Exhibit 10.23
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT dated for reference the 1st day of July, 2002.
BETWEEN:
ST. JUDE RESOURCES LTD., of Suite 200, 5405 - 48th Avenue, Delta, British
Columbia, V4K 1W6
(herein referred to as the "Company")
OF THE FIRST PART
AND:
BLUESTAR MANAGEMENT INC., of 5667 Timber Valley Road, Tsawwassen, British
Columbia, V4L 2H8
(herein referred to as the "Executive")
OF THE SECOND PART
WHEREAS:
A. The principal of the Executive is Michael A. Terrell ("Terrell"), who
has been the president and a director of the Company since its inception in
1987;
B. The Executive has expertise in administration and management of public
mining companies, which it has been providing to the Company and which the
Company wishes to continue utilizing;
C. The Company acknowledges that the development and success of the Company
to date is largely due to the efforts of the Executive (and prior to the
Executive, Terrell) and recognizes the valuable services that the Executive has
rendered and is continuing to provide to the Company and its subsidiaries, and
considers it essential to the best interest of its shareholders to foster the
continuous employment of the Executive;
D. The Company also considers that it is in the best interests of the
Company and its shareholders that appropriate steps should be taken to reinforce
and encourage the Executive's continued attention, dedication and availability
to the Company, including in the event of a Change in Control (as defined below)
so that the Executive will not be distracted by the uncertainties which can
arise from any possible changes in control of the Company;
E. Both the Company and the Executive wish to formally agree as to the
terms and conditions that will, in the circumstances hereinafter set forth,
govern the Executive's employment by the Company;
NOW, THEREFORE, THIS AGREEMENT WITNESSETH that in consideration of the
premises and of the mutual covenants hereinafter contained, and other good and
valuable consideration, the receipt of which is acknowledged, the parties hereto
agree as follows:
1. Definitions. For the purposes of this Agreement, the following terms
will have the meanings set out below.
(a) "Base Salary" means the annual base salary, as referred to in
section 5 and as adjusted from time to time in accordance with section 6 of this
Agreement.
(b) "Benefit Payment" has the meaning set out in section 14 of this
Agreement.
(c) "Board" means the Board of Directors of the Company.
(d) "Business" means the business carried on by the Company, directly
or indirectly, whether under an agreement with or in collaboration with any
other party, with regard to the exploration and development of mineral
properties in Ghana, Africa.
(e) "Cause" has the meaning set out in section 15 of this Agreement.
(f) "Change in Control" means:
(i) any change in the holding, direct or indirect, of shares of
the Corporation as a result of which a person, or a group of persons, or
persons acting jointly or in concert, or persons associated or affiliated
with any such person or group within the meaning of the Canada Business
Corporations Act, are in a position to exercise effective control of the
Corporation, provided that for the purposes of this Agreement a person or
group of persons holding shares and/or other securities in excess of the
number that, directly or following conversion thereof, would entitle the
holders thereof to cast more than 20% of the votes attaching to all
shares of the Corporation that may be cast to elect directors of the
Corporation shall be deemed to be in a position to exercise effective
control of the Corporation; or
(ii) Incumbent Directors ceasing to constitute a majority of the
Board.
