Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 19 day of April, 2005.
B E T W E E N:
Xxxxxxxxx Xxxxxx
(hereinafter called "Employee")
- and -
PACIFIC GOLD CORP.
(hereinafter called the "Employer")
WHEREAS:
A. The Employee is currently employed by the Employer or is about to
become employed by the Employer;
B. The Employer and the Employee wish to set out the terms and conditions
of the Employee's employment or set out the terms under which the
Employee's employment by the Employer will continue, and wish to amend
those terms in certain respects as set forth herein;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual
covenants and agreements hereinafter contained and in consideration of the
employment or the continued employment of the Employee by the Employer, and in
consideration of other good and valuable consideration and the sum of $2.00 now
paid by the Employer to the Employee (the receipt and sufficiency whereof is
hereby acknowledged by the Employee) the parties hereto covenant and agree with
one another as follows:
ARTICLE 1 - DEFINITIONS
1.1 For the purposes of this Agreement:
.1 "Agreement" means this Employment Agreement including all
schedules (if any) as amended in accordance with 6.2 from time
to time and the expressions "hereof", "herein", "hereto",
"hereunder" and "hereby" and similar expressions refer to this
Agreement;
.2 "Business of the Employer" means any business of a type carried
on by the Employer as at any given time;
.3 "Duties" means those duties for which Employee is responsible as
more particularly described in 2.2 and Schedule "B" hereof; and,
.4 "Person" means an individual, corporation, partnership, joint
venture, trust, unincorporated organization, the Crown or any
agency or instrumentality thereof or any other juridical entity.
1.2 Where the context requires, words importing the singular number shall
include the plural and vice versa and words importing the masculine
gender shall include the feminine gender and words importing a person
shall include firms, corporations and vice versa.
1.3 All dollar amounts referred to in this Agreement are in United States
of America funds.
ARTICLE 2 - EMPLOYMENT
2.1 The Employer and the Employee agree that the Employee is hereby
employed by the Employer, or that the employment of the Employee by the
Employer shall hereinafter continue (as the case may be) on the terms
set forth herein, and that such employment will continue indefinitely
until terminated by either the Employer or the Employee in accordance
with the terms and conditions hereof.
2.2 During his employment by the Employer, the Employee shall well and
faithfully serve the Employer, perform the Duties in a diligent manner
to the best of the Employee's ability on a full time basis, devote all
of the Employee's attention, skill and effort to the Business of the
Employer at all times in compliance with the terms and conditions of
this Agreement and reasonable policies, practices, directions and
instructions, written or oral, of the Employer.
ARTICLE 3 - REMUNERATION
3.1 For the faithful performance of his obligations pursuant to this
Agreement, including without limitation, the Duties to be rendered by
Employee to the Employer hereunder, the Employer shall pay Employee the
amounts set out in Schedule "A" hereto.
3.2 During the employment of Employee hereunder, Employee shall from time
to time be entitled to such vacations as are set out in Schedule "A"
hereto.
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ARTICLE 4 - EMPLOYEE COVENANTS
4.1 Employee acknowledges and agrees that:
.1 Whether prior to or during the currency of this Agreement, he
has acquired or may acquire certain information and/or materials
pertaining to the operations of the Employer or which belongs to
the Employer and/or has value to the Employer, (whether now in
existence or hereafter developed or acquired), and including
without limiting the generality of the foregoing, intellectual
property of the Employer, any formula, design, prototype,
compilation of information, data, program, code, method,
technique or process, information relating to any product,
device, equipment or machine, information about or relating to
past, present, future or prospective customers, and marketing
plans, present and future, information about or relating to the
Employer's potential business ventures, financial information of
all kinds relating to the Employer and its activities, all
inventions, ideas, and related material, the Employer's
applications, operating systems, techniques, methods,
discoveries and methods of processing and production, procedures
and approaches; financial information pertaining to the
Employer; information comprising or relating to costs, uses,
applications or purchases of products or services of, by or from
the Employer; information respecting any process, formula, plan,
skill, method of design, research, equipment, goods, device,
structure or method of doing business, developed, made, used,
sold or installed by the Employer. All of the foregoing is
hereinafter called "Confidential Information and Materials".
