Exhibit 10.22
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 25th day of November, 2004
BETWEEN:
IVANHOE ENERGY INC., incorporated under the laws of the
Yukon Territory, Canada and having a head office at Suite
654 - 999 Canada Place, Vancouver, British Columbia, Canada,
V6C 3E1
(the "COMPANY")
AND:
W. XXXXXX XXXXXXXXX,
of 0000 Xxxxxxxxx Xxxx, Xxxx Xxxxxxxxx, X.X., X0X 0X0
(the "EXECUTIVE")
WHEREAS:
A. the Company is in the business of the exploration and production of natural
gas, enhanced oil recovery and production of cleaner burning fuels from
natural gas using gas-to-liquids technology;
B. the Company wishes to have the Executive serve as the Chief Financial
Officer of the Company; and
C. the parties hereto wish to enter into this agreement to set forth the terms
and conditions applicable to the employment of the Executive in such
capacity.
NOW THEREFORE THIS AGREEMENT WITNESSES that the parties hereto, in consideration
of the premises and of the respective covenants and agreements on the part of
those herein contained, do hereby covenant each with the other as follows:
PART 1
DEFINITIONS AND INTERPRETATION
DEFINITIONS
1.1 In this Agreement, the following terms shall have the meanings ascribed
thereto:
"AGREEMENT" means this agreement and all amendments made to it by
written agreement between the Company and the Executive;
"BOARD" means the board of directors of the Company;
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"BUSINESS DAY" means a day other than Saturday, Sunday or statutory
holiday in British Columbia; and
"DISABILITY" means a physical or mental incapacity of the Executive
that has prevented the Executive from performing the duties customarily
assigned to the Executive for one hundred and eighty (180) days,
whether or not consecutive, out of any twelve (12) consecutive months
and that in the opinion of the Board is likely to continue.
INTERPRETATION
1.2 For the purposes of this Agreement, except as otherwise expressly
provided:
(a) "this Agreement" means this Agreement, including the schedules
hereto, and not any particular part, section or other portion
hereof, and includes any agreement, document or instrument entered
into, made or delivered pursuant to the terms hereof, as the same
may, from time to time, be supplemented or amended and in effect;
(b) all references in this Agreement to a designated "part", "section"
or other subdivision or to a schedule are references to the
designated part, section, or other subdivision of, or schedule to,
this Agreement;
(c) the words "hereof", "herein", "hereto" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not
to any particular part, section or other subdivision or schedule
unless the context or subject matter otherwise requires;
(d) the division of this Agreement into parts, sections and other
portions and the insertion of headings are for convenience of
reference only and are not intended to interpret, define or limit
the scope, extent or intent of this Agreement or any provision
hereof;
(e) unless otherwise provided herein, all references to currency in
this Agreement are to lawful money of the United States and all
amounts to be calculated or paid pursuant to this Agreement are to
be calculated in lawful money of the United States;
(f) the singular of any term includes the plural, and vice versa, and
the use of any term is generally applicable to any gender and,
where applicable, a body corporate, firm or other entity, and the
word "or" is not exclusive and the word "including" is not
limiting whether or not non-limiting language (such as "without
limitation" or "but not limited to" or words of similar import) is
used with reference thereto; and
(g) all references to "approval", "authorization", "consent" or
"direction" in this Agreement means written approval,
authorization, consent or direction.
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PART 2
EMPLOYMENT
EMPLOYMENT
2.1 The Company shall employ the Executive and the Executive shall perform
services on behalf of the Company as its employee as provided herein during the
Period of Active Employment (as hereinafter defined).
PERIOD OF ACTIVE EMPLOYMENT
2.2 In this Employment Agreement, "Period of Active Employment" shall mean
the period beginning on January 1, 2004 and terminating on the date on which the
first of the following occurs:
(a) the termination of the Executive's employment by the Company for
cause as provided in Section 6.1 hereof;
(b) the resignation of employment by the Executive pursuant to Section
6.2;
(c) the termination of this Employment Agreement pursuant to Section
6.3;
(d) the Disability of the Executive; or
(e) the death of the Executive.
PART 3
POSITION
CAPACITY AND SERVICES
3.1 The Company shall employ the Executive as Chief Financial Officer of
the Company. As such, the Executive shall perform such duties and have such
authority as assigned, delegated or limited by the President and Chief Executive
Officer and/or the Board. The Executive shall perform these duties in accordance
with the charter documents and by-laws of the Company, the instructions of the
President and Chief Executive Officer and/or the Board, Company policy and
applicable law.
