Attached files
EXHIBIT 10.3
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 31ST day of May, 2011,
BETWEEN
AMERICAN MINING CORPORATION, a corporation incorporated under the laws of the
State of Nevada, having a registered office located at 2533 North Carson Street,
Carson City, Nevada 89706 (the "Corporation"),
AND
GARY MACDONALD, of Oceanside, California (the "Executive").
WHEREAS,
A. the Corporation has acquired substantial assets from a company founded by
the Executive for the purpose of expanding the business of the Corporation (the
"Acquisition");
B. it was a condition to the completion of the Acquisition that the
Executive accept an offer of employment from the Corporation in the form of this
agreement to provide the services described herein;
C. the Corporation recognizes that the Executive has special skills relating
to and extensive familiarity with the assets acquired through the Acquisition
and the expanded business of the Corporation;
D. the Executive has expressed concern to the Corporation that the
Executive's employment could be terminated before the expiration of the Term
without cause or adversely modified; and
E. the board of directors of the Corporation has determined that it would be
in the best interests of the Corporation to induce the Executive to remain in
the employ of the Corporation, and that provisions of this agreement are fair
and reasonable and in the best interests of the Corporation.
NOW THEREFORE in consideration of the premises hereof and of the mutual
covenants and agreements hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties, the parties agree as follows:
1. INTERPRETATION
1.1 The headings of the Articles, sections, subsections and clauses herein
are inserted for convenience of reference only and shall not affect the meaning
or construction hereof.
1.2 This agreement shall be construed and interpreted in accordance with the
laws of the State of Nevada and the federal laws of the United States of America
applicable therein. Each of the parties hereby irrevocably attorns to the
jurisdiction of the courts of the State of Nevada with respect to any matters
arising out of this agreement.
1.3 If any provision of this agreement is determined to be void or
unenforceable in whole or in part, it shall not be deemed to affect or impair
the validity of any other provision herein and each such provision is deemed to
be separate, distinct and severable.
1.4 For the purposes of this agreement, the following terms shall have the
following meanings, respectively:
(a) "ANNUAL SALARY" means the sum of:
(i) the aggregate of the annual salaries of the Executive, payable to the
Executive by the Corporation and its subsidiaries as at the end of the month
immediately preceding the month in which the Executive's employment is
terminated; and
(ii) an amount equal to the greater of:
(1) the aggregate amount of all remuneration, salaries, bonuses and benefits
(including the present cash value of any non-cash remuneration, bonuses or
benefits) not included in clause 1.4(a)(i) above that the board of directors of
the Corporation in its absolute discretion estimates would be payable to the
Executive during the fiscal year of the Corporation in which the Executive's
employment is terminated by the Corporation and its subsidiaries, assuming: (1)
the employment of the Executive was not terminated during such year; and (2) the
Executive benefits from and participates in such remuneration, salaries, bonuses
and benefits on a basis consistent with the Corporation's established practices
in effect for senior executives of the Corporation and its subsidiaries
immediately prior to the Termination Date; and
(2) one-half of the aggregate amount of all remuneration, salaries, bonuses
(including the present cash value of any non-cash remuneration, bonuses or
benefits) not included in clause 1.4(a)(i) above paid or payable to the
Executive by the Corporation and its subsidiaries during the 24 calendar months
immediately preceding the Termination Date;
(b) "BOARD" means the board of directors of the Corporation.
(d) "EFFECTIVE DATE" means June 1, 2011.
