrued Options must be
exercised within 90 days from the date of the
resignation by Kiomi, failing which the Accrued
Options will be cancelled;
(vi) in the event of the death of Kiomi during the Term,
all Accrued Options must be exercised by Kiomi's
estate within one year from the date of Kiomi's
death, failing which the Accrued Options will be
cancelled;
(vii) in the event of a Change of Control of Xtra (as
defined herein), all Options granted to Kiomi shall
vest in which event, Kiomi will have the right to
exercise such Options within 90 days following the
completion of such Change of Control. For clarity
purposes, a "CHANGE OF CONTROL" shall mean the
occurrence of (a) any person, other than an Employee
(as such term is used in Section 13(d) and 14(d) of
the Exchange Act is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act,
directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power
of the Company's outstanding securities then having
the right to vote at elections of directors; or (b)
the individuals who at the commencement date of the
agreement entered into between the consultant and our
Company (the "MC Agreement"), constitute the Board,
cease for any reason to constitute a majority thereof
unless the election, or nomination for election, of
each new director was approved by a vote of at least
two-thirds of the directors then in office who were
directors at the commencement of the MC Agreement; or
(c) there is a failure to elect two or more
candidates nominated by management of the Company to
the Board; or (d) the business of the Company for
which the consultant's services are principally
performed is disposed of by the Company pursuant to a
partial or complete liquidation of the Company, a
sale of assets (including stock of a subsidiary of
our Company) or otherwise.
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(viii) in the event that Kiomi is terminated by Xtra,
without cause, then in such event Xtra agrees that
Kiomi may retain 100% of the Accrued Options and 100%
of the unvested Options (the "UNVESTED OPTIONS");
provided, however that the Options referred to in
this subparagraph must be exercised no later than 90
days following such termination, failing which such
Options will be cancelled;
(ix) in the event that Kiomi is terminated by Xtra, with
cause, then in such event Xtra agrees that Kiomi may
retain 100% of the Accrued Options; provided, however
that the Accrued Options must be exercised no later
than 90 days following such termination, failing
which such Accrued Options will be cancelled. All
unvested Options will be cancelled immediately upon
termination, with cause;
(x) Xtra implemented and adopted a 2005 equity
compensation plan (the "OPTION PLAN") which
implementation and adoption was been approved in
writing by the Board in June 2005; and
(xi) the Options shall at all times be subject to the
terms of the Option Agreement and the Option Plan.
3. The term of this Agreement is for a fixed term of five (5) years
commencing on July 1, 2006 and ending on June 30, 2011 (the "TERM") unless
terminated earlier in accordance with paragraph 14 below. The Term of this
Agreement may only be renewed by written agreement of all Parties. If the
Parties have not reached a written agreement respecting any renewal of the Term
of this Agreement on or before March 31, 2011, then, unless otherwise agreed in
writing, they each shall be entitled to act on the assumption that this
Agreement shall expire at the end of the Term. Upon expiry of the Term, Kiomi
shall have no further entitlements.
4. PLACE OF WORK
Kiomi shall render the Services primarily at her place of business at 0
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx; however, she agrees to provide the Services
at such other place or places as may be reasonably requested by Xtra from time
to time.
5. TIME
Kiomi's daily schedule and hours worked on any given day shall
generally be at Kiomi's discretion, but at all times shall be subject to and
dependent upon Xtra's needs. For clarity purposes, Kiomi shall provide her
Services for a minimum period of 40 hours per week and up to a maximum period of
60 hours per week. Xtra relies upon Kiomi to ensure that she devotes sufficient
time as is necessary in order to fulfill the spirit and purpose of this
Agreement.
6. REIMBURSEMENT FOR EXPENSES INCURRED BY KIOMI ON BEHALF OF XTRA
Kiomi will submit an expense report for expenses actually and properly
incurred on behalf of Xtra on no less than a monthly basis in the form provided
by Xtra for such purpose. Xtra shall reimburse Kiomi for approved reasonable
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expenses within five (5) business days following receipt of Kiomi's itemized
expense report. Kiomi agrees to provide proper receipts for expenses incurred
and submitted.
7. REPRESENTATIONS OF KIOMI
(a) Kiomi represents that she has the requisite qualifications,
experience and capabilities to perform the Services to a
standard of care, skill and diligence acceptable within the
mining industry and that the Services will be provided in
accordance with all applicable laws, ordinances, rules and
regulations.
(b) Kiomi further represents that none of the following events
have occurred during the previous 10 years:
(i) there has been no bankruptcy filed by or against
Kiomi or any business of which Kiomi was a general
partner or executive officer at the time the petition
was filed or within two (2) years prior to the
filing;
(ii) Kiomi has not been charged with or convicted in a
criminal proceeding anywhere of an offence which is
or would be an indicatable offence for which a pardon
has not been granted;
(iii) Kiomi is not and has not been subject to any order,
judgment or decree not subsequently reversed,
suspended or vacated, of any court of competent
jurisdiction, permanently or temporarily enjoining,
barring, suspending or otherwise limiting the
involvement in any type of business, securities or
banking activities; and
(iv) Kiomi has not been found by a court of competent
jurisdiction (in a civil action), the SEC or the CFTC
of violating a federal or state securities or
commodities law, and the judgment has not been
reversed, vacated or suspended.
