EXHIBIT 4.70
EMPLOYMENT AGREEMENT
THIS AGREEMENT effective the 3rd day of February 2006.
BETWEEN:
PINE VALLEY MINING CORPORATION, having an office at 000-000
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx
(the "Company")
AND:
XXXXXX XXXX, of Edmonton, Alberta, Canada
(the "Executive")
WHEREAS the Executive has agreed to a contract of employment with the Company,
and the Company has agreed to contract for the services of the Executive, on the
terms and conditions set forth in this Agreement.
NOW THEREFORE in consideration of the mutual terms and conditions in this
Agreement, and the payment by the Employer to the Executive of $10.00, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. POSITION, SERVICES AND TERM
1.1. POSITION
The Company will employ the Executive and the Executive will serve the
Company as Executive Vice President, and Chief Operating Officer of the
Company. The Executive will report to the President of the Company or
such other person designated from time to time by the Company.
Despite this Agreement, the employment of the Executive with the
Company is subject to the pre-condition that the Company conduct
criminal records checks on the Executive (the "Inquiry") for the
purpose of confirming that the Executive does not have a criminal
record that is incompatible with the employment of the Executive under
this Agreement. The Executive consents to the Inquiries being conducted
by the Company, and will provide any necessary consents to any third
party to facilitate the Inquiry.
1.2. SERVICES
Subject to the direction of the President, the Executive will be
responsible for the management of the operations of the Company, with a
particular focus on the sales and marketing activities of the Company
and such other duties and powers as the Company may assign to the
Executive from time to time (the "Services").
1.3. TERM
The Executive will commence providing the Services to the Company on
February 20, 2006, or such other date as mutually agreed, and the
employment of the Executive with the Company will continue until the
employment is terminated by either party as provided herein (the
"Term").
1.4. TRAVEL
The Executive acknowledges that effective performance of the Services
may require that the Executive travel from time to time as required by
the Company.
1.5. POLICIES AND PRACTICES
The Executive will comply with the written policies and with practices,
directions and instructions, written or oral, of the Company from time
to time in effect.
2. EXECUTIVE OBLIGATIONS
2.1. EFFORT AND LOYALTY
The Executive will perform the Services in a competent and faithful
manner and will devote the time and effort necessary to properly and
fully perform the Services. The Executive owes a duty of loyalty to the
Company and will at all times use his best efforts to promote the
interests of the Company.
2.2. FIDUCIARY
The Executive acknowledges that by virtue of the employment
contemplated by this Agreement, the Executive will be in a fiduciary
relationship with the Company and will owe fiduciary obligations to
Company. The provisions of this Agreement are additional to and do not
amend, replace or otherwise reduce those obligations.
3. COMPENSATION AND BENEFITS
3.1. SALARY
The Company will pay the Executive an annual salary of CDN$300,000 (the
"Salary"), payable in bi-weekly instalments less all required or
permitted withholdings and remittances. The Company will review the
Salary from time to time during the Term and may, in its sole
discretion, increase the Salary.
3.2. OTHER COMPENSATION
DISCRETIONARY BONUS: The Executive will be eligible for an annual bonus
of up to 60% of the Salary for each of the Company's fiscal years
payable as soon as practicable following the end of the Company's
fiscal year for which the bonus applies. The annual bonus potential
will increase to 90% once the Company is mining in an area outside of
the Willow Creek Mine (including, but not limited to Pine Pass), and
production and sales exceed 2.2 million tonnes per year. The payment of
any a bonus in any fiscal year will be dependant on the assessment by
the Company of the performance of the Executive, based on reasonable
criteria set by the Company in consultation with the Executive. The
terms and conditions and payment of any bonus for work performed during
the remainder of the Company's current fiscal year ended
March 31, 2006 ("Fiscal 2006") will reflect the partial employment of
the Executive during the year. Similarly, the bonus payable at the time
the Executive is terminated by the Company without Just Cause will be
pro rated by the fraction of the then fiscal year that the Executive
was employed by the Company and will be based on 50% of the maximum
bonus for that fiscal year.
INCENTIVE PAY: The Executive will participate in an annual incentive
pay plan, on terms to be negotiated, under which he will be eligible
for up to 40% of the Salary. The annual incentive pay potential will
increase to 60% once the Company is mining in an area outside of the
Willow Creek Mine, and production and sales exceed 2.2 million tonnes
per year. The incentive payable at the time the Executive is terminated
by the Company without Just Cause will be pro rated by the fraction of
the then fiscal year that the Executive was employed by the Company and
will be based on 50% of the maximum bonus for that fiscal year.
