Exhibit 10.1
EMPLOYMENT AND SERVICE AGREEMENT
This employment agreement (this "Agreement"), dated as of November 29, 2010 (the
"Effective Date"), is made by and between ASAPA Gold Corp. fka Renaissance
BioEnergy, Inc., a Nevada corporation (the "Corporation"), and Ronald Yadin
Lowenthal (the "Executive") (each, a "Party" and together, the "Parties").
WHEREAS, the Executive is employed as President and Chief Executive Officer of
the Corporation; and
WHEREAS, the Parties wish to establish the terms of the Executive's employment
by the Corporation;
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
contained herein and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, hereby agree as follows:
1. POSITION/DUTIES:-
(a) During the Employment Term (as defined in Section 2 below), the
Executive shall serve as President and as the Chief Executive Officer
of the Corporation. In this capacity the Executive shall have such
duties, authorities and responsibilities commensurate with the duties,
authorities and responsibilities of persons in similar capacities in
similarly sized companies and such other reasonable duties and
responsibilities as the Board of Directors of the Corporation (the
"Board") shall designate. The Executive shall report directly to the
Board of Directors of the Corporation. The Executive shall obey the
lawful directions of the Board and shall use his diligent efforts to
promote the interests of the Corporation and to maintain and promote
the reputation thereof.
(b) During the Employment Term, the Executive shall use his best efforts
to perform his duties under this Agreement and shall as much of his
time energy and skill in the performance of his duties with the
Corporation.
2. EMPLOYMENT TERM:-
Except for earlier termination as provided in Section 6, the Executive's
employment under this Agreement shall be for a TWO-YEAR TERM commencing on the
Effective Date and ending on November 25, 2012 (the "Employment Term").
3. BASE SALARY:-
The Corporation agrees to pay to the Executive a base salary at an annual rate
of not less than US$50,000 (Fifty thousand dollars), payable in accordance with
the regular payroll practices of the Corporation. The Executive's Base Salary
shall be subject to annual review by the Board (or a committee thereof). The
base salary as determined herein from time to time shall constitute "Base
Salary" for purposes of this Agreement. It is recorded that the Executive shall
receive the full settlement of his first 2 (two) years' base salary through the
issue by the Corporation to the Executive of an amount of 300,000 (Three hundred
thousand) restricted shares of the Corporation's shares of Common Stock; issued
to the Executive at Par Value.
These shares of the Corporation's Common Stock shall not be available to be
assigned, pledged, sold, lent or in any way alienated for a period of 2 (two)
years commencing from the date this Agreement. These shares are restricted under
Regulation 144 and shall be held "on book" by the Transfer Agent to the
Corporation; for an on behalf of the Executive. The Executive shall not be
permitted to request these shares of the Corporation's Common Stock, in
certificated form, until the expiration of the 2 (two) years from the date of
their issue to the Executive.
4. BONUS:-
With respect to each full fiscal year during the Employment Term, the Executive
shall be eligible to earn an annual bonus (the "Annual Bonus") in such amount,
if any, as determined in the sole discretion of the Board of up to 100% (One
hundred percent) of the Executive's Base Salary. In addition, the Executive
shall be eligible to participate in the Corporation's bonus and other incentive
compensation plans and programs (if any) for the Corporation's senior executives
at a level commensurate with his position and may be entitled to bonus payments
in addition to the amount set forth hereinabove.
2
5. EMPLOYEE BENEFITS:-
(a) BENEFIT PLANS.
The Executive shall be eligible to participate in any employee benefit
plan of the Corporation, including, but not limited to, equity,
pension, thrift, profit sharing, medical coverage, education, or other
retirement or welfare benefits that the Corporation has adopted or may
adopt, maintain or contribute to for the benefit of its senior
executives, at a level commensurate with his positions, subject to
satisfying the applicable eligibility requirements. The Corporation
may at any time or from time to time amend, modify, suspend or
terminate any employee benefit plan, program or arrangement for any
reason in its sole discretion.
(b) VACATION:-
The Executive shall be entitled to an annual paid vacation in
accordance with the Corporation's policy applicable to senior
executives from time to time in effect, but in no event less than two
weeks per calendar year (as prorated for partial years), which
vacation may be taken at such times as the Executive elects with due
regard to the needs of the Corporation. The carry-over of vacation
days shall be in accordance with the Corporation's policy applicable
to senior executives from time to time in effect.
