Attached files
Exhibit 10.23
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”) between GEOVIC MINING CORP. (“Company”) and Timothy D. Arnold (“Executive”) is effective on 01 February, 2011 and remains in effect through the Term of this Agreement (as hereinafter defined). The Company and the Executive are in some places herein referred to individually as a Party and collectively as the Parties.
WHEREAS:
| A. | The Company is a publicly-listed mining company incorporated in Delaware and headquartered in Colorado, whose shares are publicly traded on the Toronto Stock Exchange (TSX) and the Over the Counter Bulletin Board (OTCBB); |
| B. | The Company through various subsidiary entities is involved in all aspects of the international mining industry and, in particular, is assisting its wholly-owned subsidiary, Geovic, Ltd., a private corporation incorporated in the Cayman Islands and its majority-owned subsidiary, Geovic Cameroon PLC (“GeoCam”), a private corporation incorporated in Cameroon to develop a cobalt-nickel-manganese mining project (“Project”) in the Republic of Cameroon; |
| C. | In addition, the Company, through its wholly-owned subsidiaries Geovic Energy Corp. and Geovic Mineral Sands Corp., engages in exploration and development activities in the United States, New Caledonia and elsewhere; |
| D. | The Company has no full time employees, as all its officers are employees of Geovic, Ltd. which also is the employer of all other persons involved in the Company’s business; |
| E. | The Executive is a highly qualified mining engineer with extensive experience in projects, operations, engineering and regulatory support. His efforts have included mine development plans, mine and plant construction, mine operations, project permitting, and extensive interaction with local stakeholders during the project, construction, and operations phases of mining. He has developed considerable management and leadership capabilities as the most senior on-site manager of two operating mines and two major permitting and construction projects; and |
| F. | The Company desires to employ the Executive as an executive officer of the Company and of Geovic Ltd. and as a full-time employee of Geovic Ltd. and Executive desires to be employed in such capacities, all pursuant to the terms and conditions set forth in this Agreement; |
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NOW THEREFORE, IT IS HEREBY AGREED as follows:
| 1. | Appointment, Duties and Term of Employment. |
| 1.1 | Job Description. Geovic, Ltd., the Company’s 100%-owned operating subsidiary, agrees to employ the Executive as Executive Vice President and Chief Operating Officer (COO) of Geovic, Ltd. based in the Company’s Denver head office. Executive is expected to perform his duties and provide the services (“Services”) to the Company and Geovic Ltd. as more specifically outlined in Schedule I. |
| 1.2 | Appointment as Officer. At or prior to approval of this Agreement by the Board of Directors of the Company (“Board”), the Executive shall be appointed as Executive Vice President and Chief Operating Officer (COO) of the Company and Geovic Ltd. and shall become a full-time employee of Geovic Ltd. In addition, Executive shall perform all such other duties for the Company and its subsidiaries and affiliates as may from time to time be authorized or directed by the Chief Executive Officer (CEO) or the Board. |
| 1.3 | Term. The Executive shall be engaged by the Company in all such capacities for an employment term (“Term”) beginning 01 February 2011 and initially ending 31 December 2012 subject to all the covenants and conditions hereinafter set forth except that, beginning 01 January 2012, the Term of this Agreement shall be deemed automatically renewed for rolling two-year periods, whereby the Term of this Agreement is twenty four (24) months on a continuing basis. |
| 1.4 | The Executive shall report primarily to the Chief Executive Officer (“CEO” or “Contact Person”) on Company matters and to the Board on certain special matters. The Executive shall keep the CEO and the Board well informed regarding the Company’s development and operating activities and other Company matters and shall promptly respond to any reasonable requests by the CEO and the Board in this regard. Additionally, Executive may periodically report to and advise other officers of the Company on special matters. From time to time, Executive may also provide Services and assist the Company and Geovic Ltd. in reaching well-reasoned decisions and implementing those decisions regarding GeoCam and the Project. |
| 1.5 | The Executive shall not be engaged directly or indirectly in any other business activity or contract to perform such activity at a future date which would prevent the performance of the obligations hereunder; provided that it is acknowledged and agreed that the Executive may be called upon to participate in or lead resource industry related activities with professional groups or societies in which he is involved. Such activities may include |
