NEWGOLD INC.
EXECUTIVE EMPLOYMENT AGREEMENT dated as of February 1, 2006 between Newgold,
Inc., a Delaware corporation (the "Company" or "Newgold"), and James W. Kluber
(the "Executive").
The Company desires to employ the Executive as Chief Financial Officer,
Secretary and member of the Board of Directors and the Executive desires to
accept such employment by the Company, on the terms and subject to the
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. EMPLOYMENT. Effective as of the date hereto the Company hereby
employs the Executive, and the Executive hereby accepts employment by the
Company, upon the terms and subject to the conditions hereinafter set forth.
SECTION 2. TERM.
(a) The employment of the Executive hereunder shall be for the period
commencing as of the date hereof and ending on January 31, 2009 (the "Initial
Term"). The Term shall automatically be extended prior to the end of the then
current Term for successive one year periods until either the Company or the
Executive notifies the other party in writing at least six months prior to the
end of the Term (defined below) that it or he does not wish to further extend
the Term. As used herein, "Term" shall mean the Initial Term and all subsequent
one-year extension periods, unless the Term is earlier terminated under Sections
6, 7, 8 or 9.
(b) During the Initial Term the Company shall not require the potential
relocation of the Executive without the Executive's approval.
SECTION 3. DUTIES. The Executive shall be employed as the Chief Financial
Officer of the Company or in such other position as the Company and the
Executive shall agree in writing, The Executive shall perform such duties and
services as are appropriate and commensurate with the Executive' position with
the Company and as are consistent in stature and prestige with such position
subject only to the supervision of the Chief Executive Officer of the Company.
The Executive shall report directly and solely to the Chief Executive Officer of
the Company. Notwithstanding the above, the Executive shall not be required to
perform any duties or responsibilities which would, or would not be likely to,
result in a non-compliance with or violation of any applicable law, regulation,
regulatory bulletin, and/or any other regulatory requirement.
SECTION 4. TIME TO BE DEVOTED TO EMPLOYMENT
(a) Except for four weeks vacation (or the amount of vacation to which
the Executive is otherwise entitled under company policy) per year (in addition
to public holidays) and absences due to temporary illness, during the Term, the
Executive shall devote substantially all of his business time, attention and
energies to the business and affairs of the Company (or, at the Company's
option, any direct or indirect subsidiary of the Company). A number of flexible
days will be assigned for religious holidays as per Corporate Policy.
(b) During the Term, the Executive shall not be engaged in any other
business activity which conflicts with the duties of the Executive hereunder,
whether or not such activity is pursued for gain, profit or other pecuniary
advantage; provided, however, that the Executive shall be allowed, to the extent
such activities do not substantially interfere with the performance by the
Executive of his duties and responsibilities hereunder, (a) to manage his
personal affairs, and (b) to serve on boards or committees of corporations,
civic or charitable organizations and/or trade associations so long as such
corporations, civic
Exhibit 10.12
or charitable organizations are not in conflict with the duties of the Executive
or the business of the Company.
SECTION 5. COMPENSATION; REIMBURSEMENT.
(a) During the Term, the Company (or, at the Company's option, any
subsidiary of the Company) shall pay to the Executive an annual salary (the
"Base Salary") of not less than $160,000, payable in accordance with the
Company' normal payroll practices. Such Base Salary shall be reviewed
periodically by the Board of Directors at their convenience, but no less
frequently than annually, for increase by the Board of Directors in their sole
discretion and in accordance with the Company's established policies. At a
minimum, the Base shall be adjusted by the annual change in the United States
Consumer Price Index. Such Base as so adjusted shall than constitute Executive's
"Base" for purposes of this Agreement.
(b) During the Term and to the extent available to employees of the
Company (including any of its subsidiaries) shall be entitled to participate in
all benefit plans, pension, welfare and retirement plans, directors' and
officers liability insurance, life insurance, hospitalization and surgical and
major medical coverages, sick leave, vacation and holiday policies, long-term
disability coverage and such other standard fringe benefits maintained or
sponsored by the Company or its subsidiaries.
(c) The Company shall promptly reimburse the Executive, in accordance
with the published guidelines of the Company, for all reasonable and necessary
traveling expenses, disbursements and other reasonable and necessary incidental
expenses incurred by him for or on behalf of the Company in the performance of
his duties hereunder upon presentation by the Executive to the Company of
appropriate receipts and documentation. Additionally, during the Initial Term
the Company shall reimburse the Executive for office expenses at the rate of
$500 per month.