8. INDEPENDENT CONSULTANT
(a) Kiomi shall provide the Services as an independent contractor
and is not and shall not be construed to be an employee of
Xtra and Xtra is not responsible for Kiomi's wages or benefits
or any matters pertaining thereto.
(b) Kiomi shall not be entitled to or receive any benefit normally
provided to Xtra's employees including, but not limited to,
vacation pay, health, disability and other insurance coverage,
sick pay or retirement funds.
(c) No withholding for income taxes or any other tax or
contribution shall be deducted from payments made by Xtra to
Kiomi. Kiomi herein agrees to be solely responsible for the
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payment of taxes or contributions due on any amounts paid by
Xtra under this Agreement. Kiomi agrees to indemnify and hold
harmless Xtra for any and all demands or claims for taxes,
withholding taxes or any other form of payment to any
government authority from Xtra in respect of Kiomi including
interest, penalties and costs in connection therewith. This
section survives the termination of this Agreement.
9. TOOLS OF TRADE AND SUPPLIES
Kiomi shall provide all equipment, tools, books and materials used in
the Services and shall be solely responsible for procuring, paying for and
maintaining any computer equipment, software, tools or supplies necessary or
appropriate for the performance of her Services, unless otherwise agreed to in
advance by Xtra.
10. EXCLUSIVITY OF KIOMI
Subject to the terms and conditions of the Confidentiality and
Non-Compete Agreement referred to in paragraph 11 of this Agreement, a copy of
which is annexed hereto as Schedule "B", Kiomi is not required to provide her
services exclusively to Xtra.
11. CONFIDENTIALITY AND NON-COMPETE AGREEMENT AND OWNERSHIP OF INFORMATION
Kiomi agrees to the terms of and shall enter and execute a
Confidentiality and Non-Compete Agreement in the form and substance annexed
hereto as Schedule "B" simultaneously with the execution of this Agreement.
12. INDEMNIFICATION
In the event of any legal action commenced by a corporation or an
individual with respect to the Services under this Agreement, Xtra hereby agrees
to indemnify and hold harmless Kiomi from and against all such actions, claims,
liabilities, costs and expenses and the legal fees and disbursements in
connection therewith shall be borne by Xtra; provided that the indemnification
provided under this paragraph shall not be available to the extent of Kiomi's
gross negligence, a breach of this Agreement by Kiomi, willful misconduct by
Kiomi, violation of any applicable laws, ordinances, rules or regulations by
Kiomi, or under circumstances where applicable law does not permit
indemnification.
13. ASSIGNMENT
This Agreement shall be binding upon the Parties and their respective
heirs, executors, legal representatives, successors and assigns. This Agreement
shall not be assignable by any Party without the express written consent of all
Parties.
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14. TERMINATION
(a) Kiomi may terminate this Agreement at any time during the Term
without reason or cause by providing Xtra with three (3)
months' written notice of termination, which notice may be
waived in whole or part by Xtra.
(b) Xtra may terminate this Agreement at any time during the Term
without reason or cause by payment to Kiomi of her Fees for a
six (6) month period following such termination at the rate in
effect and in the manner and at the time of payment in effect
at the time of termination. For clarity purposes, the Parties
agree that, pursuant to this subparagraph 14(b), on
termination, Kiomi shall be paid Fees over the six (6) month
period following termination at the rate in effect at the time
of termination, that is Fees totaling (i) CAD$51,000.00, in
the event that the Fees are CAD$8,500.00 per month; or (ii)
CAD$180,000.00, in the event that the Fees are CAD$10,000.00
per month. Payment of the Fees shall not be reduced by amounts
earned by Kiomi during the six (6) month period following
termination from alternative sources of work.
(c) Xtra may terminate this Agreement without providing Kiomi with
any notice of termination or payment in lieu thereof in the
event of any one of the following causes:
(i) Kiomi has completed an Officer's and Director's
Questionnaire (the "QUESTIONNAIRE") and agrees that
Xtra shall have the right to terminate this Agreement
immediately with cause in the event that the
Questionnaire reveals information that, in the
determination of the Board, could reasonably
adversely affect Xtra's disclosure in its SEC
filings;
(ii) Kiomi commits a material breach of this Agreement or
of the Confidentiality and Non-Compete Agreement
referred to in paragraph 11 herein, a copy of which
is annexed hereto as Schedule "B";
(iii) a bankruptcy is filed by or against Kiomi or any
business of which Kiomi was a general partner or
executive officer at the time the petition was filed
or within two (2) years prior to the filing;
(iv) Kiomi is charged or convicted in a criminal
proceeding anywhere of an offence which is or would
be an indictable offence for which a pardon has not
been granted;
(v) Kiomi become subject to any order, judgment or decree
of any court of competent jurisdiction, permanently
or temporarily enjoining, barring, suspending or
otherwise limiting their involvement in any type of
business, securities or banking activities;
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(vi) Kiomi is found by a court of competent jurisdiction
(in a civil action), the SEC or the CFTC of violating
a federal or state securities or commodities law;
(vii) Kiomi commits fraud or similar offence against Xtra;
(vii) any other act or omission which would amount to cause
for termination of this Agreement at law.