.2 It is essential for Confidential Information and Materials to
remain secret and confidential in order for the Employer to
ensure its continued success and to ensure that it remains
competitive.
.3 All Confidential Information and Materials are the exclusive
property of the Employer, the Confidential Information and
Materials are strictly confidential and the Employer has a
proprietary interest therein deserving of protection.
4.2 The Employee covenants and agrees with the Employer during his
employment by the Employer and thereafter:
.1 to safeguard the Confidential Information and Materials to the
same extent as he would if such Confidential Information and
Materials were his own and to limit and control the copies,
extracts or reproductions thereof where applicable;
.2 not to use any of the Confidential Information and Materials for
any purpose other than the purpose for which the Confidential
Information and Materials are or have been disclosed to or made
available to the Employee, only in connection with his
employment by the Employer, and only for the benefit and
advantage of the Employer;
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.3 not to disclose, divulge, disseminate, publish or otherwise
communicate any of the Confidential Information and Materials to
any Person except as may be required in furtherance of the
interests and in accordance with the authorization and
instructions of the Employer, unless and until the Confidential
Information and Materials in question becomes part of the public
domain other than by reason of any breach of this Agreement by
the Employee or unless required pursuant to a subpoena or order
issued by a court, governmental body, agency or official, in
which event the Employee shall promptly notify the Employer
thereof, consult with the Employer as to the advisability of
taking steps to resist or narrow such requirement, and if
disclosure is required or deemed advisable, co-operate with the
Employer in any attempt to obtain an order or other assurance
that such information will be accorded confidential treatment;
.4 any original or collective work created, designed, developed,
written, compiled, recorded, imprinted, constructed or otherwise
produced by the Employee while in the employ of the Employer
relating to the Business of the Employer shall immediately
become and be deemed to be the property of the Employer and not
the Employee, and form part of the Confidential Information and
Materials;
.5 all Confidential Information and Materials shall at all times
and for all purposes be held by Employee in a fiduciary capacity
and solely for the benefit of the Employer; and,
.6 upon the Employee ceasing to be an employee of the Employer for
any reason whatsoever, the Employee shall immediately return to
the Employer all Confidential Information and Materials,
including without limiting the generality of the foregoing, all
copies, notes, memoranda, extracts, analyses, assessments,
commentaries or other reproductions thereof or reports thereon.
4.3 The Employee covenants and agrees that during the period of the
Employee's employment by the Employer any business opportunity related
to the Business of the Employer which becomes known to the Employee
during the period of his employment hereunder shall be fully disclosed
and made available to the Employer by the Employee and the Employee
agrees not to appropriate for himself, or to take or omit to take any
action if the result would be to divert from the Employer any such
opportunity.
4.4 The covenants, agreements, terms, conditions and provisions contained
in this Article 4 shall remain in full force and effect notwithstanding
the termination for any reason of this Agreement.
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ARTICLE 5 - TERMINATION
5.1 Notwithstanding 2.1, the employment of Employee and the obligations of
the Employer hereunder may be terminated in the following manner in the
following circumstances:
.1 at any time, by notice in writing from the Employer to Employee,
for a reason which would in law permit an employer to terminate
the employment of an employee for cause;
.2 upon the death of Employee, in which case the employment shall
be deemed to terminate on the date of death;
.3 at any time, in the sole discretion of the Employer, by notice
in writing from the Employer to Employee irrespective of whether
or not there is a reason which would in law permit an employer
to terminate the employment of an employee for cause, provided
that in such event, the Employer covenants and agrees with the
Employee to make the payment referred to in 5.3 to the Employee.
5.2 Upon the date of termination of the employment of Employee, the
Employer shall pay to the Employee, who shall be entitled to receive
from the Employer unpaid salary pro-rated to the date of termination
and vacation pay in respect of unused vacation time.
