EXHIBIT 4.39
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is, notwithstanding the date of its execution, made effective as
of the 31st day of August, 2004.
BETWEEN:
PINE VALLEY MINING CORPORATION, a British Columbia company, having its
principal business office at Suite 000 - 000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
XX X0X 0X0.
("Pine Valley")
XXXXXXX X. XXXX, businessman, of 0000 Xxxxxxxx Xxxx, Xxxxxxxxxx
Xxxxxxx, XX, XXX 00000.
(the "Executive")
WHEREAS:
A. Pine Valley is in the business of exploring for coal deposits, developing and
operating coal mines, and selling its coal production worldwide (the
"Business");
B. Pine Valley has offered and the Executive has accepted the position of
Chairman.
C. Pine Valley and the Executive have agreed to set out in writing the terms and
conditions of the employment of the Executive with Pine Valley.
In consideration of the premises and the mutual agreements set forth below the
parties hereto agree as follows:
1. SERVICES, POSITION AND TERM
1.1 Pine Valley will employ the Executive, and the Executive will serve Pine
Valley, on the terms and conditions set out herein.
1.2 The Executive will hold the position of Chairman, and perform those
services normally or usually associated with the position of a senior
executive officer with a public company, and such other duties consistent
with the position of Chairman as may from time to time reasonably be
delegated to the Executive by Pine Valley, including, without limitation,
those detailed on Schedule "A" to this Agreement, (collectively, the
"Services"). The Executive acknowledges that the effective performance of
the Services may require that the Executive travel from time to time as
required by Pine Valley.
1.3 The Executive will be employed to perform the Services for a term
commencing on August 31, 2004 and the Executive's employment will continue
until terminated in accordance with the provisions of this Agreement (the
"Term").
2. PERFORMANCE BY EXECUTIVE
The Executive will perform the Services in a competent and efficient manner and
will devote the time and effort necessary to properly and fully perform the
Services. The Executive will at all times act in the best interests of Pine
Valley and will abide by all policies, practices and procedures of Pine Valley
in effect from time to time.
3. COMPENSATION AND BENEFITS
3.1 SALARY
Pine Valley will pay to the Executive an annual salary of CAD $150,000 (the
"Salary"), less appropriate deductions and withholdings. Pine Valley will review
the Salary from time to time during the Term and may, in its sole discretion,
increase the Salary.
3.2 INCENTIVE PLANS
The Executive will be entitled to participate in those incentive compensation
plans and programs as set out in Schedule "B" or such other incentive
compensation plans and programs from time to time provided to the Executive by
Pine Valley in Pine Valley's sole discretion (the "Plans and Programs"). The
Plans and Programs may be modified or altered only as provided by those Plans or
Programs or by mutual agreement of Pine Valley and the Executive.
3.3 BENEFITS
During the Term, Pine Valley will make available to the Executive, at his
option, the benefits set out in Schedule "C" and any other benefits as may be
provided by Pine Valley from time to time in its sole discretion (the
"Benefits"). The Benefits, including any benefits that Pine Valley elects to
provide in its sole discretion from time to time, may be modified or altered
only by the mutual agreement of Pine Valley and the Executive.
3.4 EXPENSES
Pine Valley will reimburse the Executive for all reasonable out-of-pocket
expenses incurred by the Executive directly related to the performance by the
Executive of the Services. The Executive will account for such expenses in
accordance with the policies and directions of Pine Valley's board of directors.
4. TERMINATION
4.1 DEFINITIONS
In this Agreement:
(a) "DISABILITY" means the inability of the Executive to substantially
perform the Services for a continuous or cumulative period of four
months in any 12 month period where such inability is a result of
physical or mental illness or injury; and
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(b) "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 BY PINE VALLEY
Pine Valley, in its sole discretion and at any time, may terminate the
employment of the Executive:
(a) for Just Cause; or
(b) without Just Cause, subject to providing the payments and benefits set
out in Section 4.3 of this Agreement;
in which case the Executive will be entitled to all Salary payable for Services
provided up to the date of termination and 25% of the Salary in lieu of annual
incentive compensation to which the Executive is entitled under the Plans and
Programs for the year in which the termination occurs, pro-rated to the date of
termination.