With respect to the foregoing events set out in this paragraph
14(c), Xtra shall not be required to pay any Fees to Kiomi,
save and except for those Fees outstanding for services
rendered to the date of termination of this Agreement,
prorated from the date upon which Fees were last paid to Kiomi
to the date of termination of this Agreement.
(d) In the event that Xtra terminates this Agreement, or Kiomi
provides notice of termination of this Agreement under
paragraph 14(a), at any time within 6 months of a Change of
Control of Xtra as hereinafter defined, Xtra shall pay Kiomi
on such termination a lump sum payment representing 100% of
the Fees for an eighteen (18) month period at the rate in
effect at the time of termination. For clarity purposes, the
Parties hereto agree that, pursuant to this subparagraph
14(d), Xtra shall pay Kiomi a lump sum payment based on her
monthly Fees in effect at the time of termination of either
(i) CAD$90,000.00, in the event that the Fees are CAD$8,500.00
per month; (ii) CAD$180,000.00, in the event that the Fees are
CAD$10,000.00 per month, as well as any Fees payable for
services rendered to the date of termination, prorated from
the date upon which Fees were last paid to Kiomi to the date
of termination. Where termination under this paragraph 14(a)
is initiated by Xtra, payments made by Xtra under this
paragraph 14(a) are in substitution of and not in addition to
the payments referred to in paragraph 14(b). For clarity
purposes, a "CHANGE OF CONTROL" shall mean the occurrence of
(a) any person, other than an Employee (as such term is used
in Section 13(d) and 14(d) of the Exchange Act is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act, directly or indirectly, of securities of the
Company representing 50% or more of the combined voting power
of the Company's outstanding securities then having the right
to vote at elections of directors; or (b) the individuals who
at the commencement date of the agreement entered into between
the consultant and our Company (the "MC AGREEMENT"),
constitute the Board, cease for any reason to constitute a
majority thereof unless the election, or nomination for
election, of each new director was approved by a vote of at
least two-thirds of the directors then in office who were
directors at the commencement of the MC Agreement; or (c)
there is a failure to elect two or more candidates nominated
by management of the Company to the Board; or (d) the business
of the Company for which the consultant's services are
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principally performed is disposed of by the Company pursuant
to a partial or complete liquidation of the Company, a sale of
assets (including stock of a subsidiary of our Company) or
otherwise.
(e) Upon expiry of the Term or the earlier termination of this
Agreement, however caused:
(i) Kiomi agrees that he will execute and deliver to Xtra
all corporate resignations from any officer or
director positions held by her in Xtra or in any of
its subsidiaries; and
(ii) Kiomi agrees to deliver to Xtra all property of or
belonging to or administered by Xtra or its
subsidiaries that is within their possession or under
their control including, without limiting the
generality of the foregoing, all Propriety
Information and Documents as defined in the
Confidentiality and Non-Compete Agreement referred to
in paragraph 11 of this Agreement, a copy of which is
annexed hereto as Schedule "B"
(f) The termination payments contemplated in subparagraphs 14(a)
and (d) above will be made upon:
(i) execution and delivery to Xtra of a full and final
release by Kiomi in a form and substance satisfactory
to Xtra;
(ii) execution and delivery to Xtra of all corporate
resignations from any officer or director positions
held by Kiomi in Xtra and in any of its subsidiaries;
and
(ii) the delivery to Xtra of all property of or belonging
to or administered by Xtra or its subsidiaries that
is within their possession or under their control
including, without limiting the generality of the
foregoing, all Propriety Information and Documents as
defined in the Confidentiality and Non-Compete
Agreement referred to in paragraph 11 of this
Agreement, a copy of which is annexed hereto as
Schedule "B".
15. ADDRESS FOR DELIVERY OR NOTICE
Each notice under this Agreement shall be made in writing and may be
sent by facsimile or electronic formatted transmission (e-mail) or delivered to
the address for such Party as noted hereunder:
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(a) if to Xtra,
(i) by regular mail or courier to:
000 Xxxxx Xxxxxx
Xxxxxxxx XX X0X 0X0
(ii) by e-mail transmission to:
xxxxxxxxxxxx@xxxxxx.xxx
(iii) by fax to:
(000) 000-0000
(b) if to Kiomi,
(i) by regular mail or courier to:
0 Xxxxxxxx Xxxxxx
Xxxxxxx XX X0X 0X0
(ii) by e-mail transmission to:
xxxxx@xxxxxxxxx.xx
(iii) by fax to:
(000) 000-0000
Either Party may change its mailing address, e-mail address or
facsimile number by notifying the other Party in writing.