(d) Following the expiration or termination of the Term for any reason,
the Executive shall have the right to maintain any (i) health and life insurance
benefits provided by the Company to the extent provided under applicable law an
(ii) any life insurance benefits provided byte Company so long as the Executive
makes the premium payments relating to such life insurance and is allowed to do
so per the respective life insurance company.
(e) The Executive shall be entitled to participate in an equitable
manner with other executive officers of the Company and its subsidiaries in such
discretionary bonus payments or awards as may be authorized, declared, and paid
by the Board of Directors to the Company's executives. More specifically, the
Company will make the Executive a participant in its Annual Incentive Plan
("AIP") for senior management at a target incentive rate subject to specific
parameters of performance as established by the Board of Directors for the AIP.
Until such time as an AIP is approved by the Board of Directors, the Executive
shall be entitled to earn as an annual incentive up to 50% of his annual salary.
(f) Until and unless a stock option plan specifically for the Company
is instituted, the Executive will participate, according to the terms and
conditions thereof, in the company's stock option plan to the same degree as
other executive employees of like grade and status. Upon establishment of a
Company stock option plan, the Executive will participate, according to the
terms and conditions thereof, to the same degree as other Company employees of
like grade and status.
SECTION 6. INVOLUNTARY TERMINATION.
(a) If the Executive is incapacitated or disabled by accident, sickness
or other cause so as to render him mentally or physically incapable of
performing the services required to be performed by him under this Agreement for
a period of 90 days or longer during any six-month period (such condition being
herein referred to as a "Disability"), prior to the Executive resuming the
performance of his duties as contemplated herein, the Company may terminate the
employment of the Executive under this Agreement (an "Involuntary Termination")
and upon such termination the Term shall terminate. Until the Company shall have
terminated the Executive's employment hereunder, the Executive shall be entitled
to receive his
Exhibit 10.12
compensation and other benefits as set forth in this Agreement notwithstanding
any such physical or mental, disability.
(b) If the Executive dies during the Term, his employment hereunder
shall be deemed to cease as of the date of his death, and the termination of his
employment occasioned thereby shall be deemed an Involuntary Termination.
SECTION 7. TERMINATION BY THE COMPANY FOR CAUSE. The Company may
terminate the Executive' employment hereunder for "Cause" (a "Termination for
Cause") and upon such termination the Term shall terminate. For purposes of this
Agreement, "Cause" shall be limited to:
(a) the continued failure by the Executive to follow the lawful duties
delegated to him by the Board of Directors (other than any failure resulting
from an illness or other similar incapacity or disability), at any time that is
ten (10) days after a written notice of such failure is delivered to the
Executive on behalf of the Board of Directors that specifically identifies the
manner in which it is alleged that the Executive has not substantially performed
such duties;
(b) the commission by the Executive of: (i) willful or gross misconduct
in performing his duties on behalf of the Company, resulting or reasonably
likely to result in material financial injury to the Company or (ii)
misappropriation of funds, properties or assets of the Company in excess of ten
thousand dollars ($10,000), (iii) chronic use of illegal drugs or (iv) the
Executive's expression of any statement or commission of any action that is a
libelous per se or slanderous per se statement concerning the Company (including
its subsidiaries and affiliates);
(c) the Executive' conviction of, or guilty or nolo contendre plea to,
a crime constituting a felony.
(d) In any case described in this Section 7, the Executive shall be
given written notice authorized by a vote of at least majority of the members of
the Board of Directors of the Company (the "Board") that the Company intends to
terminate the Executive' employment for Cause. Such written notice, given in
accordance with Section 17 of this Agreement, shall specify the particular act
or acts, or failure to act, which is or are the basis for the decision to so
terminate the Executive' employment for Cause. The Executive shall be given the
opportunity (along with counsel) within 30 calendar days of the receipt of such
notice to meet with the Board to defend such act or acts, or failure to act, and
the Executive shall be given 20 business days after such meeting to correct such
act or failure act. Upon failure of the Executive, within such latter 20 day
period, to correct such act or failure to act, the Executive' employment by the
Company may be terminated for Cause.
SECTION 8. TERMINATION BY THE COMPANY WITHOUT CAUSE; TERMINATION BY THE
EXECUTIVE FOR GOOD REASON.