FULL TIME AND ATTENTION
3.2 The Executive shall devote one hundred percent (100%) of the
Executive's business time to the Executive's duties hereunder. The Executive
may, however, serve as a member of the board of directors of another company if
the Board, or an appropriate committee thereof, determines in its sole
discretion that such membership is not adverse to the interests of the Company.
CONFLICTS OF INTEREST
3.3 The Executive agrees that as an executive officer of the Company, he
shall refer to the Board all matters and transactions in which a potential
conflict of interest between the Executive and the Company may arise and shall
not proceed with such matters or transactions until the Board's express approval
thereof is obtained. For purposes of clarification, this Section 3.3
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is not intended to limit in any way the Executive's other fiduciary obligations
to the Company which may arise in law or equity.
PART 4
COMPENSATION AND BENEFITS
COMPENSATION
4.1 The base salary rate ("BASE SALARY") of the Executive shall be
US$200,000 per year payable on the 15th and 30th of each month. The Company may
withhold from any amounts payable under this Agreement such federal or
provincial taxes and other statutory remittances as shall be required by law to
be so withheld.
BENEFITS
4.2 The Company shall provide the Executive and his dependent immediate
family members living with him with comprehensive medical, dental and related
coverages as available to the other senior officers of the Company.
VACATION
4.3 The Executive is entitled to take three (3) weeks vacation per calendar
year in accordance with the Company's policies and practices in effect at the
relevant time for senior executives and subject to the needs of the Company.
Notwithstanding the foregoing, any vacation of greater than 10 consecutive
Business Days in length shall require the approval of the Board.
EXPENSES INCIDENTAL TO EMPLOYMENT
4.5 The Company shall reimburse the Executive in accordance with its normal
policies and practices for the Executive's travel and other expenses or
disbursements reasonably and necessarily incurred or made in connection with the
Company's business. The Executive will furnish the Company with an itemized
account of his expenses in such form or forms as may reasonably be required by
the Company and at such times or intervals as may be required by the Company.
TAXES
4.6 The Executive shall be solely responsible for his own income and other
tax matters during the Period of Active Employment.
PART 5
CONFIDENTIALITY AND NON-COMPETITION
NON-COMPETITION
5.1 The Executive acknowledges that the Executive's services are unique and
extraordinary. The Executive also acknowledges that the Executive's position
will give the Executive access to confidential information of substantial
importance to the Company and its business. During the Non-Competition Period
(as hereinafter defined), the Executive shall not, either individually or in
partnership or jointly or in conjunction with any other person, entity or
organization, as principal, agent, consultant, lender, contractor, employer,
employee, investor, shareholder or in any other manner, directly or indirectly,
advise, manage, carry on, establish, control, engage in, invest in, offer
financial assistance or services to, or permit the Executive's
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name or any part thereof to be used by any business in any jurisdiction in which
the Company is conducting business, that competes with the business of the
Company, its parent, affiliated or subsidiary companies, or any business in
which the Company, its parent, affiliated or subsidiary companies is engaged
(the "BUSINESS"). For purposes of this Agreement, "NON-COMPETITION PERIOD" means
a period beginning on the date hereof and ending at the later of:
(a) twelve (12) months after the end of the Period of Active
Employment; or
(b) such other period for which the Executive shall receive
compensation pursuant to the terms of this Agreement.
OTHER EXECUTIVES, CUSTOMERS
5.2 The Executive agrees that during the Non-Competition Period, neither
the Executive nor any entity with whom the Executive is at the time associated,
related or affiliated shall, directly or indirectly, hire or offer to hire or
entice away or in any other manner persuade or attempt to persuade any officer,
employee or agent of the Business to discontinue or alter any one of their or
its relationships with the Company.