16. SEVERABILITY AND CONSTRUCTION OF AGREEMENT
Each section, paragraph, term and provision of this Agreement and any
portion thereof shall be considered severable and, if for any reason whatsoever,
any portion of this Agreement is determined to be invalid, contrary to or in
conflict with any applicable present or future law, rule or regulation by a
final ruling issued by a court of jurisdiction, agency or tribunal with valid
jurisdiction, then that ruling shall not impair the operation of any other
portions of this Agreement as may remain otherwise intelligible (all of which
shall remain binding on the Parties hereto and continue to be of full force and
effect as of the date upon which the ruling becomes final).
17. CONSENTS AND WAIVERS
No consent or waiver by either Party in respect of any breach of a
provision of this Agreement shall be deemed to be a consent or waiver of any
other breach of this Agreement.
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18. ENUREMENT
This Agreement shall enure to the benefit of and be binding upon the
Parties hereto and their respective heirs, executors, administrators, successors
and permitted assigns. This Agreement may not be assigned by Kiomi, but may be
assigned by Xtra.
19. ENTIRE AGREEMENT
This document and the Confidentiality and Non-Compete Agreement
referred to in paragraph 11 herein contains the entire agreement made between
the Parties as of the effective date of this Agreement and no representations,
inducements, promises or agreements not embodied or referenced herein shall be
of any force or effect, unless the same are set forth in writing and signed by
the Parties hereto.
20. AMENDMENTS TO AGREEMENT
This Agreement may be amended from time to time as agreed to in writing
between the Parties. Any amending agreement together with the unamended sections
of this Agreement shall then constitute the entire agreement between the
Parties.
21. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL
This Agreement will be governed by and construed in accordance with the
laws prevailing in the State of Nevada. The parties acknowledge and agree that
the courts in Toronto, Ontario shall be the exclusive venue and proper forum in
which to adjudicate any case or controversy arising either, directly or
indirectly, under or in connection with this Agreement and the Parties further
agree that, in the event of litigation arising out of or in connection with this
Agreement in these courts, they will not contest or challenge the jurisdiction
or venue of these courts. The Parties further agree and hereby waive and release
any right to a trial by jury in any action arising out of the interpretation,
enforcement or breach of this Agreement.
22. EXECUTION OF AGREEMENT
This Agreement may be signed by the Parties hereto in counterpart, each
of which counterpart when so signed shall be deemed to be an original, and such
counterparts together shall constitute one and the same instrument and
notwithstanding the date of execution will be deemed to bear the execution date
as set forth in this Agreement. This Agreement may be executed by facsimile and
such facsimile or facsimiles shall be deemed to represent the original
Agreement.
23. NO PARTNERSHIP OR AGENCY
The Parties hereto have not created a partnership and nothing contained
in this Agreement shall in any manner whatsoever constitute any Party as the
partner, agent or legal representative of the other Party, nor create any
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fiduciary relationship between them for any purpose whatsoever. No Party shall
have any authority to act for or assume any obligation or responsibility on
behalf of the other Party, except as may be from time to time agreed to in
writing between the Parties or as otherwise expressly provided.
IN WITNESS WHEREOF the Parties hereto have executed this Agreement as
of the date first above written.
SIGNED, SEALED AND DELIVERED ) XTRA-GOLD RESOURCES CORP.
in the presence of )
)
)
) Per: /s/ Xxxxxxx Xxxxxx XxXxxxxxx
) Xxxxxxx Xxxxxx XxXxxxxxx
) Chairman and CEO
)
)
)
___________________________________ ) /s/ XXXXXXX XXXXX XXXX
Signature of Witness Print Name ) XXXXXXX XXXXX XXXX
SCHEDULE "A"
JOB DESCRIPTION OF THE SECRETARY AND TREASURER
OF XTRA-GOLD RESOURCES CORP.
POSITION HELD: Secretary and Treasurer ("ST")
INCUMBENT: Xxxxx Xxxx ("KIOMI")
TERMS OF REFERENCE
This written job description of the responsibilities (collectively, the
"RESPONSIBILITIES") and accountability of the position of the ST has been
prepared to empower the CEO and/or the Board with a means of directing,
assessing, encouraging and compensating the activities of Xtra's ST. This job
description forms the basis for and an addendum to the terms of the management
consulting agreement entered into between Xtra and Kiomi (the "MC AGREEMENT").
COMPLIANCE
Kiomi's performance of her Responsibilities set forth hereunder shall, at all
times, be subject to her compliance with the provisions of applicable laws,
rules and regulations. Kiomi shall be subject to and agrees to comply with all
internal policies instituted by Xtra and applicable to its executive officers.