(g) "Good Reason" means the occurrence of any of the following without
the Executive's express written consent:
(i) the Company assigning to the Executive duties inconsistent
with its position, duties, responsibilities and status with the Company
immediately prior to the Change in Control, or a change in the
Executive's position, duties (including any position or duties as a
director of the Company), responsibilities (including reporting
responsibilities), titles or offices in effect immediately prior to the
Change in Control, or any removal of the Executive from or any failure to
re-elect or re-appoint it to any such positions, duties or offices,
except in connection with the termination of its employment for Cause;
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(ii) a reduction by the Company of the Base Salary or any change
in the basis upon which the Base Salary is determined;
(iii) any failure by the Company to continue in effect any
benefit, bonus or other compensation plan, including without limitation
any stock ownership or purchase plan, stock option plan, life insurance,
disability plan, pension plan or retirement plan, in which the Executive
is participating or entitled to participate immediately prior to the
Change in Control, or the Company taking any action or failing to take
any action that would adversely affect the Executive's participation in
or reduce its rights or benefits under or pursuant to any such plan;
(iv) the Company relocating the Executive to any place other than
the location at which it performed its duties for the Company immediately
prior to the Change in Control;
(v) any failure by the Company to provide the Executive with the
number of paid vacation days to which it was entitled immediately prior
to the Change in Control or the Company failing to increase such paid
vacation on a basis consistent with practices in effect prior to the
Change in Control with respect to the senior executives of the Company,
whichever is more favourable to the Executive;
(vi) the Company taking any action to deprive the Executive of any
material fringe benefit it enjoyed immediately prior to the Change in
Control or the Company failing to increase or improve such material
fringe benefits on a basis consistent with practices in effect prior to
the Change in Control or with practices implemented subsequent to the
Change in Control with respect to the senior executives of the Company,
whichever is more favourable to the Executive;
(vii) any breach by the Company of any provision of this
Agreement; or
(viii) any failure by the Company to obtain the assumption of this
Agreement by any successor or assign of the Company.
(h) "Incumbent Director" means any member of the Board who was a
member of the Board prior to the occurrence of the transaction, transactions or
elections giving rise to a Change in Control and any successor to an Incumbent
Director by the affirmative vote of a majority of the Incumbent Directors then
on the Board.
2. Terrell to Perform. The parities acknowledge and agree that certain
covenants and obligations of the Executive herein can only be performed by
Terrell, in his capacity as principal of the Executive. Accordingly, if the
terms of this Agreement require or imply that the Executive perform a covenant
or obligation that can only be performed by Terrell, the Executive agrees to
cause Terrell to perform such covenant or obligation.
3. Position and Duties. The Company agrees to employ the Executive, and the
Executive agrees to serve, as its President and Chief Executive Officer, having
the duties and functions customarily performed by, and all the responsibilities
customary to, a president and chief executive officer of a corporation engaged
in a business similar to that of the Company, including those duties and
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functions particularly described in Schedule A attached to this Agreement. The
Executive will report directly to the Board, and will continue to serve as a
director of the Company. The duties and functions of the Executive pertain to
the Company and any of its subsidiaries from time to time and may be varied or
added to from time to time by the Board, at its discretion, exercised
reasonably.
4. Term. This Agreement will be effective as of and from July 1, 2002 (the
"Effective Date") and, except as otherwise provided for herein, will continue
for a period of five years from the Effective Date.
5. Base Salary. The Company will pay the Executive a base salary in the
amount of $17,500 per month (the "Base Salary"), payable semi-monthly, subject
to the withholding of all applicable statutory deductions from such Base Salary
in respect of the Base Salary and any taxable benefits received under this
Agreement or in respect of the Executive's employment.
6. Annual Review. The Board, or if applicable any compensation committee
which may be established by the Board from time to time, will review the Base
Salary and any other compensation which may be payable pursuant to this
Agreement on an annual basis. This review will not result in a decrease of the
Base Salary or other compensation, and any increase will be in the discretion of
the Board or compensation committee, as the case may be.
7. Benefits. The Company will arrange for the Executive to be provided with
health, medical, dental, disability, accident and life insurance and such other
benefits as are reasonable and appropriate for an executive level benefits plan,
as determined by the Board from time to time, in consultation with the
Executive.
8. Vacation. The Executive will be entitled to an annual paid vacation as
determined by the Board from time to time, such vacation entitlement not to be
less than four weeks per calendar year. The Company reserves the right, acting
reasonably, to request that vacations be scheduled so as not to conflict with
critical business operations.
9. Reimbursement for Expenses. The Company will promptly reimburse the
Executive for reasonable travelling and other expenses actually and properly
incurred by the Executive in connection with the performance of its duties and
functions hereunder, such reimbursement to be made in accordance with, and
subject to, the policies of the Company as may be in effect from time to time.