RRSP: The Executive will be eligible to participate in the RRSP plan of
the Company.
STOCK OPTIONS: As soon as practicable after the Executive signs this
Agreement and the Inquiries are completed, the Company will provide to
the Executive a grant of share options to purchase 200,000 shares of
the Company at the market price in effect on the date the options are
granted. The options will vest in eight equal amounts commencing on the
three-month anniversary of the date the Executive starts work and
continuing every three months thereafter until fully vested. The
options expire no later than five years after the grant date. Despite
the foregoing, this grant of options is subject to the terms of the
Company's Share Option Plan and the approval of the Board of Directors
of the Company.
3.3. BENEFITS
During the Term, the Company will make available to the Executive the
insured benefit plans customarily available to all employees (the
"Benefits"). The terms and conditions of the Benefits will be
determined by the plans or policies from time to time established or
purchased by the Company. The Company retains the right to establish
new Benefits and to alter or delete any Benefits from time to time and
at any time in its sole discretion, subject to providing three months'
notice of such changes unless the alterations or deletions are beyond
the control of the Company.
3.4. VACATION
In addition to statutory holidays, the Executive is entitled to 5
weeks' vacation within each calendar year, pro-rated for any partial
calendar year, during the Term.
The Executive will schedule vacation at such time or times as the
Company and the Executive mutually agree. Failing such agreement, the
Company may set the vacation time or times based on business
considerations.
3.5. EXPENSES
Upon submission of appropriate receipts and written accounts, the
Company will reimburse the Executive for all reasonable expenses
actually and properly incurred by
him in connection with his duties hereunder in accordance with the
policies, practices or directions of the Company from time to time in
effect. The Company will compensate the Executive for the reasonable
costs of moving his and his immediate family's personal belongings from
Edmonton to Vancouver, which will include real estate and legal fees
incurred in selling his home in Edmonton and temporary accommodation
costs in Vancouver, to a maximum of $30,000.00. If the Executive
resigns from employment within two years of his commencement date the
Executive will reimburse the Company for the moving expenses pro rated
by the fraction of the two years that the Executive was not employed by
the Company. For example, if the Executive resigned after 18 months,
the Executive will reimburse the Company for 6/24ths of the moving
expenses.
3.6. TRANSACTION BONUS
In the event of a completed sale of all, or substantially all of the
Company's stock, in consideration of the Executive facilitating the
transaction, and continuing to perform all of the duties contemplated
in this Agreement for a period of at least 6 months following the
completion of the sale, the Executive will be eligible for a one-time
bonus of at least $150,000, which may be increased to a maximum of
$250,000 based on the Company achieving certain valuation thresholds
(the "Transaction Bonus"). If the Executive is terminated by the
Company without Just Cause within 6 month prior to or following such a
sale, the Company will pay to the Executive the transaction bonus. The
minimum Transaction Bonus will be payable to the Executive as
compensation for the Executive using his best efforts to facilitate the
transaction. The terms and conditions under which a Transaction Bonus
over and above the minimum will be earned and paid will be negotiated
between the Executive and the Company prior to the completion of the
above-described transaction.
4. TERMINATION
4.1. DEFINITION
In this Agreement: "Just Cause" means conduct of the Executive that
constitutes just cause to terminate the Executive's employment without
any notice or compensation in lieu of notice at common law.
4.2. TERMINATION FOR JUST CAUSE
The Company, in its sole discretion and at any time, may terminate the
employment of the Executive for Just Cause, in which case the Executive
will be entitled to all Salary and Benefits payable up to the date of
termination.
4.3. TERMINATION WITHOUT JUST CAUSE
If the employment of the Executive is terminated by the Company without
Just Cause (and not by reason of death), whether or not the termination
is related to a change of control of the Company, then:
(a) the Company will provide the Executive with 24 months written
notice of termination or pay the Executive a lump sum amount
equal to two times the Salary in lieu of such notice;
(b) subject to the terms of the applicable plan and the right of the
Company to discontinue any Benefit plan so long as it is done for
all eligible employees, the
Company will continue the participation of the Executive in the
Benefits provided to the Executive immediately preceding the date
of termination, excluding any short or long term disability plan,
until the earlier of 24 months from the date of termination and
the death of the Executive; and
(c) Executive shall have the right to exercise his options in
accordance with terms of the Employee Option Agreement.
provided that acceptance of employment by the Executive under this
Agreement is subject to the Company or a third party providing
financial security against the above lump sum Salary amount in Section
4.3 (a) on the terms set out in Appendix A hereto.