SCOPE OF SERVICES
The scope of the Services, in particular, the job description and
responsibilities of the ST, shall include but not be limited to:
CUSTODIAL RESPONSIBILITIES
The ST is the custodian of all of Xtra's records and, as such, ensures that its
records are maintained as required by law and made available when required by
authorized persons. These records include founding documents, i.e. articles of
incorporation and any amendments thereto, resolutions, by-laws, minutes of the
Board and committee meetings held from time to time, directors, officers and
securityholders' registers, financial reports and other official records.
CORPORATE RESPONSIBILITIES
o ensuring that accurate and sufficient documentation exists to meet
legal requirements;
o preparing and maintaining all corporate records including, among other
things, minutes of meetings, resolutions, by-laws, consents and
resignations and various corporate and securities registers;
o attending all Board meetings as a voting member and acting as Secretary
of and recording minutes of such meetings;
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o preparing meeting materials for directors and stockholders' meetings,
including annual general meetings; and
o preparing and filing of all documentation necessary to maintain Xtra
and its subsidiaries in good standing, including corporate and
regulatory filings.
ACCOUNTING RESPONSIBILITIES
o continuously examining and refining budget and other financial
processes;
o conducting an annual budget meeting with the CEO and the Board;
o preparing and submitting monthly financial reports to the CEO and the
Board;
o preparing an overall G&A for Xtra on no less than a quarterly basis;
o overseeing the audit process and liaising with Xtra's independent
auditors as may be required from time to time;
o maintaining the financial records of Xtra and posting of all
transactions in an acceptable accounting application (currently
"QuickBooks");
o issuing checks and processing wire transfers and transfer payments to
consultants, professional advisors and vendors
o ensuring the effective management of Xtra's financial operations by:
o ensuring that all external reporting obligations are met in a
timely fashion;
o ensuring the integrity of Xtra's cash, receivables and
payables management;
o assisting with the completion of all major financial
transactions;
o monitoring Xtra's overall financial health;
o enforcing financial discipline/guidelines and controls to key
players of Xtra; and
o implementing and conducting "checks and balances" procedures
for Xtra and its subsidiaries;
o assisting with the development, execution and communication of Xtra's
overall financial strategy to its stockholders through design and
execution of a strategy to communicate key elements of Xtra's financial
objectives;
o assessing Xtra's financial management needs and current capabilities
from time to time and providing such assessments to the CEO;
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o providing recommendations to the CEO and/or the Board on major
financial decisions and carrying out the financial policy decisions
made by Xtra's senior management; and
o reviewing all financial reports prepared by Xtra's subsidiaries and
discussing same with the CEO and/or the Board.
GENERAL ADMINISTRATIVE RESPONSIBILITIES
o liaising with counsel, auditors, stock transfer agent and all other
professional advisors;
o reviewing all incoming documentation, including legal and financial
matters and proactively attending to any required action;
o acting as a designated signing officer for the execution of certain
documentation including counter-execution of checks, correspondence,
documents, applications, reports, contracts or other documents on
behalf of Xtra;
o managing the general correspondence on behalf of the Board, except for
the preparation of correspondence assigned to others.
o communicating with the Chief Executive Officer ("CEO") on a regular
basis during the course of the year to review and discuss Xtra's
business;
o proactively participating in strategic planning and internal control
policies; and
o drafting of agreements as may be required from time to time.
SPECIFIC ACCOUNTABILITY
The ST is accountable to and shall report directly to the CEO. The ST is also
accountable to the Board. The CEO will review her performance in connection with
each of the above-noted Responsibilities, which may be amended from time to
time, and will record and discuss his assessment with the Board and the ST
within thirty (30) days of the commencement of full scale placer mine
production, but in no event later than six (6) months following the execution of
the management consulting agreement dated July 1, 2006 of which this Schedule
"A" forms a part thereof. Thereafter, the CEO, and/or the Board and/or the
Compensation Committee will review the performance of the ST on an annual basis
in connection with the Responsibilities and will record and discuss this
assessment with the ST at such time.
PERFORMANCE
Above-average timely performance is expected in all areas of responsibility. The
success of Xtra-Gold and its ability to thrive and prosper in a competitive
environment, together with the successful performance by the ST will be
recognized in a reward for initiative and the CEO, Board and/or the Compensation
Committee may elect to award additional compensation to be determined, based on
the achievement of milestones as may be established from time to time.
SCHEDULE "B"
CONFIDENTIALITY AND NON-COMPETE AGREEMENT
THIS CONFIDENTIALITY AND NON-COMPETE AGREEMENT (the "AGREEMENT") is
made and entered into as of the 1st day of July, 2006.