4.3 PAYMENTS IN THE EVENT OF TERMINATION WITHOUT JUST CAUSE
If the employment of the Executive is terminated by Pine Valley without Just
Cause (and not by reason of Disability or death), whether or not the termination
is related to a change of control of Pine Valley, then:
(a) Pine Valley will:
(1) provide to the Executive 12 months notice of termination (the
"Notice Period") or a lump sum payment amount equal to one times
the annual Salary ;
(2) pay to the Executive an amount equal to 25% of the annual Salary
in lieu of annual incentive compensation payable pursuant to the
Plans and Programs, provided that annual incentive compensation
for the purpose of this Subsection (a)(2) does not include the
Option Commitment granted by Pine Valley to the Executive
effective September 24, 2004 (the "Option Commitment"); and
(3) continue the Executive's participation in the Benefits provided
to the Executive immediately preceding the date of the
termination (excluding any short or long term disability plan)
until the earliest of the expiration of the Notice Period set out
in Subsection (1) and the death of the Executive; and
(4) maintain in effect the Executive's right to exercise his options
under the Option Commitment in accordance with Section 4.8 of
this Agreement.
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4.4 RESIGNATION BY EXECUTIVE
(a) The Executive may resign from his employment under this Agreement by
providing to Pine Valley a minimum of one month's and a maximum of
three month's prior written notice of such resignation and, in such
case, the Executive will be entitled to exercise all options under the
Option Commitment, or any other Plans and Programs, that will have
vested as of the last full business day before the expiry of the
period of notice of resignation given by the Executive.
(b) Upon receipt of written notice of resignation under Subsection 4.4(a)
of this Agreement, Pine Valley may, at its option, earlier terminate
the employment of the Executive in which case:
(1) the Executive will be entitled to exercise all options under the
Option Commitment, or any other Plans and Programs, that will
have vested as of the last full business day before the expiry of
the period of notice of resignation given by the Executive; and
(2) Pine Valley will pay the Executive an amount equal to the Salary
payable from the date of termination by Pine Valley until the
earlier of the date of resignation selected by the Executive and
three months from the date the Executive gave notice of
resignation.
(c) Notwithstanding Subsections 4.4(a) and (b) of this Agreement, the
Executive may resign from employment immediately and thereupon will be
entitled to the payments and benefits set out in Section 4.3 of this
Agreement if:
(1) Pine Valley conducts itself in a manner that would constitute a
constructive dismissal of the Executive as determined in
accordance with common law; and
(2) the Executive resigns within three months of the conduct of Pine
Valley that constitutes a constructive dismissal of the
Executive.
4.5 DEATH AND DISABILITY
(a) Death. If the Executive dies during the Term, then:
(1) employment of the Executive will terminate as of the date of
death; and
(2) Pine Valley will pay to the estate of the Executive:
(A) unpaid Salary, if any, up to the date of death;
(B) 50% of the annual Salary in lieu of annual incentive
compensation payable pursuant to the Plans and Programs for
the year in which the death occurs, prorated to the date of
death, provided that annual
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incentive compensation for the purpose of this Subsection
(2)(B) does not include the Option Commitment;
(C) any compensation or benefits payable or owing to the
Executive on or after death in accordance with the terms of
any Benefits plans in which the Executive is participating
immediately prior to his death; and
(3) the Executive's estate shall have the right to exercise the
Executive's options under the Option Commitment in accordance
with Section 4.8 of this Agreement.
(b) Disability. If the Executive's employment is terminated by reason of
Disability, then the Executive will be entitled thereafter to receive
in lieu of the greater of the Notice Period set out in Section 4.3(a)
of this Agreement and the reasonable notice period owed to the
Executive as determined at common law (the "Reasonable Notice
Period"):
(1) continued Salary payments for the duration of the Reasonable
Notice Period;
(2) continued annual incentive plan compensation pursuant to the
Plans and Programs that would have become payable to the
Executive during the Reasonable Notice Period if the Executive
had continued to be employed during the Reasonable Notice Period;
(3) any Benefits (other than Benefits relating to Disability) to
which the Executive would have otherwise been entitled during the
Reasonable Notice Period if the Executive had continued to be
employed during the Reasonable Notice Period; and
(4) any Benefits relating to Disability that the Executive is
entitled to as determined by the terms and conditions of any
applicable Benefit plans, provided that if the Executive receives
any Benefits under this Subsection (4) during any portion of the
Reasonable Notice Period, then Pine Valley will not be obligated
to pay to the Executive the amounts covered by such Benefits that
would otherwise be payable to the Executive under Subsection (1).