CONFIDENTIALITY
5.3 Except in the normal and proper course of the Executive's duties
hereunder, the Executive will not use for the Executive's own account or
disclose to anyone else, during or for a period of five years after the Period
of Active Employment, any confidential or proprietary information or material
relating to the Company's operations or business which the Executive obtains
from the Company or its officers or employees, agents, suppliers or customers or
otherwise by virtue of the Executive's employment by the Company or by the
Company's predecessor. Confidential or proprietary information or material
includes, without limitation, the following types of information or material,
both existing and contemplated, regarding the Company or its parent, affiliated
or subsidiary companies: corporate information, plans, strategies, tactics,
policies, resolutions, litigation or negotiations, financial information,
including debt arrangements, equity structure, investors and holdings;
operational and scientific information, technical information, and personnel
information, including personnel lists, resumes, personnel data, organizational
structure and performance evaluations (the "CONFIDENTIAL INFORMATION").
RETURN OF DOCUMENTS
5.4 The Executive agrees that all documents of any nature pertaining to
activities of the Company and its respective affiliated, related, associated or
subsidiary companies, including Confidential Information, in the Executive's
possession now or at any time during the Period of Active Employment, are and
shall be the property of the Company and its respective affiliated, related,
associated or subsidiary companies, and that all such documents and all copies
of them shall be surrendered to the Company whenever requested by the Company.
INVALIDITY
5.5 If any court determines that any provision contained in this Agreement
including, without limitation, a restrictive covenant or any part thereof is
unenforceable because of the duration or geographical scope of the provision or
for any other reason, the duration or scope of
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the provision, as the case may be, shall be reduced so that the provision
becomes enforceable and, in its reduced form, the provision shall then be
enforceable and shall be enforced.
ACKNOWLEDGEMENT
5.6 The Executive acknowledges that, in connection with the Executive's
employment by the Company, the Executive will receive or will become eligible to
receive substantial benefits and compensation. The Executive acknowledges that
the Executive's employment by the Company and all compensation and benefits and
potential compensation and benefits to the Executive from such employment shall
be conferred by the Company upon the Executive only because and on condition of
the Executive's willingness to commit the Executive's best efforts and loyalty
to the Company, including protecting the Company's right to have its
Confidential Information protected and abiding by the confidentiality,
non-competition and other provisions herein. The Executive understands the
Executive's duties and obligations as set forth in Part 3 and agrees that such
duties and obligations would not unduly restrict or curtail the Executive's
legitimate efforts to earn a livelihood following any termination of the
Executive's employment with the Company. The Executive agrees that the
restrictions contained in this Part 5 are reasonable and valid and all defences
to the strict enforcement thereof by the Company are waived by the Executive.
The Executive further acknowledges that irreparable damage would result to the
Company if the provisions of Sections 5.1 through 5.4 are not specifically
enforced, and agrees that the Company shall be entitled to any appropriate
legal, equitable, or other remedy, including injunctive relief, in respect of
any failure or continuing failure to comply with the provisions of Sections 5.1
through 5.4.
CORPORATE OPPORTUNITIES
5.7 Any business opportunities related to the business of the Company which
become known to the Executive during the period of his employment hereunder must
be fully disclosed and made available to the Board by the Executive and the
Executive agrees not to take or omit to take any action if the result would be
to divert from the Company any opportunity which is within the scope of its
Business as known to the Executive from time to time.
PASSIVE INVESTMENT
5.8 Notwithstanding anything in this Article, nothing in this Agreement
shall be deemed to prevent or prohibit the Executive from owning shares in a
publicly listed company as a passive investment, so long as the Executive does
not own more than 5% of the shares thereof.
PART 6
TERMINATION AND RESIGNATION
TERMINATION FOR CAUSE
6.1 The Company may immediately terminate this Agreement at any time for
cause by written notice to the Executive. Without limiting the foregoing, any
one or more of the following events shall constitute cause:
(a) the Executive's failure to carry out his duties hereunder in a
competent and professional manner;
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(b) the Executive's appropriation of corporate opportunities for his
direct or indirect benefit or his failure to disclose any material
conflict of interest;
(c) the Executive's failure to disclose material facts concerning his
business interests or employment by other than the Company;
(d) the existence of cause for termination of the Executive at common
law resulting from any recognized grounds for termination for
cause, including, without limiting the generality of the
foregoing, fraud, dishonesty, illegality, breach of statute or
regulation, or gross incompetence;
(e) the Executive's breach of fiduciary duty to the Company;
(f) the Executive's material breach of this Agreement or gross
negligence in carrying out his duties under this Agreement;
(g) the failure of or refusal by the Executive to follow the
reasonable and lawful directions of the President and Chief
Executive Officer and/or the Board or to comply with the policies,
rules and regulations of the Company (except to the extent that
such policies, rules and regulations expressly conflict with the
provisions of this Agreement);
(h) any conduct which would materially impair or prevent the Executive
from continuing as an officer of the Company under applicable
corporate or securities laws, or the rules and policies of any
stock exchange or securities market upon which the Company's
shares are listed from time to time;
(i) the Executive's plea of guilty to or conviction of an offence
punishable by imprisonment; or
(j) a declaration of the Executive's bankruptcy by a court of
competent jurisdiction.