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| periodic participation on committees and assignments for the Society for Mining, Metallurgy and Exploration, Inc., including serving as its president if so elected. Activities may also include serving on a volunteer basis for a state mining association, the SME Foundation, and an Advisory Board for a mining school or college. Any such activities shall be performed by Executive only in a manner and time which assures that Executive is able to timely and fully perform all duties and obligations to the Company under this Agreement. |
| 1.6 | The Executive shall not conduct any unethical or illegal activities on behalf of the Company and agrees to comply with the Company’s Code of Business Conduct and Ethics. |
| 1.7 | The Executive shall be an officer of the Company and a full-time employee of Geovic Ltd. with the authority, autonomy and responsibility customary for an Executive Vice President and Chief Operating Officer. The Executive shall provide his Services exclusively to the Company and its subsidiaries, except as provided in Section 1.5 above and except that he may perform as an Outside Director on the Boards or member of the advisory boards of no more than two other companies. Such outside directorships or advisory board memberships shall conform to Company’s priorities and place no unnecessary burden upon the Company or the Executive. During the Term of this Agreement, the Executive also agrees to serve, if elected, as an officer and/or director of any subsidiary or affiliate of the Company. |
| 2. | Consideration and expenses. |
| 2.1 | During the Term of this Agreement, in consideration of the Executive’s Services hereunder, including, without limitation, service as an officer or director of any subsidiary or affiliate thereof and as a full-time employee of Geovic Ltd., the Company shall pay the Executive according to the attached Schedule II payable monthly in arrears on the last working day of each month or more frequently in accordance with the Company’s pay practices. All payments of consideration and expenses shall be made by direct deposit to an account in the name of Executive at a financial institution selected by Executive and located in the United States. All currency herein is expressed in US dollars. |
| 2.2 | The Company or Geovic Ltd. shall pay or reimburse to the Executive for: |
| 2.2.1 | All costs reasonably and properly expended by his on behalf of the Company for performance of Services, if proper documentation of such expenses is received by the Company in accordance with the Company’s normal expense reimbursement procedures; |
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| 2.2.2 | During the Term of this Agreement, the Executive shall be entitled to participate in employee benefit plans or programs, if any, to the extent that Executive is eligible to participate in such plans or programs; |
| 2.2.3 | During the Term of this Agreement, Executive shall be entitled to participate in the Company’s Employee Stock Option Plan and the Company’s Annual bonus program for Executives, subject to recommendations of the Compensation Committee and approval by the Company’s Board; |
| 2.2.4 | The Executive shall be entitled to full family coverage under the Company’s medical insurance plan available to other Company executives or the Company will reimburse the Executive’s own medical insurance expense in an amount not to exceed $1000/month; |
| 2.2.5 | Expenses for Executive’s personal vehicle use shall be at a rate of the prevailing IRS mileage rate, but shall exclude the mileage associated with daily commuting; |
| 2.2.6 | Executive shall have an allowance of up to $1,000 per year for expenses to maintain Executive’s professional licenses and memberships in technical societies; |
| 2.2.7 | Executive shall receive a one-time allowance not to exceed $3,500, on a cost-reimbursible basis, for temporary accommodation and meals between the time of employment termination in Eureka, Nevada and establishing a new residence in Denver, Colorado; |
| 2.2.8 | Executive shall be provided with parking at the Denver head office; |
| 2.2.9 | Executive shall be reimbursed for costs reasonably and properly expended by him when representing the Company at relevant technical society and educational functions, including the SME Annual Meetings and Mid-Year meetings (each annually), and the 2011 Extemin Convention in Arequipa, Peru, September 11-16, 2011; providing that proper documentation of such expenses is received by the Company in accordance with the Company’s normal expense reimbursement procedures. |
| 2.2.10 | Such payments or reimbursements shall be made within 7 days of a request for reimbursement by the Executive together with provision by the Executive of such additional evidence and information as the Company or Geovic Ltd. shall reasonably require. |
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| 2.3 | The Executive shall be entitled to take four (4) calendar weeks of paid vacation annually during the Term of this Agreement, subject to the dates being previously agreed by the CEO. Executive shall not be entitled to additional compensation if he fails to use this vacation provided that up to two (2) weeks of annual vacation may be carried over to a succeeding year. The Executive shall also be entitled to take paid holidays in accordance with standard Company or Geovic Ltd. policy. |