5.3 Upon termination of the employment of Employee pursuant to sub-clause
5.1.3, the Employer shall pay to the Employee, who shall be entitled to
receive from the Employer an amount equal to the Employee's then
current annual salary divided by four (4).
5.4 Upon any notice being given pursuant to 5.1 and upon payment of the
amounts referred to in 5.2 and if applicable, in 5.3, this Agreement
(save for obligations of the Employee, including without limitation
those in Article 4 which are stated or by implication intended to
continue in effect notwithstanding termination) and the employment of
Employee hereunder shall be wholly terminated, but such termination
shall not prevent the Employer from enforcing this Agreement or seeking
and pursuing any remedy for breach of this Agreement which occurred
prior to termination, or from enforcing any ongoing covenant of the
Employee or seeking and pursuing any remedy for breach thereof whether
such breach occurs before or after termination of this Agreement. Upon
any termination effected pursuant to 5.1 Employee shall have no claim
against the Employer for damages or otherwise except in respect of
payment of remuneration earned, due and owing as provided for in 5.2
and, if applicable, in 5.3, except that in the case of a termination
effected pursuant to 5.1.1, if it is determined by a court of competent
jurisdiction (after all possible appeals are exhausted) that such
termination was effected without there being a reason which would in
law permit an employer to terminate the employment of an employee for
cause, but in that event, the damages or other compensation recoverable
by Employee solely on account of loss of employment shall nevertheless
be limited to those amounts set forth in 5.2 and 5.3.
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5.5 Notwithstanding anything else herein, and for greater certainty, it is
understood and agreed that the payment specified where applicable in
5.2 and 5.3 shall include the combination of notice of termination,
termination and severance pay as defined in the Employment Standards
Act (Ontario) as it may from time to time be amended. The amounts paid
to the Employee shall be either as specified in 5.2 and 5.3, or, the
combination of notice of termination and severance pay as required
under the said Act, whichever is greater. As provincial legislation is
changed from time to time, the above notice of termination provisions
will be altered accordingly and the new provisions will apply, if
greater.
5.6 The Employee may terminate his employment on 30 days' notice in writing
to the Employer.
ARTICLE 6 - GENERAL
6.1 Any notice to be given hereunder shall be delivered personally or sent
by prepaid registered mail, provided that there is no strike or other
stoppage of mail, and addressed as follows:
In the case of Employee: 000 Xxxxxxxx Xx. Xxxx Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
In the case of the Employer:
Either of the parties hereto may change his or its address for the
purpose of this paragraph by giving notice of such change of address to
the other in the manner provided herein.
6.2 This Agreement shall constitute the entire agreement between the
parties hereto with respect to the matters hereinbefore set forth and
may not be amended or modified except by written instrument signed by
the parties. This Agreement supersedes any and all previous oral and
written arrangements or agreements between the parties with respect to
the matters contemplated herein.
6.3 This Agreement is personal to Employee and may not be assigned in whole
or in part without the prior written approval of the Employer.
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6.4 This Agreement shall be governed by and interpreted, construed and
performed in accordance with the laws of the Province of Ontario. The
parties hereby irrevocably attorn to and submit to the non-exclusive
jurisdiction of the Courts of the Province of Ontario, Canada with
respect to any matter arising hereunder.
6.5 It is agreed by and between the parties hereto that Schedules "A" and
"B" referred to herein, which are annexed hereto, shall form a part of
this Agreement and this Agreement shall be construed as incorporating
such schedules.
6.6 The provisions hereof, where the context permits, shall ensure to the
benefit of and be binding upon the heirs, executors, administrators and
legal personal representatives of Employee and the successors and
assigns of the Employer, respectively. When the context so requires or
permits, this Agreement shall be read with all necessary changes of
number and gender.
6.7 All headings herein are for convenience of reference only and shall not
affect the construction or interpretation of this Agreement.