If the Company terminates this Agreement for cause under this Section 6.1, the
Company shall not be obligated to make any further payments under this
Agreement, except for the payment of any Base Salary due and owing pursuant to
Section 4.1 at the time of termination and reasonable expenses due and owing
pursuant to Section 4.5 at the time of the termination.
RESIGNATION BY EXECUTIVE
6.2 The Executive shall give the Company not less than two (2) months
written notice of the resignation of the Executive's employment hereunder. The
Company may waive or abridge any notice period specified in such notice, in its
absolute discretion. If the Executive resigns the Executive's employment and
terminates this Agreement for any reason, the Company shall have no further
obligations or responsibilities hereunder to the Executive, and nothing
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herein contained shall be construed to limit or restrict in any way the
Company's ability to pursue any remedies it may have at law or equity pursuant
to the provisions of this Agreement.
TERMINATION WITHOUT CAUSE
6.3 The Company may terminate this Agreement at any time without cause or
upon the Disability of the Executive by providing the Executive with a lump sum
payment of an amount equal to six monthly payments of the Executive's Base
Salary provided for in Section 4.1 hereof. The payments provided for in this
Section 6.3 shall be inclusive of the Executive's entitlement to notice and
severance pay at common law or by statute.
BENEFITS ON TERMINATION
6.4 If this Agreement is terminated in accordance with Section 6.3, the
benefits provided to the Executive pursuant to Section 4.2 shall continue for
the amount of months of Base Salary the Executive is entitled to following the
termination of this Agreement pursuant to this Part or until the Executive
commences alternative employment, whichever occurs first.
RESULTS OF TERMINATION
6.5 Upon termination or resignation of the Executive's employment pursuant
to this Part, this Agreement and the employment of the Executive shall be wholly
terminated with the exception of the clauses specifically contemplated to
continue in full force and effect beyond the termination of this Agreement,
including those set out in Part 5.
PART 7
REPRESENTATIONS AND WARRANTIES
NO BREACH
7.1 The Executive represents and warrants to the Company that the execution
and performance of this Agreement will not result in or constitute a default,
breach, violation or event that, with notice or lapse of time or both, would be
a default, breach or violation of any understanding, agreement or commitment,
written or oral, express or implied, to which the Executive is currently a party
or by which the Executive or the Executive's property is currently bound.
INDEMNITY
7.2 The Executive shall defend, indemnify and hold the Company harmless
from any liability, expense or claim (including solicitor's fees incurred in
respect thereof) by any person in any way arising out of, relating to, or in
connection with any incorrectness or breach of the representations and
warranties in Section 7.1.
RIGHT OF TERMINATION
7.3 The Executive acknowledges that a breach of this Part by the Executive
shall entitle the Company to terminate the Executive's employment and this
Agreement for cause.
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PART 8
MISCELLANEOUS PROVISIONS
RIGHTS AND WAIVERS
8.1 All rights and remedies of the parties are separate and cumulative, and
none of them, whether exercised or not, shall be deemed to be to the exclusion
of any other rights or remedies or shall be deemed to limit or prejudice any
other legal or equitable rights or remedies which either of the parties may
have.
WAIVER
8.2 Any purported waiver of any default, breach or non-compliance under
this Agreement is not effective unless in writing and signed by the party to be
bound by the waiver. No waiver shall be inferred from or implied by any failure
to act or delay in acting by a party in respect of any default, breach or
non-observance or by anything done or omitted to be done by the other party. The
waiver by a party of any default, breach or non-compliance under this Agreement
shall not operate as a waiver of that party's rights under this Agreement in
respect of any continuing or subsequent default, breach or non-observance
(whether of the same or any other nature).