| 2.4 | Executive shall accrue one (1) day of sick leave time per pay period, up to a maximum of 20 days, to be used only in connection with illness or medical conditions which interfere with providing Services. |
| 3. | Termination. |
| 3.1 | Either Party may terminate this Agreement and Executive’s employment with the Company by providing written notice to the other Party at least forty-five (45) days prior to the termination date. |
| 3.2 | The Company may by notice in writing immediately terminate this Agreement and Executive’s employment with Geovic Ltd. without obligation to the Executive by providing written notice to the Executive at any time upon the occurrence of any one or more of the following events: |
| 3.2.1 | Executive’s breach of any material obligation owed the Company or Geovic Ltd. in this Agreement; |
| 3.2.2 | Executive’s gross neglect of duties to be performed under this Agreement; |
| 3.2.3 | Executive’s intentional failure or refusal to follow the reasonable and lawful directions given by the CEO or the Board; |
| 3.2.4 | Executive’s dishonest conduct or conduct that has damaged or will likely damage the reputation of the Company, or conduct which is clearly contrary to the Company’s Code of Business Conduct and Ethics; |
| 3.2.5 | Executive being convicted of a felony; |
| 3.2.6 | Executive engaging in any act of moral turpitude that has damaged or will likely damage the reputation of the Company; |
| 3.2.7 | The death of Executive; or |
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| 3.2.8 | Executive becoming permanently disabled for a period of six (6) consecutive months that would prevent Executive from performing the duties of his employment. |
| 3.3 | Anything contained in Section 3.2 to the contrary notwithstanding, the Company shall not terminate this Agreement and Executive’s employment with the Company pursuant to Section 3.2(1), (2) or (3) unless the Company shall have first given the Executive twenty-one (21) days’ prior written notice of such termination, which sets forth the grounds of such termination, and the Executive shall have failed to cure such grounds for termination within the twenty-one (21) day period. |
| 3.4 | Upon your disability under Section 3.2.8, you would be entitled to receive an amount or amounts received by the Company under disability insurance on you held by the Company (totaling $230,000.00 face amount) in lieu of any other payment or right to payment from any source. If your salary increases in future years, it is not expected that the amount of disability insurance will increase. |
| 3.5 | Executive may terminate this Agreement and Executive’s employment by the Company by providing written notice to the Company at any time upon the occurrence of any one or more of the following events: |
| 3.5.1 | The Company’s or Geovic Ltd.’s breach of any material obligation owed the Executive in this Agreement; |
| 3.5.2 | The Company or Geovic Ltd. requiring Executive to perform illegal activities; |
| 3.5.3 | Bankruptcy of the Company; |
| 3.4.4 | Inability of Executive to substantially perform his essential duties under this Agreement because of a disability. |
| 3.4.5 | In the event of merger, consolidation, divestiture, takeover, significant sale, change in control or any similar business circumstance with Company or its subsidiaries which result within 12 months of the change in control in either (i) a termination or threatened termination of Executive’s employment or a reduction in compensation to be paid to Executive, or (ii) a significant change in the duties of Executive reasonably deemed unacceptable by Executive. |
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The term “change in control” shall mean either: (1) any one Person (or group of affiliated persons) holds a sufficient number of Voting Shares of the Company or Resulting Issuer to affect materially the control of the Company or Resulting Issuer, or (2) any combination of Persons, acting in concert by virtue of an agreement, arrangement, commitment or understanding, hold in total a sufficient number of the Voting Shares of the Company or Resulting Issuer to affect materially the control of the Company or Resulting Issuer, where such Person or combination of Persons did not previously hold a sufficient number of Voting Shares to affect materially the control of the Company or Resulting Issuer. In the absence of evidence to the contrary, any Person or combination of Persons acting in concert by virtue of an agreement, arrangement, commitment or understanding, holding more than 20% of the Voting Shares of the Company is deemed to materially affect the control of the Company or Resulting Issuer. Capitalized terms in this change in control paragraph have the same meaning as used in the TSX Corporate Finance Manual. “Change in control” shall include any event described in (1) or (2) of this paragraph, whether or not such event occurs in conjunction with bankruptcy proceedings involving either the Company or Geovic Ltd.