6.8 No remedy provided for in this Agreement or otherwise available to the
Employer will be considered exclusive of any other remedy, but all such
remedies shall be cumulative and in addition to every other remedy now
or hereafter available to the Employer.
6.8 The Employee acknowledges that all provisions of this Agreement are
reasonable and waives any defences to the strict enforcement thereof.
It is intended that the covenants herein be performed. If, however,
Employee shall violate any provision of this Agreement, it is agreed
that damages resulting to the Employer would be uncertain or difficult
of ascertainment and that in addition to the Employer's right to xxx
for such damages, or pursue any other remedy, the Employer would have
the right to and the Employee hereby consents to the granting of
equitable relief, including without limiting the generality of the
foregoing, the granting of an injunction to restrain any breach of this
Agreement.
6.9 Should any provision of this Agreement or any part of any provision of
this Agreement for any reason, be construed or declared to be invalid
or unenforceable, such decision shall not affect the validity or
enforceability of the remaining provisions, which shall remain in full
force and effect as if this Agreement had been executed with such
invalid or unenforceable provision or part thereof eliminated. If the
confidentially of part or parts of the information and materials
collectively referred to herein as "Confidential Information and
Materials" or any covenants herein with respect thereto cannot be
enforced as provided herein, or if it is determined by a court of
competent jurisdiction that the Employer does not have a proprietary
interest with respect to any Confidential Information and Materials,
then the term "Confidential Information and Materials" shall be read
and construed as applying to only such information and/or materials,
the confidentiality of which may be legally enforced or in which the
Employer has a proprietary interest.
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6.10 The Employee acknowledges and agrees as follows:
.1 The Employee has been advised to seek legal advice prior to
executing this Agreement and has been cautioned that this
Agreement contains provisions which substantially affect the
rights of the Employee both during and following the employment
of the Employee.
.2 The Employee has been given a reasonable period of time to
review this Agreement and to have the Employee's solicitor
review this Agreement prior to executing same.
.3 The Employee has decided to accept employment by the Employer
without any promises or expectations save as are set forth in
this Agreement.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed under their respective seals as of the date first above-written.
SIGNED, SEALED AND DELIVERED )
in the presence of ) Pacific Gold Corp.
)
) Per:
) ___________________________
)
) ___________________________
) Employee
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SCHEDULE "A"
The Employee shall be paid gross annual salary of $76,000 payable in 26
installments in arrears after deduction of such amounts as are required by law
to be deducted therefrom, but all such deductions shall be deemed to have been
received for all purposes hereof, by the Employee as part of the gross
remuneration hereinbefore mentioned.
The Employee will receive an annual "Bonus" equal to $25,000 paid in shares of
Employer based on the closing bid price on December 31 each year. The Employee
will be responsible for her own remittances as required by law. The Bonus will
be paid within 30 days of the Year end. If the Employee is terminated under
section 5.1.1 of this Agreement then the Bonus is not payable for that year. If
the Employee terminates this Agreement under section 5.6 then the Bonus is not
payable for that year.
The Employee will receive 75,000 options, to a maximum of 250,000 in aggregate
over two years total, each 6 months, while the Employee is employed by the
Employer, to purchase common shares of Employer stock issued from the 2002
Performance Equity Plan. Options will be paid every June 30th and December 31st.
While the Employee is on maternity leave the company will top up her government
benefits to a maximum of $2,500 per month for 3 months, after which the Employee
will have the option to return to work or to work "Part Time" for a further 6
months at a salary of 50% her annual rate, such salary to be reviewed based on
the quantity of work being performed during the Part Time period.
The Employee shall be entitled to annual vacations totalling four (4) weeks.
Vacation days are earned at 1.67 days per month. To the extent the Employee
declines to take all of the aforesaid vacation entitlement in a given fiscal
year of the Employer, the Employee shall be entitled to vacation pay based on
the Employee's average annual base salary as set forth in this Schedule.