(e) "GOOD REASON" means the occurrence of any of the following without the
Executive's written consent, except in connection with the termination of the
employment of the Executive for Just Cause, Death or Disability:
(i) a change (other than those that are clearly consistent with a promotion)
in the Executive's position or duties (including any position or duties as a
director of the Corporation), responsibilities, title or office, which includes
any removal of the Executive from or any failure to re-elect or re-appoint the
Executive to any such positions or offices;
(ii) a reduction by the Corporation or any of its subsidiaries of the
Executive's salary, benefits or any other form of remuneration or any change in
the basis upon which the Executive's salary, benefits or any other form of
remuneration payable by the Corporation or its subsidiaries is determined or any
failure by the Corporation to increase the Executive's salary, benefits or any
other forms of remuneration payable by the Corporation or its subsidiaries in a
manner consistent (both as to frequency and percentage increase) with the
Corporation's established practices with respect to the senior executives of the
Corporation and its subsidiaries;
(iii) any failure by the Corporation or its subsidiaries to continue in
effect any benefit, bonus, profit sharing, incentive, remuneration or
compensation plan, stock ownership or purchase plan, pension plan or retirement
plan in which the Executive is participating or entitled to participate, or the
Corporation or its subsidiaries taking any action or failing to take any action
that would adversely affect the Executive's participation in or reduce his
rights or benefits under or pursuant to any such plan, or the Corporation or its
subsidiaries failing to increase or improve such rights or benefits on a basis
consistent with the Corporation's established practices with respect to the
senior executives of the Corporation and its subsidiaries;
(iv) any failure by the Corporation or its subsidiaries to provide the
Executive with the number of paid vacation days to which he is entitled or the
Corporation or its subsidiaries failing to increase such paid vacation on a
basis consistent with the Corporation's established practices with respect to
the senior executives of the Corporation and its subsidiaries;
(v) the Corporation or its subsidiaries taking any action to deprive the
Executive of a material benefit under this agreement, or the Corporation or its
subsidiaries failing to increase or improve such material benefit on a basis
consistent with the Corporation's established practices with respect to the
senior executives of the Corporation and its subsidiaries;
(vi) any breach by the Corporation of any provision of this agreement;
(vii) the good faith determination by the Executive that the Executive's
status or responsibility in the Corporation or its subsidiaries have been
diminished or the Executive is being effectively prevented from carrying out his
duties and responsibilities; or
(viii) the failure by the Corporation to obtain, in a form satisfactory to
the Executive, an effective assumption of its obligations hereunder by any
successor to the Corporation, including a successor to a material portion of its
business.
(k) "JUST CAUSE" means the causes that are sufficient under the common law
to justify dismissal from a position of employment and includes, without
limiting the generality of the foregoing, the occurrence of any of the
following:
(i) a repeated and demonstrated failure on the part of the Executive to
perform the material duties of the Executive's position in a competent manner,
and which the Executive fails to substantially remedy within a reasonable period
of time after receiving written notice thereof from the Corporation;
(ii) failure by the Executive to honor his fiduciary duties to the
Corporation, including the duty to act in the best interests of the Corporation;
(iii) the Executive or any member of his family making a personal profit
arising out of or in connection with a transaction to which the Corporation is a
party or with which it is associated without making disclosure to and obtaining
the prior written consent of the Corporation;
(iv) failure or refusal by the Executive to obey reasonable instructions
given in the course of employment by the Chairman or the Board which not
inconsistent with the Executive's management position and which are not remedied
by the Executive within a reasonable period of time after receiving written
notice of such failure or refusal;
(v) being found by a court of competent jurisdiction in a civil action or by
an administrative agency to have violated a federal or state securities or
commodities law, not subsequently reversed, suspended or vacated;
(vi) or becoming subject to any order, judgment, or decree, not subsequently
reversed, suspended or vacated, of any court of competent jurisdiction,
permanently or temporarily enjoining, barring, suspending or otherwise limiting
his involvement in any type of business, securities or banking activities;
(vii) committing an act of fraud or material dishonesty;
(viii) conviction in a criminal proceeding; or
(ix) engaging in conduct that is detrimental to the reputation of the
Corporation or any of its Affiliates in any material respect.
(l) "PROFIT SHARING POOL" means the percentage of pre-tax profit that is
determined by the Board to be available for distribution to the Corporation's
participating employees under any profit-sharing plan that may be established
and continued by the Corporation from time to time.
(m) "RIGHTS" has the meaning ascribed thereto in paragraph 5.3(b).