(c) BUSINESS AND ENTERTAINMENT EXPENSES:-
Upon presentation of appropriate documentation, the Executive shall be
reimbursed for all reasonable and necessary business and entertainment
expenses incurred in connection with the performance of his duties
hereunder, all in accordance with the Corporation's expense
reimbursement policy applicable to senior executives from time to time
in effect.
3
(d) SIGNING BONUS:-
Upon execution of this Agreement, the Executive shall be awarded a
"Signing" bonus to be settled through the issuance of 200,000 (Two
hundred thousand) restricted shares of the Corporation's Common Stock
and at Par Value.
These shares of the Corporation's Common Stock shall not be available
to be assigned, pledged, sold, lent or in any way alienated for a
period of 3 (three) years commencing from the date this Agreement.
These shares are restricted under Regulation 144 and shall be held "on
book" by the Transfer Agent to the Corporation; for an on behalf of
the Executive. The Executive shall not be permitted to request these
shares of the Corporation's Common Stock, in certificated form, until
the expiration of the 3 (three) years from the date of their issue to
the Executive.
(e) LIABILITY INSURANCE
The Corporation undertakes to procure suitable and necessary
Director's Liability Insurance for the Executive. The costs of this
Insurance are to be borne by the Corporation.
6. TERMINATION:-
The Executive's employment and the Employment Term shall terminate on the first
of the following to occur:
(a) DISABILITY:-
On the thirtieth (30th) day following written notice by the
Corporation to the Executive of termination due to Disability. For
purposes of this Agreement, "Disability" shall mean a determination by
the Corporation in accordance with applicable law that due to a
physical or mental injury, infirmity or incapacity, the Executive is
unable to perform the essential functions of his job with or without
accommodation for 180 days (whether or not consecutive) during any
12-month period.
(b) DEATH:-
Automatically upon the date of death of the Executive.
4
(c) CAUSE:-
Immediately upon written notice by the Corporation to the Executive of
a termination for Cause. "Cause" shall mean, as determined by the
Board (or its designee) (1) conduct by the Executive in connection
with his employment duties or responsibilities that is fraudulent,
unlawful or grossly negligent; (2) the willful misconduct of the
Executive; (3) the willful and continued failure of the Executive to
perform the Executive's duties with the Corporation (other than any
such failure resulting from incapacity due to physical or mental
illness); (4) the commission by the Executive of any felony (or the
equivalent under the law of the People's Republic of China) (other
than traffic-related offenses) or any crime involving moral turpitude;
(5) violation of any material policy of the Corporation or any
material provision of the Corporation's code of conduct, employee
handbook or similar documents; or (6) any material breach by the
Executive of any provision of this Agreement or any other written
agreement entered into by the Executive with the Corporation.
(d) WITHOUT CAUSE:
On the thirtieth (30th) day following written notice by the
Corporation to the Executive of an involuntary termination without
Cause, other than for death or Disability.
(e) GOOD REASON.
On the sixtieth (60th) day following written notice by the Executive
to the Corporation of a termination for Good Reason. "Good Reason"
shall mean, without the express written consent of the Executive, the
occurrence of any the following events unless such events are cured
(if curable) by the Corporation within fifteen days following receipt
of written notification by the Executive to the Corporation that he
intends to terminate his employment hereunder for one of the reasons
set forth below: any material reduction or diminution (except
temporarily during any period of incapacity due to physical or mental
illness) in the Executive's title, authorities, duties or
responsibilities or reporting requirements with the Corporation.
5
7. CONSEQUENCES OF TERMINATION:-
(a) DISABILITY:-
Upon termination of the Employment Term because of the Executive's
Disability, the Corporation shall pay or provide to the Executive (1)
any unpaid Base Salary and any accrued vacation through the date of
termination; (2) any unpaid Annual Bonus accrued with respect to the
fiscal year ending on or preceding the date of termination; (3)
reimbursement for any unreimbursed expenses properly incurred through
the date of termination; and (4) all other payments or benefits to
which the Executive may be entitled under the terms of any applicable
employee benefit plan, program or arrangement (collectively, "Accrued
Benefits").
(b) DEATH:-
Upon the termination of the Employment Term because of the Executive's
death, the Executive's estate shall be entitled to any Accrued
Benefits.
(c) TERMINATION FOR CAUSE:-
Upon the termination of the Employment Term by the Corporation for
Cause or by either party in connection with a failure to renew this
Agreement, the Corporation shall pay to the Executive any Accrued
Benefits.