4.4. RESIGNATION BY EXECUTIVE
(a) The Executive may resign from employment with the Company by
providing to the Company three months' prior written notice of
resignation.
(b) Upon receipt of written notice under this Section, the Company
may, at its option, earlier terminate the employment of the
Executive in which case the Company will pay the Executive an
amount equal to the Salary payable from the date of termination
by the Company until the earlier of the date resignation selected
by the Executive and three months from the date the Executive
gave notice of resignation.
4.5. DEATH
If the Executive dies during the Term, the employment of the Executive
will terminate as of the date of death and the Company will pay to the
estate of the Executive unpaid Salary, if any, up to the date of death
and any compensation or benefits payable or owing on or after death in
accordance with the terms and conditions of any applicable Benefits.
4.6. TERMINATION OF OBLIGATIONS
On termination of the employment of the Executive all obligations of
the Company to the Executive will terminate except as specifically set
forth in Section 4 of this Agreement and the Company will have no
further obligation or liability for any claim, action or demand,
whether at common law or under any legislation from time to time
applicable and in force or otherwise for damages or loss sustained by
the Executive arising out of the employment of the Executive by the
Company or the termination or cessation of that employment.
5. CONFIDENTIALITY
5.1. ACCESS TO CONFIDENTIAL INFORMATION
The Executive acknowledges that in the course of carrying out,
performing and fulfilling the Executive's obligations to the Company,
the Executive will have access to and be entrusted with Confidential
Information, and that the disclosure of the Confidential Information
to competitors or clients of the Company or to the general public will
be highly detrimental to the best interests and business of the
Company.
5.2. DEFINITION
"Confidential Information" means trade secrets and information that is
not generally known to the public or that would be reasonably
considered confidential and proprietary to the Company and its
business partners, and includes but is not limited to:
(a) exploration data, property information, trade secrets, know-how,
concepts, ideas whether patentable or not, strategy, planning,
methods, processes, formulae, apparatus, standards, product
specifications, production, processing procedures;
(b) revenue, costs, pricing and other financial data;
(c) customer, supplier, or business partner information (including
without limitation, names, preferences, financial information,
addresses or telephone numbers);
(d) all access codes, systems software applications, software/systems
source and object codes, data, documentation, program files, flow
charts, operational procedures, locations of operations, merchant
numbers and merchant support and verification numbers; and
(e) the private affairs of the Company or any other information which
the Executive may acquire during the Term with respect to the
business and affairs of the Company, whether acquired in the
course of employment or incidentally.
5.3. EXCLUSIONS
Notwithstanding the provisions of Section 5.2, "Confidential
Information" does not include information or data which the Executive
can prove:
(a) is generally in the public domain at the date of its disclosure
to the Executive, or which thereafter enters the public domain
through no fault of the Executive or of any other person owing an
obligation of confidentiality to the Company (but only after it
enters the public domain); or
(b) was in the Executive's possession on a non-confidential basis
prior to being disclosed under this Agreement;
(c) provided that information which comprises part of the
Confidential Information will not be included within the
foregoing exceptions merely because individual parts of the
information were within the public domain, or were within the
Executive's prior possession, unless the combination of such
Confidential Information and excepted information itself was in
the public domain, or in the Executive's prior possession.
5.4. USE AND DISCLOSURE
The Executive acknowledges that he will receive the Confidential
Information solely for the purpose of carrying out the duties of the
Executive as an employee of the Company. Except as may be specifically
required in the course of carrying out such duties, the Executive will
not, during the Term or at least five years thereafter:
(a) disclose any Confidential Information to any person or entity; or
(b) use or exploit, directly or indirectly, the Confidential
Information for any purpose other than the proper purposes of the
Company.
Despite the foregoing, if the Executive is required by law to disclose
any Confidential Information then the Executive will promptly notify
the Company that the Executive may be required to disclose
Confidential Information and the Executive will consult with and
cooperate with the Company in any attempt to resist or narrow such
disclosure and/or to obtain an order or other assurance that such
information will be accorded confidential treatment. Notwithstanding
any disclosure required by law, the Confidential Information disclosed
will, for all other purposes, continue to be treated as Confidential
Information under this Agreement.
5.5. RETURN OF CONFIDENTIAL INFORMATION
Upon the termination of the Executive's employment with the Company
for any reason, or upon the written request of the Company at any
time, the Executive will return immediately to the Company all
Confidential Information then in the Executive's possession or under
his control.