(n) "TERM" has the meaning ascribed thereto in paragraph 2.1.
(o) "TERMINATION DATE" means the date of termination of the Executive's
employment, whether by death of the Executive, by the Executive or by the
Corporation.
2. EMPLOYMENT
2.1 TERM. Subject to the automatic extension discussed below, the
Corporation shall employ the Executive for a period commencing on the Effective
Date and continuing for period of seven years (the "TERM"). On the first
anniversary of the date hereof and on each anniversary date thereafter
(including the period during which this Agreement is extended), the Term shall
be automatically extended by one additional year unless, not less than 90 days
prior to any such anniversary, the Corporation gives written notice to the
Executive that the Term will not be extended further, or unless the Executive's
employment is otherwise terminated hereunder.
2.2 DUTIES AND OBLIGATIONS. The Executive shall serve the Corporation and
any subsidiaries of the Corporation in such capacity or capacities and shall
perform such duties and exercise such powers pertaining to the management and
operation of the Corporation and any subsidiaries and associates of the
Corporation as may be determined from time to time by the board of directors of
the Corporation to be consistent with the office of the Executive and in
accordance with the bylaws of the Corporation. Without limitation of the
foregoing, the Executive shall occupy the office of President and Chief
Executive Officer of the Corporation. The Executive shall:
(a) devote his full time (which shall not be less than 35 hours per week)
and attention and his best efforts during normal business hours to the business
and affairs of the Corporation;
(b) perform those duties that may reasonably be assigned to the Executive
diligently and faithfully to the best of the Executive's abilities and in the
best interests of the Corporation; and
(c) use his best efforts to promote the interests and goodwill of the
Corporation.
2.3 REPORTING. The Executive shall report to the person holding the office
of Chairman of the Board. The Executive shall report fully on the management,
operations and business affairs of the Corporation and advise to the best of his
ability and in accordance with reasonable business standards on business matters
that may arise from time to time during the Term.
3. REMUNERATION
3.1 BASE SALARY. The annual base salary payable to the Executive for his
services hereunder for the first year of the term of this agreement shall be
$120,000 exclusive of bonuses, benefits and other compensation. The annual base
salary payable to the Executive for his services hereunder for each successive
year of employment hereunder, exclusive of bonuses, benefits and other
compensation, shall increase by FIVE PERCENT (5%) of the annual base salary for
the immediately preceding year. The annual base salary payable to the Executive
pursuant to the provisions of this paragraph shall be payable in equal
semi-monthly installments in arrears on the 1st and 15th day of each month or in
such other manner as may be mutually agreed upon, less, in any case, any
deductions or withholdings required by law.
3.2 BENEFITS. The Corporation shall provide the Executive with employee
benefits comparable to those provided by the Corporation from time to time to
other senior executives of the Corporation.
3.3 STOCK PLANS. The Corporation shall permit the Executive to participate
in any share option plan, share purchase plan, retirement plan or similar plan
offered by the Corporation from time to time to its senior executives in the
manner and to the extent authorized by the Board.
3.4 BONUS. The Board of Directors may supplement the Executive's annual
salary with a bonus amount to be determined by the Board in its sole and
absolute discretion, payable from the Corporation's General Profit Sharing Pool
within three months of the end of each fiscal year end of the Corporation, but
which bonus may not be given at all in any year.
3.5 DEDUCTIONS. Salary and benefit payments under this agreement shall be
subject to such deductions as the Employer is from time to time required to make
pursuant to law, government regulations or by consent of the Employee.
3.6 VACATION. The Executive shall be entitled to FOUR WEEKS paid vacation
per fiscal year of the Corporation at a time approved in advance by the
Chairman, which approval shall not be unreasonably withheld but shall take into
account the staffing requirements of the Corporation and the need for the timely
performance of the Executive's responsibilities. In the event that the
Executive does not take all the vacation to which he is entitled in any fiscal
year, such vacation may be carried forward into the subsequent fiscal year.