The Executive will keep proper accounts and furnish statements, receipts,
vouchers and/or other supporting documents to the Company within 30 days after
the date the expenses are incurred.
10. Stock Options. The Executive will be entitled to such incentive stock
options as the Board may grant to the Executive from time to time on such terms
as the Board may determine at the time of grant.
11. Directors' & Officers' Liability Insurance. The Company will use
commercially reasonable efforts to provide the Executive with directors' and
officers' liability insurance coverage in an amount of at least $2,000,000 under
the policies for such insurance arranged by the Company from time to time.
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12. Service to Company. During the terms of its employment the Executive
will:
(a) Well and faithfully serve the Company, at all times act in, and
promote, the best interests of the Company, and devote substantially the whole
of its working time, attention and energies to the business and affairs of the
Company.
(b) Comply with all rules, regulations, policies and procedures of the
Company.
13. Termination By Executive. Subject to sections 15 and 17, the Executive
may resign as President and Chief Executive Officer and as a director of the
Company and terminate this Agreement at any time, but only by giving the Company
at least one month's prior written notice of the effective date of the
Executive's resignation. On the giving of any such notice, the Company will have
the right to elect, in lieu of the notice period, to pay the Executive a lump
sum equal to one month's Base Salary, as referred to in section 5 and as
adjusted from time to time in accordance with section 6, plus other sums owed
for arrears of salary and vacation pay and if the Company elects to pay the
Executive such lump sum in lieu of the one month notice period, the Company
will, subject to the terms and conditions of any benefit plans in effect from
time to time, maintain the benefits and payments set out in section 7 for one
month after the date of the Executive's notice, but in all other respects the
Executive's resignation and the termination of the Executive's employment shall
be effective immediately upon the Executive's receipt of the lump sum.
14. Termination by the Company Without Cause.
(a) The Company may terminate the Executive's employment as President
and Chief Executive Officer and require that the Executive resign as a director
of the Company at any time without Cause (as defined below) by giving the
Executive written notice of the effective date of such termination and in all
respects, except as set out below, the Executive's resignation and the
termination of the Executive's employment will be effective immediately. On the
giving of any such notice, and subject to the Executive's prior resignation as a
director of the Company, the Company will pay the Executive a lump sum equal to
12 months' Base Salary, as referred to in section 5 and as adjusted from time to
time in accordance with section 6, plus all other sums owed for arrears of
salary and vacation pay.
(b) To the extent permitted by law and subject to the terms and
conditions of any benefit plans in effect from time to time, the Company will
maintain the benefits and payments set out in section 7 (the "Benefit Payment")
for a period of six months from the effective date of termination. If either the
Executive or Terrell obtains a new source of remuneration for personal services,
whether through an office, new employment, a contract to provide consulting or
other personal services, or any position analogous to any of the foregoing, the
Benefit Payment will terminate on the date of commencement of such office,
employment, contract or position.
(c) The payments of Base Salary and benefits set out in this section
14 will be in lieu of any applicable notice period.
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(d) The Company will arrange for the Executive to be provided with
such outplacement career counselling services as are reasonable and appropriate,
to assist the Executive in seeking new executive level employment.
(e) The Executive will not be required to mitigate the amount of any
payment provided for in this section 14 by seeking other employment or
otherwise, nor will any sums actually received be deducted therefrom.
15. Termination by the Company for Cause. Notwithstanding sections 13, 14
or 16, the Company may terminate the Executive's employment hereunder and
require that the Executive resign as a director of the Company for Cause at any
time without any notice or severance. In this Agreement, "Cause" means the
following:
(a) the commission of theft, embezzlement, fraud, obtaining funds or
property under false pretences or similar acts of misconduct with respect to the
property of the Company or its employees or the Company's customers or
suppliers;
(b) the Executive entering into a guilty plea or being convicted for
any crime involving fraud, misrepresentation or breach of trust, or for any
serious criminal offence that impacts adversely on the Company; or
(c) any other matter constituting just cause at common law;
any of which will entitle the Company to terminate the Executive's employment
under this section 15.