(c) The Company may terminate the employment of the Executive hereunder
at any time during the Term without "Cause' (a "Termination Without Cause') and
upon such termination the Term shall terminate. It is expressly acknowledged
that non-extension of the Term and the Company' notifying the Executive that it
does not wish to extend the Term shall constitute a Type I Termination Without
Cause. Terminations Without Cause Related to a Change in Control shall
constitute Type II Terminations Without Cause. For purposes of this Agreement
"Change in Control" is defined as:
v. Any "person" (as such term is used in Section 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended) becomes the
"beneficial owner"(as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing
forty-five percent (45%) or more of the total voting power
represented by the Company's then outstanding voting securities;
or
vi. A change in the composition of the Board occurring within a
two-year period, as a result of which less than a majority of the
directors are Incumbent Directors. "Incumbent Directors" shall
mean directors who either (A) are directors of the Company as of
the date hereof, or (B) are elected, or nominated for election, to
the Board with the affirmative votes of at least a majority of the
Exhibit 10.12
Incumbent Directors at the time of such election or nomination
(but shall not include an individual whose election or nomination
is in connection with an actual or threatened proxy contest
relating to the election of directors to the Company); or
vii. The consummation of a merger or consolidation of the Company with
any other corporation, other than a merger or consolidation which
would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) at least fifty-five percent (55%) of the
total voting power represented by the voting securities of the
Company or such surviving entity outstanding immediately after
such merger or consolidation; or
viii. (d) The consummation of the sale or disposition by the Company of
all or substantially all of the Company's assets.
(b) The Executive may terminate his employment with the Company
hereunder at any time during the Term for "Good Reason" (a "Termination for Good
Reason"). It is expressly acknowledged that non-extension of the Term and the
Company' notifying the Executive that it does not wish to extend the Term shall
not constitute grounds for a Termination for Good Reason. For purposes of this
Agreement, "Good Reason" shall mean: (1) a reduction in or continuing, uncured
failure to pay compensation or benefits (ii) a material breach by the Company of
any material provision of this Agreement, (iii) the Company' (including any
officer, director, employee, agent or representative thereof) expression of any
statement or commission of any action that could reasonably be construed to be a
false or misleading statement of fact or a libelous, slanderous or disparaging
statement of or concerning the Executive, or (iv) the Company requiring the
Executive to perform any duties or responsibilities which would result in a
non-compliance with or violation of any applicable law, regulation, regulatory
bulletin, and/or any other regulatory requirement.
SECTION 9. VOLUNTARY TERMINATION. Any termination of the employment of
the Executive hereunder otherwise than as a result of an Involuntary
Termination, a Termination For Cause, a Termination Without Cause or a
Termination for Good Reason shall he deemed to be a "Voluntary Termination" and
upon such termination the Term shall terminate. A Voluntary Termination shall
not be, and shall not be deemed to be, a breach of this Agreement. A Voluntary
Termination shall be deemed to be effective no earlier than four weeks after the
Company' receipt of written notice delivered in accordance with the provisions
of Section 17 hereof of such termination to the Company.
SECTION 10. EFFECT OF TERMINATION OF EMPLOYMENT.
(a) Upon the termination of the Executive's employment hereunder
pursuant to a Voluntary Termination or a Termination For Cause neither the
Executive nor his beneficiary or estate shall have any further tights or claims
against the Company under this Agreement except to receive:
(v) any unpaid portion of the Base Salary provided for in Section
5(a), computed on a pro rata basis to the date of termination;
(vi) cash compensation equal to the product of (a) the number of days
of accrued vacation, if any, accumulated by the Executive to the
effective date of termination divided by the total number of work
days per annum for which the Executive receives a Base Salary
multiplied by (b) the Base Salary;
(vii) reimbursement for any expenses for which the Executive shall not
have theretofore been reimbursed as provided in Section 5(d); and
(viii) any other compensation and benefits as may be provided in
accordance with the terms and provisions of any applicable plans
or programs, if any of the Company or any subsidiary of the
Company.
Exhibit 10.12
(b) Upon the termination of the Executive's employment hereunder
pursuant to an Involuntary Termination, neither the Executive nor his
beneficiary or estate shall have any further rights or claims against the
Company under this Agreement except the right (i) to receive a termination
payment equal to that provided for in Section 10(a) hereof plus (ii) to receive
a cash severance payment in an aggregate amount equal to 24 months of the Base
Salary payable in 48 consecutive equal semi-monthly installments plus (iii) if
the Involuntary Termination occurs as defined in Section 6(a) above then the
Company shall continue to provide health and welfare benefits per existing
Company policy to the Executive for a period of 24 months.