SEVERABILITY
8.3 Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
the prohibition or unenforceability and shall be severed from the balance of
this Agreement, all without affecting the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
NOTICES
8.4 Any notice, certificate, consent, determination or other communication
required or permitted to be given or made under this Agreement shall be in
writing and shall be effectively given and made if (i) delivered personally,
(ii) sent by prepaid same day courier service, or (iii) sent by fax or other
similar means of electronic communication, in each case to the applicable
address set out below:
if to the Company, to:
Xxxxx 000
000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Corporate Secretary
Fax: (000) 000-0000
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if to the Executive, to:
W. Xxxxxx Xxxxxxxxx
0000 Xxxxxxxxx Xxxx
Xxxx Xxxxxxxxx, X.X.
X0X 0X0
Any such communication so given or made shall be deemed to have been given or
made and to have been received on the day of delivery if delivered personally or
by courier service, or on the day of faxing or sending by other means of
recorded electronic communication, provided that the day in either event is a
Business Day and the communication is so delivered, faxed or sent prior to 4:30
p.m. (local time at destination) on that day. Otherwise, the communication shall
be deemed to have been given and made and to have been received on the next
following Business Day. Any such communication given or made in any other manner
shall be deemed to have been given or made and to have been received only upon
actual receipt. Any party may from time to time change its address under this
Section 8.4 by notice to the other party given in the manner provided by this
Section 8.4.
TIME OF ESSENCE
8.5 Time shall be of the essence of this Agreement in all respects.
SUCCESSORS AND ASSIGNS
8.6 This Agreement shall enure to the benefit of, and be binding on, the
parties and their respective heirs, administrators, executors, successors and
permitted assigns. The Company shall have the right to assign this Agreement to
any successor (whether direct or indirect, by purchase, amalgamation,
arrangement, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company provided only that the Company must
first require the successor to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. The Executive by
the Executive's signature hereto expressly consents to such assignment. The
Executive shall not assign or transfer, whether absolutely, by way of security
or otherwise, all or any part of the Executive's rights or obligations under
this Agreement without the prior consent of the Company, which may be
arbitrarily withheld.
AMENDMENT
8.7 No amendment of this Agreement will be effective unless made in writing
and signed by the parties.
ENTIRE AGREEMENT
8.8 This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter of this Agreement and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written. There are no conditions, warranties, representations or other
agreements between the parties in connection with the subject matter of this
Agreement (whether oral or written, express or implied, statutory or otherwise)
except as specifically set out in this Agreement.
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GOVERNING LAW
8.9 This Agreement shall be governed by and construed in accordance with
the laws of the Province of British Columbia and the laws of Canada applicable
in that Province and shall be treated, in all respects, as a British Columbia
contract.
HEADINGS
8.10 The division of this Agreement into Parts and Sections and the
insertion of headings are for convenience or reference only and shall not affect
the construction or interpretation of this Agreement.
FULL SATISFACTION
8.11 The terms set out in this Agreement, provided that such terms are
satisfied by the Company, are in lieu of (and not in addition to) and in full
satisfaction of any and all other claims or entitlements which the Executive has
or may have upon the termination of the Executive's employment pursuant to Part
6 and the compliance by the Company with these terms will affect a full and
complete release of the Company and its respective affiliates, associates,
subsidiaries and related companies from any and all claims which the Executive
may have for whatever reason or cause in connection with the Executive's
employment and the termination of it, other than those obligations specifically
set out in this Agreement. In agreeing to the terms set out in this Agreement,
the Executive specifically agrees to execute a formal release document to that
effect and will deliver upon request appropriate resignations from all offices
and positions with the Company and its respective affiliated, associated
subsidiary or affiliated companies if, as and when requested by the Company upon
termination of the Executive's employment within the circumstances contemplated
by this Agreement.
EXECUTIVE ACKNOWLEDGEMENTS
8.12 The Executive acknowledges that:
(a) the Executive has had sufficient time to review this Agreement
thoroughly;
(b) the Executive has read and understands the terms of this Agreement
and the obligations hereunder;
(c) the Executive has been given an opportunity to obtain independent
legal advice concerning the interpretation and effect of this
Agreement; and
(d) the Executive has received a fully executed counterpart copy of
this Agreement.
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IN WITNESS WHEREOF the parties have executed counterpart copies of this
Agreement.
/s/ Xxxxxxxx X Xxxxxxx /s/ Xxxxxx Xxxxxxxxx
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Witness W. XXXXXX XXXXXXXXX
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IVANHOE ENERGY INC.
Per: /s/ Xxxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Corporate Secretary