16. Termination Following Change in Control. In the event the Executive's
employment is terminated within 24 months after a Change in Control, the Company
agrees to pay to the Executive, and the Executive agrees to accept, subject to
the Executive's prior resignation as a director of the Company, the following
payments in full satisfaction of any and all claims the Executive has or may
have against the Company, for remuneration, fees, salary, benefits, bonuses or
severance, arising out of or in connection with the Executive's employment by
the Company or the termination of the Executive's employment:
(a) If the Executive's employment is terminated by the Company for
Cause or by the Executive other than for Good Reason, the respective terms of
sections 13 or 15 will govern and the Company will have no further obligations
to the Executive under this Agreement.
(b) If the Executive's employment is terminated by the Executive for
Good Reason or, notwithstanding section 14, by the Company without Cause, then
the Executive will be entitled to the following payments and benefits:
(i) subject to the withholding of all applicable statutory
deductions, the Company will pay the Executive the amount of compensation
accrued pursuant to this Agreement as of the date of termination together
with an amount equal to 12 months' Base Salary, as referred to in section
5 and as adjusted from time to time in accordance with section 6,
multiplied by a fraction, the numerator of which will be 6 plus one for
each year either the Executive or Terrell has been employed by the
Company since its inception in 1987 and the denominator of which will be
12;
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(ii) to the extent permitted by law and subject to the terms and
conditions of any benefit plans in effect from time to time, the Company
will maintain the Benefit Payment for a period of six months from the
effective date of termination. If either the Executive or Terrell obtains
a new source of remuneration for personal services, whether through an
office, new employment, a contract to provide consulting or other
personal services, or any position analogous to any of the foregoing, the
Benefit Payment will terminate on the date of commencement of such
office, employment, contract or position.
(iii) the Company will arrange for the Executive to be provided
with such outplacement career counselling services as are reasonable and
appropriate, to assist the Executive in seeking new executive level
employment;
(iv) all incentive stock options granted to the Executive by the
Company under any stock option agreement that is entered into between the
Executive and the Company and is outstanding at the time of termination
of the Executive's employment, which incentive stock options have not yet
vested, will immediately vest upon the termination of the Executive's
employment and will be fully exercisable by the Executive in accordance
with the terms of the agreement or agreements under which such options
were granted; and
(v) the Executive will not be required to mitigate the amount of
any payment provided for in this section 16 by seeking other employment
or otherwise, nor will any sums actually received be deducted therefrom.
17. Executive to Continue Employment. In the event of a Change in Control
the Executive agrees to continue to diligently carry out its duties and
obligations hereunder for a minimum period of six months following the effective
date of the Change in Control, notwithstanding section 13 herein but subject to
the Executive's right to terminate for Good Reason as provided for in section
16.
18. No Additional Compensation Upon Termination. It is agreed that neither
the Executive nor the Company shall, as a result of the termination of the
Executive's employment, be entitled to any notice, fee, salary, bonus, severance
or other payments, benefits or damages arising by virtue of, or in any way
relating to, the Executive's employment or any other relationship with the
Company (including the termination of such employment or relationship) in excess
of what is specified or provided for in sections 13, 14, 15, or 16, whichever is
applicable. Payment of any amount whatsoever pursuant to sections 13, 14, 15 or
16 shall be subject to the withholding of all applicable statutory deductions by
the Company.
19. Disclosure of Conflicts of Interest. During its employment with the
Company, the Executive will promptly, fully and frankly disclose to the Company
in writing:
(a) The nature and extent of any interest the Executive or its
Associates (as hereinafter defined) have or may have, directly or indirectly, in
any contract or transaction or proposed contract or transaction of or with the
Company or any subsidiary or affiliate of the Company.