(b)
3. Upon the termination, at the end of the initial Term plus the
first two annual renewals of the Term, if applicable, of the
Executive's employment hereunder pursuant to a Type I Termination
Without Cause neither the Executive nor his beneficiary or estate
shall have any further rights or claims against the Company under
this Agreement except (i) the right to receive a termination
payment equal to the amount provided for in Section 10(a) hereof
plus (ii) the right to receive a cash severance payment in an
aggregate amount equal to 36 months of the Base Salary payable in
72 consecutive equal semi-monthly installments. Upon the
termination, after the end of the initial Term plus the first
three annual renewals of the Term, of the Executive's employment
hereunder pursuant to a Type I Termination Without Cause neither
the Executive nor his beneficiary or estate shall have any further
rights or claims against the Company under this Agreement except
(i) the right to receive a termination payment equal to the amount
provided for in Section 10(a) hereof plus (ii) the right to
receive a cash severance payment in an aggregate amount equal to
12 months of the Base Salary payable in 24 consecutive equal
semi-monthly installments plus (iii) the immediate vesting of 100%
of all unvested options to ---- purchase shares of the Company's
common stock as of the Termination Date granted pursuant to any
stock option agreement between the Executive and the Company.
4. Upon the termination at any time within 10 years from February 1,
2005 of the Executive's employment hereunder pursuant to a Type II
Termination Without Cause or a Termination for Good Reason,
neither the Executive nor his beneficiary or estate shall have any
further rights or claims against the Company under this Agreement
except (i) the right to receive a termination payment equal to the
amount provided for in Section 10(a) hereof plus (ii) the right to
receive a cash severance payment in an aggregate amount equal to
36 months of the Base Salary payable in 72 consecutive equal
semi-monthly installments plus (iii) the immediate vesting of 100%
of all unvested options to purchase shares of the Company's common
stock as of the Termination Date granted pursuant to any stock
option agreement between the Executive and the Company.
(d) In the event of any termination of employment under this Agreement,
the Executive shall be under no obligation to seek other employment or to
mitigate damages. and there shall be no offset against any amounts due to the
Executive under this Agreement on account of any remuneration attributable to
any subsequent employment that would not constitute a breach of the covenant set
forth in Section 11(a) hereof that the Executive may obtain. Any amounts due are
in the nature of severance payments, or liquidated damages or both, and are not
in the nature of a penalty.
(e) The Company's obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any circumstances, including, without limitation, any set-off,
counterclaim, recoupment, defense or other right which the Company has or may
have against the Executive or others.
SECTION 11. NON-COMPETITION; NON-DISCLOSURE OF INFORMATION.
(a) The Executive shall not during the Term, and for a period of two
years following the termination of the Term due to a Termination For Cause or a
Voluntary Termination: (i) directly or indirectly engage in any Competitive
Business (as defined below), whether such engagement shall be as an
Exhibit 10.12
employee, employer, owner, consultant, partner or other participant in any
Competitive Business, (ii) assist others in engaging in any Competitive Business
in the manner described in the foregoing clause (i), (iii) induce employees of
the Company to terminate their employment with the Company or engage in any
Competitive Business or (iv) solicit customers or vendors of the Company to
alter or terminate their business relationship with the Company; provided,
however, that the Executive may own directly or indirectly, solely as a passive
investment, securities of any Competitive Business traded on any national
securities exchange if the Executive is not a controlling person of, nor a
member of a group which controls such person and does not, directly or
indirectly, own 5% or more of any class of securities of such person. As used
herein, the term "Competitive Business" shall mean any business which would be
determined to be a direct competitor based on the "Competition section" or
similar disclosure within the most recent business plan but only if and only to
the extent such businesses are a primary business conducted by the Company or
any of its subsidiaries at the time of any termination of the Term.
(b) The Executive understands that the foregoing restrictions may limit
his ability to earn a livelihood in a Competitive Business, but he nevertheless
believes that he has received and will receive sufficient consideration and
other benefits (including stock option grants) in connection with his employment
to clearly justify such restrictions which, in any event, the Executive does not
believe would prevent him from earning a living. Nothing herein contained shall
prohibit the Executive from engaging in a business that is not a Competitive
Business.