BETWEEN:
XXXXXXX XXXXX XXXX,
0 Xxxxxxxx Xxxxxx
Xxxxxxx XX X0X 0X0
(hereinafter referred to as "KIOMI")
- and -
XTRA-GOLD RESOURCES CORP.,
a Nevada corporation having a head office at
0 Xxxxxxxx Xxxxxx
Xxxxxxx XX X0X 0X0 Xxxxxx
(hereinafter referred to as "XTRA-GOLD")
WHEREAS as of the date of this Agreement, Xtra-Gold and/or its
subsidiaries, Xtra-Gold Mining Limited, Xtra-Gold Exploration Limited, Xtra Oil
& Gas (Ghana) Limited (collectively, referred to as "XTRA-GOLD") are engaged in
the exploration, development, mineral extraction and production of gold and
other resources in the Republic of Ghana (the "BUSINESS");
AND WHEREAS Xtra-Gold has established a valuable reputation, expertise
and goodwill in its Business;
AND WHEREAS Kiomi, by virtue of her engagement with Xtra-Gold and/or
any of its subsidiaries, is and may become familiar with and possessed with the
manner and methods of business, trade secrets, customer, client, employee and
stockholder lists and other confidential information pertaining to the Business;
AND WHEREAS in consideration of and as a condition to Xtra-Gold's
engagement of Kiomi's consulting services on the terms and conditions set out in
the Management Consulting Agreement made effective as of July 1, 2006 between
Xtra-Gold and Kiomi (hereinafter the "CONSULTING AGREEMENT"), Kiomi agreed to
enter into this Confidentiality and Non-Compete Agreement;
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NOW THEREFORE IN CONSIDERATION OF Xtra-Gold's engagement of Kiomi's
consulting services on the terms and conditions set out in the Consulting
Agreement and other good and valuable consideration the receipt of which is
hereby acknowledged, Kiomi and Xtra-Gold (hereinafter the "PARTIES") agree as
follows:
1. COVENANT NOT TO COMPETE
Kiomi acknowledges and recognizes the highly competitive nature of
Xtra-Gold's Business and that the goodwill, continued patronage, and
specifically the names and addresses of Xtra-Gold's Clients (as defined herein)
constitute a substantial asset of Xtra-Gold having been acquired through
considerable time, money and effort. Accordingly, Kiomi agrees to the following:
(i) that during the Restricted Period (as hereinafter defined) and
within the Restricted Area (as hereinafter defined), she will
not, individually or in conjunction with others, directly or
indirectly, engage in any Business Activities (as hereinafter
defined), whether as an officer, director, proprietor,
employer, partner, independent contractor, investor (other
than as a holder solely as an investment of less than one
percent (1%) of the outstanding capital stock of a publicly
traded corporation), consultant, advisor, agent, creditor or
otherwise;
(ii) that during the Restricted Period and within the Restricted
Area, she will not, directly or indirectly, compete with
Xtra-Gold by soliciting, inducing or influencing any of
Xtra-Gold's Clients to discontinue or reduce their business
relationship with Xtra-Gold;
(iii) that during the Restricted Period and within the Restricted
Area, she will not (A) directly or indirectly recruit, solicit
or otherwise influence any employee, consultant or agent of
Xtra-Gold to discontinue their employment, consultancy or
agency relationship with Xtra-Gold as the case may be, or (B)
in connection with any business which competes directly or
indirectly with the Business Activities of Xtra-Gold (the
"COMPETITIVE BUSINESS"), employ or seek to employ, or cause or
permit to employ or seek to employ for any Competitive
Business any person who is then (or was at any time within six
(6) months prior to the date) an employee, consultant or agent
of Xtra-Gold; or (C) directly or indirectly discourage any
Xtra-Gold Client from doing business with Xtra-Gold.
2. NON-DISCLOSURE OF INFORMATION
Kiomi acknowledges that as a result of her relationship with Xtra-Gold,
she has and will continue to acquire confidential information, whether or not
originated by her, that relates to the Business or affairs of Xtra-Gold and/or
its customers (hereafter the "PROPRIETARY INFORMATION") including, but not
limited to, Xtra-Gold's trade secrets, private or secret processes, methods and
ideas, as they exist from time to time, stockholder, customer or vendor lists,
products, services, mining methods, development, technical information,
marketing activities and procedures, credit and financial data concerning
Xtra-Gold and/or Xtra-Gold's Clients. Kiomi agrees that the Proprietary
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Information is a valuable, special and unique asset of Xtra-Gold and/or its
Clients as the case may be, that access thereto and knowledge thereof was and
continues to be essential to the performance of her services to Xtra-Gold, and
that it is reasonable and necessary for her to make the following covenants
regarding her conduct during and subsequent to the term of the Consulting
Agreement:
(i) at all times during and subsequent to the term of the
Consulting Agreement, she will not disclose the Proprietary
Information to any person or entity (other than as necessary
in carrying out the services contemplated in the Consulting
Agreement) without first obtaining Xtra-Gold's written consent
unless such Proprietary Information has been publicly
disclosed generally without breach of this Agreement or upon
written advice of legal counsel reasonably satisfactory to
Xtra-Gold that she is legally required to disclose such
Proprietary Information;
(ii) at all times during and subsequent to the term of the
Consulting Agreement , she will not use, copy, transfer or
destroy any Proprietary Information (other than as necessary
in carrying out the services contemplated in the Consulting
Agreement) without first obtaining Xtra-Gold's written
consent, and she will take all reasonable precautions to
prevent inadvertent use, copying, transfer or destruction of
any Proprietary Information unless such Proprietary
Information has been publicly disclosed generally without
breach of this agreement or upon written advice of legal
counsel reasonably satisfactory to Xtra-Gold that she is
legally required to disclose such Proprietary Information;
(iii) Documents (as hereinafter defined) prepared by Kiomi or that
come into their possession during her association with
Xtra-Gold are and remain the property of Xtra-Gold, whether or
not such Documents contain Proprietary Information; and
(iv) on the expiry of the term of the Consulting Agreement or such
earlier termination of the Consulting Agreement, however
caused, or on receipt of Xtra-Gold's written request, she
shall deliver to Xtra-Gold at Xtra-Gold's principal place of
business as provided in this Agreement all property of or
belonging to or administered by Xtra-Gold and/or its Clients
including without limiting the generality of the foregoing,
all Propriety Information and Documents within her possession
or under their control.