| 3.5 | Anything contained in Section 3.4 to the contrary notwithstanding, the Executive shall not terminate this Agreement and Executive’s employment with the Company pursuant to Section 3.4(1) or (2) unless the Executive shall have first given the Company twenty-one (21) days’ prior written notice of such termination, which sets forth the grounds of such termination, and the Company shall have failed to cure such grounds for termination within the twenty-one (21) day period. |
| 4. | Severance. |
| 4.1 | Within ninety (90) days of this Agreement and Executive’s employment being terminated by the Company or Geovic Ltd. pursuant to Section 3.1 or Section 3.2.8 or by the Executive pursuant to Section 3.4.1, 3.4.2, 3.4.4 or 3.4.5, the Company or Geovic Ltd. shall pay Executive a lump sum severance of two (2) years of the minimum base salary pursuant to Schedule II, section 1, plus any earned bonus approved by the Board of Directors accrued to the time of such voluntary or involuntary termination. In addition, the Executive shall immediately become one hundred percent (100%) vested with respect to any options to purchase the Company’s capital stock that he then holds and/or any restrictions with respect to restricted shares of the Company’s capital stock that he then holds shall immediately lapse, subject to any applicable rules or restrictions imposed by any stock exchange or securities regulatory authority, subject to applicable terms of the Company’s then effective Stock Option Plan. |
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| 4.2 | Within ninety (90) days of this Agreement and Executive’s employment with the Company or Geovic Ltd. being terminated by the Company or Geovic Ltd. pursuant to Section 3.2.7 (Death of Executive during the Term), Executive’s trustee named in Executive’s last will and testament, if any, and if none, then Executive’s estate, shall immediately become one hundred percent (100%) vested with respect to any options to purchase the Company’s capital stock that the Executive held at the time of his death and/or any restrictions with respect to restricted shares of the Company’s capital stock the Executive held at the time of his death shall immediately lapse, subject to any applicable rules or restrictions imposed by any stock exchange or securities regulatory authority or pooling restrictions entered into by the Company. In addition, Executive or Executive’s estate shall be eligible to participate in any death and/or disability insurance program the Company shall establish on behalf of its senior executives. |
| 4.3 | Upon any severance for death under Section 4.1, your survivors or your estate will be entitled only to receive an amount or amounts received by the Company under life insurance on your life held by the Company (totaling 460,000.00), and not an amount equal to two years’ base salary in effect at the date of death plus bonus for that year. If your salary increases in future years, it is not expected that the amount of life insurance will increase. |
These Sections 4.1 and 4.2 and other Sections of this Agreement shall comply with all laws, rules and regulations of securities commissions and stock exchanges to which the Company may be subject, or with which it must comply. Otherwise the Executive and the Company agree to reasonably modify this Agreement in a manner that meets such requirements.