5.6. NOTICES
Any notices, requests, demands or other communications that are
required or permitted to be given by one party to the other under this
Agreement will be given in writing by registered post, personal
delivery or facsimile addressed to the other party or delivered to
such other party at the address shown on page 1 hereof or at such
other address within British Columbia as either party may from time to
time specify by notice in writing given to the other party.
Demands or other communications will be deemed to have been received,
if sent by registered post, then on the date of acknowledged receipt
in writing by or on behalf of the addressee, if sent by facsimile,
then on the earlier of the date of transmission if received during
normal business or working hours of the recipient and the date of the
first normal business working hours after the date of transmission, or
if sent by personal delivery, then on the date when delivered to the
addressee.
6. COLLECTION AND USE OF PERSONAL INFORMATION
The Executive acknowledges that the Company will collect, use and
disclose personal information only where reasonably necessary for
security, employment and business purposes. The Executive consents to
the Company collecting, using and disclosing personal information
about the Executive only where reasonably necessary for security,
employment and business purposes in accordance with applicable
legislation and any privacy policy of the Company that may be in
effect from time to time.
7. SEVERABILITY
In the event that any provision or part of this agreement is deemed
void or invalid by a court of competent jurisdiction, the remaining
provisions or parts will be and remain in full force and effect.
8. REPRESENTATIONS
This Agreement contains the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all
prior agreements or understandings, whether oral or written and
whether express or implied, between the parties hereto. The Executive
acknowledges and agrees that any prior agreements or
representations, whether oral or written and whether express or
implied, between the Executive and the Company, are hereby terminated
and the Executive has no rights or entitlements under or arising from
any such prior agreements or representations against Company. The
Executive hereby waives any right to assert a claim in tort based on
any pre-contractual representations, negligent or otherwise, made by
the Company.
9. WAIVER OR MODIFICATION OF AGREEMENT
No failure or delay of the Company in exercising any power or right
hereunder will operate as a waiver thereof nor will any single or
partial exercise of such right or power preclude any other right or
power hereunder. No amendment, modification or waiver of any condition
of this Agreement or consent to any departure by the Executive
therefrom will in any event be effective unless the same will be in
writing signed by the Company.
10. SURVIVAL
The obligations set out in paragraphs 2.2, 3.6 and 4 to 16 inclusive
will survive the termination of the employment of the Executive and
continue in effect regardless of whether any party is or has been in
compliance with any provision in this Agreement. The parties will
execute and deliver any documents and perform any acts necessary to
carry out the intent of this Agreement.
11. DIRECTOR AND OFFICER ROLE
In the event of termination of the employment of the Executive by the
Company or by the Executive, whether by retirement, resignation or
otherwise, the Executive will, as of the date of termination, resign
from any officer and/or director position with the Company. It the
Executive dies during the Term, the Executive will be deemed to have
resigned from any officer or director position as of the date of
death.
12. GOVERNING LAW
This Agreement will be construed in accordance with and governed by
the laws of British Columbia and the laws of Canada applicable in
British Columbia.
13. HEADINGS
The headings used in this Employment Agreement are for convenience
only and are not to be construed in any way as additions to or
limitations of the covenants and agreements contained in it.
14. ENUREMENT
This Agreement will enure to the benefit of and be binding upon the
respective successors and permitted assigns of the parties.
15. TIME
Time is of the essence.
16. ASSIGNMENT
The Executive may not assign this agreement. The Company may assign
this Agreement to any entity that is a successor to the business, or
substantially all of the business, of the Company or is an affiliated
or related the Company, within the meaning of the British Columbia
Business Corporations Act.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day
and year first above written.
PINE VALLEY MINING CORPORATION
Per: /s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
President
Per:
------------------------------
XXXXXX XXXX
/s/ Xxxxxx Xxxx
---------------------------------
APPENDIX A
THIRD PARTY GUARANTEES
GIVEN IN CONNECTION WITH THE EMPLOYMENT AGREEMENT MADE EFFECTIVE
THE 3 DAY OF JANUARY 2006 (THE "EMPLOYMENT AGREEMENT")
BETWEEN PINE VALLEY MINING CORPORATION (THE "COMPANY")
AND XXXXXX XXXX (THE "EXECUTIVE)
(the herein guarantees made in favour of the Executive being collectively
referred to as the "Guarantee")
WHEREAS The X. Xxxxxxxxx Xxxxx Foundation and The Rockside Foundation (the
"Guarantors" and each a "Guarantor") own approximately 5.5% and 16.2%
respectively, of the issued and outstanding common shares of the Company;
AND WHEREAS, as a consequence of their significant investment in the Company,
the Guarantors have an interest in the Company's efforts to attract and retain
quality management;
AND WHEREAS the Company has only limited operations history;
AND WHEREAS the Executive has been identified by the Company as someone who
would be a valuable addition to the Company's management team;
AND WHEREAS the Executive is prepared to enter into the Employment Agreement
with the Company on the condition that the Guarantors guarantee in favour of the
Executive the performance of the Company's obligations under the subsection
4.3(a) of the Employment Agreement on the terms and conditions set out in this
Appendix A;
AND WHEREAS the Guarantors wish to provide such a guarantee in order to assist
the Company in securing the engagement of the Executive, and ultimately to
enhance the value of their investment in the Company.