4.6 OTHER CONDITIONS
The obligations of Pine Valley to the Executive on termination of employment of
the Executive by Pine Valley or by the Executive for any reason are subject to
the following conditions:
(a) Pine Valley is not obligated to continue the Executive's participation
in the Benefits as set out in Section 4 of this Agreement where the
continuation is not permitted pursuant to the terms of such Benefits
or by law, and if Pine Valley is
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not permitted to continue such accrual or participation, then the
Executive will not be entitled to any compensation in lieu thereof;
(b) Pine Valley is not obligated to provide share options or provide other
incentive compensation, or compensation in lieu of either share
options or other incentive compensation, to the Executive except as
expressly set out in this Agreement, the Option Commitment, the
Company's Option Plan, the Plans and Programs, and any other stock
option agreement between the Executive and Pine Valley;
(c) Pine Valley may at any time or from time to time amend or terminate
any Benefits or Plans and Programs that are continued or available
after the date of termination of the Executive provided that the
subject Benefits or Plans and Programs are similarly terminated or
amended for all executives of Pine Valley;
(d) except as otherwise provided for in this Agreement, the date of
termination for all purposes will be the last day of work of the
Executive and will precede any period during which Pine Valley is
obligated to pay Salary or continue Benefits and other compensation
under Section 4.3 or 4.4; and
(e) the Executive will not be obligated to make reasonable efforts to find
alternative employment for any period during which Pine Valley is
obligated to continue participation in Benefits and Plans and Programs
pursuant to Section 4.3 or 4.4, and the participation in Benefits and
Plans and Programs pursuant to Section 4.3 or 4.4 will not be reduced
or discontinued as a result of any employment of the Executive that
commences after the employment of the Executive with Pine Valley
ceases.
4.7 TERMINATION OF OBLIGATIONS
In the event of termination of the employment of the Executive by Pine Valley or
by the Executive, all obligations of Pine Valley to the Executive will terminate
except as specifically set forth in Section 4 of this Agreement and Pine Valley
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 Pine Valley or the termination or
cessation of that employment.
4.8 ACCELERATED VESTING OF INCENTIVE STOCK OPTIONS
Notwithstanding the vesting provisions set out in the Option Commitment, in the
event of:
(a) the termination of the employment of the Executive for any reason
other than:
(1) termination for Just Cause; or
(2) the Executive being convicted of an indictable criminal offence
in the nature of fraud,
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(any termination of the Executive's employment by Pine Valley, or
by reason of the Executive's death, other than for the reasons
listed above being a "Non-Critical Termination"); or
(b) a takeover of Pine Valley or other corporate transaction that will
result in greater than 50% of the outstanding voting shares of Pine
Valley being owned, directly or indirectly, by a person or group of
persons acting jointly and in concert, where no such person or member
of a group of such persons presently owns, directly or indirectly,
more than 15% of the outstanding voting shares of Pine Valley, or a
sale of all or substantially all of the assets of Pine Valley (in any
such case, a "Triggering Event"), the Executive's Options under the
Option Commitment will be deemed to be fully vested and immediately
exercisable on the first to occur of:
(c) in the event of a Triggering Event that results from a takeover bid,
on the date that the bidder takes up and pays for the Pine Valley
shares under the subject bid;
(d) in the event of a Triggering Event that results from some other
transaction, on the date that Pine Valley or its shareholders become
subject to the principal transaction document governing the terms of
the subject transaction; and
(e) in the event of a Non-Critical Termination, on the date of termination
as defined in Subsection 4.6(d) of this Agreement, or on the date of
death, as the case may be.
5. GENERAL PROVISIONS
5.1 ENFORCEABILITY AND SEVERABILITY
It is the desire and intent of the parties hereto that the provisions of this
Agreement be enforced to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement is sought. In
the event that any provision of this Agreement conflicts with the law under
which this Agreement is to be construed or if any such provision is held invalid
by a court with jurisdiction over the parties hereto, such provision will be
deemed to be restated to reflect as nearly as possible the original intentions
of the parties in accordance with applicable law. The remainder of this
Agreement will remain in full force and effect. In the event any such deemed
restatement of any such provision prevents the accomplishment of a fundamental
purpose of this Agreement, Pine Valley and the Executive will immediately
commence negotiations in good faith to provide the party which has been
adversely affected by such restatement with value (in cash or in kind)
equivalent to the value that such party would have received had such provision
not been restated.