| 5. | Confidentiality. |
| 5.1 | In this Agreement, all information and data (“Information”) includes oral or written, computer file or other permanent form relating to the Company, Geovic Ltd., GeoCam and any other subsidiaries and affiliates of the Company (together the “Group”) and their businesses and assets or any part thereof disclosed or provided to the Executive and all documents, computer files or other records prepared by the Executive which contain or are based on any such information or data, together with all confidential information and data concerning the business of the Group, and information to the Group that is furnished by a third party and deemed confidential and that was furnished by the third party after assurance of confidential treatment. |
| 5.2 | The Executive shall keep all Information strictly confidential and shall not disclose the Information, in whole or in part, to any person other than directors or employees of the Group and outside personnel that need to know such Information for their performance of services on behalf of the Company. |
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| 5.3 | The Executive shall not use the Information for any purpose whatsoever other than for the purpose of providing the Services herein, and as may be required or beneficial in the performance of the Services herein. |
| 5.4 | The provisions of Clauses 5.2 and 5.3 shall not apply to Information: |
| 5.4.1 | which at the time of disclosure is available to the public generally; |
| 5.4.2 | which after disclosure becomes available to the public generally, other than by reason of a breach by the Executive of his obligations under this Agreement; or |
| 5.4.3 | subject to any disclosure if such disclosure is the requirement of a court of competent jurisdiction. |
| 5.5 | The obligations in Clauses 5.2 and 5.3 shall remain in effect for three (3) years after termination of this Agreement, and for such longer term as may reasonably be required to maintain the confidentiality of Information material to the Group’s business. |
| 6. | Company property. |
| 6.1 | The products and results of the Services shall be the exclusive property of the Company. |
| 6.2 | On the expiration or termination of the Term of this Agreement (for whatever reason and howsoever caused) the Executive shall promptly deliver to the Company all copies of all Information in the possession or under the control of Executive and all other property belonging to the Company which may be in possession or under his control. |
| 7. | Taxes. |
Federal and state taxes will be withheld by the company from Executive’s monthly salary and, if required by law, from other payments made to Executive, and Executive shall be eligible for workers compensation and unemployment insurance benefits to the extent provided by law. For all purposes under this Agreement, Executive is a resident of the State of Colorado.
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| 8. | Evacuation. |
The Company and Geovic Ltd. shall make all available efforts to ensure the release, evacuation and/or medical care of the Executive and/or members of his family if the Executive and/or members of his family are kidnapped, held hostage, require emergency medical evacuation or are caught up in any kind of civil unrest or violence during Executive’s performance of Services to the Company or Geovic Ltd.
| 9. | Notices. |
| 9.1 | Any notice to be given under this Agreement must be in writing and must be delivered to the addressee in person or left at the address of the addressee or sent by facsimile to the facsimile number of the addressee which in each case is specified in this clause, and marked for the attention of the person so specified, or to such other address or facsimile number and/or marked for the attention of such other person as the relevant Party may from time to time specify by notice given in accordance with this clause. |
The details of each party at the date of this Agreement are:
| To the Company: | Geovic Mining Corp. | |||
| 1200 17th St., Suite 980 | ||||
| Denver, CO 80202 USA | ||||
| Facsimile: 303 476 6456 | ||||
| Attention: The Secretary | ||||
| To the Executive: | Timothy D. Arnold | |||
| HC 62, Box 62626 | ||||
| Eureka, NV 89316 | ||||
| 9.2 | A notice shall take effect from the time it is deemed to be received as follows: |
| 9.2.1 | in case of a notice delivered to the addressee in person, upon delivery; |
| 9.2.2 | in the case of a notice left at the address of the addressee, upon delivery at that address; |
| 9.2.3 | in the case of facsimile, on production of a transmission report from the machine from which the facsimile was sent which indicates the facsimile number of the recipient. |
| 10. | Governing law and venue. |
This Agreement shall be governed by and interpreted in accordance with the laws of Colorado, United States, and venue for any action relating to or arising out of this Agreement shall only be proper in the City and County of Denver, Colorado, USA.
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| 11. | No waiver. |
The failure of any Party to insist upon the strict performance of any of the terms, conditions or provisions of this Agreement shall not be construed as a waiver of relinquishment of future compliance therewith, and said terms, conditions and provisions shall remain in full force and effect.
| 12. | Rights, obligations and assignment. |
The rights and obligations of the Company and Geovic Ltd. under this Agreement shall inure to the benefit of, and shall be binding upon, their respective successors and assigns.
| 13. | Severability |
If any of the provisions of this Agreement shall for any reason be adjudged by any court of competent jurisdiction to be invalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder of this Agreement, but shall be confined to such invalid or unenforceable provision.
| 14. | Captions. |
The captions inserted in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of this Agreement, or any provision hereof, nor in any way affect the interpretation of this Agreement.
| 15. | Entire Agreement |
This Agreement and the schedules hereto embody the entire understanding between the Parties hereto pertaining to the subject matter hereto and supersede all prior agreements and understandings of the Parties in connection therewith.