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(b) Every office the Executive may hold or acquire, and every property
the Executive or its Associates may possess or acquire, whereby directly or
indirectly a duty or interest might be created in conflict with the interests of
the Company or the Executive's duties and obligations under this Agreement, and
the nature and extent of any such conflict.
In this Agreement the expression "Associate" will include all those persons and
entities that are included within the definition or meaning of "associate" as
set forth in section 2 of the Canada Business Corporations Act, as amended, or
any successor legislation of similar force and effect, and any director, officer
or shareholder of the Executive.
20. Provisions Reasonable. It is acknowledged and agreed that:
(a) both before and since the Effective Date the Company has operated
and competed and will operate and compete with respect to the Business;
(b) during the course of the Executive's employment by the Company,
both before and after the Effective Date, on behalf of the Company, the
Executive has acquired and will acquire knowledge of, and has come into contact
with, initiated and established relationships with and will come into contact
with, initiate and establish relationships with, both existing and new
competitors, customers, suppliers, principals, contacts and prospects of the
Company, and that in some circumstances the Executive has been or may well
become the senior or sole representative of the Company dealing with such
persons; and
(c) in light of the foregoing, the provisions of section 21 below are
reasonable and necessary for the proper protection of the business, property and
goodwill of the Company and the Business.
21. Restrictive Covenant. The Executive will not, either alone or in
partnership or in conjunction with any person, firm, company, corporation,
syndicate, association or any other entity or group, whether as principal,
agent, employee, director, officer, shareholder, consultant or in any capacity
or manner whatsoever, whether directly or indirectly, for the term of the
Executive's employment hereunder and continuing for a period of six months from
the lawful termination of its employment, unless the termination was for Cause
pursuant to section 15 in which event the provisions of this section 21 will not
be applicable:
(a) Carry on or be engaged in, concerned with, interested in or
employed by, or advise, invest in or give financial assistance to, any business,
enterprise or undertaking that is involved in the Business or is competitive
with the Business unless the Executive became engaged in, concerned with,
interested in or employed by, or commenced advising, investing in or giving
financial assistance to, such business, enterprise or undertaking prior to the
termination of its employment provided, however, that the foregoing will not
prohibit the Executive from acquiring, solely as an investment and through
market purchases, securities of any such business, enterprise or undertaking
which are publicly traded, so long as the Executive is not part of any control
group of such entity and such securities, which if converted, do not constitute
more than 20% of the outstanding voting power of that entity.
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(b) Divert, entice or take away from the Company or attempt to do so
or solicit for the purpose of doing so, any business of the Company, or any
person, firm, corporation or other entity that was an employee, client,
customer, supplier, principal, shareholder, investor, collaborator, strategic
partner, licensee, contact or prospect of the Company during the time of the
Executive's employment with the Company, whether before or after the Effective
Date.
22. Remedies. The Executive acknowledges and agrees that any breach or
threatened breach of any of the provisions of sections 12, 19 or 21 could cause
irreparable damage to the Company or its partners, subsidiaries or affiliates,
that such harm could not be adequately compensated by the Company's recovery of
monetary damages, and that in the event of a breach or threatened breach
thereof, the Company will have the right to seek an injunction, specific
performance or other equitable relief as well as any equitable accounting of all
the Executive's profits or benefits arising out of any such breach. It is
further acknowledged and agreed that the remedies of the Company specified in
this section 22 are in addition to and not in substitution for any rights or
remedies of the Company at law or in equity and that all such rights and
remedies are cumulative and not alternative and that the Company may have
recourse to any one or more of its available rights or remedies as it shall see
fit.
23. Enurement. This Agreement will be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
24. Agreement Confidential. The parties hereto will keep the terms and
conditions of this Agreement confidential except as may be required to enforce
any provision of this Agreement or as may otherwise be required by any law,
regulation or other regulatory requirement.