5.2 ASSIGNMENT AND BENEFIT
The Executive will not assign or transfer this Agreement or any rights or
obligations hereunder. Pine Valley may assign this Agreement to any successor to
Pine Valley and the provisions hereof will inure to the benefit of, and be
binding upon, each successor of Pine Valley, whether the successor arises by
merger, consolidation or transfer of all or substantially all of its assets.
This
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Agreement shall enure to the benefit of and be enforceable by the Executive's
successors and legal representatives.
5.3 ENTIRE AGREEMENT
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 Pine Valley, are hereby terminated and the
Executive has no rights or entitlements under any such prior agreements or
representations against Pine Valley.
5.4 NOTICES
All notices, requests and other communications to any party hereunder will be in
writing and sufficient if delivered personally or sent by telecopy (with
confirmation of receipt) or by registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
If to Pine Valley, at
#000 - 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Fax: (000) 000-0000
Attention: President
If to the Executive, at:
0000 Xxxxx Xxxxx, Xxxxx X
Xxxxxxx Xxxxxxx, XX 00000
Xxxxxx Xxxxxx
Fax: (000) 000-0000
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. Each such
notice, request or communication will be deemed to have been given when received
or, if given by mail, when delivered at the address specified in this Section or
on the fifth business day following the date on which such communication is
posted, whichever occurs first.
5.5 AMENDMENTS AND WAIVERS
No modification, amendment or waiver of any provision of, or consent required
by, this Agreement, nor any consent to any departure herefrom, will be effective
unless it is in writing and signed by the parties hereto. Such modification,
amendment, waiver or consent will be effective only in the specific instance and
for the purpose for which given.
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5.6 HEADINGS
Descriptive headings are for convenience only and will not control or affect the
meaning or construction of any provision of this Agreement.
5.7 COUNTERPARTS
This Agreement may be executed in counterparts, and each such counterpart hereof
will be deemed to be an original instrument, but all such counterparts together
will constitute but one agreement.
5.8 CANADIAN DOLLARS
All dollar amounts referred to herein will be in lawful currency of Canada.
5.9 GOVERNING LAW
This Agreement and its application and interpretation will be governed
exclusively by the laws of British Columbia and the laws of Canada applicable in
British Columbia.
5.10 ATTORNMENT
Each party will submit to the jurisdiction of the Supreme Court of British
Columbia and all Courts having appellate jurisdiction thereover in any suit,
action or other proceeding arising out of or relating to this Agreement
commenced in such Court by one party against the other party (a "Permitted
Action"), and each party waives and will not assert by way of motion as defence
or otherwise in any Permitted Action, any claim that:
(a) such party is not subject to the jurisdiction of such Court;
(b) such permitted action is brought in an inconvenient forum;
(c) the venue of such permitted action is improper; or
(d) any subject matter of such permitted action may not be enforced in or
by such Court.
In any suit or action brought to obtain a judgment for the recognition or
enforcement of any final judgement rendered in a Permitted Action no party to
this Agreement will seek, other than by way of appeal, in any Court of any
jurisdiction any review pertaining to the merits of any Permitted Action,
whether or not such party appears in or defends the Permitted Action.
5.11 INDEPENDENT LEGAL ADVICE
The Executive hereby acknowledges that he has had the opportunity to obtain
independent legal advice regarding this Agreement and has either obtained such
advice or has waived his right to obtain such advice.
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5.12 SURVIVAL
Sections 4 and 5 of this Agreement will survive the termination of employment of
the Executive and will continue in full force and effect.
5.13 COLLECTION AND USE OF PERSONAL INFORMATION
The Executive acknowledges that Pine Valley will collect, use and disclose
health and other personal information for employment and business related
purposes. The Executive consents to Pine Valley collecting, using and disclosing
health and other personal information of the Executive for employment and
business related purposes in accordance with the privacy policy of Pine Valley.
5.14 TIME
Time is of the essence.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first written above.
PINE VALLEY MINING CORPORATION
/s/ Xxxx X. Xxxxx
-----------------------------------------
By: Xxxx X. Xxxxx
Its: Director
XXXXXXX X. XXXX
/s/ Xxxxxxx X. Xxxx
-----------------------------------------
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SCHEDULE "A"
DESCRIPTION OF SERVICES
1. Formulation of medium and long term strategic goals for Pine Valley and
facilitating their implementation;
2. Principal executive responsibility for financial modelling and all financing
transactions;
3. Management and supervision of senior Pine Valley management;
4. Evaluation of Pine Valley's disclosure obligations under applicable
securities laws, in conjunction with directors, officers and professional
advisors to Pine Valley ;
5. Organization and leadership of board meetings and regular executive
management meetings;
6. Negotiation of employment contracts, overseeing management prospect search,
and interviewing new candidates for hire.