IN WITNESS whereof the Parties hereto have executed the Agreement this 30th day of November 2010, effective as of 01 February 2011.
| Signed | /s/ JOHN E. SHERBORNE | |
| John E. Sherborne, for and on behalf of | ||
| GEOVIC MINING CORP. | ||
| Signed | /s/ JOHN E. SHERBORNE | |
| John E. Sherborne, for and on behalf of | ||
| GEOVIC LTD. | ||
| Signed | /s/ TIMOTHY D. ARNOLD | |
| Timothy D. Arnold | ||
| Executive | ||
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SCHEDULE I
THE SERVICES
Services to be provided by the Executive include:
| 1. | In accordance with the directives of the Chief Executive Officer or the Board, Executive shall have such duties, responsibilities and authority as are customarily required of and given to the Chief Operating Officer to develop and guide the operational objectives of the Company and Geovic, Ltd., and the Company’s other subsidiaries and affiliates and assume overall operations-related authorities and responsibilities, including but not limited to: establishment of operational priorities; engaging, hiring, managing and directing operations and development employees, consultants and contractors; advancing Company finance development; and overseeing and assuring that the performance of all such activities are conducted under global corporate governance standards and all laws of appropriate jurisdiction. |
| 2. | Lead and manage all development, construction and operational aspects of the Cameroon Project within the context of directives, approvals and authorities granted by the GeoCam Board of Directors including: directing the completion of the independent final feasibility study on time and within budget; sourcing and direction of the completion of final engineering and design for mine, plant and infrastructure facilities; lead the team that will negotiate the purchase of Project equipment, material, services and supplies; lead the placement of the Project into sustained, profitable production; and oversee Project operations. |
| 3. | Actively participate in arranging, negotiating and closing debt and public or private equity financings. |
| 4. | Actively participate in the review of documents and reports required to be filed by the Company with any Securities Exchange or securities regulatory authority, including the U.S. Securities and Exchange Commission. |
| 5. | Participate in public and investor relations activities and advocate and promote the attributes and value of the Company and its subsidiaries and affiliates to public, financial and technical communities. Present information or respond to government authorities and other parties on an as-needed basis. |
| 6. | Provide all services listed above on an as-needed basis to the Company’s subsidiaries and affiliates. |
| 7. | Participate frequently and make presentations at Board meetings and provide any other executive, management, administrative, financial and business service which are believed by the CEO or the Board to be in the best interest of the Company, its subsidiaries, business interests and shareholders. |
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SCHEDULE II
COMPENSATION
Compensation for Services to be provided by the Executive include:
| 1. | In accordance with section 2.1 of this Agreement, the Executive shall be paid a salary of $230,000 per year effective 01 February 2011. The Executive’s performance and compensation package shall be reviewed annually by the CEO and the Compensation Committee of the Board. |
| 2. | Executive shall receive, upon approval by the Compensation Committee of the Board and the Board itself, an initial grant of options to purchase up to 300,000 Option Shares in accordance with the Company’s Amended and Restated Stock Option Plan, 40% percent of which will be vested upon grant and 30% to vest on the first and second anniversaries of the effective date of this Agreement. Executive shall receive subsequent annual grants of Option Shares in accordance with option compensation arrangements established by the Compensation Committee and the Board of the Company during the Term of this Agreement to be completed in compliance with regulations of the appropriate regulatory authorities. The options shall have such terms as are determined by the Board in accordance with the Second Amended and Restated Stock Option Plan. In the event that options held by Executive become vested in full for any of the reasons described in Section 4.1, all options then held by Executive shall be deemed automatically at that time to be non-qualified options and not Incentive Stock Options under the Amended and Restated Stock Option Plan and may be exercised at any time during the original term of the option. |
| 3. | Executive shall be eligible to receive a significant annual cash incentive bonus up to 30% of annual compensation pursuant to an appraisal of Executive’s performance as outstanding by the CEO and the Compensation Committee. If the Board puts into place a restricted stock or deferred share plan, the Executive shall have the option to receive any such bonus awarded as deferred compensation. |
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