(c) The Executive agrees that he will not, at any time during or after
the Term, disclose to any person, firm, corporation or other entity, except as
required by law, a court of competent jurisdiction, or any recognized subpoena
power, or to prosecute claims under this Agreement, any secret or confidential
information not already in, available to or known by the public domain
concerning the business, clients or affairs of the Company or any subsidiary or
affiliate thereof for any reason or purpose whatsoever other than in furtherance
of the Executive' work for the Company or any subsidiary or affiliate thereof
nor shall the Executive make use of any of such secret or confidential
information for his own purpose or for the benefit of any person, firm,
corporation or other business entity except the Company or any subsidiary or
affiliate thereof.
SECTION 12. THE COMPANY'S RIGHT TO INVENTIONS. The Executive shall
promptly disclose, grant and assign to the Company for its sole use and benefit
any and all inventions, improvements, technical information, methods and
suggestions (the "Inventions') relating in any way to the business of the
Company which he may develop or acquire during the Term (whether or not during
usual working hours), together with all patent applications, patents, copyrights
and reissues thereof that may at any time be granted for or upon any such
Inventions. In connection therewith:
(a) The Executive shall without charge, but at the expense of the
Company promptly at all times hereafter execute and deliver such applications,
assignments, descriptions and other instruments as may be reasonably necessary
or proper in the reasonable opinion of the Company to vest title to any such
inventions, improvements, technical information, methods, patent applications,
patents, copyright applications, copyrights or reissues of any thereof in the
Company and to enable it to obtain and maintain the entire right and title
thereto throughout the world; and
(d) The Executive shall render to the Company at its expense (including a
reasonable payment for the time involved and related expenses in case
he is not then in its employ) all such assistance as it may reasonably
require in the prosecution of applications for said patents, copyrights
or reissues thereof; in the prosecution or defense or interference
which may be declared involving any said applications, patents or
copyrights and in any litigation in which the Company may be involved
relating to any such patents, copyrights, inventions, improvements,
technical information or methods.
SECTION 13. GOLDEN PARACHUTE EXCISE TAXES. In the event that the benefits
provided for in this Agreement or otherwise payable to the Executive constitute
"parachute payments" within the meaning of Section 280G of the Code and will be
subject to the excise tax imposed by Section 4999 of the Code, then the
Executive shall receive a payment from
Exhibit 10.12
the Company sufficient to pay the excise tax and federal and state income and
employment taxes arising from the payments made by the Company to Executive
pursuant to this sentence; provided, however, that in no event shall the Company
be obligated to pay Executive more than one million dollars ($1,000,000)
pursuant to this Section 13. Unless the Company and the Executive otherwise
agree in writing, the determination of Executive's excise tax liability and the
amount required to be paid under this Section 13 shall be made in writing by the
independent auditors who are primarily used by the Company immediately prior to
the Change of Control (the "Accountants"). For purposes of making the
calculations required by this Section 13, the Accountants may make reasonable
assumptions and approximations concerning applicable taxes and may rely on
reasonable, good faith interpretations concerning the application of Section
280G and 4999 of the Code. The Company and the executive shall furnish to the
Accountants such information and documents as the Accountants may reasonably
request in order to make a determination under this Section. The Company shall
bear all costs the Accountants may reasonably incur in connection with any
calculations contemplated by this Section 13.
SECTION 14. MUTUAL NONDISPARAGMENT. In consideration of the foregoing
provisions of this Agreement each party agrees that it shall not, directly or
indirectly, make or cause others to make any statement or take any action that
could reasonably be construed to be a false or misleading statement of fact or a
libelous, slanderous or disparaging statement of or concerning the Executive,
the Company, its affiliates, its businesses or its employees, officers,
directors, agents, consultants or stockholders.
SECTION 15. ENFORCEMENT. It is the desire and intent of the parties hereto
that the provisions of this Agreement shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated to be invalid or unenforceable, such provision
shall be deemed amended to delete there from the portion thus adjudicated to be
invalid or unenforceable, such amendment to apply only with respect to the
operation of such provision in the particular jurisdiction in which such
adjudication is made; provided, however, that if any one or more of the
provisions contained in this Agreement shall be adjudicated to be invalid or
unenforceable because such provision is held to be excessively broad as to
duration, geographical scope, activity or subject, such provision shall be
deemed amended by limiting and reducing it so as to be valid and enforceable to
the maximum extent compatible with the applicable laws of such jurisdiction,
such amendment to apply only with respect to the operation of such provision in
the particular jurisdiction in which such adjudication is made.