3. DEVELOPMENT OF INTELLECTUAL PROPERTY
(i) Kiomi agrees that she will, during the term of the Consulting
Agreement, disclose promptly to Xtra-Gold in writing any and
all inventions, special procedures, processes or products and
any improvements in or modifications of existing inventions,
special procedures, processes, or products relating to or
connected with the Business Activities, whether or not
patentable, conceived, developed or made by them either alone
or in conjunction with others during the term of the
Consulting Agreement, whether conceived, developed or made
upon Xtra-Gold's premises, or with Xtra-Gold's material or
facilities, or otherwise, and all of said inventions, special
procedures, processes, products, improvements and
modifications shall be the sole and exclusive property of
Xtra-Gold.
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(ii) At the option and request of Xtra-Gold, Kiomi will promptly
execute, acknowledge and deliver during the term of the
Consulting Agreement and at all times thereafter, without any
payment or other consideration from Xtra-Gold, such
applications, assignments and other instruments which
Xtra-Gold shall deem necessary in order to (i) apply for and
obtain letters patent, trademarks, service marks or other
intellectual property protection in the United States and any
foreign countries for any and all of the aforesaid inventions
or discoveries described above, and (ii) assign and convey to
Xtra-Gold the sole and exclusive right, title and interest
therein, and she will assist Xtra-Gold or its nominee in every
proper way, at Xtra-Gold's cost and expense, in accomplishing
any and all of the foregoing.
4. DEFINITIONS
In this Agreement, the following terms have the meanings:
(a) DOCUMENTS. "DOCUMENTS" shall mean all original written,
recorded, or graphic matters whatsoever, and any and all
copies thereof, including, but not limited to: papers, books,
records, tangible things, correspondence, communications,
electronically transmitted messages (e-mails and faxes),
memoranda, work-papers, reports, presentations, affidavits,
statements, summaries, analyses, evaluations, stockholder and
client records and information, agreements, agendas,
advertisements; instructions, charges, manuals, brochures,
publications, directories, industry lists, schedules, client
lists, vendor lists, statistical records, training manuals,
computer printouts, books of account, records and invoices,
technical data, including but not limited to mining leases,
prospecting licences, permits, feasibility reports, surveys,
site plans, mining operation plans reflecting business
operations; all things similar to any of the foregoing however
denominated. In all cases where originals are not available,
the term "Documents" shall also mean identical copies of
original documents or non-identical copies thereof.
(b) XTRA-GOLD'S CLIENTS. The "XTRA-GOLD'S CLIENTS" mean any
persons, partnerships, corporations, stockholders, potential
investors, professional associations or advisors or other
organizations for or with whom Xtra-Gold performed or intended
to perform Business Activities at any time during the period
Kiomi performed consulting services for Xtra-Gold or held any
offices or directorships in Xtra-Gold including under the
Consulting Agreement.
(c) RESTRICTIVE PERIOD. The "RESTRICTIVE PERIOD" means during the
term of the Consulting Agreement and for a period of two (2)
years following the termination of the Consulting Agreement,
however caused.
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(d) RESTRICTED AREA. The "RESTRICTED AREA" means within 100
kilometers from where Xtra-Gold carries on its Business.
(e) BUSINESS ACTIVITIES. "BUSINESS ACTIVITIES" means the Business
during the 12 month period prior to the expiry of the term of
the Consulting Agreement or its earlier termination.
5. COVENANTS AS ESSENTIAL INDUCEMENTS OF THIS AGREEMENT
It is understood by and between the parties hereto that the foregoing
covenants contained in this Agreement are essential inducements to Xtra-Gold to
engage Kiomi under the Consulting Agreement, and that but for the agreement by
Kiomi to comply with such covenants, Xtra-Gold would not have agreed to continue
to engage them. Such covenants by Kiomi shall be construed to be agreements
independent of any other provisions of this Agreement. The existence of any
other claim or cause of action, whether predicated on any other provision in
this Agreement, or otherwise, as a result of the relationship between the
Parties shall not constitute a defense to the enforcement of such covenants
against Kiomi.