(d) TERMINATION WITHOUT CAUSE OR FOR GOOD REASON:-
Upon the termination of the Employment Term by the Corporation without
Cause or by the Executive with Good Reason, the Corporation shall pay
or provide to the Executive (1) the Accrued Benefits, and (2) subject
to the Executive's execution (and non-revocation) of a general release
of claims against the Corporation and its affiliates in a form
reasonably requested by the Corporation, (A) continued payment of his
Base Salary for 6 (six) months after termination, payable in
accordance with the regular payroll practices of the Corporation, but
off the payroll; and (B) payment of the Executive's cost of continued
medical coverage for (6) six months after termination (subject to the
Executive's co-payment of the costs in the same proportion as such
costs were shared immediately prior to the date of termination).
Payments provided under this Section 7(d) shall be in lieu of any
termination or severance payments or benefits for which the Executive
may be eligible under any of the plans, policies or programs of the
Corporation.
6
8. NO ASSIGNMENT:-.
This Agreement is personal to each of the Parties. Except as provided below, no
Party may assign or delegate any rights or obligations hereunder without first
obtaining the written consent of the other Party hereto; provided, however, that
the Corporation may assign this Agreement to any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Corporation.
9. NOTICES:-
For the purpose of this Agreement, notices and all other communications provided
for in this Agreement shall be in writing and shall be deemed to have been duly
given (1) on the date of delivery if delivered by hand, (2) on the date of
transmission, if delivered by confirmed facsimile, (3) on the first business day
following the date of deposit if delivered by guaranteed overnight delivery
service, or (4) on the fourth business day following the date delivered or
mailed by United States registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Executive:
MR. R Y LOWENTHAL
Renasa House
170 Oxford Road
Melrose, Gauteng
2126
REPUBLIC OF SOUTH AFRICA
If to the Corporation:
ASPA GOLD CORP.
36101 Bob Hope Dr., Suite E5-238
Rancho Mirage, California 92270
or to such other address as either Party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
7
10. PROTECTION OF THE CORPORATION'S BUSINESS:-
(a) CONFIDENTIALITY:-
The Executive acknowledges that during the course of his employment by
the Corporation (prior to and during the Employment Term) he has and
will occupy a position of trust and confidence. The Executive shall
hold in a fiduciary capacity for the benefit of the Corporation and
shall not disclose to others or use, whether directly or indirectly,
any Confidential Information regarding the Corporation, except (i) as
in good faith deemed necessary by the Executive to perform his duties
hereunder, (ii) to enforce any rights or defend any claims hereunder
or under any other agreement to which the Executive is a party,
provided that such disclosure is relevant to the enforcement of such
rights or defense of such claims and is only disclosed in the formal
proceedings related thereto, (iii) when required to do so by a court
of law, by any governmental agency having supervisory authority over
the business of the Corporation or by any administrative or
legislative body (including a committee thereof) with jurisdiction to
order him to divulge, disclose or make accessible such information,
provided that the Executive shall give prompt written notice to the
Corporation of such requirement, disclose no more information than is
so required, and cooperate with any attempts by the Corporation to
obtain a protective order or similar treatment, (iv) as to such
Confidential Information that shall have become public or known in the
Corporation's industry other than by the Executive's unauthorized
disclosure, or (v) to the Executive's spouse, attorney and/or his
personal tax and financial advisors as reasonably necessary or
appropriate to advance the Executive's tax, financial and other
personal planning (each an "Exempt Person"), provided, however, that
any disclosure or use of Confidential Information by an Exempt Person
shall be deemed to be a breach of this Section 10(a) by the Executive.
The Executive shall take all reasonable steps to safeguard the
Confidential Information and to protect it against disclosure, misuse,
espionage, loss and theft. The Executive understands and agrees that
the Executive shall acquire no rights to any such Confidential
Information. "Confidential Information" shall mean information about
the Corporation, its subsidiaries and affiliates, and their respective
clients and customers that is not disclosed by the Corporation and
that was learned by the Executive in the course of his employment by
the Corporation, including, but not limited to, any proprietary
knowledge, trade secrets, data and databases, formulae, sales,
financial, marketing, training and technical information, client,
customer, supplier and vendor lists, competitive strategies, computer
programs and all papers, resumes, and records (including computer
records) of the documents containing such Confidential Information.