3.7 EXPENSES. The Executive shall be reimbursed for all reasonable travel
and other out-of-pocket expenses actually and properly incurred by the Executive
from time to time in connection with carrying out his duties hereunder. For all
such expenses the Executive shall furnish to the Corporation originals of all
invoices or statements in respect of which the Executive seeks reimbursement.
4. TERMINATION
4.1 FOR JUST CAUSE. The Corporation may terminate the employment of the
Executive summarily for Just Cause without notice.
4.2 DUE TO DEATH. This agreement shall terminate without notice upon the
death of the Executive.
4.3 DUE TO DISABILITY. The Corporation may terminate the employment of the
Executive if the Executive becomes permanently disabled. The Executive shall be
deemed to have become permanently disabled if because of ill health, physical or
mental disability, or for other causes beyond the control of the Executive, the
Executive has been continuously unable or unwilling or has failed to perform the
Executive's duties for 120 consecutive days, or if, during any year of the
employment period, the Executive has been unable or unwilling or has failed to
perform his duties for a total of 180 days, consecutive or not. The term "any
year of the employment period" means any period of 12 consecutive months during
the employment period.
5. SEVERANCE
5.1 JUST CAUSE OR GOOD REASON. If the Executive's employment is terminated
by the Corporation for just cause, or is terminated by the Executive without
Good Reason, the Corporation shall pay to the Executive, if not theretofore
paid, the fraction of the Annual Salary earned by or payable to the Executive by
the Corporation and its subsidiaries during the then current fiscal year of the
Corporation for the period to and including the Termination Date, and neither
the Corporation nor its subsidiaries shall have any further obligation to the
Executive under this agreement.
5.2 DISABILITY. If the Executive's employment is terminated by reason of
permanent disability, the Executive shall be entitled thereafter to receive
reasonable termination and severance payments and allowances and disability and
other benefits in a manner consistent with and at least equal in amount to those
provided by the Corporation to disabled senior executives of the Corporation in
accordance with such plans, programs and policies relating to disability, if
any, as are in effect at the Termination Date.
5.3 NOT JUST CAUSE, GOOD REASON, DISABILITY OR DEATH. If the Executive's
employment is terminated by the Corporation other than for Just Cause,
disability or death or is terminated by the Executive for Good Reason:
(a) the Corporation shall pay to or to the order of the Executive by no more
than two lump sum payments in cash or certified check within ten days after the
Termination Date, the aggregate of the following amounts (less any deductions
required by law):
(i) if not theretofore paid, the Executive's Annual Salary for the then
current fiscal year of the Corporation for the period to and including the
Termination Date; and
(ii) as partial compensation for the Executive's loss of employment, an
amount equal to the result obtained when the Annual Salary is multiplied by a
fraction, the numerator of which is the number of days between the Termination
Date and the expiration of the Term, as extended hereunder, and the denominator
of which is 365;
(b) if the Executive holds any options, rights, warrants or other
entitlements for the purchase or acquisition of shares in the capital of the
Corporation or any affiliate thereof (collectively, "RIGHTS"), regardless of
whether such Rights may then be exercised or if Rights would have been issued to
the Executive had his employment not been terminated until the expiration of the
Term, as extended hereunder, and had the Executive been granted such Rights on a
basis consistent with those extended to senior executives of the Corporation,
all such Rights shall then be deemed to be granted to the Executive and
available for exercise and, if the Executive so elects by notice in writing to
the Corporation, such Rights shall be deemed to have been exercised at the price
provided for in such Rights and the Executive shall be deemed to have
immediately sold the securities arising from such exercise to the Corporation
for the fair market value thereof (which in the event of dispute shall be
determined within 30 days of the delivery of such notice at the Corporation's
expense by a valuator satisfactory to both the Corporation and the Executive
using such assumptions or methods as such valuator may think in its absolute
discretion best reflect the intention of this clause 5.3(b), and such
determination shall be final and binding) and the Corporation shall pay to the
Executive, in the manner and at the time contemplated by clause 5.3(a), the
difference between the aggregate exercise price for such securities and their
deemed acquisition price to the Corporation;
(c) the Corporation shall pay, in the manner and at the time contemplated by
clause 5.3(a) above, an amount equal to the present value (as determined at the
Corporation's expense by an actuary acceptable to the Corporation and the
Executive, which determination shall be final and binding) of all pension
benefits as they existed at the Termination Date, whichever is more favorable to
the Executive, and any employment and pension benefits to which the Executive
would have been entitled had his employment continued until the expiration of
the Term, as extended hereunder, and had his pension benefits been increased in
a manner consistent with that for senior executives of the Corporation
generally;
(d) the Corporation shall pay to the Executive all outstanding and accrued
regular and special vacation pay to the Termination Date.