SECTION 16. REMEDIES; SURVIVAL.
(a) The Executive acknowledges and understands that the provisions of
this Agreement are of a special and unique nature, the loss of which cannot be
accurately compensated for in damages by an action at law, and that the breach
of the provisions of this Agreement would cause the Company irreparable harm. In
the event of a breach by the Executive of the provisions of Section 11 or 12
hereof, the Company shall be entitled to an injunction restraining him from such
breach. Nothing herein contained shall be construed as prohibiting the Company
from pursuing any other remedies available for any breach of this Agreement.
(b) Notwithstanding anything contained in this Agreement to the
contrary, the provisions of this Agreement shall survive the expiration or other
termination of the Term or this Agreement until, by their terms; such provisions
are no longer operative.
(c) It is understood and agreed that the provisions of Sections 11, 12
and 13 of this Agreement are separate and distinct from any other agreement
between the parties hereto. Accordingly, in the event of a breach of such
provisions, the breaching party shall only be held responsible for damages
arising under
Exhibit 10.12
such provisions and not for any damages, which may be claimed to arise under or
with respect to any other agreement that is not separately breached.
SECTION 17. KEY MAN INSURANCE. The Company may, for its own benefit, in
its sole discretion, maintain "key-man" life and disability insurance policies
covering the Executive. The Executive will cooperate with the Company and
provide such information as the Company may reasonably request in connection
with the Company's obtaining and maintaining such policies.
SECTION 18. NOTICES. and other communications hereunder shall be in
writing and shall be delivered personally or sent by air courier or first class
certified or registered mail, return receipt requested and postage prepaid,
addressed as follows:
If to the Executive:
James W. Kluber
327 Copperstone Trail
Coppell, TX 75019
If to the Company:
Newgold, Inc.
400 Capitol Mall, Suite 900
Sacramento, CA 95814
Attention: CEO
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. All notices and
other communications hereunder shall be deemed to have been given on the date of
delivery.
SECTION 19. BINDING AGREEMENT. This Agreement shall inure to the benefit
of and be enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees and devisees. If the
Executive should die while any amount would still be payable to him hereunder,
all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the beneficiary designated by the Executive
in a writing delivered to the Company, or if there be no such designated
beneficiary, to his estate.
SECTION 20. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California
applicable to contracts made and to be performed wholly therein and without
regard to conflicts of laws and principles
SECTION 21. WAIVER OF BREACH. The waiver by either party of a breach of
any provision of thus Agreement by the other party must be in writing and shall
not operate or be construed as a waiver of any subsequent breach by such other
party.
SECTION 22. ENTIRE AGREEMENT; AMENDMENTS; EXECUTION. This Agreement
contains the entire agreement between the parties with respect to the subject
matter contained herein and supersedes all, prior agreements or understandings
among the parties with respect thereto. This Agreement may be amended only by an
agreement in writing signed by the parties hereto. This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original document but all of which shall constitute but one agreement.
SECTION 23. HEADINGS. The section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 24. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
Exhibit 10.12
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 25. ASSIGNMENT. With respect to the Executive-, this Agreement is
personal in its nature and the Executive shall not assign or transfer this
Agreement or any rights and obligations hereunder. This Agreement and its rights
and obligations herein (including, without limitation, Sections 11, 3.2, 13 and
14) shall inure to the benefit of, and be binding upon, each successor of the
Company, whether by merger, consolidation, recapitalization, transfer of all or
substantially all assets, or otherwise; provided, however, that the Company
shall not assign this Agreement without the Executive's written consent, such
consent not to be unreasonably withheld.
SECTION 26. LEGAL FEES AND EXPENSES. If a court of a competent
jurisdiction, arbitral tribunal or similar adjudicative tribunal finally
determines that the Company has breached any provision of this Agreement, the
Company shall reimburse the Executive for all of his or her out of pocket costs,
fees (including attorneys fees) and expenses incurred by him to enforce his or
her rights under this Agreement.
EXECUTIVE
By: ______________________________________________
Title: Chief Financial Officer
NEWGOLD, INC.
By: ___________________________________________
Title: Chief Executive Officer
Exhibit 10.12