6. SURVIVAL AFTER TERMINATION OF AGREEMENT
Notwithstanding anything to the contrary contained in this Agreement,
the covenants contained herein shall survive the engagement of Kiomi by
Xtra-Gold and shall continue in force after expiry of the term or other
termination of the Consulting Agreement, however caused.
7. REMEDIES
(i) Kiomi acknowledges and agrees that Xtra-Gold's remedy at law
for a breach or threatened breach of any of the provisions of
this Agreement would be inadequate and the breach shall be per
se deemed as causing irreparable harm to Xtra-Gold. In
recognition of this fact, in the event of a breach by Kiomi of
any of the provisions of this Agreement, Kiomi agrees that, in
addition to any remedy at law available to Xtra-Gold,
including, but not limited to monetary damages, Xtra-Gold,
without posting any bond, shall be entitled to obtain, and she
agrees not to oppose Xtra-Gold's request for equitable relief
in the form of specific performance, temporary restraining
order, temporary or permanent injunction or any other
equitable remedy which may then be available to Xtra-Gold.
(ii) Kiomi acknowledges that the granting of a temporary
injunction, temporary restraining order or permanent
injunction merely prohibiting the use of Proprietary
Information would not be an adequate remedy upon breach or
threatened breach of this Agreement and consequently agree,
upon proof of any such breach, to the granting of injunctive
relief prohibiting any form of competition with Xtra-Gold.
Nothing herein contained shall be construed as prohibiting
Xtra-Gold from pursuing any other remedies available to it for
such breach or threatened breach.
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(iii) Nothing herein contained shall be construed as prohibiting
Xtra-Gold from pursuing any other remedies available to it for
such breach or threatened breach.
8. COUNTERPARTS
This Agreement may be signed by the Parties in counterparts, each of
which counterpart when so signed shall be deemed to be an original, and such
counterparts together shall constitute one and the same instrument and
notwithstanding the date of execution will be deemed to bear the execution date
as set forth in this Agreement. This Agreement may be executed by facsimile and
such facsimile or facsimiles shall be deemed to represent the original
Agreement.
9. BINDING EFFECT/ASSIGNMENT
This Agreement shall be binding upon the Parties and their respective
heirs, executors, legal representatives, successors and assigns. This Agreement
shall not be assignable by any Party without the express written consent of all
Parties.
10. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL
This Agreement will be governed by and construed in accordance with the
laws prevailing in the State of Nevada. The parties acknowledge and agree that
the courts in Toronto, Ontario shall be the exclusive venue and proper forum in
which to adjudicate any case or controversy arising either, directly or
indirectly, under or in connection with this Agreement and the Parties further
agree that, in the event of litigation arising out of or in connection with this
Agreement in these courts, they will not contest or challenge the jurisdiction
or venue of these courts. The Parties further agree and hereby waive and release
any right to a trial by jury in any action arising out of the interpretation,
enforcement or breach of this Agreement.
11. SEVERABILITY
The invalidity, illegality or unenforceability of any provision or
provisions of this Agreement will not affect any other provision of this
Agreement, which will remain in full force and effect, nor will the invalidity,
illegality or unenforceability of a portion of any provision of this Agreement
affect the balance of such provision. In the event that any one or more of the
provisions contained in this Agreement or any portion thereof shall for any
reason be held to be invalid, illegal or unenforceable in any respect, this
Agreement shall be reformed, construed and enforced as if such invalid, illegal
or unenforceable provision had never been contained herein.
12. EXPENSES TO ENFORCE
If it becomes necessary for Xtra-Gold to institute legal action to
enforce the terms and conditions of this Agreement, and such legal action
results in a final judgment in favor of Xtra-Gold, then Kiomi agrees to
reimburse Xtra-Gold for all direct, indirect or incidental expenses incurred,
including, but not limited to, all attorney's fees, court costs and other
expenses incurred throughout all negotiations, trials or appeals undertaken in
order to enforce Xtra-Gold's rights hereunder.
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13. NOTICES
Any notice required or permitted to be given under the terms of this
Agreement shall be sufficient if in writing and if sent postage prepaid by
registered or certified mail, return receipt requested; by overnight delivery;
by courier; or by confirmed facsimile as set forth in the first paragraph of
this Agreement, or at such other place as any of the Parties may designate.
THE PARTIES TO THIS AGREEMENT HAVE READ THIS AGREEMENT, UNDERSTAND ITS TERMS AND
CONDITIONS, HAVE HAD THE OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL OF
THEIR OWN CHOICE AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective
as of the date first above written.
XTRA-GOLD RESOURCES CORP.
By: /s/ Xxxxxxx Xxxxxx XxXxxxxxx
Xxxxxxx Xxxxxx XxXxxxxxx
Chief Executive Officer
/s/ Xxxxxxx Xxxxx Xxxx
Xxxxxxx Xxxxx Xxxx
Secretary and Treasurer
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Office Held (if applicable)