NOW THEREFORE, the undersigned hereby agree with the Executive that, in
consideration of the Executive entering into the Employment Agreement with the
Company, and subject to the terms and conditions set out below, they hereby,
severally and not jointly, agree to guarantee the performance by the Company of
its obligations in favour of the Executive under subsection 4.3(a) of the
Employment Agreement.
1. In no event will the aggregate liability of a Guarantor to the Executive
(including, without limitation, his heirs, executors, administrators and
permitted assigns) exceed three hundred thousand Canadian dollars (CDN
$300,000).
2. This Guarantee is not assignable by any party hereto without the prior
written consent of each of the Guarantors and the Executive, which consent may
be arbitrarily withheld or delayed by any one of them. Any attempt to effect an
assignment of this Guarantee without such prior written consents will be no
force or effect.
3. Each of the Guarantors, jointly and not severally, acknowledges and agrees
with the Executive that none of the following will release the Guarantor of any
of its obligations hereunder:
(a) any modification, amendment or change to the rights or obligations of the
Company or the Executive under the Employment Agreement in any manner
whatsoever, regardless of the magnitude or materiality of such change and
regardless of whether the Guarantors have consented to or approved such change;
(b) the granting of any time, renewals, extensions, or indulgences to the
Company with respect to its obligations to the Executive under the Employment
Agreement;
(c) except as expressly provided for below, the taking of any securities (which
word as herein used includes other guarantees) for the performance by the
Company of its obligations to the Executive under the Employment Agreement;
abstaining, enforcing, waiving or releasing such securities; or otherwise
dealing with such securities as the Executive may see fit, and, the Executive
may apply all monies at any time received from such securities or the Company or
others to such part of the liabilities of the Company as the Executive deems
best and change such application in whole or in part from time to time as the
Executive sees fit;
and the Guarantors further waive presentment, demand, protest and all notices
and any right to require the Executive to proceed against the Company or to
proceed against or exhaust any security or pursue any other remedy available to
the Executive as a condition to enforcement of the Guarantors' obligations under
this Guarantee.
4. The Executive will be solely liable for and responsible to make, and the
Guarantors will not be liable for or responsible to make, any and all required
payments with respect to income taxes, unemployment insurance, government
pension plans or similar statutory obligations that might arise in connection
with payments made by the Guarantors to the Executive. The Guarantors will not
deduct or remit to any government authority any such amounts in respect of
payments made to the Executive. The Executive will indemnify and hold the
Guarantors harmless from all claims, demands, suits, interest, penalties and
costs (including, without limitation, reasonable legal fees) relating to income
taxes, unemployment insurance, government pension plans or similar statutory
obligations that might arise in connection with payments made by the Guarantors
to the Executive.
5. Without any need for further action on the part of the Executive or the
Guarantors, this Guarantee will immediately terminate and be of no further force
or effect upon the first to occur of one of the following events:
(a) the Company posting in favour of the Executive substitute security in the
amount of not less than six hundred thousand Canadian dollars (CDN $600,000) in
the form of a hypothecated deposit or letter of credit issued or held by, as the
case may be, a Canadian chartered bank; and
(b) the Company publishing annual audited consolidated financial statements
reporting positive net income for two successive fiscal years, where the most
recently published of such financial statements reports a percentage of Total
Shareholders' Equity to Total Liabilities and Shareholders' Equity of not less
than 50%.
DATED this 3rd day of February 2006.
THE CORPORATE SEAL of X.
XXXXXXXXX XXXXX FOUNDATION
was hereunto affixed in the presence of:
/s/ Xxxxxx X. Xxxxxx
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THE CORPORATE SEAL of THE
ROCKSIDE FOUNDATION was
hereunto affixed in the presence of:
/s/ Xxxxxxx Xxxx
----------------------------------------
The Guarantee as set out above is acknowledge and accepted by the Executive this
3rd day of February, 2006.
/s/ Xxxxxx Xxxx
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XXXXXX XXXX