8
(b) NON-COMPETITION:-
During the Employment Term and for the one-year period following the
termination of the Executive's employment for any reason (the
"Restricted Period"), the Executive shall not, directly or indirectly,
without the prior written consent of the Corporation, provide
employment (including self-employment), directorship, consultative or
other services to any business, individual, partner, firm,
corporation, or other entity that directly competes with any business
conducted by the Corporation or any of its subsidiaries or affiliates
on the date of the Executive's termination of employment or within one
year of the Executive's termination of employment in the geographic
locations where the Corporation and its subsidiaries or affiliates
engage or propose to engage in such business (the "Business"). Nothing
herein shall prevent the Executive from having a passive ownership
interest of not more than 9% (Nine percent) of the outstanding
securities of any entity engaged in the Business whose securities are
traded on a United States of America - National Securities Exchanges.
The Corporation acknowledges that the Executive serves as the
President and Chief Executive Officer of North American Gold &
Minerals Fund.
(c) NON-SOLICITATION OF EMPLOYEES:-
The Executive recognizes that he possesses and will possess
confidential information about other employees of the Corporation and
its subsidiaries and affiliates relating to their education,
experience, skills, abilities, compensation and benefits, and
inter-personal relationships with customers of the Corporation and its
subsidiaries and affiliates. The Executive recognizes that the
information he possesses and will possess about these other employees
is not generally known, is of substantial value to the Corporation and
its subsidiaries and affiliates in developing their business and in
securing and retaining customers, and has been and will be acquired by
him because of his business position with the Corporation. The
Executive agrees that, during the Restricted Period, he will not,
directly or indirectly, (i) solicit or recruit any employee of the
Corporation or any of its subsidiaries or affiliates (a "Current
Employee") or any person who was an employee of the Corporation or any
of its subsidiaries or affiliates during the twelve (12) month period
immediately prior to the date the Executive's employment terminates (a
"Former Employee") for the purpose of being employed by him or any
other entity, or (ii) hire any Current Employee or Former Employee.
9
(d) NON-SOLICITATION OF CUSTOMERS:-
The Executive agrees that, during the Restricted Period, he will not,
directly or indirectly, solicit or attempt to solicit (i) any party
who is a customer or client of the Corporation or its subsidiaries,
who was a customer or client of the Corporation or its subsidiaries at
any time during the 12 (twelve) month period immediately prior to the
date the Executive's employment terminates or who is a direct customer
or client that has been identified and targeted by the Corporation or
its subsidiaries for the purpose of marketing, selling or providing to
any such party any services or products offered by or available from
the Corporation or its subsidiaries, or (ii) any supplier or vendor to
the Corporation or any subsidiary to terminate, reduce or alter
negatively its relationship with the Corporation or any subsidiary or
in any manner interfere with any agreement or contract between the
Corporation or any subsidiary and such supplier or vendor.
(e) PROPERTY:-
The Executive acknowledges that all originals and copies of materials,
records and documents generated by him or coming into his possession
during his employment by the Corporation or its subsidiaries are the
sole property of the Corporation and its subsidiaries ("Corporation
Property"). During the Employment Term, and at all times thereafter,
the Executive shall not remove, or cause to be removed, from the
premises of the Corporation or its subsidiaries, copies of any record,
file, memorandum, document, computer related information or equipment,
or any other item relating to the business of the Corporation or its
subsidiaries, except in furtherance of his duties under this
Agreement. When the Executive's employment with the Corporation
terminates, or upon request of the Corporation at any time, the
Executive shall promptly deliver to the Corporation all copies of
Corporation Property in his possession or control.
10
(f) NON-DISPARAGEMENT:-
Executive shall not, and shall not induce others to, Disparage the
Corporation or its subsidiaries or affiliates or their past and
present officers, directors, employees or products. "Disparage" shall
mean making comments or statements to the press, the Corporation's or
its subsidiaries' or affiliates' employees or any individual or entity
with whom the Corporation or its subsidiaries or affiliates has a
business relationship which would adversely affect in any manner (1)
the business of the Corporation or its subsidiaries or affiliates
(including any products or business plans or prospects), or (2) the
business reputation of the Corporation or its subsidiaries or
affiliates, or any of their products, or their past or present
officers, directors or employees.
(g) COOPERATION:-
Subject to the Executive's other reasonable business commitments,
following the Employment Term, the Executive shall be available to
cooperate with the Corporation and its outside counsel and provide
information with regard to any past, present, or future legal matters
which relate to or arise out of the business the Executive conducted
on behalf of the Corporation and its subsidiaries and affiliates, and,
upon presentation of appropriate documentation, the Corporation shall
compensate the Executive for any out-of-pocket expenses reasonably
incurred by the Executive in connection therewith.