5.4 NO PENALTY OR MITIGATION. Any payment to the Executive pursuant to
Section 5 hereof is not intended and will not be of the nature of a penalty and
shall be considered by the parties as liquidated damages. Notwithstanding
anything to the contrary contained in this agreement, there shall be no duty,
obligation or requirement on the Executive hereunder or otherwise to mitigate
the amount of any payment provided for in Section 5 hereof by seeking other
employment or otherwise, nor shall the amount of such payment be reduced by
reason of compensation or other income the Executive receives for services
rendered after the termination of the Executive's employment.
6. MISCELLANEOUS
6.1 NOTICE. Any notice required or permitted to be given under this
agreement shall be in writing and shall be properly given if delivered by hand
or mailed by prepaid registered mail addressed:
in the case of the Corporation, to:
American Mining Corporation
16:1 Mill
P.O. Box 25
Silver Peak, Nevada 89047
Fax: (888) 505-5808
in the case of the Executive, to the last address of the Executive in the
records of the Corporation and its subsidiaries;
or to such other address as the parties may from time to time specify by notice
given in accordance herewith. Any notice so given shall be conclusively deemed
to have been given or made on the day of delivery, if delivered, or if mailed by
registered mail, upon the date shown on the postal return receipt as the date
upon which the envelope containing such notice was actually received by the
addressee.
6.2 PRIVACY. By accepting employment with the Corporation, the Executive
consents to the Corporation collecting, using and disclosing his personal
information for purposes relating to the maintenance of the employment
relationship. The purposes of the Corporation's collection, use and disclosure
include, but are not limited to:
(a) ensuring that the Executive is properly remunerated for his services to
the Corporation which shall include disclosure to third party payroll providers;
(b) administering and/or facilitating the provision of any benefits to which
the Executive is or may become entitled, including bonuses, benefits, pensions,
registered retirement savings plans, short, medium and long-term incentive
plans, including disclosure of the Executive's personal information to the
Corporation's third party service providers and administrators;
(c) ensuring that the Corporation is able to comply with any regulatory,
reporting and withholding requirements relating to the Executive's employment;
(d) performance and promotion;
(e) complying with the Corporation's obligations to report improper or
illegal conduct by any director, officer, employee or agent of the Corporation
under any applicable securities, criminal or other law;
(f) allowing a potential purchase of the shares or assets of the Corporation
to conduct due diligence with respect to employment obligations of the
Corporation, subject to compliance with the treatment of such information as
required by applicable legislation respective privacy; and
(g) any other purpose for which the Executive is given notice and which is
reasonably related to the maintenance of the Executive's employment
relationship.
6.3 NO PRIOR AGREEMENTS. There are no statements or representations, oral
or otherwise, express or implied, with respect to the employment opportunity
offered to the Executive that form part of this agreement, other than those that
are set forth expressly in this agreement. This agreement supersedes any prior
representations, statements or agreements with respect to the subject-matter
hereof and the employment opportunity offered to the Executive. The parties
agree that any such prior representations, statements or agreements, if made,
were not material to the execution of this agreement, or to the decision of
either party to enter into this agreement.