25. Governing Law. This Agreement will be governed by and interpreted in
accordance with the laws of the Province of British Columbia and applicable laws
of Canada and the parties hereto attorn to the exclusive jurisdiction of the
provincial and federal courts of such province.
26. Entire Agreement. The terms and conditions of this Agreement are in
addition to and not in substitution for the obligations, duties and
responsibilities imposed by law on employees of corporations generally, and the
Executive agrees to comply with such obligations, duties and responsibilities.
Except as otherwise provided in this Agreement, this Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof,
and may only be varied by further written agreement signed thereby. This
Agreement supersedes any previous communications, understandings and agreements
between the Executive and the Company regarding the Executive's employment. It
is acknowledged and agreed that this Agreement is mutually beneficial and is
entered into for fresh and valuable consideration with the intent that it will
constitute a legally binding agreement.
27. Further Assurances. The parties hereto will execute and deliver to each
other such further instruments and assurances and do such further acts as may be
required to give effect to this Agreement.
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28. Surviving Obligations. The Executive's obligations and covenants under
sections 21 and 22 will survive the termination of this Agreement.
29. Notice. Any notice or other communication required or contemplated
under this Agreement to be given by one party to the other shall be delivered
sent by facsimile or mailed by prepaid registered post to the party to receive
same at the address as set out below:
To the Company:
St. Jude Resources
Suite 200, 5405 - 48th Avenue,
Delta, British Columbia
V4K 1W6
Attention: Chairman of the Board
Facsimile no.: (604) 940-6566
To Bluestar Management Inc.:
5667 Timber Valley Road
Tsawwassen, British Columbia,
V4L 2H8
Attention: Michael Terrell
Facsimile no.: (604) 943-1819
Any notice delivered or sent by facsimile will he deemed to have been given and
received on the first business day following the date of delivery. Any notice
mailed will be deemed to have been given and received on the third business day
following the date it was posted, unless between the time of mailing and actual
receipt of the notice there is a mail strike, slow-down or other labour dispute
which might affect delivery of the notice by mail, in which case the notice will
be effective only if actually delivered.
30. Assignment to Terrell. The Executive will be entitled, upon notice to
the Company, to assign directly to Terrell any of the benefits it is entitled to
hereunder.
31. Severability. If any provision of this Agreement or any part thereof is
for any reason held to be invalid or unenforceable in any respect, then such
invalid or unenforceable provision or part will be severable and severed from
this Agreement and the other provisions of this Agreement will remain in effect
and be construed as if such invalid or unenforceable provision or part had never
been contained herein.
32. Waiver. Any waiver of any breach or default under this Agreement will
only be effective if in writing signed by the party against whom the waiver is
sought to be enforced, and no waiver will be implied by any other act or conduct
or by any indulgence, delay or omission. Any waiver will only apply to the
specific matter waived and only in the specific instance in which it is waived.
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33. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed will be deemed to be an original, and
such counterparts will together constitute but one Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
ST. JUDE RESOURCES LTD.
Per: [signature illegible]
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BLUESTAR MANAGEMENT INC.
Per: /s/ Michael Terrell
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SCHEDULE A
Description Of The Duties And Functions
Of The President And Chief Executive Officer
o Formulate long-range strategic plan, set goals and objectives
o Set operating policies
o Oversee all corporate functions and direct the Company so as to achieve
corporate goals and objectives and maximize shareholder value
o Analyze operating results in the light of goals and objectives and take
corrective action, when required
o Plan human resource development to ensure continuity of Company operations
o Hire or develop a strong team of second tier managers
o Strengthen the business development department in line with the Company's
need to develop attractive partnerships or joint ventures
o Create a stimulating environment which empowers and inspires employees to
achieve corporate goals
o Represent the Company in the business and non-business community and
nurture relationships with associates and partners
o Serve as a member of the Board
o Keep the Board apprised of corporate developments and activities such as:
o performance compared to the operational business plan
o economic, industry and business matters that may impact the Company
o other matters of relevance