(h) EQUITABLE RELIEF AND OTHER REMEDIES:-
The Executive acknowledges and agrees that the Corporation's remedies
at law for a breach or threatened breach of any of the provisions of
this Section 10 would be inadequate and, in recognition of this fact,
the Executive agrees that, in the event of such a breach or threatened
or attempted breach, in addition to any remedies at law, the
Corporation, without posting any bond, shall be entitled to obtain
equitable relief in the form of specific performance, a temporary
restraining order, a temporary or permanent injunction or any other
equitable remedy which may then be available. In addition, without
limiting the Corporation's remedies for any breach of any restriction
on the Executive set forth in this Section 10, except as required by
law, the Executive shall not be entitled to any payments set forth in
Section 7(d) hereof if the Executive has breached the covenants
applicable to the Executive contained in this Section 10, the
Executive will immediately return to the Corporation any such payments
previously received under Section 7(d) upon such a breach, and, in the
11
event of such breach, the Corporation will have no obligation to pay
any of the amounts that remain payable by the Corporation under
Section 7(d).
(i) REFORMATION:-
If it is determined by a court of competent jurisdiction in any state
that any restriction in this Section 10 is excessive in duration or
scope or is unreasonable or unenforceable under the laws of that
state, it is the intention of the parties that such restriction may be
modified or amended by the court to render it enforceable to the
maximum extent permitted by the law of that state. The Executive
acknowledges that the restrictive covenants contained in this Section
10 are a condition of this Agreement and are reasonable and valid in
temporal scope and in all other respects.
(j) SURVIVAL OF PROVISIONS:-
The obligations contained in this Section 10 shall survive in
accordance with their terms the termination or expiration of the
Executive's employment with the Corporation and shall be fully
enforceable thereafter.
11. INDEMNIFICATION:-
The Executive shall be indemnified to the extent permitted by the Corporation's
organizational documents and to the extent required by law.
12. SECTION HEADINGS AND INTERPRETATION:-
The section headings used in this Agreement are included solely for convenience
and shall not affect, or be used in connection with, the interpretation of this
Agreement. Expressions of inclusion used in this agreement are to be understood
as being without limitation.
13. SEVERABILITY:-
The provisions of this Agreement shall be deemed severable and the invalidity of
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
14. COUNTERPARTS:-
This Agreement may be executed in several counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and the
same Agreement.
12
15. GOVERNING LAW AND VENUE:-
The validity, interpretation, construction and performance of this Agreement
shall be governed by the laws of the State of Nevada without regard to its
conflicts of law principles. The Parties agree irrevocably to submit to the
exclusive jurisdiction of the federal courts or, if no federal jurisdiction
exists, the state courts, located in the City of New York, Borough of Manhattan,
for the purposes of any suit, action or other proceeding brought by any Party
arising out of any breach of any of the provisions of this Agreement and hereby
waive, and agree not to assert by way of motion, as a defense or otherwise, in
any such suit, action, or proceeding, any claim that it is not personally
subject to the jurisdiction of the above-named courts, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper, or that the provisions of this Agreement may
not be enforced in or by such courts. IN ADDITION, THE PARTIES AGREE TO WAIVE A
TRIAL BY JURY.
16. ENTIRE AGREEMENT:-
This Agreement contains the entire agreement between the Parties with respect to
the subject matter hereof and supersedes all prior agreements, written or oral,
with respect thereto. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement.
17. WAIVER AND AMENDMENT:-
No provision of this Agreement may be modified, amended, waived or discharged
unless such waiver, modification, amendment or discharge is agreed to in writing
and signed by the Executive and such officer or director as may be designated by
the Board. No waiver by either Party at any time of any breach by the other
Party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other Party shall be deemed a waiver or
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
18. WITHHOLDING:-
The Corporation may withhold from any and all amounts payable under this
Agreement such federal, state, local and foreign taxes as may be required to be
withheld pursuant to any applicable law or regulation.
13
19. AUTHORITY AND NON-CONTRAVENTION:-
The Executive represents and warrants to the Corporation that he has the legal
right to enter into this Agreement and to perform all of the obligations on his
part to be performed hereunder in accordance with its terms and that he is not a
party to any agreement or understanding, written or oral, which could prevent
him form entering into this Agreement or performing all of his obligations
hereunder.
20. COUNTERPARTS:-
This Agreement may be executed in counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same instrument.
14
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first written above.
ASPA GOLD CORP.
/s/ David Arthun
---------------------------------
By: DAVID ARTHUN
Title: DIRECTOR
THE EXECUTIVE
/s/ Ronald Yadin Lowenthal
-------------------------------
RONALD YADIN LOWENTHAL
15