7. Management of the preparation of public announcements, MD & A and other
public disclosure documents;
8. Oversight and/or participation in the negotiation of key contracts;
9. Communications with and setting expectations for key professional advisors to
Pine Valley and its subsidiaries;
10. Consideration of risk management matters (including arranging for D&0
insurance for Pine Valley officers and directors);
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SCHEDULE "B"
INCENTIVE COMPENSATION PLANS AND PROGRAMS
1. OPTION COMMITMENT GRANTED TO THE EXECUTIVE PURSUANT TO THE STOCK OPTION PLAN
AND MADE EFFECTIVE SEPTEMBER 24, 2004;
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SCHEDULE "C"
BENEFITS
PINE VALLEY MINING July 7, 2004
Province: BRITISH COLUMB _IC: 1011
# OF MONTHLY MONTHLY
BENEFIT PLAN DESIGN VOLUME EES RATE PREMIUM
------- ----------- -------- ---- -------------- -------
Basic Life Insurance First benefit: $50,000 $250,000 5 $ 0.3351,000 $ 75.00
Non-Evidence Maximum: $50,000
Benefit reduces 50% at age 65
Benefit terminates at age 70
Basic A D & D Equivalent to Basic Life Benefit $250,000 5 $0.02951,000 $ 7.25
Dependent Life Spouse $5,000 Each dependent child: $2,500 2 Unit(s) 5 $ 1.01 Unit $ 2.02
Weekly Indemnity 66.67% of weekly earnings to a maximum weekly benefit of
$1,000 payable on the:
- 1st day for hospitalization and accident
- 8th day for sickness Benefit duration to age 65 $ 3,895 5 $ 0.601810 $233.16
Benefits are not Taxable Non- Evidence Maximum $1,000
Benefits are payable for up to 17 weeks
Long Term Disability 66.7% of monthly earnings, rounded to the next higher
$1.00, subject to maximum of $7,500
Non-Evidence Maximum: $1,500 $ 21,003 5 $ 1.885100 $394.86
Elimination period: 17 weeks C.G.L.A.: Net included
Benefit duration: to age 65 Benefits are not taxable
Offset Primary CFF and WCB
Definition of disability: 2 years 'own occupation'
Extended Health Care No deductible applies Drug Type: Generic Drugs
Reimbursement: 100% in Canada, 100% Out-of-Canada
(Emergency 50% Pay-Direct drug card included
3 Singe 5 $34.54/Single $275.96
100% Semi-Private Hospital 100% 2 Family $56.67/Family
Paramedical subject to $500
per year maximum per practioner
Vision Care: $200/24 months - 100% Reimbursement
Private Duty Nursing at $10,000 per calendar year
Employee Assistance Program is included TLR-0.705
PINE VALLEY MINING July 7, 2004
Province: BRITISH COLUMB _IC: 1011
# OF MONTHLY MONTHLY
BENEFIT PLAN DESIGN VOLUME EES RATE PREMIUM
------- ----------- -------- ---- -------------- -------
Dental Care No deductible applies
Reimbursement: 80% Basic Services with 6 months recall
and 50% Major 3 Single 5 $43.33/Single $345.49
Restorative Services
Maximum Benefit: $1,500 annual maximum for Basic
Services. $1,000 annual 2 Family $108.25/Family
maximum for Major Restorative Services
Current Practical Association Fee Schedule for General
Practitioners TLR=0.705
QUOTE EXPIRY DATE: September 5, 2004 Sub-Total Monthly Premium: $2,335.74
*E. & O. E.
Prepared by: XXXXX XXXXXX FOR XXXXXX XXXXXXX Total Monthly Premium: $1,335.74
Note: 1. All quotations are subject to the provision of satisfactory health
assistance of required by the Adviser.
2. All quotations are subject to verification by EXCON.
3. If average is currently in force with Maritime Life, this quote is
not valid
4. A $10 monthly administration fee will apply for monthly billing if
monthly premium is under $750. This fee does not apply to premium
paid via Automatic Bank Debit.
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