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SCHEDULE "B"
Duties shall consist of, but are not limited to, the following:
o Preparing and reviewing quarterly and annual consolidated
financial statements of Employer;
o Preparing any and all required statutory filings in accordance
with the Securities and Exchange Act of 1934;
o Preparing and reviewing any and all required filings pertaining to
state and federal taxation;
o Attending at various mine sites, as required;
o Supervising of bookkeeping and accounting functions for Employer
and its subsidiaries;
o Preparing and analysing budgets for Employer and its subsidiaries;
o Researching, documenting and implementing accounting policies and
procedures according to US GAAP for Employer and its subsidiaries;
and,
o Implementing and assessing internal controls over financial
reporting.
o Assisting with the negotiation and securing of financing for
Employer
o Assisting with the negotiation and purchasing and/or financing of
equipment and assets for Employer
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AMENDING AGREEMENT
THIS AGREEMENT made as of the 16th day of May, 2005.
B E T W E E N:
Xxxxxxxxx Xxxxxx
(hereinafter called "Employee")
- and -
Pacific Gold Corp.
(hereinafter called the "Employer")
Reference is made to an employment agreement (the "Original Agreement") made as
of the 19th day of April, 2005 between the Employee and the Employer.
WHEREAS:
The Employer and the Employee wish to amend the Employment Agreement in certain
respects,
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual
covenants and agreements hereinafter contained, and in consideration of other
good and valuable consideration and the sum of $2.00 of lawful money of Canada
now paid by the Employer to the Employee (the receipt and sufficiency whereof is
hereby acknowledged by the Employee) the parties hereto covenant and agree with
one another as follows:
1. Article 6 - General - 6.1. The mailing address, In the case of the
Employer:
000 Xxxxxxxx Xxxxxx Xxxx, #000
Xxxxxxx, XX X0X 0X0
2. Schedule "A" to the Original Agreement is deleted therefrom and
replaced with Schedule "A" annexed hereto.
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3. In all other respects, the parties confirm the terms and provisions of
the Employment Agreement.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
under their respective seals as of the date first above-written.
SIGNED, SEALED AND DELIVERED )
in the presence of ) Pacific Gold Corp.
)
)
) Per:
)
)
) ______________________________________
) Xxxxxx Xxxxxx, Chief Executive Officer
)
)
) ______________________________________
) Xxxxxxxxx Xxxxxx (the "Employee")
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SCHEDULE "A"
The Employee shall be paid gross annual salary of $76,000 payable in 24 equal
bi-monthly installments, in arrears, after deduction of amounts as are required
by law to be deducted therefrom, but all deductions shall be deemed to have been
received for all purposes hereof, by the Employee as part of the gross
remuneration hereinbefore mentioned.
The Employee will receive an annual "Bonus" equal to $25,000 paid in shares of
Employer based on the closing bid price on December 31 each year. The Employee
will be responsible for her own remittances as required by law. The Bonus will
be paid within 30 days of the year-end. If the Employee is terminated under
section 5.1.1 of this Agreement then the Bonus is not payable for that year. If
the Employee terminates this Agreement under section 5.6 then the Bonus is not
payable for that year.
The Employee will receive 62,500 options, to a maximum of 250,000 in aggregate
over two years total, each 6 months, while the Employee is employed by the
Employer, to purchase common shares of Employer stock issued from the 2002
Performance Equity Plan. Options will be paid every June 30th and December 31st.
While the Employee is on maternity leave the Company will top up her government
benefits to a maximum of $2,500 per month for three (3) months, after which the
Employee will have the option to return to work on a full-time basis, or to work
on a "part-time" basis for a further six (6) month period at a salary equal to
50% her annual rate, such salary to be reviewed based on the quantity of work
being performed during the part-time work period.
The Employee shall be entitled to earned annual vacation totaling four (4)
weeks. Vacation days are earned at a rate of 1.67 days per month of employment,
in arrears. To the extent the Employee declines to take all of the aforesaid
vacation entitlement in a given calendar year of employment with the Employer,
the Employee shall be entitled to pro-rated vacation pay based on the Employee's
average annual base salary as set forth in this Schedule.
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