6.4 DISCLOSURE. During the employment period, the Executive shall promptly
disclose to the Chairman full information concerning any interest, direct or
indirect, of the Executive (as owner, stockholder, partner, lender or other
investor, director, officer, employee, consultant or otherwise) or any member of
his family in any business that is reasonably known to the Executive to purchase
or otherwise obtain services or products from, or to sell or otherwise provide
services or products to the Corporation or to any of its suppliers or customers.
6.5 RETURN OF MATERIALS. All files, forms, brochures, books, materials,
written correspondence, memoranda, documents, manuals, computer disks, software
products and lists (including lists of customers, suppliers, products and
prices) pertaining to the business of the Corporation or any of its subsidiaries
or Affiliates that may come into the possession or control of the Executive
shall at all times remain the property of the Corporation or such subsidiary or
Affiliate, as the case may be. On termination of the Executive's employment for
any reason, the Executive shall deliver promptly to the Corporation all such
property of the Corporation that is in the possession of the Executive or is
directly or indirectly under the control of the Executive. The Executive shall
not make reproductions or copies of any such property or other property of the
Corporation for his personal use or that of any other party.
6.6 LEGAL EXPENSES. The Corporation shall pay, without requiring the
Executive first to pay such fees and expenses, all legal fees and expenses that
the Executive, the Executive's legal representatives or the Executive's family
may reasonably incur or face arising out of or in connection with this agreement
(but this agreement only), including any litigation concerning the validity or
enforceability of, or liability under, any provision of this agreement or any
action by the Executive, the Executive's legal representatives or the
Executive's family to enforce his or their rights under this agreement (but this
agreement only), regardless of the outcome of such litigation, and the
Corporation agrees to pay interest, compounded quarterly, on the total unpaid
amount payable under this agreement, such interest to be calculated at a rate
equal to TWO PERCENT (2%) in excess of the prime commercial annual lending rate
for Canadian dollar demand loans announced from time to time by THE ROYAL BANK
OF CANADA during the period of such nonpayment.
6.7 NO ASSIGNMENT. This agreement is not assignable by either party without
the consent in writing of the other party, which consent may be unreasonably
withheld; provided that, the Corporation may assign this agreement without the
Executive's consent to an Affiliate of the Corporation if the Affiliate offers
comparable employment and no material prejudice to the Executive, including
diminution of responsibilities, results from such assignment.
6.8 SUCCESSORS. This agreement shall be binding on and inure to the benefit
of the successors and assigns of the Corporation and the heirs, executors,
personal legal representatives and permitted assigns of the Executive. Without
limiting the generality of the foregoing, the Corporation shall require 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, to expressly assume and agree to perform the obligations under this
agreement in the same manner and to the same extent that the Corporation would
be required to perform if no such succession had taken place.
6.9 AMENDMENT. This agreement may be amended only by an instrument in
writing signed by both parties.
6.10 WAIVER. No amendments to this agreement shall be valid or binding
unless set forth in writing and duly executed by both of the parties hereto. No
waiver of any breach of any term or provision of this agreement shall be
effective or binding unless made in writing and signed by the party purporting
to give the same and, unless otherwise provided in the written waiver, shall be
limited to the specific breach waived.
6.11 LEGAL ADVICE. The Executive hereby represents and warrants to the
Corporation and acknowledges and agrees that:
(a) he has read and understands this agreement;
(b) he had the opportunity to seek and was not prevented nor discouraged by
the Corporation from seeking independent legal advice prior to the execution and
delivery of this agreement, and that in the event that he did not avail himself
of that opportunity prior to signing this agreement, he did so voluntarily
without any undue pressure; and
(c) the failure by the Executive to obtain independent legal advice shall
not be used by him as a defense to the enforcement of his obligations under this
agreement.
IN WITNESS WHEREOF the parties hereto have executed this agreement as of the
date first above written.
AMERICAN MINING CORPORATION
By:/s/ Thomas Mills
Thomas Mills
President
/s/ Gary MacDonald
GARY MACDONAL
